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Apuzzo writ somethin

Apologies for the title. An appeal has been filed with the Supreme Court in the case of Kerchner v. Obama. Well he would, wouldn’t he? I must compliment Mr. Apuzzo on the typography.

A brief read of the document suggests that it is intended more for the popular audience than for the Supreme Court. (The particularly telling section was: “the nation needs a definition of ‘natural born citizen'”.)

The text appears following:

Petition for Writ of Certiorari filed with the U.S. Supreme Court for Kerchner v Obama & Congress by puzo1

219 Responses to Apuzzo writ somethin

  1. avatar
    FUTTHESHUCKUP October 5, 2010 at 9:15 pm #

    Apuzzo just put lipstick on his pig. Still making the same two claims as all previous suits:

    1. Obama must give us the documents we want to satisfy our curiosity.

    2. Swiss philosophy is the authority for defining “natural born citizen.”

  2. avatar
    Gregory October 5, 2010 at 10:08 pm #

    And the third claim:

    3. British law trumps American law – and therefore it is the British Parliament that effectively determines who is eligible to be U.S. President and who is not.

  3. avatar
    Bovril October 5, 2010 at 11:00 pm #

    Mario asks four questions, only the first of which the SC and actually answer.

    PLEEEEEEEZE CAN I HAZ STANDING

    2, 3 + 4 are political questions ans solely and only within the remit of Congress and boil down to “Get the horrid black man out of the White House”

  4. avatar
    Dave October 5, 2010 at 11:23 pm #

    For comparison, here is a random cert petition that got cert. Here are the questions from that petition:

    Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retrospectively the term of existing copyrights?

    Is a law that extends the term of existing and future copy-rights “categorically immune from challenge[] under the First Amendment”?

    May a circuit court consider arguments raised by amici, different from arguments raised by a party, on a claim properly raised by a party?

    Note that they are all questions of law. None of them even mention any fact from the case.

    In contrast, every one of Kerchner’s questions raises factual issues, mostly unnecessarily.

  5. avatar
    Obsolete October 6, 2010 at 12:36 am #

    A birther and the facts are soon parted…

  6. avatar
    gorefan October 6, 2010 at 12:45 am #

    Has anyone been following this case?

    http://www.scotusblog.com/wp-content/uploads/2010/03/09-5801_pet.pdf

    Cert was granted.

    QUESTION PRESENTED:
    WHETHER THE COURT’S DECISION IN NGUYEN V. INS, 533 U.S. 53 (2001), PERMITS
    GENDER DISCRIMINATION THAT HAS NO BIOLOGICAL BASIS?

    From the petition for writ,

    “The discrimination arose from the facts that an unwed father
    could pass United States citizenship to his child only if he resided in the United States
    for at least five years after his 14th birthday while an unwed mother needed to show
    only a continuous period of one year prior to the birth of the child.”

    No mention of Vattel. “The country of the fathers is therefore that of the children”.

  7. avatar
    Lupin October 6, 2010 at 2:47 am #

    Fore the record and the hundredth time, Mario is categorically wrong in his interpretation of Vattel.

  8. avatar
    brygenon October 6, 2010 at 4:47 am #

    Lupin: Fore the record and the hundredth time, Mario is categorically wrong in his interpretation of Vattel.

    Of course Apuzzo is wrong on that, but his bigger problem is that it’s irrelevant to a petition for cert. The Constitution gives the U.S. Supreme Court appellate jurisdiction and not original jurisdiction on this case. The lower courts disposed of Apuzzo’s suit without ruling on his interpretation of Vattel, nor on the facts of Obama’s birth. There is nothing for the High Court to review on those issues.

    Dr. C. is right about the petition: “It is intended more for the popular audience than for the Supreme Court.” It opens with ‘Questions Presented’, as the Court’s rules require. Only the first of Apuzzo’s four questions is ready for review: the question of standing. Most of the petition is dedicated to trying to talk the Supreme Court into usurping original jurisdiction on matters the lower courts did not reach. Even a hack like Apuzzo has to know that the Supreme Court doesn’t go for that. It plays in Apuzzo’s own little echo chamber, where he controls what comments appear and his know-nothing fans constantly praise the brilliance of his losing arguments.

    One more thing: I looked up the five previous petitions for writ of certiorari in birther cases and did a bit of calculation. All were denied, of course, and the average time from docketing the petition to docketing the denial was 99.6 days. The median (and mode) was 83 days. The docket dates the Kerchner petition as Sep 30 2010, so we still have a while before the birthers’ fantasies are once again dashed.

  9. avatar
    Paul Pieniezny October 6, 2010 at 5:02 am #

    I contend that French “parens” in the first sentence does not mean the same as English “parents”, but means “relatives”. Faux amis. And the venerable Oxford English Dictionary gives examples of the use of English “parents” in the meaning “relatives” even in 18th century (so, the first translations do not necessarily constitute mistaken translations).

    Textology. Look at the rest of the paragraph, which only mentions “peres”. It is obvious that the first sentence in that paragraph serves to elucidate a general principle of Volkerrecht according to Emmerich de Vattel: that little children should belong to the nation of the “parens” who raise them in life.

    So there you have it, birfers, try to counter that in a court of law.

    Oh, and Vattel was not Swiss, he was as Prussian as David Dwight Eisenhower – when he was born.

  10. avatar
    Lupin October 6, 2010 at 5:17 am #

    The only way anyone can argue that Vattel required “two parents” is by ignoring the obvious group plural and the next sentence in which Vattel goes on to specify that he means the father, so the “two parents” “interpretation” is plainly erroneous and absurd.

    I was interested to see that in the subsequent (second) edition, some further thought was given to the notion, ie: what of children with no acknowledged father? since a footnote was added which made it clear that in such a case, it is the mother’s citizenship that is transmitted.

    Of all the birthers’ absurdities, I find that one most irritating, because of its preposterousness.

  11. avatar
    SvenMagnussen October 6, 2010 at 6:38 am #

    gorefan: Has anyone been following this case?http://www.scotusblog.com/wp-content/uploads/2010/03/09-5801_pet.pdfCert was granted.QUESTION PRESENTED:
    WHETHER THE COURT’S DECISION IN NGUYEN V. INS, 533 U.S. 53 (2001), PERMITS
    GENDER DISCRIMINATION THAT HAS NO BIOLOGICAL BASIS?From the petition for writ,“The discrimination arose from the facts that an unwed father
    could pass United States citizenship to his child only if he resided in the United States
    for at least five years after his 14th birthday while an unwed mother needed to show
    only a continuous period of one year prior to the birth of the child.”No mention of Vattel. “The country of the fathers is therefore that of the children”.

    Speaking of tangential irrelevancy, why is the guy’s mother an issue?

    He wants to be declared a US citizen after being foreign born because his father was a US Citizen at the time of his birth. Yet, he was denied US Citizenship because his father had not been a citizen for at least 5 years after his 14th birthday when the petitioner was born.

    If his mother was his father, then it would have been different because different regulations are applied for a US Citizen mother of a foreign born child.

    And I know many of you Obots equate citizenship at birth with Natural born citizenship, so you have situation here where a foreign born child’s US Citizenship is entirely dependent upon whether the mother has US Citizenship or the father has US Citizenship. Conceivably, Congress could amend the Constitution by changing the definition of who is a Natural born citizen (US citizen at birth) without actually amending the Constitution.

  12. avatar
    Keith October 6, 2010 at 7:33 am #

    SvenMagnussen: … He wants to be declared a US citizen after being foreign born because his father was a US Citizen at the time of his birth. Yet, he was denied US Citizenship because his father had not been a citizen for at least 5 years after his 14th birthday when the petitioner was born.

    If his mother was his father, then it would have been different because different regulations are applied for a US Citizen mother of a foreign born child.

    As I understand it the issue is exactly that there are different residency rules for the foreign born child’s citizenship according to whether the father or mother is the U.S. Citizen. He is arguing discrimination because of his citizen parent’s gender. I don’t see a question about ‘Natural Born Citizenship’ here. Maybe I’m missing something; please enlighten me if so.

    And I know many of you Obots equate citizenship at birth with Natural born citizenship,…

    Not every ‘Citizen at birth’ is a ‘Natural born citizen’ anymore than birth in Oregon means you were born in Portland. However, just as everyone born in Portland, Oregon was born in the State of Oregon, every Natural Born Citizen is a citizen at birth. Natural Born Citizen means born on American soil under American jurisdiction. Parental status has nothing to do with Natural Born Citizen (unless they are diplomats or part of an invading army).

    In my opinion Flores-Villar is making a valid point about the discrimination, however, the Constitution gives Congress the right to make rules for naturalization and it remains to be seen how the SCOTUS decides.

    While I believe he should be considered a citizen at birth, I don’t believe he is a ‘Natural Born Citizen’ and we shouldn’t really worry about him running for President turning the US into a banana republic.

  13. avatar
    AnotherBird October 6, 2010 at 8:02 am #

    There are always problems with translations. However, it is hard to see how an 18 century Swiss philosopher has any impact on the interpretation of American law.

  14. avatar
    AnotherBird October 6, 2010 at 8:04 am #

    SvenMagnussen: Conceivably, Congress could amend the Constitution by changing the definition of who is a Natural born citizen (US citizen at birth) without actually amending the Constitution.

    Please read it one more time.

  15. avatar
    Dr. Conspiracy October 6, 2010 at 8:08 am #

    SvenMagnussen: And I know many of you Obots equate citizenship at birth with Natural born citizenship, so you have situation here where a foreign born child’s US Citizenship is entirely dependent upon whether the mother has US Citizenship or the father has US Citizenship. Conceivably, Congress could amend the Constitution by changing the definition of who is a Natural born citizen (US citizen at birth) without actually amending the Constitution.

    But surely you will agree that the Congress has the power to legislate who may or may not be a naturalized citizen. The qualifications for member of the House of Representatives in the Constitution are:

    No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

    That is, the Congress can change the qualifications for Representative (who is a citizen) without amending the Constitution. So I think that, by analogy, your argument fails, as does the contention that the persons who fall under certain classes described in the Constitution cannot be changed without amendment.

  16. avatar
    SvenMagnussen October 6, 2010 at 8:50 am #

    Keith:
    Natural Born Citizen means born on American soil under American jurisdiction. Parental status has nothing to do with Natural Born Citizen (unless they are diplomats or part of an invading army).

    I just spewed coffee all over my keyboard!

    McCain is not eligible? McCain was foreign born and became a citizen of the US right after his parents filed the appropriate paperwork with US SoS and he obtained a signed and sealed Certificate of Citizenship. Doesn’t his parent’s status (military service requiring deployment out of the country) make him eligible for POTUS?

    I thought Judge Carter implied it would be a travesty if McCain were not eligible for POTUS.

  17. avatar
    David October 6, 2010 at 9:12 am #

    Big news on the Lakin case!

    http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

  18. avatar
    SvenMagnussen October 6, 2010 at 9:16 am #

    Dr. Conspiracy:
    But surely you will agree that the Congress has the power to legislate who may or may not be a naturalized citizen. The qualifications for member of the House of Representatives in the Constitution are:
    That is, the Congress can change the qualifications for Representative (who is a citizen) without amending the Constitution. So I think that, by analogy, your argument fails, as does the contention that the persons who fall under certain classes described in the Constitution cannot be changed without amendment.

    In your example, Congress is redefining who is a Naturalized citizen and not amending the Constitution. The Constitution gives Congress the power to define and modify who is eligible to be a naturalized citizen and who is not.

    Mario Apuzzo wrote, “Congress cannot define a ‘natural born Citizen,’ for under Article I, Section 8, Clause 5 it only has the power to make uniform laws of naturalization which does not include defining an Article II ‘natural born Citizen.'”

    In my example, Congress is redefining Natural born citizenship status by redefining who a citizen at birth is. The Constitution does not give the Congress power to define who a Natural born citizen is and who is not.

  19. avatar
    ballantine October 6, 2010 at 10:06 am #

    SvenMagnussen: In your example, Congress is redefining who is a Naturalized citizen and not amending the Constitution. The Constitution gives Congress the power to define and modify who is eligible to be a naturalized citizen and who is not.Mario Apuzzo wrote, “Congress cannot define a natural born Citizen,’ for under Article I, Section 8, Clause 5 it only has the power to make uniform laws of naturalization which does not include defining an Article II natural born Citizen.’”In my example, Congress is redefining Natural born citizenship status by redefining who a citizen at birth is. The Constitution does not give the Congress power to define who a Natural born citizen is and who is not.

    .

    Actually, we obots say anyone born on US soil is natural born because that is what the Supreme Court has said. We have disagreed on this thread about the natural born status of foreign born children made citizens at birth pursuant to naturalization statutes. The court has never opined on such issue. However, many scholars argue that they are natural born. Some, I think, argue that such persons are natural born even without statute and such statutes are merely declaratory of the common law. This subject was debated in the early 19th century by the likes of James Kent and Horace Binney and has at least one well known state court case to support it. Others argue that there is nothing in the Constitution that says “naturalized” and “natural born” are mutually exclusive. The framers were English lawyers and under English law Parliament had bestowed “natural born” status on foreign born children pursuant to naturalization statute. They were hence both naturalized and natural born children. The term “naturalziation” was taken from English law and at least its early interpretation was limited to its English meaning.

  20. avatar
    David October 6, 2010 at 10:59 am #

    What happen to Post & Email?
    http://thepostemail.com/

  21. avatar
    HORUS October 6, 2010 at 11:03 am #

    David: Big news on the Lakin case!

    http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

    Nothing new, he still has no standing.

  22. avatar
    JoZeppy October 6, 2010 at 11:06 am #

    ballantine: .Actually, we obots say anyone born on US soil is natural born because that is what the Supreme Court has said. We have disagreed on this thread about the natural born status of foreign born children made citizens at birth pursuant to naturalization statutes. The court has never opined on such issue. However, many scholars argue that they are natural born. Some, I think, argue that such persons are natural born even without statute and such statutes are merely declaratory of the common law. This subject was debated in the early 19th century by the likes of James Kent and Horace Binney and has at least one well known state court case to support it. Others argue that there is nothing in the Constitution that says “naturalized” and “natural born” are mutually exclusive. The framers were English lawyers and under English law Parliament had bestowed “natural born” status on foreign born children pursuant to naturalization statute. They were hence both naturalized and natural born children. The term “naturalziation” was taken from English law and at least its early interpretation was limited to its English meaning.

    Actually, the subject continues to be debated, and I believe it was the Michigan’s Law Review that dedicated a whole issue to the question of McCain’s status as a natural born citizen. One of them even had the gem of a quote (and I parapharse), that there is no question that an individual born on US soil, not to diplomats, is a natural born citizen. However, McCain has several issues. He wasn’t born on US soil, and the act making those born in the Canal Zone was passed two years after his bith, making him a citizen retroactively. The two questions that are debated are is a person who relies on an act of congress for his citizenship, “a citizen at birth, and thus NBC” or is he “naturalized at birth.” Also, can a person like McCain be an NBC, since technically, he isn’t even a citizen at birth or naturalized at birth, but rather retroactively made one. And while interesting questions of law, you’ll note the real adults think such technicalities less important, and the will of the people should govern, and that a person who is arguably a NBC, particularly as a result of their parents military service born over seas, should be eligible for the Presidency.

  23. avatar
    SvenMagnussen October 6, 2010 at 11:08 am #

    ballantine:
    .Actually, we obots say anyone born on US soil is natural born because that is what the Supreme Court has said.We have disagreed on this thread about the natural born status of foreign born children made citizens at birth pursuant to naturalization statutes. The court has never opined on such issue. However, many scholars argue that they are natural born.Some, I think, argue that such persons are natural born even without statute and such statutes are merely declaratory of the common law.This subject was debated in the early 19th century by the likes of James Kent and Horace Binney and has at least one well known state court case to support it.Others argue that there is nothing in the Constitution that says “naturalized” and “natural born” are mutually exclusive. The framers were English lawyers and under English law Parliament had bestowed “natural born” status on foreign born children pursuant to naturalization statute. They were hence both naturalized and natural born children. The term “naturalziation” was taken from English law and at least its early interpretation was limited to its English meaning.

    It’s a shame Mario didn’t reference Craig v US, 10th Circuit Court of Appeals, the native born citizen has no right to be classified as a Natural Born citizen.

    Or, Schneider v. Rusk, the rights of citizenship of the native born and naturalized person are of the same dignity and coextensive; except the Constitution states only a Natural born citizen can be eligible for POTUS.

    And as Mario correctly pointed, Congress was only empowered to determine naturalization statutes and not a definition of Natural Born citizen.

  24. avatar
    DCH October 6, 2010 at 11:11 am #

    Prediction:
    This case ends with these three words from the SCOTUS:

    “Denied without comment”

    How is any other outcome even a possibility? This case was destroyed by the lower courts and has zero merit or standing. I love how birrthers over in Freeperville actually think this has traction. LOL

  25. avatar
    Bovril October 6, 2010 at 11:22 am #

    Ahhhhhh, wrong DCH alas….

    In a classic Orly moment what then happens is as the responses does not have an actual notarized signature from ALL of the Justices only a sig from the Clerk of the Court it hasn’t REALLY happened.

    Birfoons will then state with utter certainty that

    a. SCOTUS never actually saw this game changer of a case
    b. The Clerks are all in on it and manipulating the Justices
    c. Obama sent Eric Holder around ( a small, diminutive dusky hued man seen meeting all the Justices in a Starbucks) to threaten them into line.
    d. Everyone is a traitor and where’s my military coup

  26. avatar
    ballantine October 6, 2010 at 11:27 am #

    SvenMagnussen: It’s a shame Mario didn’t reference Craig v US, 10th Circuit Court of Appeals, the native born citizen has no right to be classified as a Natural Born citizen.Or, Schneider v. Rusk, the rights of citizenship of the native born and naturalized person are of the same dignity and coextensive; except the Constitution states only a Natural born citizen can be eligible for POTUS.And as Mario correctly pointed, Congress was only empowered to determine naturalization statutes and not a definition of Natural Born citizen.

    ..

    If he did he would be embarrassing himself even more as such cases make no such distinction. In such context, such court is clearly saying they mean the same thing as there are only two classes of citizens, native and naturalized. There is no third class and no court has ever said there is a distinction between native and natural born. What is sad is that Mario has spent so much time on this because he is unable or unwilling to understand that the Supreme Court unambiguously defined what a natural born citizen was more than a century ago and such ruling has never been questioned by another court. The vattel argument was made and rejected. And such definition was clearly necessary for the disposition of the case and hence is not dictum. If Mario could even understand the law of standing, he will find that any court will just do exactly what Ankeny did in dismissing all arguments in light of the Supreme Court’s clear interpretation in Wong Kim Ark.
    .

    “The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs’ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.”

  27. avatar
    David October 6, 2010 at 11:34 am #

    Although I’m a birther, I agree: The Kerchner case will not be heard. That’s 100%. The case dwells on the facts instead of law which is a flawed approach. The case also fails to introduce any real court conflict or distention in the rulings as compared to other similiar cases. The case will not be heard, especially with a sanction threat from the lower appeals court. The Kerchner case is dead in my opinion. Mario should not feel too bad however; It is very very difficult to get a case heard by SCOTUS. Charles and Mario to put their effort towards the Lakin case.

  28. avatar
    Sef October 6, 2010 at 11:51 am #

    JoZeppy: you’ll note the real adults think such technicalities less important, and the will of the people should govern, and that a person who is arguably a NBC, particularly as a result of their parents military service born over seas, should be eligible for the Presidency.

    The real point is that if McCain had won the election & had successfully withstood any court challenges that might have ensued & if the Electoral College & Congress had accepted his election he would be the President, totally independent of his birth status. The same is true for the current Governor of California. So, Obama’s birth particulars, absent any fraud, are of absolutely no import to the fact of his Presidency. Any questions would need to be resolved by Congress, not the courts.

  29. avatar
    Rickey October 6, 2010 at 11:56 am #

    David: Big news on the Lakin case!http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

    I got a good laugh out of that, especially the part where Vallely and his pals imply that they had something to do with Lakin hiring Neal Puckett.

    It has been known for some time that Vallely wants Lakin to go all Vattel, but Judge Lind has made it clear that it doesn’t matter if Obama is a Klingon – Lakin’s orders were legal.

  30. avatar
    ballantine October 6, 2010 at 12:02 pm #

    David: Although I’m a birther, I agree: The Kerchner case will not be heard. That’s 100%. The case dwells on the facts instead of law which is a flawed approach. The case also fails to introduce any real court conflict or distention in the rulings as compared to other similiar cases. The case will not be heard, especially with a sanction threat from the lower appeals court. The Kerchner case is dead in my opinion. Mario should not feel too bad however; It is very very difficult to get a case heard by SCOTUS. Charles and Mario to put their effort towards the Lakin case.

    .
    The case will not be heard because they do not even allege a concrete and particularized injury, the only issue that would be before the court. Of course, he also lacks standing because the court cannot redress his alleged injuries. If standing were found and the case remanded, it would be dismissed on the political question doctrine or failure to state a legally recognized cause of action. It would be fun to see Mario stick his head into Lakin’s case, another sure loser for anyone who actually researched the law.

  31. avatar
    ballantine October 6, 2010 at 12:10 pm #

    Rickey: I got a good laugh out of that, especially the part where Vallely and his pals imply that they had something to do with Lakin hiring Neal Puckett. It has been known for some time that Vallely wants Lakin to go all Vattel, but Judge Lind has made it clear that it doesn’t matter if Obama is a Klingon – Lakin’s orders were legal.

    .
    Who exactly are the Constitutional experts they refer to on their “A team.” The pretend lawyers at the United States Bar Association?

  32. avatar
    Dave October 6, 2010 at 1:07 pm #

    David: Big news on the Lakin case!http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

    What can we deduce from Vallely and his “Veterans Council” detailing legal strategy in public? Is that how legal teams normally do things? It’s plain that LTC Lakin’s new lawyer is ignoring them just like his old lawyer did, and posting this stuff in public is their pathetic ploy to look like they have something to do with this case.

    So I don’t see what’s big news about this. These people are on the sidelines.

  33. avatar
    natural born citizen party October 6, 2010 at 1:09 pm #

    USDC-DC 08-2234 Strunk v US-DOS et al Doc TEXT ORDER
    MINUTE ORDER granting 43 Motion for Leave to File Surreply. It is hereby ORDERED that the motion is GRANTED. Signed by Judge Richard J. Leon on 9/28/10. (lcrjl2) (Entered: 09/28/2010)

  34. avatar
    nbc October 6, 2010 at 1:12 pm #

    Not much here. Strunk can file his opposition, after which the judge will grant the motion to dismiss.

  35. avatar
    BatGuano October 6, 2010 at 1:13 pm #

    Rickey:
    I got a good laugh out of that, especially the part where Vallely and his pals imply that they had something to do with Lakin hiring Neal Puckett.

    one of my favorite parts…..

    ” Lakin was ill advised by so-called ‘birther’ lawyers to pursue an Obama birth certificate as a means of defending his actions.”

  36. avatar
    nbc October 6, 2010 at 1:20 pm #

    If they believe Lakin was poorly advised before, then they will love the new counsel who will likely totally ignore the ‘eligibility’ arguments in favor or legal arguments to minimize Lakin’s punishment. Be prepared for a plea bargain…

  37. avatar
    Daniel October 6, 2010 at 1:21 pm #

    David: Big news on the Lakin case!http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

    Why would you consider this to be “big news”?

    This is not from the defence team, it’s from Vallely and his gang trying to position themselves as looking like Lakin’s advisors, after Jensen’s crash and burn. AS quoted from the article itself….

    “It must be stated that the authors and legal vetting team for these documents have not been directly contacted by the Lakin defense team, but that we have been privy to communications from that team via USPU Veterans Council members……ALL Internet commentary concerning the new direction of the Lakin defense is speculative as Lt. Col. Neal Puckett has released NO information concerning his defense strategies and is not likely to release any such information soon.”

    They admit they have not been directly contacted by the defences team, but merely suggest tha they have this supposed insider info from “privy” communicatins from unidentified members of the defence team to unidentified members of the Vallely gang. They also caution against believeing any internet commentary (except their internet commentary, of course).

    For all appearances this looks to me to be nothing more than a turf war among birther gangs. It’s no secret that Jensens’s Gang and Vallely’s gang have been fighting for control of Lakin for quite some time. Jensen is still prostituting Lakin for money, even after being fireds, and Vallely is trying to move into the neighborhood and push out what’s left of Jensen. I suspect we’ll soon see the Vallely gang put up their own paypal shingle and declare themselves the official Lakin support fund, and accuse Jensen of skimming the previous donations.

    I highly doubt that Neal Puckett et al will be pursuing the birther agenda. Any competent lawyer knows when something is a non-starter.

  38. avatar
    nbc October 6, 2010 at 1:34 pm #

    David: Big news on the Lakin case

    You’re being sarcastic here right? Otherwise, be prepared for another disappointment… Just saying.

  39. avatar
    mikeyes October 6, 2010 at 1:37 pm #

    Daniel: I suspect we’ll soon see the Vallely gang put up their own paypal shingle and declare themselves the official Lakin support fund, and accuse Jensen of skimming the previous donations.

    Apparently that has already happening. From the Announcement:

    “A special defense fund for Lakin will be established by Maj. Gen. Paul Vallely, honorary Chairman of the USPU Veterans Council. 100% of the funds will be given directly to LTC Lakin and his family to cover any and all related expenses. NO funds will be used for any other purpose. Information concerning donations will be released shortly. USPU cannot in good conscience recommend donating to any other organization on behalf of Lakin at present. Further announcements are forthcoming.”

    The good Major General also publically resigned from the NRA because it was too narrowly focused on the Second Amendment and would not venture into the stuff he likes. I suspect that the NRA really doesn’t care very much about his resignation.

  40. avatar
    nbc October 6, 2010 at 1:40 pm #

    Vallely is an interesting person, but any time an organization calls itself patriots we should be cynical. A true patriotic organization works through its deeds and actions not it’s name.
    I am not sure why we use his military title, he is retired… And I am not sure his recent activities do justice to our Military.

  41. avatar
    Daniel October 6, 2010 at 1:50 pm #

    I just sent an email to the APF asking them whoi I should be sending my donations to (lol) in light of the announcement by the USPU Veterans Council that people should not be sending money to any other organization but them.

    It will be interesting to see what they send back, if anything.

  42. avatar
    ballantine October 6, 2010 at 1:52 pm #

    nbc: Vallely is an interesting person, but any time an organization calls itself patriots we should be cynical. A true patriotic organization works through its deeds and actions not it’s name.I am not sure why we use his military title, he is retired… And I am not sure his recent activities do justice to our Military.

    .
    I wonder if he is the idiot who wrote those white papers. Can’t argue with logic like this:
    .

    “Further, in Article I – Section VIII – Clause X of the US Constitution, we are reminded that the Law of Nations is the final authority on the matter.

    “The Congress shall have power to – define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations;”

    In final analysis, Barack Hussein Obama’s very presence in the Oval Office is not only a violation of Article II – Section I requirements for the office, it is in fact a violation and offense against the Law of Nations, which members of Congress have the enumerated power and obligation to correct. ”
    .

    What is an offense against a book?

  43. avatar
    gorefan October 6, 2010 at 3:01 pm #

    nbc: If they believe Lakin was poorly advised before, then they will love the new counsel who will likely totally ignore the eligibility’ arguments

    Then it will be time for another white paper.

  44. avatar
    Welsh Dragon October 6, 2010 at 3:02 pm #

    ballantine: What is an offense against a book?

    I keep telling birthers that “Offenses against the Law of Nations” is a coded message that we should look to Blackstone since he’s got a chapter with that title but they won’t believe me!

  45. avatar
    gorefan October 6, 2010 at 3:41 pm #

    David: Big news on the Lakin case!
    http://obamareleaseyourrecords.blogspot.com/2010/10/maj-gen-paul-vallely-and-uspu-veterans.html

    What happened?

    I get a page not found message.

  46. avatar
    brygenon October 6, 2010 at 3:49 pm #

    Keith: Not every Citizen at birth’ is a Natural born citizen’

    Wrong. As the Supreme Court explained in U.S. v. Wong Kim Ark, the Constitution’s language comes from English law and, “‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    Here’s how a renowned constitutional scholar 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.” — Akhil Reed Amar http://www.slate.com/id/2183588/

    Mario Apuzzo cited Professor Amar’s book /America’s Constitution: A Biography/ in his reply brief to the District Court and in his opening brief to the Circuit Court. I don’t know if Apuzzo actually read the book, but in any case it says, on page 164, that ‘natural born citizen’ means citizen at the time of birth.

  47. avatar
    ballantine October 6, 2010 at 3:59 pm #

    Welsh Dragon: I keep telling birthers that “Offenses against the Law of Nations” is a coded message that we should look to Blackstone since he’s got a chapter with that title but they won’t believe me!

    .

    I love the “Vattel is in the Constitution” agrument. Too bad that wasn’t the entire title and there were other books with Law of Nations in the title. Mario isn’t much better. On his blog he is arguing that the Law of Nations is explicitely recognized as applicable to the federal goernment. Really. Giving Congress the power to punish crimes against international law means the entire government, and I suppose, the entire Constitution is governed by international law. Hard to make this stuff up. I guess he isn’t aware that many terms and concepts in the Constitution are taken from English law and had no meaning outside of English law. Acccording to Scalia:

    “JUSTICE SCALIA: I wouldn’t — I don’t use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase “the right to be confronted with witnesses against him” — what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn’t so for every provision of the Constitution. The one you mentioned — what does sovereignty consist of? — that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that’s why I would use English law — not at all because I think we are still very much aligned legally, socially, philosophically with England. That’s not the reason. Cass Sunstein, A Constitution of many minds: why the founding document doesn’t mean what it meant before, pg. 200-01 (2009).”
    .

    Poor Mario also doesn’t understand the difference between our framers choosing certain English laws and legal terms with fixed meanings to apply in America, like the concept of a grand jury or a jus soli citizenship rule, and allowing England and every other country on the planet to determine who can be our President by making our native citizens dual citizens The former was our decision and would be fixed in meaning at the founding, the latter would neither be our decision or be fixed at the founding as these laws are continually chanaging. According to Mario’s theory we could have no one elgibile to be President as all our citizens could be made citizens of foreign nations at birth. Duh.

  48. avatar
    AnotherBird October 6, 2010 at 4:07 pm #

    David: Big news on the Lakin case!Page not found

    Thank you for the light humor. To bad the seriousness of Lakin’s changes won’t cause him to smile.

  49. avatar
    AnotherBird October 6, 2010 at 4:23 pm #

    SvenMagnussen: In my example, Congress is redefining Natural born citizenship status by redefining who a citizen at birth is. The Constitution does not give the Congress power to define who a Natural born citizen is and who is not.

    Obfuscation, maybe not.

    There is no clear definition of what is a Natural Born Citizen. From what has been discussed those who are born citizens are Natural Born Citizens. This is based on the various court rules and supreme court ruling that have been presented. Congress has expanding who is a citizen by birth though legislation and an amendment to the Constitution. It is possible to state that Congress has exercised the power that you state that they lack.

    Maybe you should just represent your argument.

  50. avatar
    Scott Brown October 6, 2010 at 4:30 pm #

    Lupin: Mario is categorically wrong in his interpretation of Vattel.

    You forgot to add a disclaimer to your statement:

    In my opinion, Mario is categorically wrong in his interpretation of Vattel.

    There – I fixed it for you. 🙂

    Or don’t you understand what the word interpretation means?

  51. avatar
    Scott Brown October 6, 2010 at 4:33 pm #

    Lupin: Of all the birthers’ absurdities, I find that one most irritating, because of its preposterousness.

    But that ‘interpretation’ mirrors US law. A bastard child takes the citizenship of the mother.

    However, it would seem that Obama wishes to claim Obama Sr. as his baby-daddy. So, since that ‘interpretation’ doesn’t apply – why would it irritate you the most? Just curious as it is mostly just a rhetorical question.

  52. avatar
    Dr Kenneth Noisewater (Bob Ross) October 6, 2010 at 4:34 pm #

    Scott Brown: You forgot to add a disclaimer to your statement:In my opinion, Mario is categorically wrong in his interpretation of Vattel.There – I fixed it for you. Or don’t you understand what the word interpretation means?

    No, in reality Mario is wrong on his interpretation of Vattel. Just like he’s wrong on his interpretation of anything to do with citizenship law. I thought you weren’t coming back here Sally Hill?

  53. avatar
    Scott Brown October 6, 2010 at 4:39 pm #

    SvenMagnussen: I thought Judge Carter implied it would be a travesty if McCain were not eligible for POTUS.

    Then a travesty we do have as McCain was clearly not eligible. He was NOT born on US soil, nor on soil occupied or in the sovereignty of the US. He was born in the hospital in Colon, Pamama. Many think he was born on the military base in the Canal Zone, but his name is tellingly missing from the military birthing roster on the day he claims as his date of birth. Now, I guess he could be misinforming the public about his date of birth – but then that would have to include many people to go along with that conspiracy theory and would possibly entail his parents knowing from birth that he would one day run for POTUS…..seems I’ve heard that somewhere before. LOL

  54. avatar
    Scott Brown October 6, 2010 at 4:42 pm #

    David: What happen to Post & Email?

    Obama probably had it taken down as they were starting to light a fire under his behind.

  55. avatar
    Dr Kenneth Noisewater (Bob Ross) October 6, 2010 at 4:46 pm #

    Scott Brown: Obama probably had it taken down as they were starting to light a fire under his behind.

    Hahaha you’re crazy Sally. Post and fail has lit no fires. They have about the same credibility of Soviet Pravda or the National Enquirer

  56. avatar
    Dr Kenneth Noisewater (Bob Ross) October 6, 2010 at 4:47 pm #

    Scott Brown: Then a travesty we do have as McCain was clearly not eligible. He was NOT born on US soil, nor on soil occupied or in the sovereignty of the US. He was born in the hospital in Colon, Pamama. Many think he was born on the military base in the Canal Zone, but his name is tellingly missing from the military birthing roster on the day he claims as his date of birth. Now, I guess he could be misinforming the public about his date of birth – but then that would have to include many people to go along with that conspiracy theory and would possibly entail his parents knowing from birth that he would one day run for POTUS…..seems I’ve heard that somewhere before. LOL

    But clearly Sally you’re not a birther even though you use birther talking points.

  57. avatar
    Daniel October 6, 2010 at 5:12 pm #

    gorefan:
    What happened?I get a page not found message.

    I see that as well. It was there this morning, and now it’s not. I wonder if the new defense team got them by the short and curlies and told them Lakin refuses to have anything to do with them, and to stop misrepresenting or face a day in court with the big boys?

  58. avatar
    Daniel October 6, 2010 at 5:18 pm #

    More interesting stuff:

    The USPN/ Vallely gang document on Scribd which was titled “4th Lakin White Paper – New Lakin Defense ” and was at

    http://www.scribd.com/doc/38824764/LTC-Lakin-Chooses-New-Defense-White-Paper-4

    Is now missing. Scribd reports “The document ‘LTC Lakin Chooses New Defense White Paper #4’ has been deleted”

  59. avatar
    Daniel October 6, 2010 at 5:28 pm #

    Looks like the Birther gang turf war might be really heating up. I wonder when the first casualty reports start coming in?

  60. avatar
    gorefan October 6, 2010 at 5:40 pm #

    Daniel: I wonder if the new defense team got them by the short and curlies

    Daniel: Scribd reports “The document ‘LTC Lakin Chooses New Defense White Paper #4′ has been deleted”

    That’s what I thought. Maybe Lakin is going for the plea bargain and his real defense team didn’t want any of these jokers screwing it up for him.

  61. avatar
    Arthur October 6, 2010 at 7:30 pm #

    Scott Brown:
    You forgot to add a disclaimer to your statement:In my opinion, Mario is categorically wrong in his interpretation of Vattel.There – I fixed it for you.
    Or don’t you understand what the word interpretation means?

    Scott:

    Putting aside the question of whether Lupin’s statement answers a question of fact or a question of interpretation, it is not necessary to put the phrase “I believe” before an assertion unless the writer refers to multiple arguments in his or her thesis. For example, if Lupin had written, “Judge X avows this, while Judge Y argues this; however, I believe this”, then one can see the necessity of including “I believe” to differentiate Lupin’s argument from the ideas of Judge X and Y. In most other cases, adding “I believe” is superfluous–it’s not wrong, just unnecessary. The reader understands that Lupin, and not someone else, is making the assertion.

    Getting back to the question of fact or interpretation, more than a century of court cases and legal opinion support Lupin’s argument that Mario is wrong in fact.

  62. avatar
    Gregory October 6, 2010 at 7:50 pm #

    nbc: …any time an organization calls itself patriots we should be cynical.

    I would say more than cynical – as Samuel Johnson once observed: “Patriotism is the last refuge of a scoundrel.”

  63. avatar
    Gregory October 6, 2010 at 7:57 pm #

    Daniel: Scribd reports “The document ‘LTC Lakin Chooses New Defense White Paper #4′ has been deleted”

    No, it’s still available on scribd here (and I have to say that it’s one of the most asinine “white papers/press releases” from a Birther organization that I have ever read – truly.)

  64. avatar
    J Maine October 6, 2010 at 9:07 pm #

    Sven,

    What do you think the real details are regarding Obama?

    Just curious.

    Others,

    Should Al-Awlaki (born in New Mexico) be eligible to be president of the United States?

  65. avatar
    HORUS October 6, 2010 at 9:20 pm #

    Daniel: They admit they have not been directly contacted by the defences team, but merely suggest tha they have this supposed insider info from “privy” communicatins from unidentified members of the defence team to unidentified members of the Vallely gang. They also caution against believeing any internet commentary (except their internet commentary, of course).

    Like Christine O’Donnell privy to Classified Info about China taking over the US.

  66. avatar
    Dr. Conspiracy October 6, 2010 at 9:43 pm #

    Scott Brown: Then a travesty we do have as McCain was clearly not eligible. He was NOT born on US soil, nor on soil occupied or in the sovereignty of the US. He was born in the hospital in Colon, Pamama. Many think he was born on the military base in the Canal Zone, but his name is tellingly missing from the military birthing roster on the day he claims as his date of birth

    The preceding comment is historical nonsense.

    First John McCain was born on the Coco Solo military base in the Panama Canal zone. One journalist, Michael Dobbs, inspected John McCain’s birth certificate. Further the birth announcement with location was published in the newspaper and a copy of that announcement has been published.

    The McCain birth certificate that was submitted by the plaintiff in the Hollander v. McCain lawsuit is a clumsy forgery as anybody will immediately notice by just “zooming in”.

    It is not true that McCain’s birth is “missing from the military birthing roster”. It is missing from the handwritten log of the Panama Canal Zone health department.

    Michael Dobbs article: http://blog.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html

    Obama Conspiracy Theories analysis of McCain fake birth certificate: http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/

    Obama Conspiracy Theories McCain eligibility page: http://www.obamaconspiracy.org/bookmarks/mccain-eligibility/

    Of course all this was shown to Scott Brown when she dumped this crank theory on us last April.

  67. avatar
    Greg October 6, 2010 at 9:53 pm #

    Scott Brown: hen a travesty we do have as McCain was clearly not eligible.

    The words “clearly,” “obviously,” etc. are only ever used when something is not clear, obvious, or otherwise.

    If McCain were clearly not eligible, there would have been no debate, and he would not have run, much less been nominated.

  68. avatar
    Dr. Conspiracy October 6, 2010 at 9:54 pm #

    SvenMagnussen: In my example, Congress is redefining Natural born citizenship status by redefining who a citizen at birth is. The Constitution does not give the Congress power to define who a Natural born citizen is and who is not.

    Perhaps an analogy.

    Definition of “early arriver”: one who gets to the meeting early.

    Now if I change the time of the meeting from 8:00 to 9:00, am I changing the definition of “early arriver”? No, even though it will change what individuals qualify.

    If “natural born citizen” is defined as “citizen at birth”, then by analogy, changing who is a citizen at birth is not changing the definition of “natural born citizen” even though it may change who qualifies.

    Note that I am not arguing for this particular definition, just pointing out the flaw in Sven’s comment.

  69. avatar
    Rickey October 6, 2010 at 10:02 pm #

    J Maine: Should Al-Awlaki (born in New Mexico) be eligible to be president of the United States?

    What does “should” have to do with it? Like it or not, he is eligible to be president. But his eligibility is of no significance, because there is no chance that he could ever be elected president.

    There are plenty of despicable people who are eligible to be president. We don’t worry about it, because we trust that the voters will never elect them.

  70. avatar
    Rickey October 6, 2010 at 10:19 pm #

    Dr. Conspiracy:
    Of course all this was shown to Scott Brown when she dumped this crank theory on us last April.

    And, as we have thoroughly discussed in the past, it would have made no sense for Mrs. McCain to give birth in a civilian hospital, where she would have been cared for by Panamanian doctors and nurses, when she was entitled to free maternity care by American doctors and nurses in the base hospital. Plus, if there had been a medical emergency that the base hospital could not handle, she had military aircraft available to rush her to a hospital in the U.S.

    Today the infant mortality rate in Panama is triple the rate in the United States. It is reasonable to assume that the infant mortality rate in Panama in 1936 was even worse.

    Also, insisting that McCain was not born on the Coco Solo base is tantamount to calling McCain’s mother a liar, because she has stated repeatedly that he was born at the base hospital.

  71. avatar
    Arthur October 6, 2010 at 11:24 pm #

    Rickey:

    Also, insisting that McCain was not born on the Coco Solo base is tantamount to calling McCain’s mother a liar, because she has stated repeatedly that he was born at the base hospital.

    Plus, Coco Solo is just too cool of a name! In fact, I think that’s how he romanced his second wife, Cindy.
    Cindy: So . . . you’re a fighter jock?
    John: Yeah. Use to be.
    Cindy: Uh-huh. And where were you born?
    John: Coco Solo, baby.
    Cindy: (Swooning) You had me at “Coco!”

  72. avatar
    HellT October 7, 2010 at 12:07 am #

    Rickey:
    And, as we have thoroughly discussed in the past, it would have made no sense for Mrs. McCain to give birth in a civilian hospital, where she would have been cared for by Panamanian doctors and nurses, when she was entitled to free maternity care by American doctors and nurses in the base hospital.

    Not to mention the dreadful social stigma that woud’ve resulted from giving birth in a Panamanian hospital. The Canal Zone had its own version of Jim Crow up til the mid-1950s. Persons and facilities were designated “Gold” or “Silver”. Native Panamanians and their facilties were “Silver”, while American occupants of the Zone and their facilities were designated “Gold”. This had its origins in how the men hired to dig the Panama Canal were paid; blacks and locals laborers were paid in silver; foreign engineers and overseers were paid in gold. The racial and social segregation persisted for decades. US citizens (including military) had the best facilities and were keenly conscious of their ‘Gold’ status. American service members simply did not use the ‘Silver’ medical service. Why would they, when they were entitled to the top-notch medical care that came with acknowledgment of their elite social status? The idea is as absurd as imagining a Park Avenue socialite choosing to have her baby in a Harlem hospital.

  73. avatar
    Majority Will October 7, 2010 at 12:16 am #

    HellT: Why would they, when they were entitled to the top-notch medical care that came with acknowledgment of their elite social status? The idea is as absurd as imagining a Park Avenue socialite choosing to have her baby in a Harlem hospital.

    Or a young, pregnant woman risking her life and her child’s by secretly leaving Hawaii for Kenya for no good reason.

  74. avatar
    Gregory October 7, 2010 at 12:18 am #

    SvenMagnussen:
    The Constitution does not give the Congress power to define who a Natural born citizen is and who is not.

    The Congress does indeed have a (restricted) power to define who is a U.S. citizen at birth (and therefore a “natural-born” citizen) – a power that is limited only by the 14th amendment.

    Although it is true that Congress could not pass a law that would deny U.S. citizenship to anyone born in the U.S. – Congress could pass a law that would grant U.S citizenship to someone born outside the U.S (or even to anyone and everyone born outside the U.S, if Congress felt particularly magnanimous). In other words, Congress has the power to extend “natural-born” citizenship to additional classes of individuals – but Congress does not have the power to eliminate natural-born citizenship from those who qualify for natural-born citizenship under the 14th amendment.

    And that is how it show be – inclusiveness trumps exclusiveness.

  75. avatar
    Gregory October 7, 2010 at 12:32 am #

    Majority Will:
    Or a young, pregnant woman risking her life and her child’s by secretly leaving Hawaii for Kenya for no good reason.

    Perhaps for a lark?

  76. avatar
    NbC October 7, 2010 at 12:52 am #

    Gregory: In other words, Congress has the power to extend “natural-born” citizenship to additional classes of individuals – but Congress does not have the power to eliminate natural-born citizenship from those who qualify for natural-born citizenship under the 14th amendment.

    I find that an illogical proposition. The meaning of natural born is well understood and cannot be changed through statute as it is used in the Constitution. Under your proposed powers, congress could change definitions without the need for amendments, as long as their changes are expansions.

    Terms in the Constitution have a clear meaning and when left undefined or ambiguous, their meaning needs to be found in common law, from which the terms originated.

    Under Common Law natural born meant born on soil. While the term was extended through statutory law to include others in England, they were not constrained by a Constitution.

    The Constitution does however give Congress the power to determine if a candidate has qualified and as such, they do get to determine the interpretation of eligibility requirements.
    It places a certain level of responsibility on Congress but like every branch, there are certain ‘burdens’ to bear where the other branches have no place. The certification of the vote and finding that a candidate has qualified is uniquely, and with purpose, limited to Congress.

    The Courts can be asked to determine legal and Constitutional issues but when there is no controversy, in the Constitutional sense, and when the issue is explicitly assigned to a particular branch by the Constitution, the other branches are powerless.

  77. avatar
    Sef October 7, 2010 at 12:55 am #

    Gregory:
    The Congress does indeed have a (restricted) power to define who is a U.S. citizen at birth (and therefore a “natural-born” citizen) – a power that is limited only by the 14th amendment.Although it is true that Congress could not pass a law that would deny U.S. citizenship to anyone born in the U.S. – Congress could pass a law that would grant U.S citizenship to someone born outside the U.S (or even to anyone and everyone born outside the U.S, if Congress felt particularly magnanimous). In other words, Congress has the power to extend “natural-born” citizenship to additional classes of individuals – but Congress does not have the power to eliminate natural-born citizenship from those who qualify for natural-born citizenship under the 14th amendment.And that is how it show be – inclusiveness trumps exclusiveness.

    Gregory, I agree that at first blush what you say seems reasonable. However, SCOTUS doesn’t see it that way. They have said that Congress’ power is specifically limited to defining rules for naturalization. So, if Congress grants citizenship at birth to someone who would not otherwise have citizenship at birth, that person becomes naturalized at birth, not a natural born citizen. The test is whether the person ONLY has citizenship because of the law. If so then he is not NBC.

  78. avatar
    Gregory October 7, 2010 at 12:59 am #

    HORUS:
    Like Christine O’Donnell privy to Classified Info about China taking over the US.

    And now the whole country is privy to that classified information. Nice job, Christine!

  79. avatar
    NbC October 7, 2010 at 1:08 am #

    Sef: Gregory, I agree that at first blush what you say seems reasonable. However, SCOTUS doesn’t see it that way. They have said that Congress’ power is specifically limited to defining rules for naturalization. So, if Congress grants citizenship at birth to someone who would not otherwise have citizenship at birth, that person becomes naturalized at birth, not a natural born citizen. The test is whether the person ONLY has citizenship because of the law. If so then he is not NBC.

    I could not have said it better and wish I had…

  80. avatar
    NbC October 7, 2010 at 1:10 am #

    Gregory:
    And now the whole country is privy to that classified information. Nice job, Christine!

    Perhaps she meant she read it in the classifieds?

  81. avatar
    Sef October 7, 2010 at 1:16 am #

    NbC:
    I could not have said it better and wish I had…

    Glad to be of service.

  82. avatar
    Majority Will October 7, 2010 at 1:20 am #

    Gregory:
    Perhaps for a lark?

    Or an unladen European swallow.

  83. avatar
    Gregory October 7, 2010 at 1:40 am #

    Sef:
    Gregory, I agree that at first blush what you say seems reasonable. However, SCOTUS doesn’t see it that way.They have said that Congress’ power is specifically limited to defining rules for naturalization. So, if Congress grants citizenship at birth to someone who would not otherwise have citizenship at birth, that person becomes naturalized at birth, not a natural born citizen.The test is whether the person ONLY has citizenship because of the law. If so then he is not NBC.

    Even as far back as 1790, Congress certainly believed that it had the power to confer “natural-born” status to children born overseas:

    …the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens” [emphasis mine] [1790 Naturalization Act].

    And I have not been able to turn up any Supreme Court case that has ruled otherwise (except in dissenting opinions – which do not set precedent). In other words, the question whether children born to U.S. citizens abroad are “natural-born” or not, is – at the very worst – still unsettled.

    Furthermore, current U.S. law states:

    The following shall be nationals and citizens of the United States at birth:[emphasis mine]

    (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; [8 U.S.C. § 1401]

    In September 2008 U.S. District Judge William Alsup stated obiter in his ruling that it is “highly probable” that McCain is a natural born citizen from birth by virtue of the law quoted above.

    Lastly, an April 2000 Congressional Research Service report surveyed a group of Constitutional scholars for the definition of a “natural born” citizen – and the majority agreed with my position – that Congress may in fact confer natural born status through legislation. So, even if the question has not been completely settled, the consensus opinion definitely tips in favor of my position.

    See this Wikipedia article for more information.

  84. avatar
    Gregory October 7, 2010 at 2:17 am #

    NbC:
    I find that an illogical proposition. The meaning of natural born is well understood and cannot be changed through statute as it is used in the Constitution. Under your proposed powers, congress could change definitions without the need for amendments, as long as their changes are expansions.

    “Natural-born” is well-defined: a natural-born person is someone who acquires U.S. citizenship at birth (what else could it mean?) Now, the term “natural-born” does not specify how a person acquires U.S. citizenship at birth, only that that person did acquire U.S. citizenship at birth.

    Before the ratification of the 14th amendment, Congress had unfettered power to decide who acquired U.S. citizenship at birth (see the Dred Scott decision). However after the ratification of the 14th amendment, Congress relinquished the power to legislate U.S citizenship to those born within the U.S. – but Congress still retained the power to legislate who, born outside the U.S., was a U.S citizen at birth. And, in fact, Congress has passed quite a few laws over the years to do exactly that.

    Logically, if you have two people who were both U.S. citizens at birth, how could one be natural-born and not the other? What would be the sense of that? The U.S does have both “natural-born” and “naturalized” citizens – but do we have second-class citizens within each group? No.

  85. avatar
    NbC October 7, 2010 at 2:30 am #

    “Natural-born” is well-defined: a natural-born person is someone who acquires U.S. citizenship at birth (what else could it mean?)

    Because of birth on soil. Close but not close enough.

    US citizenship at birth should not be confused with natural born.

    The U.S does have both “natural-born” and “naturalized” citizens – but do we have second-class citizens within each group? No.

    Actually, we do. Within the category of naturalized citizens we have those naturalized not in the US who are thus not protected by the 14th amendment.

    The Supreme Court ruled on this…

    Rogers v Bellei

    Naturalized but not 14th Amendment…

  86. avatar
    NbC October 7, 2010 at 2:31 am #

    Gregory: …the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens” [emphasis mine] [1790 Naturalization Act].

    An oversight which was quickly corrected a few years later.

  87. avatar
    brygenon October 7, 2010 at 5:50 am #

    NbC: [Gregory had written:] “Natural-born” is well-defined: a natural-born person is someone who acquires U.S. citizenship at birth (what else could it mean?)

    Because of birth on soil. Close but not close enough.

    US citizenship at birth should not be confused with natural born.

    Confuse them? They mean the same thing.

    In a comment above I cited Akhil Reed Amar, who is Sterling Professor of Law and Political Science at Yale University. More than 20 Supreme Court opinions have cited Professor Amar’s work, as have two briefs by Mario Apuzzo.

    “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.” — A.R. Amar http://www.slate.com/id/2183588/

    Another interesting reference is University of Arizona Professor Gabriel J. Chin, who wrote a paper in the Michigan Law Review arguing that John S. McCain is not eligible. Chin argued, “Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.”
    http://www.michiganlawreview.org/articles/why-senator-john-mccain-cannot-be-president-eleven-months-and-a-hundred-yards-short-of-citizenship

    Another good source is the paper cited by Judge Carter in Barnett v. Obama: Charles Gordon, “Who Can be President of the United States: The Unresolved Enigma,” 28 Md. L. Rev. 1, 7-22 (1968). It’s down-loadable, though painfully slowly, from:
    http://www.law.umaryland.edu/academics/journals/mdlr/print/#archive

    One could hardly state what “natural born” means more clearly and directly than we see in U.S. v. Wong Kim Ark, where the Court quotes British jurist A.V. Dicey: “Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    As a matter of language more than law, “natural born citizen” means citizen from the time of birth. Just as a foreigner who is made a citizen by process is “naturalized”, a citizen from birth is “natural born”. Who qualifies may be a complex legal issue, but that much is simply what the words mean.

  88. avatar
    SvenMagnussen October 7, 2010 at 7:09 am #

    Dr. Conspiracy:
    Perhaps an analogy.Definition of “early arriver”: one who gets to the meeting early.Now if I change the time of the meeting from 8:00 to 9:00, am I changing the definition of “early arriver”? No, even though it will change what individuals qualify.If “natural born citizen” is defined as “citizen at birth”, then by analogy, changing who is a citizen at birth is not changing the definition of “natural born citizen” even though it may change who qualifies.Note that I am not arguing for this particular definition, just pointing out the flaw in Sven’s comment.

    That’s Mario’s point! It’s unconstitutional for Congress to legislate who qualifies as a Natural born citizen. Through the 14th Amendment, Congress is only empowered to legislate who is eligible to become a Naturalized Citizen.

  89. avatar
    Sef October 7, 2010 at 9:31 am #

    Sef: However, SCOTUS doesn’t see it that way. They have said that Congress’ power is specifically limited to defining rules for naturalization

    Since IANAL could someone help me out here & provide the cite to the SCOTUS ruling. Thanks in advance.

  90. avatar
    ballantine October 7, 2010 at 10:04 am #

    NbC: I find that an illogical proposition. The meaning of natural born is well understood and cannot be changed through statute as it is used in the Constitution. Under your proposed powers, congress could change definitions without the need for amendments, as long as their changes are expansions.Terms in the Constitution have a clear meaning and when left undefined or ambiguous, their meaning needs to be found in common law, from which the terms originated.Under Common Law natural born meant born on soil. While the term was extended through statutory law to include others in England, they were not constrained by a Constitution.The Constitution does however give Congress the power to determine if a candidate has qualified and as such, they do get to determine the interpretation of eligibility requirements.It places a certain level of responsibility on Congress but like every branch, there are certain burdens’ to bear where the other branches have no place. The certification of the vote and finding that a candidate has qualified is uniquely, and with purpose, limited to Congress.The Courts can be asked to determine legal and Constitutional issues but when there is no controversy, in the Constitutional sense, and when the issue is explicitly assigned to a particular branch by the Constitution, the other branches are powerless.

    .

    This is the conventional view consistant with our case law. However, the court has never directly addressed the question of whether Congress can expand the class of natural born citizens. Of course, “natural born born” was a well understood term. However, “naturalization” was also a well understood term borrowed from english law. It meant removing the disabilities of alienage. In England, naturalization included the power to remove the disability of the foreign born to sit in Parliament or Privy Counsel by granting them natural born status. From an originalist perspective, it is not hard to imagine that if the power of naturalization in England permitted Parliament to confer natural born status and allow the foreign born to be Prime Minister, such power in America would have been understood to allow Congress to bestow natural born status on the foreign born to be President. It seems to be at least a plausible argument.

  91. avatar
    Lupin October 7, 2010 at 10:58 am #

    Scott Brown: You forgot to add a disclaimer to your statement:

    In my opinion, Mario is categorically wrong in his interpretation of Vattel.

    There – I fixed it for you. 🙂

    Or don’t you understand what the word interpretation means?

    I’m glad you asked.

    Vattel writes that a native is born of native parents. Then he goes in the next sentence to specify that it is the father’s citizenship which is transmitted to the child. Then it was later footnoted that if the parents aren’t married, then it is the mother’s.

    This is a fairly simple statement. Not only does it NOT mean that BOTH parents must be citizens, it actually states the opposite. ONE parent is enough, — which one depends on circumstances.

    Anyone claiming that Vattel came up with the “two parents must be citizens” rule is therefore unequivocally wrong. It is not a matter of opinion or interpretation.

    I suspect Mario knows this, but chooses to deliberately misrepresents Vattel for his own ends.

  92. avatar
    Welsh Dragon October 7, 2010 at 11:44 am #

    The debate on whether a foreign born citizen at birth can be an NBC has been going on for a long time and I don’t see it being resolved soon. While searching for something else I recently came across this entry in “The American encyclop¦dic dictionary, Volume 12 ” from as long ago as 1897

    “Natural-born citizens are of two kinds: Native born – those born either American or foreign parents within the juristiction of the United States, and foreign born – those born of American parents without the juristiction of the United States.”

    http://books.google.com/books?id=rfFOAAAAYAAJ&pg=PA867&dq=Natural+Born+and+%22native+born+citizen%22&hl=en&ei=A-WtTKTFB4KdlgeZpKyIAg&sa=X&oi=book_result&ct=result&resnum=2&ved=0CDEQ6AEwAQ#v=onepage&q=Natural%20Born%20and%20%22native%20born%20citizen%22&f=false

    I don’t put this forward as any sort of authority just as evidence of how long the debate has been going on.

    What I was really looking for was the earliest use of “native born citizen” as something different from a “natural born citizen” (they’re clearly synonyms in early sources) so far I’ve not got further back than Alexander Porter Morse.

  93. avatar
    NBC October 7, 2010 at 12:13 pm #

    ballantine: This is the conventional view consistant with our case law. However, the court has never directly addressed the question of whether Congress can expand the class of natural born citizens. Of course, “natural born born” was a well understood term. However, “naturalization” was also a well understood term borrowed from english law. It meant removing the disabilities of alienage. In England, naturalization included the power to remove the disability of the foreign born to sit in Parliament or Privy Counsel by granting them natural born status. From an originalist perspective, it is not hard to imagine that if the power of naturalization in England permitted Parliament to confer natural born status and allow the foreign born to be Prime Minister, such power in America would have been understood to allow Congress to bestow natural born status on the foreign born to be President. It seems to be at least a plausible argument.

    Note that the meaning of the term was based on the Common Law principle not the statutory extensions made to the concept of natural born being granted based on Jus Sanguini. The Constitutional meaning therefor can only be informed by its Common Law counterpart which is based solely on jus soli. In England, Parliament was not constrained by a Constitution which used the term natural born in an undefined manner.

    Statutory law in England has little relevance to our Constitution or our Congress’s ability to grant citizenship, the latter is explicitly granted to Congress which is allowed to set uniform standards for Naturalization. In other words, unless there exists a different source of Congress’s power to naturalize, all it can do is set uniform rules and naturalize. While Congress did apparently overstep its bounds accidentally, the oversight was quickly corrected in an act passed a few years later which removed the ‘natural born’ part.

    The 14th amendment only makes this more clear

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    The 14th grants citizenship based upon birth in, or naturalization in the United states. Only the latter category involves the Constitutional powers of Congress for uniform laws of naturalization and in fact, naturalization outside the US is not even afforded 14th Amendment protection, meaning that Congress can place restrictions on people so naturalized.

    But you are right, afaict the Supreme Court has not made any determinations here, however the arguments in favor of a power to extend natural born status to those outside the Constitutional definition appear to be based on an argument that ‘well the English did it in their parliament’. What people need to realize is that it was not the statutory law of England but rather the common law which defined the meaning of natural born.

  94. avatar
    NBC October 7, 2010 at 12:16 pm #

    SvenMagnussen: That’s Mario’s point! It’s unconstitutional for Congress to legislate who qualifies as a Natural born citizen. Through the 14th Amendment, Congress is only empowered to legislate who is eligible to become a Naturalized Citizen.

    But Congress has not legislated the definition, it has merely applied it’s constutional powers to determine if a candidate for the Presidency has qualified. Once that’s done, even in error, we have a President who can only be removed through the same constitutional principles.

    Congress has passed no laws, it has at best presented a non-binding resolution where it outlined its best opinion on the meaning of the term, which would guide them in their decision to qualify a candidate like John McCain, whose status by virtue of his foreign birth was in doubt.

  95. avatar
    NBC October 7, 2010 at 12:30 pm #

    brygenon: Confuse them? They mean the same thing.

    In a comment above I cited Akhil Reed Amar, who is Sterling Professor of Law and Political Science at Yale University. More than 20 Supreme Court opinions have cited Professor Amar’s work, as have two briefs by Mario Apuzzo.

    In fact, they only mean the same thing if the location of birth is the United States. Such was as much decided in the US v Wong Kim Ark where the court looked at the Common Law practices, not statutory law, to determine the meaning of ‘natural born’. I do realize that people have argued on both sides for and against John McCain, however, I never found the pro-arguments to be having any historical or legal merit.

    Natural born was clearly understood to be jus soli and Amar’s ‘argument’ which lacks in much supporting reason and foundation is merely an assertion “The Constitution’s rule that the president be “a natural born citizen” focuses not on where a person became a citizen, but when.”

    The Supreme Court in US v Wong Kim Ark rejected the when and adopted the where. So while one may point out that Amar is some kind of expert, I find his position lacking in historical reference.
    Do you have a more scholarly reference that would support Amar’s position?

    As to your ‘Dicey quote’

    and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41

    is born within the British dominions… Context does matter.

  96. avatar
    Greg October 7, 2010 at 1:37 pm #

    NbC: I find that an illogical proposition. The meaning of natural born is well understood and cannot be changed through statute as it is used in the Constitution. Under your proposed powers, congress could change definitions without the need for amendments, as long as their changes are expansions.

    Let me break it down for you. It is not at all illogical. If I define “split peas” as: 1) every green spheroid split in half; plus 2) everything that Congress should later include in the definition, then split peas has a floor definition, but does not have a ceiling.

    There’s nothing inherent in the writing of the Constitution that requires that a definition be not set this way. Nor is it illogical to think that the courts, both English and American could have thought of the term that way (set floor and whatever additions the legislature appends). If everyone understands “split peas” to include whatever the legislature defines it to include (as long as they don’t narrow the definition) do I really have to make that explicit in writing my new Constitution? As far as I know, there’s no rule of statutory construction that says that terms cannot incorporate mutability. In fact, it would be illogical to suggest that a writer had to explicitly state mutability if it’s incorporated into the standard definition of the term! Logic says I should make explicit if I’m taking that mutability out of the definition!

    Therefore, logically, it is entirely possible that the Framers did think of the term that way. And the evidence is that they DID think of it that way, both the Founders and the English courts before them. The very fact that “the English did it in their parliament” and the courts supported them in doing this supports this view that the term had, built into it, an ability to be changed legislatively. The legislature had been broadening the definition of the term since 1350!

    If the evidence is that the term “natural born” had a flexible meaning under English common law, one that was understood by the Founders, aren’t you insisting on a change in that meaning without evidence when you suggest that it became an immutable meaning upon our nation’s founding? What evidence do you have that the term “natural born,” which was clearly changeable by Parliament (with a floor) became immutable when used by the Founders?

    Formal logic and mathematics makes use of such variables, with terms like “as much as,” “greater than or equal to,” “less than or equal to,” or “no more than.”

  97. avatar
    ballantine October 7, 2010 at 2:08 pm #

    NBC: >But you are right, afaict the Supreme Court has not made any determinations here, however the arguments in favor of a power to extend natural born status to those outside the Constitutional definition appear to be based on an argument that well the English did it in their parliament’. What people need to realize is that it was not the statutory law of England but rather the common law which defined the meaning of natural born.

    .

    Interesting subject, but who ever said the term must be limited to the common law. Not any founders. It is not a matter of doing what the England did, it is a matter of defining English legal terms. With almost no pre-convention American legal authority to define terms, where else would we look to define English legal terms being used by the English lawyers who wrote the Constitution. The goal of the court has often been to try to determine what a term was commonly understood to mean at the time of the founding and hence infer what the framers understood it to mean. Accordingly, when faced with an English common law term, the supreme court has looked to the English common law with the assumption that such is what the framers thought such term meant. If faced with statutory term not part of the common law, they would look to the statute as there would be no other place to look for a definition. If they have a term defined both in the common law and in statute, I do not see why they would not look at both if such term was understood to have both meanings at such time. Wong looked only at the common law to infer what the framers understood the term to mean. However, I don’t think anyone argued that the term was understood to have a broader meaning or that the term “naturalization” was understood to include the power to bestow “natural born” status. I am not saying such argument would prevail as there is much 19th century American legal authority to the contrary, however I think it would have a chance if one can show the term was commonly understood to have a broader meaning.

  98. avatar
    nbc October 7, 2010 at 2:11 pm #

    Interesting subject, but who ever said the term must be limited to the common law. Not any founders. It is not a matter of doing what the England did, it is a matter of defining English legal terms. With almost no pre-convention American legal authority to define terms, where else would we look to define English legal terms being used by the English lawyers who wrote the Constitution.

    The supreme court has consistently held that terms not defined in the Constitution get their meaning from Common Law.

  99. avatar
    nbc October 7, 2010 at 2:16 pm #

    Greg: If the evidence is that the term “natural born” had a flexible meaning under English common law, one that was understood by the Founders, aren’t you insisting on a change in that meaning without evidence when you suggest that it became an immutable meaning upon our nation’s founding? What evidence do you have that the term “natural born,” which was clearly changeable by Parliament (with a floor) became immutable when used by the Founders?

    But it did not have a flexible meaning under common law, that’s exactly the point. It required explicit statutory law to extend the common law concept to include other classes and while we did adapt English Common Law to a large extent we did not necessarily adopt England’s statutory law on these issues.

    Nor does it make sense that a term, defined in the Constitution can be extended without amending the COnstitution.

    Which is why the Supreme Court has looked at Common Law to find the meaning of terms not defined in the Constitution. Under that premise, English common law never included children born abroad as natural born. While we may argue that the legislative branch may extend naturalization, the Constitution is clear that their powers are limited to uniform laws of naturalization.
    What would prevent Congress from passing a law that anyone naturalized is a natural born, clearly circumventing its meaning and intent?

  100. avatar
    nbc October 7, 2010 at 2:18 pm #

    Greg: What evidence do you have that the term “natural born,” which was clearly changeable by Parliament (with a floor) became immutable when used by the Founders?

    The fact that 1) the term as immutable in English Common law, and 2) the meaning of terms not defined in the Constitution are to be found in Common Law.
    In England, the term Natural Born had little relevance, unlike the US where it is a limitation placed on the President and thus we cannot have its meaning be changed through mere legislation. That would mean that a Constitutional requirement can be amended not through its proper process but through simple statutory laws.

    That is illogical

  101. avatar
    Greg October 7, 2010 at 2:19 pm #

    nbc: The supreme court has consistently held that terms not defined in the Constitution get their meaning from Common Law.

    See Charles Gordon’s, “Who can be President of the United States: The Unresolved Enigma” 28 Md. L. Rev. 1 (1968) arguing that the Common Law defined “natural born” as mutable with respect to jus sanguinis:

    It can also be argued that if the legislation dealing with citizens by descent does not derived from the naturalization clause, then Congress may have exceeded its power in 1790 and in subsequent legislation, in conferring citizenship status on such persons. But such a contention overlooks the inherent power of a state to define its citizenship. The undefined constitutional references to citizens, the unquestionable recognition of the jus soli in the absence of statute, the experience of the motehr country, and the practice in the United States all confirm the power of Congress to legislate in this area.

  102. avatar
    ballantine October 7, 2010 at 2:32 pm #

    nbc: The supreme court has consistently held that terms not defined in the Constitution get their meaning from Common Law.

    .
    That is because they were trying to determine what such terms were understood to mean at such time. If they were talking about common law terms, obvioulsy the common law would provide the best evidence of what such terms meant. There was nothing magical about the common law other than most English terms in the Constitution were defined solely with respect to the common law and hence should be defined by the common law. The goal was to understand what such terms meant to the framers. If the term had a broader meaning to the framers, why would we think the framers would have understood the term to be only limited to the common law meaning.

  103. avatar
    Greg October 7, 2010 at 2:33 pm #

    nbc: It required explicit statutory law to extend the common law

    Yet it was extendible! That means it was flexible, as long as they did not go below the floor. John Jay had children born abroad. What evidence do you have that he thought his children were ineligible under the clause that he suggested?

    Nor does it make sense that a term, defined in the Constitution can be extended without amending the COnstitution.

    Really?

    First, where’s the definition of “natural born” in the Constitution? That’s the whole point of this debate, that the term is not defined in the Constitution! Wong Kim Ark:

    The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.”…The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

    Some other terms that aren’t defined in the Constitution: Cruel and unusual punishment. What do you think that allowed when the Founders wrote it, what did it forbid? Hanging? Drawing and quartering? Thumbscrews? Executing children? The mentally retarded?

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    What’s an unreasonable search and seizure? Is it the same as when the Constitution was written? Show me the amendment changing the meaning of the term.

    Unreasonable and cruel are only definable by reference to contemporary social mores. The evidence shows that “Natural Born” was a term that was defined as having a floor but was expandable by the legislature.

  104. avatar
    nbc October 7, 2010 at 2:47 pm #

    Greg:
    Yet it was extendible! That means it was flexible, as long as they did not go below the floor. John Jay had children born abroad. What evidence do you have that he thought his children were ineligible under the clause that he suggested?Really?

    You are confusing two issues. One is that the laws could be extended beyond what Common Law provided, this should not be confused with Common Law being extensible. As to John Jay’s personal opinions, I am not sure what he was thinking here. And I am not sure that you have any way of resolving this matter. Furthermore,unfamiliar with John Jay’s children, I cannot say for sure if they were covered by the exemption that children born to foreign dignitaries are a well known exemption to Common Law Natural Born status, and I’d like to point out that if they were citizens at the time of the signing of the Constitution, they would have been natural born citizens per our Constitution.

    First, where’s the definition of “natural born” in the Constitution? That’s the whole point of this debate, that the term is not defined in the Constitution! Wong Kim Ark:

    Indeed, which is why Wong Kim Ark’s observation that If you had only quoted the folloing

    The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    Seems to me that the Court has outlined the basic parts of my argument here

    1. The term is left undefined in the Constitution
    2. Its meaning should therefor be found in Common Law.

    The evidence shows that “Natural Born” was a term that was defined as having a floor but was expandable by the legislature.

    You talk about evidence as if you have presented any. What did I miss?

  105. avatar
    nbc October 7, 2010 at 2:51 pm #

    Greg: See Charles Gordon’s, “Who can be President of the United States: The Unresolved Enigma” 28 Md. L. Rev. 1 (1968) arguing that the Common Law defined “natural born” as mutable with respect to jus sanguinis:

    It can also be argued that if the legislation dealing with citizens by descent does not derived from the naturalization clause, then Congress may have exceeded its power in 1790 and in subsequent legislation, in conferring citizenship status on such persons. But such a contention overlooks the inherent power of a state to define its citizenship. The undefined constitutional references to citizens, the unquestionable recognition of the jus soli in the absence of statute, the experience of the motehr country, and the practice in the United States all confirm the power of Congress to legislate in this area.

    I fail to see that he made such an admission. He was dealing with the issue of citizenship by descent and the power to legislate its citizenship but that does not mean necessarily that it gets to define or redefine the meaning of natural born.

    ‘The unquestionable recognition of jus soli in absence of statute’ indicates just the contrary.

  106. avatar
    nbc October 7, 2010 at 2:55 pm #

    As to John Jay

    The happy marriage of John and Sarah Jay produced six children: Peter Augustus, born in Elizabeth, New Jersey, in 1776; Susan, born and died in Madrid after only a few weeks of life, in 1780; Maria, born in Madrid in 1782; Ann, born in Paris in 1783, William and Sarah Louisa, born in NYC in 1789 and 1792 respectively.

    As to their whereabouts around the signing of the Constitution, I have so far not found any helpful references. Either way, I have not found any references at all about Jay’s position on whether or not his children were natural born, or at least eligible to serve as a President.
    Do you?

  107. avatar
    Greg October 7, 2010 at 3:06 pm #

    nbc: One is that the laws could be extended beyond what Common Law provided, this should not be confused with Common Law being extensible

    So, if the Common Law says that split peas means:

    1. Every green round spheroid that has been split, plus:
    2. Everything that Congress adds to that definition.

    The Common law has built in Congressional extendability into the Common Law definition of the term!

    Take “due process,” for example. The court has said that for “due process” you must get 1) the baseline fair process, plus 2) the procedures that Congress has put into place for your situation. So, you can be denied due process by a Congressional definition that falls below the floor, or by an agency failing to abide, in your circumstance, to what Congress has set as the standards for your situation. You can be screwed on an institutional level or a personal level – both fail to provide Constitutional due process.

    But, the Common Law definition includes both.

    nbc: I fail to see that he made such an admission.

    I was quoting from Gordon’s article. You can read through it to find the quote. If I’ve misquoted it, or If I have misstated the premise of the article, then feel free to correct me.

    The unquestionable recognition of jus soli in absence of statute’ indicates just the contrary.

    And if that were the ONLY thing Gordon cites, then you might be right. He doesn’t. He cites MORE than that.

    nbc: Indeed, which is why Wong Kim Ark’s observation that If you had only quoted the folloing

    I did quote that. I also quoted you, where you said:

    Nor does it make sense that a term, defined in the Constitution can be extended without amending the COnstitution.

  108. avatar
    nbc October 7, 2010 at 3:52 pm #

    The Common law has built in Congressional extendability into the Common Law definition of the term!

    Missing the point. Sure, common law can evolve, however the question is what the meaning of the Constitutional term “natural born citizen” implies and its meaning, since it was left undefined, must be found in (contemporaneous) Common Law. Common Law up to that point, and I believe even up-to today, has only accepted jus soli as the requirement for “natural born”, which is why in England statutory law was needed to extend its meaning. Common Law was not changed, but rather statutory language was added to deal with instances Common Law did not address.

    You are arguing that

    I was quoting from Gordon’s article. You can read through it to find the quote. If I’ve misquoted it, or If I have misstated the premise of the article, then feel free to correct me.

    I do not believe that the quote says anything to support your position. Could you perhaps explain? It mentions that Congress can extend citizenship but it failed to provide support for your far most distinct claim

    Nor does it make sense that a term, defined in the Constitution can be extended without amending the COnstitution.

    A minor misstatement, a term mentioned in the Constitution. That should have been obvious from context.

    Under Wong Kim Ark, it is clear that the meaning of natural born is to be found in Common Law, which defines natural born solely as ‘born on soil’ not when but where. Even your Dicey quote or Wong Kim Ark’s ruling fails to support you here.
    So we should at least be able to agree that the term natural born was well defined in common law? That said definition was limited to birth on soil? And that the term “natural born citizen” is mentioned in the Constitution.
    You are arguing that Congress can somehow extend the meaning of the term to include any and all naturalized person, as an inherent right of Congress since the term sets a lower bar? Correct me if I am wrong.
    Yet, the term natural born was added to clearly limit the eligibility of the President so it cannot be argued that it merely set a lower bar.One can argue that the Constitution cannot predict the future, but in this case, the case of children born abroad to citizens was a well known concept, and in the first Congress, as part of the Congress’s Constitutional task to provide for uniform rules of naturalization, it passed legislation which extended citizenship to such children, adding the term ‘natural born’ which appears to have been added by accident as it was quickly removed 2 years later and never used again.

  109. avatar
    nbc October 7, 2010 at 4:48 pm #

    brygenon: As a matter of language more than law, “natural born citizen” means citizen from the time of birth. Just as a foreigner who is made a citizen by process is “naturalized”, a citizen from birth is “natural born”. Who qualifies may be a complex legal issue, but that much is simply what the words mean.

    As a matter of Common Law, where we should look for our definitions of terms in the constitution but not defined, natural born refers to birth on soil only. Natural Born versus Natural-ized, one based on Constitutional principles, the other based on statutory enactments.
    Since children born to US citizens acquire their citizenship through statute, they can logically not be natural born, in the meaning as accepted by the US Supreme Court in Wong Kim Ark. As the dissenting Judge observed, the ruling would indeed mean that children born abroad to US citizens would be ineligible to run for president.

    We should be careful to reinterpret language which at the time of the passing of the Constitution had a well understood meaning in Common Law.

  110. avatar
    Greg October 7, 2010 at 5:05 pm #

    nbc: So we should at least be able to agree that the term natural born was well defined in common law? That said definition was limited to birth on soil? And that the term “natural born citizen” is mentioned in the Constitution.

    Yes, no and yes.

    It was well defined.

    It was not limited to those born on the soil of the United States. It included those the legislature decided were citizens at their birth. And, it was mentioned in the Constitution.

    nbc: I do not believe that the quote says anything to support your position.

    I’m sorry. I’ve sent you Gordon’s article before, and I don’t plan on recapitulating his argument. Suffice it to say that it is not at all clear that the meaning of natural born at the time of the founding was immutable:

    Here’s how Gordon puts it:

    In projecting his argument, Mr. Justice Gray urged that the common law recognized only the jus soli-citizenship determined by place of birth. This was a debatable but probably correct estimation of the early common law, but did not take into account the changes made by the statutes we have discussed. The Justice characterized those statutes as outside the common law. As I have indicated, in my view it is more accurate to regard those statutes as changing the common law. In any event, they were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers. The dissenting opinion of Chief Justice Fuller, in which Mr. Justice Harlan joined, argued that the jus sanguinis – citizenship through parentage or descent – was the controlling principle of the common law. This too was wrong. The common law, as it had developed through the years, recognized a combination of the jus soli and the jus sanguinis. A similar combination has always been embraced by the laws of the United States, except for the possibility of an inadvertent hiatus between 1802 and 1855. And like combinations of both historic principles are reflected in the laws of most nations of the world.

    Could Congress legislate away the prohibition on naturalized citizens? You’re asking whether they can grant natural born citizen status retroactively, which is a different question, qualitatively as well as temporally, than whether they can grant natural born citizen status prospectively to those born abroad to citizen parents.

    Recognizing that it is a different question, can you tell me why the Congress cannot have been granted that power?

    Do you disagree that a term could, by common law, be defined as setting a floor and also allowing for future Congressional expansion?

    Using my example above, does an Agency violate your Constitutional rights when they deprive you of due process granted to you by Congress, or have they simply violated the law?

    nbc: Under Wong Kim Ark, it is clear that the meaning of natural born is to be found in Common Law, which defines natural born solely as born on soil’ not when but where.

    What is clear is that whether the children born abroad of citizens are, themselves, natural born citizens is a question well outside that presented to the Court in Wong Kim Ark. As Gordon puts it:

    It is manifest that these statements of the majority and dissenters in Wong Kim Ark were dicta, pure and simple. The question before the Court concerned children born in the United States, and it was not asked to pass on the status of children born abroad. Several of the propositions expounded by the majority are, as I have suggested, debatable.

    Let me leave you with Gordon’s first conclusion:

    The reference to “natural-born” in the presidential qualification clause must be considered in the light of the English usage, well known to the Framers of the Constitution. The English common law, particularly as it had been declared or modified by statute, accorded full status as natural-born subjects to persons born abroad to British subjects.

  111. avatar
    Greg October 7, 2010 at 5:08 pm #

    nbc: We should be careful to reinterpret language which at the time of the passing of the Constitution had a well understood meaning in Common Law.

    This is what I object to.

    We have universal acceptance of the fact that natural born included at least those born on US soil. In the face of the fact that I can cite a dozen, plus, scholars that say that the Common Law also included those born abroad to US citizens, how can you say that it was well understood to exclude those people?

  112. avatar
    ballantine October 7, 2010 at 5:18 pm #

    nbc: As a matter of Common Law, where we should look for our definitions of terms in the constitution but not defined, natural born refers to birth on soil only.

    .

    I still don’t get why you think we should only look to the common law. What if “natrual born” was only found in english statutes, not the common law. Would we not then look to the statute to try to understand what the framers understood such term to mean, or would you look to the common law that contained no such term? Justice Scalia does not limit his inquiries to the common law, as he interested in trying to determine what the term was understood to mean regardless of the genesis of such meanings. According to Scalia:

    “I don’t use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase “the right to be confronted with witnesses against him” — what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn’t so for every provision of the Constitution. The one you mentioned — what does sovereignty consist of? — that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that’s why I would use English law — not at all because I think we are still very much aligned legally, socially, philosophically with England. That’s not the reason. “

  113. avatar
    Gregory October 7, 2010 at 7:07 pm #

    NbC:
    Because of birth on soil. Close but not close enough.US citizenship at birth should not be confused with natural born.

    If U.S. citizens born abroad are not “natural-born” citizens, then what exactly are they? They are clearly not “naturalized” U.S. citizens – because they never applied for citizenship and they never went through the U.S. naturalization process. And a “naturalized-born” U.S. citizen would be an oxymoron.

    Furthermore, before the 14th amendment, birth on U.S. soil was not by itself sufficient for someone to acquire natural-born U.S. citizenship (for example, slaves were excluded). Instead, Congress defined who was a citizen at birth – and who was not. And logically, if Congress had the power to deny U.S. citizenship to those born within the United States, Congress must also have had the power to grant U.S. citizenship to those born outside of the U.S. In fact, the latter power is one that Congress still retains – and one which Rogers upheld and even strengthened.

    And as a practical matter, what does the “natural-born” clause really require of the President? Why is the “natural-born” requirement even there at all? It’s there because the framers wanted to ensure that the President is someone has been a U.S. citizen for his or her entire life. That’s all it means. McCain and Obama have been U.S. citizens for their entire lives – and therefore each one qualifies as “natural-born”. Or look at it this way: nobody remembers when or where they were born, so how could the accident of McCain’s father’s station (whether it was San Diego or Panama or Timbuktu) make some kind of material difference to candidate John McCain’s qualifications when running for President – 70 years later?

    Within the category of naturalized citizens we have those naturalized not in the US who are thus not protected by the 14th amendment.
    The Supreme Court ruled on this…Rogers v Bellei. Naturalized but not 14th Amendment…

    Rogers did indeed find that those born outside the U.S. are not covered by the 14th amendment – instead, they acquire their U.S. citizenship at birth by virtue of a Congressional statute. What the Court decided in Rogers was that Congress may specify – not only any necessary preconditions for obtaining U.S. citizenship when born abroad – but also postconditions as well (in this case, in the form of a subsequent-to-birth U.S. residency requirement). Therefore, for some U.S. natural-born citizens, their citizenship is, in effect, conditional, that is, it may be lost if they do not meet the necessary postconditions (if any) established by law.

    Rogers is clear however, that these U.S. citizens (whose citizenship is conditional) are not “second-class” citizens because – as long as they retain their U.S. citizenship – these foreign-born U.S. citizens are indistinguishable from those citizens born inside the United States. And yes, that would naturally include being eligible to serve as President.

  114. avatar
    SueDB October 7, 2010 at 7:09 pm #

    Rickey:
    What does “should” have to do with it? Like it or not, he is eligible to be president. But his eligibility is of no significance, because there is no chance that he could ever be elected president.
    There are plenty of despicable people who are eligible to be president. We don’t worry about it, because we trust that the voters will never elect them.

    Harding and Nixon come to mind…I would think that his eligibility would focus more on the residency requirement. How much time does he spend overseas versus in the US and where is he registered to vote/maintain a driver’s license, etc.

  115. avatar
    SueDB October 7, 2010 at 7:18 pm #

    Gregory:
    Perhaps for a lark?

    How would she get there? (or get there and back) This is the early 60’s not now with jet travel. Additionally, airlines have always been skittish about women nearing term. Research travel in 1964 before you make uninformed quips.

  116. avatar
    Rickey October 7, 2010 at 7:32 pm #

    SueDB: Al-Awlaki

    I would think that his eligibility would focus more on the residency requirement. How much time does he spend overseas versus in the US and where is he registered to vote/maintain a driver’s license, etc.

    He appears to meet the residency requirement, but it would invite closer scrutiny. It looks like he lived in the U.S. for the first seven years after he was born and then again from 1991-2002, but it’s unclear if he resided outside of the U.S. at any point during the latter period.

    Of course, if he ever tried to enter the U.S. again he would be arrested on the spot, which likely would not bode well for his presidential aspirations.

  117. avatar
    Gregory October 7, 2010 at 7:35 pm #

    SueDB:
    How would she get there? (or get there and back)This is the early 60′s not now with jet travel.Additionally, airlines have always been skittish about women nearing term.Research travel in 1964 before you make uninformed quips.

    SueDB, haven’t you ever done anything spontaneous, on the spur of the moment – as a madcap adventure or simply for the hell of it? Especially when you were a teenager? I could easily imagine Mrs. Obama waking up (likely with a bad hangover) only to find herself pregnant, laying on the dirt floor of some hut in some remote village in Kenya, in 1961.

    I’m sure that this sort of thing happened to young women in the U.S., much more often than you might think.

  118. avatar
    Dr. Conspiracy October 7, 2010 at 7:41 pm #

    Gregory: I’m sure that this sort of thing happened to young women in the U.S., much more often than you might think.

    Is that phrase “I’m sure” properly understood to mean “I just made this up without any actual knowledge about how often this happens.”

  119. avatar
    Gregory October 7, 2010 at 7:50 pm #

    Dr. Conspiracy:
    Is that phrase “I’m sure” properly understood to mean “I just made this up without any actual knowledge about how often this happens.”

    Yes, that is exactly what it means.

    Personally, I can’t see how this scenario could happen at all – much less “often.” But some people (who will go unnamed) are apparently pretty gullible. 🙂

  120. avatar
    Dr. Conspiracy October 7, 2010 at 7:51 pm #

    Gregory: Furthermore, before the 14th amendment, birth on U.S. soil was not by itself sufficient for someone to acquire natural-born U.S. citizenship (for example, slaves were excluded).

    While the Dred Scott decision said so, that decision is considered one of the worst in Supreme Court history and I would not put much stock in it.

  121. avatar
    Gregory October 7, 2010 at 8:03 pm #

    Dr. Conspiracy:
    While the Dred Scott decision said so, that decision is considered one of the worst in Supreme Court history and I would not put much stock in it.

    The Dred Scott case is historically important because it illustrates how much slaves were excluded from American life before the Civil War.

    Of course, from a human rights perspective Dred Scott was a shameful, abhorrent decision – but it was exactly the type of decision that the 14th Amendment was specifically written to outlaw – in perpetuity.

    So the point I was making – was that to understand the 14th Amendment – one should know Dred Scott.

  122. avatar
    Dr. Conspiracy October 7, 2010 at 8:12 pm #

    Gregory: Of course, from a human rights perspective Dred Scott was a shameful, abhorrent decision – but it was exactly the type of decision that the 14th Amendment was specifically written to outlaw – in perpetuity.

    Dred Scott may be abhorrent from a human rights perspective, but it was also bad law, fundamentally misrepresenting history.

    I would agree that Dred Scott is important in understanding the 14th amendment, but Dred Scott is useless for understanding American law and the Constitution.

  123. avatar
    nbc October 7, 2010 at 8:30 pm #

    Gregory: If U.S. citizens born abroad are not “natural-born” citizens, then what exactly are they?

    Under Rogers v Bellei, we can conclude that they are not 14th Amendment citizens. Since they are not born under US jurisdiction on US soil, I fail to see how they could be natural born as the term was understood. Citizenship as outlined in the Constitution comes from two sources, naturalized and natural born. The 14th explains this by stating “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.”

    This was meant to reflect the Constitutional situation that existed at the time the Constitution was signed into law.

    Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).

    Nothing here talks about ‘applying’ or even a particular process, just that Congress may establish requirements.

    So what is the process for children born abroad?

    You should report the birth of a child abroad (outside the United States) to establish US citizenship. The birth of a child abroad (or overseas) to a U.S. citizen parent(s) should be reported as soon as possible to the nearest U.S. embassy or consulate to establish an official record of the child’s claim to U.S. citizenship at birth. The official record is a Consular Report of Birth of a Citizen of the United States of America, or Form FS-240.

    Citizenship at birth is granted by statute, and while you and in at least one case, a court, may argue that they are not naturalized, there may indeed be a third way, which is hinted at by the ruling in Rogers v Bellei, namely the inherent power of the legislative branch to establish who is a citizen of the United States.
    There have been examples such as honorary citizenship to Churchill and specific bills that would grant citizenship to specific people.

    As the Court in Bellei observes

    The plaintiff’s claim thus must center in the statutory power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions other than the Fourteenth Amendment’s first sentence.

    First pointing to Wong Kim Ark

    United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment.

    Naturalization by descent was not a common law concept… Naturalization by descent… Powerful words

    Followed by

    We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.

    Pointing again to Wong Kim Ark the court observes the following powerful words

    “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.”

    Uniform rule of naturalization

    As to your claim about Rogers v Bellei

    GregRogers did indeed find that those born outside the U.S. are not covered by the 14th amendment – instead, they acquire their U.S. citizenship at birth by virtue of a Congressional statute. What the Court decided in Rogers was that Congress may specify – not only any necessary preconditions for obtaining U.S. citizenship when born abroad – but also postconditions as well (in this case, in the form of a subsequent-to-birth U.S. residency requirement). Therefore, for some U.S. natural-born citizens, their citizenship is, in effect, conditional, that is, it may be lost if they do not meet the necessary postconditions (if any) established by law.

    Rogers is clear however, that these U.S. citizens (whose citizenship is conditional) are not “second-class” citizens because – as long as they retain their U.S. citizenship – these foreign-born U.S. citizens are indistinguishable from those citizens born inside the United States. And yes, that would naturally include being eligible to serve as President.

    Let me quote from the ruling

    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.

    And not the court does not state indistinguishable as far as I can tell. In fact, it is clear that such children born abroad are not 14th Amendment citizens but rather follow from statute under the power of Congress to define uniform rules of naturalization

    I find Rogers v Bellei to contradict your position quite explicitly and reminding me of a Quote from WKA in which the judge stated that the power to grant citizenship to children born abroad is regulated by congress under their powers to provide for uniform naturalization rules.

  124. avatar
    nbc October 7, 2010 at 8:33 pm #

    As to your ‘second class’ statement, this is what the court observed

    7. Neither are we persuaded that a condition subsequent in this area impresses one with “second-class citizenship.” That cliche is too handy and too easy, and, like most cliches, can be misleading. That the condition subsequent may be beneficial is apparent in the light of the conceded fact that citizenship to this plaintiff was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not “second-class.”

    It is not second class but follows from a possible starting point of noncitizenship. It seems far from obvious that the court thus found that such citizens are on part with those born on US soil, but rather considered them to be on par with naturalized citizens.

  125. avatar
    nbc October 7, 2010 at 8:34 pm #

    As to your claim of no process similar to naturalization

    In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.

    Of course the process can be defined by Congress and was since then changed but it seems clear that the defendant went through a process that was similar to naturalization.

  126. avatar
    nbc October 7, 2010 at 8:39 pm #

    As a counter argument

    Bellei also noticed

    “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. . . .”

    2. A like provision, with only minor changes in phrasing and with the same emphasis on paternal residence, was continuously in effect through three succeeding naturalization Acts. Act of January 29, 1795, § 3, 1 Stat. 415; Act of April 14, 1802, § 4, 2 Stat. 155; Act of February 10, 1855, c. 71, 1, 10 Stat. 604. The only significant difference is that the 1790, 1795, and 1802 Acts read retrospectively, while the 1855 Act reads prospectively as well

    Even though the statement includes “as natural born citizens”, the court appears to consider the drop of the term to be not significant, or minor in change.

    Note that the act does not state “shall be considered a natural born citizen” but rather “shall be considered as a natural born citizen”. I have seen the same terminology used elsewhere,followed by, with the obvious distinction that naturalized persons cannot be eligible for the Presidency.

  127. avatar
    nbc October 7, 2010 at 8:42 pm #

    In the dissenting opinion we learn that indeed Bellei is naturalized even though popular opinion may not consider them as such, history would show otherwise.

    Bellei was not “born . . . in the United States,” but he was, constitutionally speaking, “naturalized in the United States.” Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish an uniform Rule of Naturalization,” Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.

  128. avatar
    Greg October 7, 2010 at 9:07 pm #

    nbc: In the dissenting opinion we learn that indeed

    Dissents are not law. Anyway, here’s the conclusion from Jill Pryor’s article:

    This Note’s approach removes the confusion caused by Supreme Court dicta asserting that there are only two classes of citizens, native-born and naturalized. As historical and textual analysis has shown, a citizen may be both “naturalized” and “natural born.” Under the naturalized born approach, any person with a right to American citizenship under the Constitution, laws, or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.

  129. avatar
    nbc October 7, 2010 at 9:13 pm #

    Greg: nbc: In the dissenting opinion we learn that indeed

    Dissents are not law. Anyway, here’s the conclusion from Jill Pryor’s article:

    I am not arguing otherwise, I found their position quite in line with the majority ruling on the topic of the status of Bellei.

    But if you insist: Jill Pryor’s article also is not law 🙂

    This Note’s approach removes the confusion caused by Supreme Court dicta asserting that there are only two classes of citizens, native-born and naturalized. As historical and textual analysis has shown, a citizen may be both “naturalized” and “natural born.” Under the naturalized born approach, any person with a right to American citizenship under the Constitution, laws, or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.

    Seems to me that the Court does not appear to hold to that opinion. I understand that various people have voiced their interpretations of the court, and until they rule, we can never be certain. However, in Rogers v Bellei, both sides appear to agree that Bellei was naturalized.

    As to the conclusion that he may also be natural born, the findings in US v Wong Kim Ark and repeated in Bellei appear to make such a conclusion unlikely.

  130. avatar
    nbc October 7, 2010 at 9:21 pm #

    Greg: This Note’s approach removes the confusion caused by Supreme Court dicta asserting that there are only two classes of citizens, native-born and naturalized. As historical and textual analysis has shown, a citizen may be both “naturalized” and “natural born.” Under the naturalized born approach, any person with a right to American citizenship under the Constitution, laws, or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.

    As far as I can tell Pryor is arguing that the children so born are naturalized at birth and also natural born. However, for the second proposition she offers little support other than pointing to the first naturalization act where Congress states “as natural born”, a qualifier which was subsequently removed in later acts, passed within a few years.

    If we accept her argument that they are naturalized then the position natural born or naturalized becomes harder to support, and thus there is a third category of citizen.

    After reading Bellei I am not too hopeful that her position is tenable.

  131. avatar
    nbc October 7, 2010 at 9:34 pm #

    But Congress thought proper to extend this definition and as early as 1790 enacted that the children of citizens of the United States that may be born beyond the sea or out of the limits of the United States shall be considered as natural born citizens, (1 Stat at L 104) This act however was substituted in 1795 by another in which the words natural born citizens are replaced by the single word citizens a change retained in the act of 1802 and in the act of 1855 which is the one now found on the statute books, (US Rev Stats 1993 US Comp Stats p 1268) indicating the legislative intent to recede from the position that such persons are to be classed as natural born and to constitute them naturalized citizens and they are so classed by the Supreme Court in United States v Wong Kim Ark 169 US 687 688 702 703 The question is one of practical interest since under the Constitution only a natural born citizen can aspire to be President of the United States

    Source: Proceedings of the American Society of International Law at its annual meeting, Volumes 3-4, 1909

  132. avatar
    Greg October 7, 2010 at 11:15 pm #

    nbc: After reading Bellei I am not too hopeful that her position is tenable.

    Rogers v. Bellei, 1971
    Pryor’s article, 1988

    Rogers is discussed at footnote 67-72, among other places in Pryor’s article.

  133. avatar
    NbC October 7, 2010 at 11:36 pm #

    Greg:
    Rogers v. Bellei, 1971
    Pryor’s article, 1988Rogers is discussed at footnote 67-72, among other places in Pryor’s article.

    I understand Pryor’s position and as I said, her argument that one can be naturalized and natural born is only mentioned in dicta by a single Judge. The majority opinion is clear about such children being naturalized.

    I am not sure that Pryor’s article is very helpful in understanding the impact of Bellei. I’d look at the ruling myself to understand what was said. See above.

  134. avatar
    NbC October 7, 2010 at 11:39 pm #

    So combine the either natural born and naturalized from Wong Kim Ark with the Bellei finding that children born abroad to US citizens are naturalized and we may have only one logical conclusion to draw here.

    Also

    United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment.

    But if it was not a common law concept then it could not address the meaning of natural born the meaning of which had to be found in common law.

  135. avatar
    Greg October 7, 2010 at 11:41 pm #

    Also, I think you can find textual support in Calvin’s Case for the soli + sanguinis equation. From Natural Law and Birthright Citizenship in Calvin’s Case:

    The most important constitutional aspect of the case is its support for the idea that a King ruled by the lawof nature, thereby requiring “natural” allegiance of all subjectes wherever they may be located.

    Those born within the realm were within the direct protection of the King, while those citizens who went abroad took the protection of the King with them. Similarly, an American citizen doesn’t lose his/her 14th Amendment rights simply because they travel abroad. Nor does the foreign traveler give up the protection of the United States. Calvin’s Case didn’t find that those children born abroad to be citizens because statues made them so, but because the condition of natural allegiance required it:

    Now are we come unto (and almost past) the consideration of this circumstance, where natural ligeance should be due: For by that which hath been said it appeareth, that ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi65 for that were to confound predicaments, and to goe about to drive (an absurd and impossible thing) the predicament of Quality into the predicament of ubi. Non respondetur ad hanc quaestionem, ubi est? to say, Verus et fidelis subditus est; sed ad hanc quaestionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est.66 But yet for the greater illustration of the matter, this point was handled by itself, and that ligeance of the subject was of as great an extent and latitude, as the royal power and protection of the King, et è converso.67 It appeareth by the statute of 11 Hen. 7. cap. 1. and 2 Edw. 6. cap. 2. that the subjects of England are bound by their ligeance to goe with the King, &c. in his wars, as well within the Realm, &c. as without. And therefore we daily see, that when either Ireland or any other of his Majesty’s dominions be infested with invasion or insurrection, the king of England sendeth his subjects out of England, and his subjects out of Scotland also into Ireland, for the withstanding or suppressing of the same, to the end his rebels may feel the swords of either nation. And so may his subjects of Guernsey, Jersey, Isle of Man, &c. be commanded to make their swords good against either rebel or enemy, as occasion shall be offered: whereas if natural ligeance of the subjects of England should be local, that is, confined within the realm of England or Scotland, &c. then were not they bound to goe out of the continent of the realm of England or Scotland, &c.

    So, while there were laws that granted citizenship to those born abroad, the case which gave us the common law underpinnings of jus soli also found a natural law rationale for jus sanguinis.

  136. avatar
    NbC October 7, 2010 at 11:57 pm #

    So let’s see if I can get my argument together

    1. The term “natural born citizen” is undefined in the Constitution and thus its meaning should be found in Common Law (US v WKA)
    2. The term under common law meant ‘jus soli’ (Bellei citing US v WKA)
    3. Jus sanguini was not a common law concept but rather a statutory enactment (Bellei citing US v WKA)
    4. Children born abroad to US citizens are naturalized (Rogers v Bellei)
    5. If naturalized they are not part of Common Law and thus cannot be a natural born citizen Conclusion

  137. avatar
    NbC October 8, 2010 at 12:29 am #

    Greg: So, while there were laws that granted citizenship to those born abroad, the case which gave us the common law underpinnings of jus soli also found a natural law rationale for jus sanguinis.

    I think you are now confusing the status of the child and the status of the parent. Sure the parent may owe allegiance to the king wherever he is, but the child, born in a foreign country has no natural allegiance to the king of his father.

    As to Calvin, let’s point out that per explicit statute, natural born citizenship was granted to children born abroad under 25 Edw II (Birth within the King’s territory was not, however, the sole method for acquiring subject status at birth. A rule derived from the statute De Natis Ultra Mare of 1351 permitted children born abroad of English parents to be considered natural-born subjects. [FN53] But the rule that presumed anyone born within the territory of the King to be a natural-born subject of the King remained a part of English law until 1981. )

    I see, you are quoting from the same article

    No nation relies exclusively on one of these principles to determine who is a natural-born subject or citizen. [FN17] In Britain, even before Calvin’s Case, various acts and proclamations provided that a child born out of the territory of England could also be a natural-born subject, as long as the child’s parents owed allegiance to the sovereign of England. [FN18] This is an example of the jus sanguinis operating alongside the jus soli. In the history of both Britain and the United States, the jus sanguinis has always been established by statute, never *78 by judge-made law. [FN19] This fact underscores the uniqueness of the jus soli as a feature or creation of the common law and suggests the importance of Calvin’s Case in the development of the rule.

    I will return to Horace Binney in Alienegenae soon where he outlines why there is no foundation for the claim that jus sanguini had a basis in common law.

    First Calvin

    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 ligeance of the King; and demand Judgment, if he shall be answered

    It seems clear to me that Calvin never presumed children born abroad to be under common law natural born, unless they were children of his embassadors, invading military or his own children.

  138. avatar
    NbC October 8, 2010 at 12:41 am #

    25 Edw III De Natis Ultra Mare

    It has been said that this statute was only declaratory of the Common law )See what is said by Lord Bacon when arguing as counsel in Calvin’s case 2 State Trials p 585) But this view is hardly consistent with its language which is prospective and refers only to children which from henceforth shall be born and it has been pertinently observed that if the statute had only been declaratory of the Common Law the subsequent legislation on this subject would have been wholly unnecessary.

    In his opinion in Lynch v Clarke 1844 NY Ch 1 Sandf 583 Judge Sandford mentioned such high legal authorities as Lord Bacon Chief Justice Tindal Baron Parke and Chancellor Kent as holding that jus sanguinis was a part of the common law but equally high authorities have held the contrary view

    Source: Flournoy, Dual Nationality and Election The Yale law journal, Volume 30, 1921

    So at best there can be an argument that the issue was contentious. However in US v Wong Kim Ark, the Supreme Court took the position that Jus Sanguini was not part of the Common Law.

  139. avatar
    brygenon October 8, 2010 at 12:53 am #

    As a matter of Common Law, where we should look for our definitions of terms in the constitution but not defined, natural born refers to birth on soil only.

    As a matter of sanity we lay people should defer to the learned professors of law, rather than pretending an expertise we do not have.

    Natural Born versus Natural-ized, one based on Constitutional principles, the other based on statutory enactments.

    Prior to the adoption of the 14’th Amendment, the Constitution did not state any principle that bestowed citizenship by birth upon anyone. Were your argument correct, there would have been *no* natural-born citizens of the United States until 1868.

    You misunderstand the post civil war amendments. The 13’th, 14’th, and 15’th Amendments each concludes with a provision granting Congress the power of enforcement by appropriate legislation. They were not about limiting the power of Congress. They were about taking power away from the states. Congress was already granting citizenship by birth to some children born outside the U.S., and that did not change with the 14’th Amendment. What changed was that the states lost power over the citizenship of native-born children.

    Since children born to US citizens acquire their citizenship through statute, they can logically not be natural born, in the meaning as accepted by the US Supreme Court in Wong Kim Ark.

    You conveniently ignore the bit of the Court’s opinion where they affirmatively quote British Jurist A.V. Dicey: “Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    As the dissenting Judge observed, the ruling would indeed mean that children born abroad to US citizens would be ineligible to run for president.

    You mean this bit?: “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.” Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    We should be careful to reinterpret language which at the time of the passing of the Constitution had a well understood meaning in Common Law.

    Take your own advice. Why would the Common Law even need “natural born citizen” to be a special term of art, distinct from citizen by birth?

  140. avatar
    NbC October 8, 2010 at 1:00 am #

    brygenon: Prior to the adoption of the 14′th Amendment, the Constitution did not state any principle that bestowed citizenship by birth upon anyone. Were your argument correct, there would have been *no* natural-born citizens of the United States until 1868.

    That’s of course incorrect as the 14th Amendment merely reflects what the constitution already provides for. Read US v Wong Kim Ark as well as the debates leading to the 14th Amendment.

  141. avatar
    NbC October 8, 2010 at 1:02 am #

    brygenon: You conveniently ignore the bit of the Court’s opinion where they affirmatively quote British Jurist A.V. Dicey: “Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    Nope I quoted in its proper context, where it states, when born on soil. So let’s not make such foolish assertions and accusations.

    and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41

  142. avatar
    NbC October 8, 2010 at 1:04 am #

    brygenon: Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    Nice ad hominem, but it is extremely logical as this is what the Court had ruled, while the sentiments may be racist, and a reflection of those times, the legal argument is not.

    So let’s abandon juvenile response please..

  143. avatar
    NbC October 8, 2010 at 1:07 am #

    Take your own advice. Why would the Common Law even need “natural born citizen” to be a special term of art, distinct from citizen by birth?

    It’s a matter of established fact that natural born refers to birth on soil, not just birth. As Bellei observes, these ‘citizens by birth’ are in fact naturalized at birth, which makes sense as this is a statutory provision.

    Citizen by birth is not found in the Constitution, natural born citizen is and thus its meaning was found in Common Law to refer to birth on soil.

    The arguments I propose are straightforward. Let’s focus on them and see if you can find any fault in the Supreme Court’s reasonings.

  144. avatar
    NbC October 8, 2010 at 1:08 am #

    So other than some childish insinuations, is there anything of substance you have to offer here?

  145. avatar
    NbC October 8, 2010 at 1:10 am #

    Dicey n full context

    “‘British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes ‘temporary’ allegiance to the Crown. ‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

    Cheers.

  146. avatar
    NbC October 8, 2010 at 1:15 am #

    Or we can read Dicey’s own book

    Allegiance is the tie or ligamen which binds the subject to the King in return for that protection which the King affords the subject 4 But every person born within the British dominions does with very rare exceptions enjoy at birth the protection of the Crown Hence subject to such exceptions every child born within the British dominions is born within the ligeance as the expression goes of the Crown and is at and from the moment of his birth a British subject he is in other words a natural born British subject

    and

    The principle of the common law is that a person born beyond the limits of the British dominions does not at his birth owe allegiance to the Crown and cannot therefore be a natural born British subject If such a person acquires British nationality at all he must acquire it at some later period of his life This principle however was before 1870 so far relaxed by legislation that persons born abroad whose fathers or grandfathers by the father’s side were natural born subjects are deemed to be natural born subjects themselves to all intents and purposes 2

    Dicey is clear what the principle of common law is, and that is what we inherited, not the statutory additions.

  147. avatar
    gorefan October 8, 2010 at 11:58 am #

    Welsh Dragon: What I was really looking for was the earliest use of “native born citizen” as something different from a “natural born citizen” (they’re clearly synonyms in early sources) so far I’ve not got further back than Alexander Porter Morse./i

    It might be easier to find references to native born being a Constitutional qualification for the Presidency.

    For example:

    David Russell, House debate over entrance of Michigan into Union. June 9th, 1836.
    “Our fathers, sir, were not unmindful of the importance of submitting our institutions to the guardianship of native American statesmen. By the provisions of the federal constitution, the President and Vice President of the United States are required to be native-born citizens; and the President is required to cause the laws of the Union to be executed. These high places of power, it I was then thought, could not, with safety to the American people, be occupied by any but natural-born citizens.”

    http://books.google.com/books?pg=PP218&dq=%22native+born%22+president&ei=XpqrTJyTNIPGsAOGpo3QAw&ct=result&id=Ci4WAAAAYAAJ#v=onepage&q&f=false

  148. avatar
    Welsh Dragon October 8, 2010 at 1:02 pm #

    Thanks Gorefan but I got lots of examples where it’s used like that. It’s the earliest example of it meaning something different to Natural Born Citizen that I’m looking for .

  149. avatar
    NBC October 8, 2010 at 1:46 pm #

    Good luck and let us know, most examples I remember having seen suggest that the two are equivalent. It would be interesting to figure out when they started to diverge, if ever.

  150. avatar
    Rickey October 8, 2010 at 2:13 pm #

    I have a copy of a conservative history textbook published by the right-wing National Center for Constitutional Studies in 1985 titled “The Making of America: the Substance and Meaning of the Constitution.” It was written by W. Cleon Skousen.

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

    The book breaks the Constitution down to 286 “principles.” Principle 141 discusses the natural born citizen requirement:

    To be a candidate for President of the United States, a person must be a natural born citizen, or a citizen at the time of the adoption of the Constitution. This provision gave the American people the right to have a President who would always be one of their own native-born fellow citizens.

    p. 528

  151. avatar
    NBC October 8, 2010 at 2:16 pm #

    Rickey: To be a candidate for President of the United States, a person must be a natural born citizen, or a citizen at the time of the adoption of the Constitution. This provision gave the American people the right to have a President who would always be one of their own native-born fellow citizens.

    Good find…

  152. avatar
    brygenon October 8, 2010 at 9:17 pm #

    NbC: NbC October 8, 2010 at 1:04 am NbC(Quote) #

    brygenon: Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    Nice ad hominem, but it is extremely logical as this is what the Court had ruled, while the sentiments may be racist, and a reflection of those times, the legal argument is not.

    So let’s abandon juvenile response please..

    Good tactic: Snip and pretend that was an ad hominem attack on you.
    How about you answer the question? Is this or is this not the part of the WKA dissent you were citing for support?

    “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.”

    So let’s abandon juvenile response please..

    Once again, please take your own advice.

  153. avatar
    brygenon October 8, 2010 at 11:58 pm #

    NbC: Dicey n full context
    “British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes temporary’ allegiance to the Crown. Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

    That’s what I’ve been trying to explain. As a matter of language — what the term means — “natural born subject” means a subject from birth. As a principle of British law, those born in the dominion, with the few exceptions, are natural born subjects.

    NBC’s error here is in conflating the issue of language with the issue of law. 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 dominion”, then in Freedonia there are natural born citizens who are not, and never were, citizens. If, on the other hand, “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. Which makes more sense?

    NBC: I do realize that people have argued on both sides for and against John McCain, however, I never found the pro-arguments to be having any historical or legal merit.

    Specifically who are you referring to as arguing your side with respect to John McCain? I already cited Gabriel Chin’s paper, but his thesis was, “Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.” What notable legal scholars actually took your position?

    Natural born was clearly understood to be jus soli and Amar’s argument’ which lacks in much supporting reason and foundation is merely an assertion “The Constitution’s rule that the president be “a natural born citizen” focuses not on where a person became a citizen, but when.”

    Appeal to authority is a reasonable argument provided the source actually is an authority on the matter. Check out Amar: http://en.wikipedia.org/wiki/Akhil_Reed_Amar
    Note how I first introduced the quote of Amar: “Here’s how a renowned constitutional scholar explained it to lay audience:” That’s exactly the kind of thing we should be looking at because we are a lay audience. NBC, you are incessantly appealing to your own authority. “I never found the pro-arguments to be having any historical or legal merit,” you write. You want to lecture on what the WKA opinion says but cannot actually quote the bit that says *only* those born in the U.S. are natural-born citizens, because it exists only in your inexpert interpretation.

    I filled my first response to NBC above with expert sources, citing Amar, Chin, Gordon, and quoting WKA. I laughed out loud when I saw NBC ask, “So other than some childish insinuations, is there anything of substance you have to offer here?” But since he asked, and because Greg cited Gordon extensively, I’ll quote the footnote 3 of Barnett v. Obama that cites Gordon, as the language of the footnote seems relevant here:

    The U.S. District Court for the Central District of California wrote: “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

  154. avatar
    NbC October 9, 2010 at 12:30 am #

    brygenon: brygenon: Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    Nice ad hominem, but it is extremely logical as this is what the Court had ruled, while the sentiments may be racist, and a reflection of those times, the legal argument is not.

    So let’s abandon juvenile response please..

    Good tactic: Snip and pretend that was an ad hominem attack on you.

    The ad hominem part is the fact that I posted it and your ‘response. I am not pretending, I am just observing.

    How about you answer the question? Is this or is this not the part of the WKA dissent you were citing for support?

    I was citing it for support that according to the dissenting judge, under WKA, children born abroad to US citizens could not run for President. A very justifiable conclusion given that the court itself had ruled them to be naturalized by Congressional statute.

    Do you disagree, or are you going to attempt to dismiss it with a ‘I cannot believe you cited this’ argument, which serves to ignore the argument itself.

    Simple question…

    I also quote the same when showing that even the dissenting Judge realized that WKA was natural born and eligible to run for president under the majority’s ruling.

    Funny how the same argument can be used to undermine the birther as well as those who believe that children born abroad to US citizens are natural born.

    When in light of the Supreme Court rulings, they have to explain how one can be naturalized through an act of congress and still natural born where natural born was found to be a jus soli concept.

  155. avatar
    NbC October 9, 2010 at 12:50 am #

    brygenon: “I never found the pro-arguments to be having any historical or legal merit,” you write. You want to lecture on what the WKA opinion says but cannot actually quote the bit that says *only* those born in the U.S. are natural-born citizens, because it exists only in your inexpert interpretation.

    I am citing my own opinions and am not hiding behind third parties. I have shown the logical argument which is that when defining natural born citizen the court observed that under Common Law principles it was a term limited to jus soli and that the issue of children born abroad to US citizens was covered by the naturalization statute.

    As such, there is not only a logical argument that jus soli indeed is a limiting factor on natural born and furthermore that it does not extend to children born abroad.

    The U.S. District Court for the Central District of California wrote: “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.

    Fascinating, a footnote in dicta of a lower court. Furthermore the Court talks about ‘defining citizenship whether naturalized or by birth’, focusing on the topic of judicial constraint which prevents the courts from second guessing Congress. But that’s quite a bit different from Congress being able to define children born abroad to be natural born citizens. Both are however forms of naturalization, and fail to address the issue here (see Roger v Bellei, US v Wong Kim Ark). There has been one instance where Congress defined children born abroad to US citizens to be natural born and the reference was quickly removed in subsequent laws so even under your assumption that Congress may define them to be natural born, they have refrained from doing so other than in the earliest naturalization act. So perhaps a more defensible interpretation is that Congress erred while quoting English statutory law and included a term which was defined in the Constitution and found to mean ‘jus soli only’ and could not be redefined by Congress lest they use a Constitutional amendment.

    And just because a court quotes a paper does not mean it agrees with all aspects of its claims. Sure, scholars have argued for and against this for a while, but in the end, looking at the Supreme Court rulings, it seems inevitable that children born abroad to US citizens are likely not natural born citizens, no matter how much we would like them to be.

    And for this I present US v Wong Kim Ark, majority and dissenting opinion as well as Rogers v Bellei.

    But I can accept that my logic may have failed to provide sufficient steps for others to follow my argument, and for that I am perfectly willing to take the blame.

    So let’s take it step by step, as I found this approach to be quite successful with birthers

    1. Natural born citizen is a term left undefined in the Constitution
    2. The meaning therefor has to be found in Common Law
    3. Common Law defines the term as being limited to the concept of jus soli, birth on soil.

    while this is sufficient to destroy any hopes for an argument that children born abroad to US citizens are natural born, the courts have gone further

    4. The status of children born abroad to US citizens is covered through Naturalization Statutes passed by Congress under their constitutional power to provide for common rules.

    I find it fascinating how you avoid the facts I have presented in favor of some continued attacks on the person. That’s fine with me, I have dealt with enough birthers to have grown used to this kind of ‘logic’.

  156. avatar
    NbC October 9, 2010 at 12:52 am #

    brygenon: That’s what I’ve been trying to explain. As a matter of language — what the term means — “natural born subject” means a subject from birth. As a principle of British law, those born in the dominion, with the few exceptions, are natural born subjects.

    As principle of US Constitutional law, it’s not matter of language but matter of common law that matters. Born on soil is the defining term, not “subject from birth”. Furthermore, I have yet to see any evidence that as a matter of language this is indeed the case. But it is mostly irrelevant since the meaning of the term Natural Born is to be found in Common Law not what you think it should mean.

  157. avatar
    NbC October 9, 2010 at 12:56 am #

    brygenon: NBC’s error here is in conflating the issue of language with the issue of law. 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 dominion”, then in Freedonia there are natural born citizens who are not, and never were, citizens. If, on the other hand, “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. Which makes more sense?

    That does not make sense for so many reasons. First of all natural born citizen is a term found in the US Constitution and its meaning remains undefined, and thus the meaning of the term is to be found in common law which defines it as ‘jus soli’.

    If England had been a jus sanguini nation and used the term natural born then we would have concluded that the term references a different concept. But that’s purely hypothetical.

    You do understand the argument?

    1. The term is undefined in the Constitution
    2. Its meaning is thus to be found in Common Law (per many supreme court rulings)
    3. Common Law defined the term to mean ‘jus soli’

    And that’s it.

  158. avatar
    AnotherBird October 9, 2010 at 1:09 am #

    NbC: First of all natural born citizen is a term found in the US Constitution and its meaning remains undefined, and thus the meaning of the term is to be found in common law which defines it as jus soli’.

    And, that would be American common law. British common law has little influence on the interpretation of American law, other than in a historical context.

  159. avatar
    NbC October 9, 2010 at 1:20 am #

    What notable legal scholars actually took your position?

    Have you ever read Alienegenae, it’s a very good paper. Of course, the Supreme Court rulings support my position and there are scholars in the McCain debate who have ruled on various reasons why he would have failed to be a natural born citizen.
    Not being born on US soil is one of the reasons that was raised. But again, I accept that scholars argue both sides of the argument, which is why I prefer to go back to the original sources that guide our laws. Even if scholars may argue that the Supreme Court got it wrong here, the problem is that of precedent.

    And I do understand that this is an emotional topic as we would all like to believe that children born abroad to US citizens could be natural born, or at least should be natural born, but our wishes and hopes should not be confused with matters of law, logic and reason.

    So let’s look at a few examples

    Attorney General Bates, 1862

    … our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic

    Foreign Affairs Manual

    “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities 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 subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth

    The State Department 7 FAM 1131.6-2d: “Eligibility for Presidency”

    “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities 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 subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth

    Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, Michigan Law Review First Impressions, 2008

    The Supreme Court has held that there are only two ways to become a citizen: 1) birth in the United States, thus becoming a citizen under the citi- zenship clause of the Fourteenth Amendment or 2) satisfaction of every requirement of a statute enacted by Congress granting citizenship to a class of people. The second category includes naturalization of individual adults or children already born; collective naturalization of groups, such as natives of territory acquired by the United States; and naturalization at birth of cer- tain classes of children born abroad to citizens.

    and

    There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens, well articulated by Charles Gordon in Who Can be President of the United States: The Unresolved Enigma. However, natural born citizenship can be acquired only at the moment of birth. As stated by the leading Supreme Court case, United States v. Wong Kim Ark, “British subject’ means any person who owes permanent allegiance to the crown. . . . Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    So you are right to a certain extent, natural born citizenship can only be acquired at the moment of birth, but that is not sufficient. They have to be under allegiance/jurisdiction of the Crown.

    A person granted citizenship by birth outside the United States to citizen parents is naturalized at birth; he or she is both a citizen by birth and a naturalized citizen. This last point is discussed thoroughly in Jill A. Pryor’s 1988 note in the Yale Law Journal, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty.

    Lawrence B. Solum ORIGINALISM AND THE NATURAL BORN CITIZEN CLAUSE

    If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified.

    Blackstone

    The first and most obvious division of the people is into aliens and natural- born subjects. Natural-born subjects are such as are born within the domin- ions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of gov- ernment; the name and the form are derived to us from our Gothic ancestors


    Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protec- tion; at a time too, when (during their infancy) they are incapable of protecting themselves.

    When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The com- mon law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law pro- ceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two mas- ters, at once.
    .

    Horace Binney in Alienigena

    Shows how under common law tradition, natural born was a jus soli concept only.

  160. avatar
    NbC October 9, 2010 at 1:23 am #

    AnotherBird:
    And, that would be American common law. British common law has little influence on the interpretation of American law, other than in a historical context.

    Exactly why it mattered, American Common law at the signing of the Constitution was largely English Common Law and certainly regarding citizenship. This is what the Court explained so well in US v Wong Kim Ark.

    I am not sure what your argument here is but the common law of the early days of the republic was largely based on English Common Law. Some states even explicitly adopted its components.

  161. avatar
    NbC October 9, 2010 at 1:32 am #

    The statute of 25 Edw. Ill recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet as to all others it is, in terms, merely prospective, apptying to those only ” who shall be born henceforth.” Mr. Binney, in his paper above cited, after a critical examination of the statute, and of the early English cases, concluded: “There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely, in regard to the children of the King; nor has it at any time been judicially held to be so.” ” The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.” Binney on Alienigenae, 14, 20; 2 Amer. Law. Reg. 199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin’s Case, 7 Rep. 17a, 18a; Co. Lit. 8a, and Hargrave’s note 36; 1 Bl. Com. 373; Barrington on Statutes, (5th ed.) 208; Lord Kenyon, in Doe v. Jones, 4 T. R. 300, 308; Lord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Geer v. Stone, 22 Ch. D. 243, 252; Dicey Conflict of Laws, 178, 741. “The acquisition,” says Mr. Dicey, (p. 741) “of nationality by descent, is foreign to the principles of the common law, and is based wholly upon statutory enactments.”

    US v Wong Kim Ark

  162. avatar
    AnotherBird October 9, 2010 at 5:51 am #

    NbC:
    Exactly why it mattered, American Common law at the signing of the Constitution was largely English Common Law and certainly regarding citizenship. This is what the Court explained so well in US v Wong Kim Ark.I am not sure what your argument here is but the common law of the early days of the republic was largely based on English Common Law. Some states even explicitly adopted its components.

    Thanks for the tip …

    The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.

    Sometimes I miss what is wrong, but I can always thank some people for pointing me in the right direction.

  163. avatar
    Sef October 9, 2010 at 10:04 am #

    I think some of the confusion here is the same problem as when birthers talk about the 2-citizen-parent requirement. They are confusing a quality of SOME members of a set with being a requirement for all members. Yes, a natural born citizen is a citizen from birth, but that is not part of the definition. The only definition is jus soli. Other qualities come along as baggage, but they are not required or part of the definition.

  164. avatar
    Sef October 9, 2010 at 10:49 am #

    Sef: I think some of the confusion here is the same problem as when birthers talk about the 2-citizen-parent requirement.They are confusing a quality of SOME members of a set with being a requirement for all members.Yes, a natural born citizen is a citizen from birth, but that is not part of the definition.The only definition is jus soli.Other qualities come along as baggage, but they are not required or part of the definition.

    IOW, not all citizens-from-birth are natural-born-citizens, because there is such a thing as naturalization-at-birth. Sounds strange, but apparently true.

  165. avatar
    NbC October 9, 2010 at 12:45 pm #

    AnotherBird: Children, born in England, of such aliens were therefore natural-born subjects.

    Which is why president Obama is indeed eligible.

  166. avatar
    NbC October 9, 2010 at 12:46 pm #

    Sef: IOW, not all citizens-from-birth are natural-born-citizens, because there is such a thing as naturalization-at-birth. Sounds strange, but apparently true.

    That is not necessarily correct as Rogers v Bellei shows.

  167. avatar
    NbC October 9, 2010 at 12:46 pm #

    NbC:
    That is not necessarily correct as Rogers v Bellei shows.

    Never mind I should learn to read…

  168. avatar
    brygenon October 9, 2010 at 1:41 pm #

    NbC: The ad hominem part is the fact that I posted it and your response. I am not pretending, I am just observing.

    [brygenon:] How about you answer the question? Is this or is this not the part of the WKA dissent you were citing for support?

    I was citing it for support that according to the dissenting judge, under WKA, children born abroad to US citizens could not run for President. A very justifiable conclusion given that the court itself had ruled them to be naturalized by Congressional statute.

    Do you disagree, or are you going to attempt to dismiss it with a I cannot believe you cited this’ argument, which serves to ignore the argument itself.

    Simple question…

    I also quote the same when showing that even the dissenting Judge realized that WKA was natural born and eligible to run for president under the majority’s ruling.

    No, that’s not what happened. NBC, you did not “quote the same”. You made an unjustified claim as to what the dissent in WKA said; It was I who looked it up, found the bit to which you referred, and quoted it. I’ve quoted it, twice so far, and both times you snipped it in your response. Here it is for a third time:

    “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.”

    I noted the “the illogic, irrelevance, and racism” of that sentence from Fuller’s dissent . NBC, you decide to respond by snipping the quote but keeping my note, so you could pretend my note was an ad hominem attack upon you. But hey, at least you threw up a good diversion and brought down the discussion. These you-said-this-no-I-said-that threads are *so* interesting for the readers.

    I will respond to NBC’s specific question: “Do you disagree, or are you going to attempt to dismiss it with a I cannot believe you cited this’ argument, which serves to ignore the argument itself.” I very much disagree with NBC on that. I stand by my dismissal of that sentence, quoted above, as illogical, irrelevant, and racist. NBC puts words in my mouth: “I cannot believe you cited this’ argument”, and most of time when people make up quotes for me, I challenge them on the fabrication. In this case, well.. yeah… I didn’t exactly say it, but it does reflect my opinion. “I cannot believe you cited this argument.” Now, NBC, you say “I also quote the same”, though you did not quote it, and in fact your repeatedly snipped it from your responses after I looked it up and accurately quoted it.

    Our host, Dr. C., likes to keep a civil forum. NBC has written some good posts. If this ad hominem issue is just a misunderstanding, well, that happens; sorry. If there’s an honest explanation for NBC’s claim to “quote the same when showing that even the dissenting Judge realized”, well, explain; maybe I went off on that too fast. I directed my accusation of racism at the sentence, quoted above, in Fuller’s dissent on WKA. I take playing the race card seriously on both sides. Fuller’s dissent — that sentence in particular — was racist. I call it what it is. Did I call the person I am debating here racist? Absolutely not. I took offense at seeing my comment snipped and edited to suggest I did.

    NbC: brygenon: “I never found the pro-arguments to be having any historical or legal merit,” you write. You want to lecture on what the WKA opinion says but cannot actually quote the bit that says *only* those born in the U.S. are natural-born citizens, because it exists only in your inexpert interpretation.

    I am citing my own opinions and am not hiding behind third parties. I have shown the logical argument which is that when defining natural born citizen the court observed that under Common Law principles it was a term limited to jus soli and that the issue of children born abroad to US citizens was covered by the naturalization statute.

    Spoken like a true birther! When I cite the real experts on this exact point — law professors, courts, articles in peer-reviewed legal journals — I’m “hiding behind third parties”. When you, NBC, proclaim yourself correct and pretend an expertise you do not have, you “have shown the logical argument”.

    Actually, I have put forth my own arguments. The way I distinguish the language issue from the legal issue is not a huge jump from my references, but it is my own explanation. I think I make a good case on that — others may differ — but where I really disagree with NBC is that I think my strongest points are my citations of respected current authorities. I am not, as NBC is, “citing my own opinions”, as if me saying something is good evidence.

    I also don’t like the idea of trying to win an argument by sheer volume. I’ve tried to fill my posts with good evidence, on the point at issue, and supply links where readers can verify what I say. NBC can easily flood the thread with quotes showing that British Common Law recognized jus soli and not jus sanguinis. No one here argued otherwise. It’s just noise.

    NBC wrote: I do realize that people have argued on both sides for and against John McCain

    And when I challenged NBC on that — to cite good references that argued NBC’s position against John McCain’s eligibility — the response was a long-winded and rambling post full of citations that said nothing about John McCain and nothing about the point actually at issue. I here cited Gabriel J. Chin’s paper which held that McCain was not a citizen from birth, and that’s the most respectable citation I know of that argued McCain was not eligible to be president. Chin did not take NBC’s position.

    At risk of violating my own principle of not trying to win by sheer bloviation, I’ll note my previous citation from an eligibility suite, and NBC’s response.

    NbC

    [brygenon:] The U.S. District Court for the Central District of California wrote: “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.

    Fascinating, a footnote in dicta of a lower court. Furthermore the Court talks about defining citizenship whether naturalized or by birth’, focusing on the topic of judicial constraint which prevents the courts from second guessing Congress. But that’s quite a bit different from Congress being able to define children born abroad to be natural born citizens. Both are however forms of naturalization, and fail to address the issue here (see Roger v Bellei, US v Wong Kim Ark). There has been one instance where Congress defined children born abroad to US citizens to be natural born and the reference was quickly removed in subsequent laws so even under your assumption that Congress may define them to be natural born, they have refrained from doing so other than in the earliest naturalization act. So perhaps a more defensible interpretation is that Congress erred while quoting English statutory law and included a term which was defined in the Constitution and found to mean jus soli only’ and could not be redefined by Congress lest they use a Constitutional amendment.

    And just because a court quotes a paper does not mean it agrees with all aspects of its claims. Sure, scholars have argued for and against this for a while, but in the end, looking at the Supreme Court rulings, it seems inevitable that children born abroad to US citizens are likely not natural born citizens, no matter how much we would like them to be.

    Yes, it was dicta. It was a footnote, as I said a couple times. Nevertheless, the idea that it did “fail to address the issue here” is utter nonsense. I did not argue that the Court’s citation of the paper must “mean it agrees with all aspects of its claims”. The point is that I’m not arguing my own lay say-so, and NBC is. That was a real judge in a real court, specifically addressing the point at issue. The fact that Gordon’s paper passed peer review to be published in a respectable legal journal trumps NBC’s “I am citing my own opinions”. Did I pretend that this citation was anything that it was not? At the very least a federal judge recommended the paper to birthers who doubt our president’s legitimacy, and thus I echo that recommendation to the kind of birthers who doubt McCain’s eligibility.

    Here’s the thing: When birthers say that “natural born citizen” is not defined in the Constitution, and has never been specifically and finally defined by the judiciary, there is a technical sense in which they are correct. It’s true, but silly. Pretty much every piece of writing, other than dictionaries, uses terms without defining them internally. Just look it up; no need to make a federal case of it. The U.S. Supreme Court is far too busy to define the English language for us. With the arguable exception of Professor Chin and those who ally with his scrupulously defined position, McCain birthers are about as kooky as Obama birthers . Anyone who thinks that John S. McCain could not be president, had he won the electoral vote, is… well, with respect to the forum I shouldn’t call names, clear as my personal opinion is.

  169. avatar
    NbC October 9, 2010 at 2:48 pm #

    brygenon: No, that’s not what happened. NBC, you did not “quote the same”. You made an unjustified claim as to what the dissent in WKA said; It was I who looked it up, found the bit to which you referred, and quoted it. I’ve quoted it, twice so far, and both times you snipped it in your response. Here it is for a third time:

    I noted the “the illogic, irrelevance, and racism” of that sentence from Fuller’s dissent . NBC, you decide to respond by snipping the quote but keeping my note, so you could pretend my note was an ad hominem attack upon you. But hey, at least you threw up a good diversion and brought down the discussion. These you-said-this-no-I-said-that threads are *so* interesting for the readers.

    You forgot to quote what you actually said

    Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    I doubt that anyone else would want to cite it for support today….

    Sorry Byrgenon, you do not get to rewrite history.

    As to the quote in which the dissenting Judge observes the logical consequences of the majority’s vote, you stated

    I very much disagree with NBC on that. I stand by my dismissal of that sentence, quoted above, as illogical, irrelevant, and racist.

    I can agree with the racist underlying tendencies but is it irrelevant? Not to the discussion as to whether or not children born to citizens abroad are natural born. Is it illogical? Perhaps Brygenon may find it illogical, but it follows straight from the majority ruling in Wong Kim Ark.

    Such as

    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.

    In other words, the status of such children is determined by naturalization statutes.

    Citing a ruling by the AG

    The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.

    In Rogers v Bellei, again the court makes this clear

    However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U. S. 649 (1898):

    “The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. 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. A person born out of the jurisdiction of the United States 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, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

    In Elks v Wilkins the court again

    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 they are not citizens by birth but rather citizens at birth by naturalization, because of a statutory enactment by Congress. In fact, for several decades, children born outside the US did not even have citizenship. If it requires congressional action then it cannot be a common law/constitutional law concept and thus cannot assign natural born citizenship status, which was found to be a jus soli concept.

  170. avatar
    NbC October 9, 2010 at 2:57 pm #

    brygenon: Here’s the thing: When birthers say that “natural born citizen” is not defined in the Constitution, and has never been specifically and finally defined by the judiciary, there is a technical sense in which they are correct. It’s true, but silly. Pretty much every piece of writing, other than dictionaries, uses terms without defining them internally. Just look it up; no need to make a federal case of it. The U.S. Supreme Court is far too busy to define the English language for us. With the arguable exception of Professor Chin and those who ally with his scrupulously defined position, McCain birthers are about as kooky as Obama birthers . Anyone who thinks that John S. McCain could not be president, had he won the electoral vote, is… well, with respect to the forum I shouldn’t call names, clear as my personal opinion is.

    You conveniently ignore the express language in supreme court rulings that when terms remain undefined in the Constitution, its meaning is to be found in Common Law.

    I appreciate your ad hominems, which are based mostly on your erroneous beliefs about what the Supreme Court should have said, rather than what it actually did say.

    Let me help you through the logic here:

    The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    Ouch… and who said this? You guessed, the majority in US v Wong Kim Ark. And before you call the Supreme Court to be kooky, they also gave references for their findings

    88 U. S. 422; Boyd v. United States, 116 U. S. 616, 116 U. S. 624, 116 U. S. 625; Smith v. Alabama, 124 U. S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States,@ 91 U. S. 270, 91 U. S. 274.

    88 US 422 reads:

    The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.

    Double ouch…

    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.

    Sounds good so far does it not but then the zinger

    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.

    You may call this a silly argument but that may be related to the fact that it sort of demolishes your argument.

  171. avatar
    NbC October 9, 2010 at 3:06 pm #

    brygenon: And when I challenged NBC on that — to cite good references that argued NBC’s position against John McCain’s eligibility — the response was a long-winded and rambling post full of citations that said nothing about John McCain and nothing about the point actually at issue. I here cited Gabriel J. Chin’s paper which held that McCain was not a citizen from birth, and that’s the most respectable citation I know of that argued McCain was not eligible to be president. Chin did not take NBC’s position.

    I cannot argue with your confusion as to me providing citations that went to the point. But again, instead of looking at the arguments pro and con by scholars, I decided to look directly at the Court’s rulings and found the claims to be lacking. If you disagree, then perhaps you can take the arguments and present them in light of the rulings I have provided.
    After all, you do realize that the laws in this country are not made by scholars but rather interpreted by the US Supreme Court whose position appears to be challenging the concept that children born abroad to US citizens are natural born.

    In fact, the evidence shows that natural born is a jus soli concept only and thus the Constitutional Language, which has to be interpreted in light of English Common law, did not extend natural born status to children born abroad to US citizens. While there existed explicit English statutes that extended natural born status, this is not a possibility for the US where the concept of Natural Born is a constitutional term which cannot be amended without a Constitutional Amendment.

    There have been arguments that this is a minimum bar but that does not make sense. The minimum bar for voting was white males, and it required specific amendments to extend voting rights to for instance women. If the argument is that congressional statutory law would have been sufficient to extend the meaning of what constitutes a voter, then why the need for an explicit Amendment?

    I do understand that the Constitution can be argued to be a ‘living document’ however that does not mean that terms which clearly exclude a certain group, can suddenly be ‘redefined or extended’ without the need for an explicit Amendment. If, as the Courts suggest, natural born citizen was a common law concept where natural born citizenship was granted through birth on soil, subject to the jurisdiction, then birth not on soil, and not subject to the jurisdiction can never grant citizenship without a Congressional act under its naturalization powers. But natural-ized is the counterpart to natural-born.

  172. avatar
    NbC October 9, 2010 at 3:08 pm #

    brygenon: At the very least a federal judge recommended the paper to birthers who doubt our president’s legitimacy, and thus I echo that recommendation to the kind of birthers who doubt McCain’s eligibility.

    Fair enough and I encourage you to interpret the 1968 paper in light of Rogers v Bellei, a 1971 ruling and let us know if you would still recommend the paper and under what arguments.

    I am more than happy to discuss the paper, and its conclusions in light of known legal precedent. Can we count you in?

  173. avatar
    NbC October 9, 2010 at 3:09 pm #

    NbC:
    Fair enough and I encourage you to interpret the 1968 paper in light of Rogers v Bellei, a 1971 ruling and let us know if you would still recommend the paper and under what arguments.I am more than happy to discuss the paper, and its conclusions in light of known legal precedent. Can we count you in?

    I assumed of course that you have a copy of said paper. Do you?

  174. avatar
    NBC October 9, 2010 at 4:05 pm #

    Zimmer v Acheson, 191 F.2d 209 (1951)

    Harry Ward Zimmer was born to a naturalized US citizen father and a native born citizen mother, while they were residing abroad. This clearly qualiefies Zimmer as a child born abroad of US citizens. In discussing the status of Zimmer, the court observed that there are only two classes of citizens “natural born” and “naturalized”. So far the Courts are following the same argument which US v Wong Kim Ark used to grant natural born citizenship status to Wong Kim Ark. But the Court also finds that if a citizen does not acquire the status of citizens by birth in the United States he is therefor naturalized and not a native born citizen.

    There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;[1] and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.[2]

    Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer, provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

    If Werner Herman Zimmer, by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.

    Schaufus v Attorney General 45 F.Supp. 61 (1942)

    There are only two types of citizens: those who are native born and those who are naturalized. There is no basis for differentiating between the status of those who are naturalized by the court procedure prescribed by Congress and embraced in the statutes with which we are not here concerned, and those who become naturalized by a derivative right from their parent or parents.

  175. avatar
    gorefan October 9, 2010 at 8:30 pm #

    NBC: he is therefor naturalized and not a native born citizen.

    In terms of being naturalized, is he naturalized at birth? He would not have to go through a naturalization process?

  176. avatar
    NBC October 9, 2010 at 9:17 pm #

    In terms of being naturalized, is he naturalized at birth? He would not have to go through a naturalization process?

    He is granted citizenship through the naturalization powers of Congress. They can set the requirements of the process.

  177. avatar
    Keith October 9, 2010 at 9:22 pm #

    NbC: There have been arguments that this is a minimum bar but that does not make sense. The minimum bar for voting was white males, and it required specific amendments to extend voting rights to for instance women. If the argument is that congressional statutory law would have been sufficient to extend the meaning of what constitutes a voter, then why the need for an explicit Amendment?

    Actually, the only need for the amendment was to ensure women had the Constitutionally protected vote in every State in the Union. Women had the vote in some states (Wyoming was the first, IIRC) without the benefit of an amendment, The amendment short-circuited 48 individual fights, and ensured that the States couldn’t take it back on their whim.

  178. avatar
    brygenon October 10, 2010 at 5:02 am #

    NbC: brygenon: No, that’s not what happened. NBC, you did not “quote the same”. You made an unjustified claim as to what the dissent in WKA said; It was I who looked it up, found the bit to which you referred, and quoted it. I’ve quoted it, twice so far, and both times you snipped it in your response. Here it is for a third time:

    You forgot to quote what you actually said

    Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    I doubt that anyone else would want to cite it for support today….

    Sorry Byrgenon, you do not get to rewrite history.

    Make that three times I quoted it and you snipped it. What you are on about now is baffling. When did lambasting someone’s *argument* become ad hominem?

    NbC: You conveniently ignore the express language in supreme court rulings that when terms remain undefined in the Constitution, its meaning is to be found in Common Law.

    We’ve been over that. Read the Dicey quote carefully and note the difference between him explaining what a term “means” and explaining the principles of law on the issue.

    “British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes temporary’ allegiance to the Crown. Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

    I hope I don’t have to keep repeating all the points over and over to avoid being accused of ignoring them.

    NbC: I cannot argue with your confusion as to me providing citations that went to the point. But again, instead of looking at the arguments pro and con by scholars, I decided to look directly at the Court’s rulings and found the claims to be lacking. If you disagree, then perhaps you can take the arguments and present them in light of the rulings I have provided.
    After all, you do realize that the laws in this country are not made by scholars but rather interpreted by the US Supreme Court whose position appears to be challenging the concept that children born abroad to US citizens are natural born.

    So the answer is that you don’t know of any respectable reference that actually took your position on John McCain’s eligibility. Chin thought McCain did not become a citizen at the time of his birth and was therefor ineligible, but that’s entirely different from your position. I think McCain’s candidacy is a good indication that there is now a consensus in the legal community.

    None of your case citations answers the question. It’s all interpretation of them, and I trust the law professors to do that better than you or I could. I don’t think you’ll find case law on whether a citizen from the time of birth who was born outside the U.S. can be eligible to be president. So far you have not shown any that says some citizen from the time of birth is not a natural born citizen. I’m not a legal scholar, so I don’t know that there is no such case. Is there? What court, and it was part of the ruling or just dicta? Is it today controlling law?

    NBC: But the Court also finds that if a citizen does not acquire the status of citizens by birth in the United States he is therefor naturalized and not a native born citizen.

    Is that as close as you can get? Doesn’t work. “Natural born citizen” does not mean a citizen who was not naturalized. Strictly speaking, “Natural born citizen” does not mean native-born citizen. “Natural born citizen of the United States” means a citizen of the United States who has become a citizen of the United States at the moment of his or her birth.

  179. avatar
    Keith October 10, 2010 at 5:38 am #

    brygenon: “Natural born citizen” does not mean a citizen who was not naturalized. Strictly speaking, “Natural born citizen” does not mean native-born citizen. “Natural born citizen of the United States” means a citizen of the United States who has become a citizen of the United States at the moment of his or her birth.

    You can repeat that over and over and over and over and over and over again.

    It will not make it correct.

    There is no law, precident, nor legal opinion that agrees with you. You can snipe at NBC all you like, but it won’t change the fact that he has fact, legal opinion, and law and you have only personal opinion.

    You are entitled to you opinion, but that doesn’t make it right.

  180. avatar
    Sef October 10, 2010 at 9:39 am #

    brygenon: “Natural born citizen” does not mean a citizen who was not naturalized. Strictly speaking, “Natural born citizen” does not mean native-born citizen. “Natural born citizen of the United States” means a citizen of the United States who has become a citizen of the United States at the moment of his or her birth.

    The universe of discourse consists entirely of these 3 disjoint sets: natural-born-citizens, naturalized-citizens & aliens. The only defining characteristic of natural-born-citizens is jus soli. Naturalized-citizens are citizens who would otherwise be aliens except for a Congressional statute. Natural-born-citizens do become citizens at the moment of their birth as do some naturalized-citizens due to naturalization-at-birth rules promulgated by Congress. Congress can make rules which allow for people to change between aliens & naturalized-citizens (& also the reverse). Congress has no such right in regards to natural-born-citizens. Their citizenship-at-birth is wholly defined by jus soli & cannot be given or taken away.

  181. avatar
    brygenon October 10, 2010 at 10:37 am #

    Keith: You can repeat that over and over and over and over and over and over again.

    It will not make it correct.

    There is no law, precident, nor legal opinion that agrees with you.

    Check my first response to NBC. It’s packed with opinions of legal experts, with links, and one key bit from U.S. v. Wong Kim Ark.

    Greg cited Jill Prior’s 1988 article in the Yale Law Journal, which is in on-line several places including:
    http://www.scribd.com/doc/9655857/Jill-Pryor-Natural-Born-Citizen

    Laurence Tribe and Ted Olson wrote an opinion saying McCain was eligible for being born to citizen parents, and possibly also for being born in the Canal Zone. They wrote, in part: “Thus the First Congress’s statutory recognition that persons born abroad to U.S. citizens were themselves ‘natural born’ citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.” [Emphasis in original]
    http://www.scribd.com/doc/25457698/The-Tribe-Olson-Natural-Born-Citizen-Memo

    Markham Robinson petitioned the the United States District Court for the Northern District of California for a preliminary injunction to remove John McCain from the ballot [Robinson v. Bowen]. To rule on the motion, the Court assessed the likelihood of Robinson winning on the merits:

    At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.

    http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03836/206145/39/

    The Court equated citizenship from the time of birth with natural-born citizenship, and went even farther by allowing that Congress could grant citizenship from birth retroactively. Future eligibility challenges to foreign-born citizens from birth are unlikely to get much farther than Robinson v. Bowen, so that may be as close to a definitive court ruling as we ever get.

  182. avatar
    NbC October 10, 2010 at 11:25 am #

    Keith: brygenon: “Natural born citizen” does not mean a citizen who was not naturalized. Strictly speaking, “Natural born citizen” does not mean native-born citizen. “Natural born citizen of the United States” means a citizen of the United States who has become a citizen of the United States at the moment of his or her birth.

    You can repeat that over and over and over and over and over and over again.

    Don’t encourage him 🙂
    For all practical purposes native and natural born are the same. Which is why the term natural born was actually changed to native born in the discussion for at least one State Constitution because the people feared natural born may confuse people as to refer to the manner of birth…

    Brygenon’s position, will repetitive, lacks much foundation in law, precedent.

  183. avatar
    NbC October 10, 2010 at 11:30 am #

    brygenon: There is no law, precident, nor legal opinion that agrees with you.

    Check my first response to NBC. It’s packed with opinions of legal experts, with links, and one key bit from U.S. v. Wong Kim Ark.

    As observed, there is no law, precedent or legal opinion… Your so called experts do not make law, precedent or a legal opinion. It’s based on ‘arguments’ which address history and the legal rulings.

    As I have shown neither US v WKA nor Rogers v Bellei support your claims. Is it so hard to argue first hand source?

    Have you even got the paper you keep quoting as being particularly relevant? Gordon’s ‘enigma’?…

    Sure there are experts on both sides, I have provided you with mine, but rather than argue from authority, I am arguing from primary sources.

  184. avatar
    NbC October 10, 2010 at 11:32 am #

    Brygenon: Thus the First Congress’s statutory recognition that persons born abroad to U.S. citizens were themselves natural born’ citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.

    By statute, not by Common Law and thus Congress quickly removed the natural born reference which was copied from an English statute as they lacked under the Constitution the power to change the meaning of natural born which under Common Law meant only one thing

  185. avatar
    NbC October 10, 2010 at 11:34 am #

    brygenon: The Court equated citizenship from the time of birth with natural-born citizenship, and went even farther by allowing that Congress could grant citizenship from birth retroactively.

    Citizenship yes, it’s called naturalization. However to confuse natural born citizenship with citizenship from birth is unsupportable by the logic and facts outlined in US v WKA

  186. avatar
    NbC October 10, 2010 at 11:41 am #

    brygenon: Given the illogic, irrelevance, and racism, I doubt anyone else would want to cite it for support today.

    I doubt that anyone else would want to cite it for support today….

    Sorry Byrgenon, you do not get to rewrite history.

    Make that three times I quoted it and you snipped it. What you are on about now is baffling. When did lambasting someone’s *argument* become ad hominem?

    Still don’t get it? …
    Fascinating…

    “I doubt that anyone else would want to cite it for support today”, combined with references to racism combined with the fact that I did ‘cite’ it for support is clearly ad hominem and juvenile, just like your other taunts.

    .

    “British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes temporary’ allegiance to the Crown. Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

    Born within the British dominions… You should really read the quote in its proper context. A foreign born child to british subjects is not born owing allegiance to the King.

    It’s really a straightforward argument that reads in context rather than removes the context to suggest a different meaning.

  187. avatar
    NbC October 10, 2010 at 11:49 am #

    brygenon: I think McCain’s candidacy is a good indication that there is now a consensus in the legal community.

    Sigh…

  188. avatar
    NbC October 10, 2010 at 11:52 am #

    brygenon: It’s all interpretation of them, and I trust the law professors to do that better than you or I could.

    Fascinating… You have abandoned reason and logic in place of your understanding of ‘the law professors’… We have seen how well that went with your ‘Dicey’ quote…

    Incredible…

    No response to my arguments based on primary sources…

  189. avatar
    Ballantine October 10, 2010 at 11:55 am #

    Sef: The universe of discourse consists entirely of these 3 disjoint sets: natural-born-citizens, naturalized-citizens & aliens. The only defining characteristic of natural-born-citizens is jus soli. Naturalized-citizens are citizens who would otherwise be aliens except for a Congressional statute. Natural-born-citizens do become citizens at the moment of their birth as do some naturalized-citizens due to naturalization-at-birth rules promulgated by Congress. Congress can make rules which allow for people to change between aliens & naturalized-citizens (& also the reverse). Congress has no such right in regards to natural-born-citizens. Their citizenship-at-birth is wholly defined by jus soli & cannot be given or taken away.

    .

    Except in 1787 in England there is not a clear distinction between “natural born” and naturalized. It is simply a fact there were two types of persons called natural born subjects at such time. One by the common law, one by statute. The latter were called both “natural born” and naturalized. We have no evidence that the framers intended to limit the meaning of the term to the common law alone. On the contrary, being mostly English lawyers, they would have well aware that the term was known to stand for jus sanguinis as well as jus soli. The framers didn’t adopt the common law, courts only look to it since that is where most English legal terms were defined and hence it is It assumed that such is what the framers would have understood the term to mean. However, if a common law term had been amended by statute and everyone in 1787 used it only in the amended form, I don’t see why it is so difficult to understand that it is the amended meaning that the framers would have been assumed to understand. It is true the courts have limited the meaning to jus soli and the common law. However, I don’t believe a court has ever directly addressed the issue and based upon the meaning of “natural born” and naturalized in 1787, there is a decent orginalist argument for a jus sanguinis interpretation. The contrary argument, is there is little post-ratification American authority to support this view.

    Here is a law review on the subject:

    “Well before the Founding, then, an English “natural-born” subject was defined as any person born into the king’s allegiance, whether by birth within England or by birth within a territory held by the king. (Meanwhile, the terms “natural-born” and naturalized”seem to have been used rather interchangeably in English jurisprudence. Contrary to the claims of traditional interpreters, birth within England was not the exclusive avenue for acquiring the status of a natural-born subject. Numerous examples of the jus sanguinis operating alongside the jus soli existed in the English legal tradition, upon which the American tradition supposedly relied in formulating its own citizenship
    law.”

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133663

  190. avatar
    NbC October 10, 2010 at 11:58 am #

    Let me quote more from Dicey

    Three points require notice: The acquisition in the first place of nationality by descent is foreign to the principles of the common law and is based wholly upon statutory enactments.

    Foreign to the principles of Common Law… Now combine this with the fact that the Constitution, when definition of terms are lacking, should interpret such terms as they were used in Common Law and you have your conclusions.

  191. avatar
    Sef October 10, 2010 at 11:58 am #

    In order to accept the thesis proposed by “brygenon” it must be true that Congress has the power to define who can be a natural born citizen. Absent that power NBC is limited to jus soli. (Remember, if they have the power to give, they also have the power to take away. I don’t think that is what we want.) In certain cases they have gotten around this limitation by defining, for citizenship purposes, what is meant by “United States”. I have a problem with that concept.

  192. avatar
    NbC October 10, 2010 at 12:02 pm #

    Ballantine: Except in 1787 in England there is not a clear distinction between “natural born” and naturalized.

    Under Common Law there is. It was always clearly understood that Natural Born under common law was restricted to Jus Soli, and that it required explicit statutes.
    Thus under Common Law, which should be used to understand how terms left undefined in the Constitution should be interpreted, natural born means: born on soil, owing allegiance.

    In the US, statutes cannot be used to amend the Constitution and while the first Congress did pass a statute early on, the term natural born was quickly removed and never used again. For good reason, as they have only powers to provide for uniform rules for naturalization.

  193. avatar
    NBC October 10, 2010 at 12:12 pm #

    Sef: In order to accept the thesis proposed by “brygenon” it must be true that Congress has the power to define who can be a natural born citizen. Absent that power NBC is limited to jus soli. (Remember, if they have the power to give, they also have the power to take away. I don’t think that is what we want.)

    The Constitution assigns Congress the power to provide for uniform rules of Naturalization and under these powers, Congress passed the 1790 and subsequent statutes.

    Under Common Law, which defines how the term Natural Born Citizen is to be interpreted, the concept is “Jus Soli, owing allegiance”. Under the 14th Amendment citizenship is birth on soil or naturalization, reflecting that which the Constitution had already provided for.

    Congress realized that this left children born abroad to US citizens without citizenship and passed a naturalization act. From 1802 till the mid 1800’s Congress had actually failed to enact a statute that granted citizenship to said children. A Constitutional right cannot be granted and taken away…

    Logic, reason and legal precedent all lead to but one conclusion.

  194. avatar
    Ballantine October 10, 2010 at 12:12 pm #

    NbC: Under Common Law there is. It was always clearly understood that Natural Born under common law was restricted to Jus Soli, and that it required explicit statutes.Thus under Common Law, which should be used to understand how terms left undefined in the Constitution should be interpreted, natural born means: born on soil, owing allegiance.In the US, statutes cannot be used to amend the Constitution and while the first Congress did pass a statute early on, the term natural born was quickly removed and never used again. For good reason, as they have only powers to provide for uniform rules for naturalization.

    Again, there is no rule that the undefined terms are defined by the common law. Courts have said that because that is where English legal terms are generally defined. You do not answer the simple question of what would they do of a term is only defined in a statute and not the common law?

    What the court has always done is to try to understand what the term was understood to mean in 1787 period. In 1787, it is simply the case that one could be both considered a “natural born subject” and a naturalized subject. We have no evidence that the framers did not understand these terms in the same way. Citing later authority does not change that fact.

  195. avatar
    NBC October 10, 2010 at 12:14 pm #

    Ballantine: “Well before the Founding, then, an English “natural-born” subject was defined as any person born into the king’s allegiance, whether by birth within England or by birth within a territory held by the king.

    One by common law the other one by statute. Only Common Law is relevant to how to interpret terms left undefined in the Constitution. Legal scholars of those days were very aware of the Common Law component versus the statutory component. In fact, the reason why the 1790 act contained natural born is likely because of clerical error in copying the English act.

    Of course, realizing their follies, Congress quickly removed the term in subsequent acts.

  196. avatar
    NbC October 10, 2010 at 12:23 pm #

    Ballantine: Again, there is no rule that the undefined terms are defined by the common law.

    Other than that the Court in US v WKA explicitly accepted said rule, as laid out in precedents.

    What the court has always done is to try to understand what the term was understood to mean in 1787 period. In 1787, it is simply the case that one could be both considered a “natural born subject” and a naturalized subject. We have no evidence that the framers did not understand these terms in the same way. Citing later authority does not change that fact.

    We do know that the founders did not believe that under the Constitution children so born were even citizens, let alone natural born. For this reason they passed the 1790 act, but it is argued that the term natural born was copied in a clerical error and quickly removed in subsequent acts.
    So, under your argument, we can observe that first Congress felt obliged to deal with the issue of children born abroad.

    Is that clear enough understanding? We can look at the arguments made in the Alienegenae for instance, where the author also points out how a 1802 act failed to grant citizenship to children born abroad under any circumstance.
    If the term was meant to include birthright citizenship for children born abroad then statutes were not necessary, alternatively, the presence of statutes, strongly contradicts your arguments.

    Of course, we also know how the Court in WKA and other cases, insisted that terms not defined in the Constitution need to be found in Common Law principles.
    As I said, the dissenting Judge understood that under WKA, children born abroad would not be natural born citizens and objected.

    WKA even accepts that citizenship of such children is granted by statute only.

  197. avatar
    Ballantine October 10, 2010 at 12:29 pm #

    NBC: One by common law the other one by statute. Only Common Law is relevant to how to interpret terms left undefined in the Constitution. Legal scholars of those days were very aware of the Common Law component versus the statutory component. In fact, the reason why the 1790 act contained natural born is likely because of clerical error in copying the English act.Of course, realizing their follies, Congress quickly removed the term in subsequent acts.

    The 1790 Act hurts your theory as the only legislative history made clear they were copying Paliament which conferred “natural born” status by naturalization act. The obvious implication is that they thought they could do the same thing. There is no evidence I am aware of that they made a folly or clerical error. I do not believe there is any legislative history with repect to the 1795 Act, so any claim to why is was changed is speculation.

    What did “naturalization” mean in 1787? The only definition was from England and it appear to include the power to confer natural born status at birth.

    Again, please tell me what the court would do it an undefined Constitutional term was only defined in English statutes, not the common law?

  198. avatar
    Ballantine October 10, 2010 at 12:54 pm #

    NbC: Other than that the Court in US v WKA explicitly accepted said rule, as laid out in precedents.We do know that the founders did not believe that under the Constitution children so born were even citizens, let alone natural born. For this reason they passed the 1790 act, but it is argued that the term natural born was copied in a clerical error and quickly removed in subsequent acts.So, under your argument, we can observe that first Congress felt obliged to deal with the issue of children born abroad.Is that clear enough understanding? We can look at the arguments made in the Alienegenae for instance, where the author also points out how a 1802 act failed to grant citizenship to children born abroad under any circumstance.If the term was meant to include birthright citizenship for children born abroad then statutes were not necessary, alternatively, the presence of statutes, strongly contradicts your arguments.Of course, we also know how the Court in WKA and other cases, insisted that terms not defined in the Constitution need to be found in Common Law principles.As I said, the dissenting Judge understood that under WKA, children born abroad would not be natural born citizens and objected.WKA even accepts that citizenship of such children is granted by statute only.

    Do you really think that if someone showed a court that a term when used by the framers always had a broader meaning than the common law, the court would really limit the meaning to the common law in the face of evidence that the framers did not limit the meaning in such way. Of course not. I quoted Justice Scalia the other day saying he looks to “English law,” not just the common law. For Scalia, the only question is what the term was understood to mean in 1787 no matter the genesis of the meaning. Wong Kim Ark did say in dictum that citizens born abroad could only be citizens by statute. However, it didn’t address the argument that one can be both natural born and naturalized nor that natural born was commonly understood to have a meaning broader than the common law. I am aware that there is much post-ratification authority to the contrary that support your view However, in determining the understanding in 1787, the more meaningful authority is what was understood before such date and the only evidence before such date is English law. Again, I am not saying these arguments would win, only they would have a chance.

  199. avatar
    brygenon October 10, 2010 at 2:40 pm #

    NbC: Have you even got the paper you keep quoting as being particularly relevant?

    Yes. I’m the one who cited it and gave a link to the download site.

    NbC: As observed, there is no law, precedent or legal opinion… Your so called experts do not make law, precedent or a legal opinion.

    They sure trump blog comments by non-experts.

    I doubt the Courts are going to definitively decide this. The next time it comes up, Courts will kick eligibility cases like they did in 2008. Legal scholars like Amar will write essays in magazines like Slate explaining to lay audiences like us the consensus of the legal community that being a citizen from birth qualifies the candidate as a natural-born citizen. Eventually we’ll have a foreign-born president.

    NbC: brygenon: It’s all interpretation of them, and I trust the law professors to do that better than you or I could.

    Fascinating… You have abandoned reason and logic in place of your understanding of the law professors’… We have seen how well that went with your ‘Dicey’ quote…

    What I saw with the Dicey quote was your failure to distinguish what he says the term “means” from what he says is the rule in the Comman Law on who qualifies. You saw that differently. Well, professors Chin and Amar seem to have seen it my way.

    NbC: brygenon: The Court equated citizenship from the time of birth with natural-born citizenship, and went even farther by allowing that Congress could grant citizenship from birth retroactively.

    Citizenship yes, it’s called naturalization. However to confuse natural born citizenship with citizenship from birth is unsupportable by the logic and facts outlined in US v WKA

    The Court wrote “natural born citizen”. This is a ruling on a motion for a preliminary injunction, nevertheless it’s a federal court actually examining the issue of a foreign-born candidate’s eligibility to be president. None of the other cases cited here are even about that issue. So let’s go through this carefully. Again this is from Robinson v. Bowen.
    http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03836/206145/39/

    At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States. Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797.”

    The Court is quoting a statute granting citizenship at birth. According to NbC, one who gets citizenship at birth by statute rather than by Constitutional principle cannot be a natural-born citizen.

    The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [1]

    McCain was not granted citizenship directly by the Fourteenth Amendment. Incidentally the [1] is a ref to a footnote citing U.S. v. Wong Kim Ark.

    Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already.

    The statutes made McCain a citizen by birth, perhaps retroactively, and that made McCain a natural born citizen.

    So let’s go over which arguments held up in court. Mine and those of most of my law professors did well. The Court went even farther, and allowed that a statute could bestow citizenship at birth retroactively. Professor Chin accepted that citizenship at birth bestows natural-born citizenship, and on that the Court agrees, but Chin’s argument disallowed granting it retroactively.

    The Court did not embrace NbC’s theory, to put it mildly.

  200. avatar
    Sef October 10, 2010 at 5:04 pm #

    To brygenon: If McCain’s parents were not in the military & he had been born in London, UK would he be eligible?

  201. avatar
    NBC October 10, 2010 at 5:35 pm #

    Ballantine: The 1790 Act hurts your theory as the only legislative history made clear they were copying Paliament which conferred “natural born” status by naturalization act. The obvious implication is that they thought they could do the same thing. There is no evidence I am aware of that they made a folly or clerical error. I do not believe there is any legislative history with repect to the 1795 Act, so any claim to why is was changed is speculation.

    That Congress felt they had to explicitly use statute to grant citizenship to children born abroad shows that it was not part of the Constitutional definition of natural born citizen.

    The fact that Congress passed a law which was quickly revised and the term natural born removed, never to be used again, shows much stronger arguments against than in favor.
    The purpose of the 1790 law was to extend citizenship to children born abroad and the records reference an English statute which appears to have been copied almost verbatim with the regrettable result of inclusion of the term natural born.

    When the Court ruled on the issue of natural born citizen, it explained the meaning of the term to mean jus soli only and observed that Congress can naturalize through statute. Clearly differentiating between naturalized and natural-born, there is little room to argue that Congress could extend the constitutional definition through mere statute.

    You are correct that there is not much to be found on the 1790 law, other than that the term natural born was quickly removed and never to be used again in naturalization legislation. I have read at least one source suggesting that indeed it was a likely clerical error and I shall see if I can find the record.

    So there is no foundation to argue that natural born extended, as used in the Constitution beyond those born on soil, owing allegiance. So that means that the only argument is that congress, through its powers to provide for a uniform naturalization could somehow grant natural born status, a term reserved for those born on US soil unde common law, and thus having this meaning constitutionally, to children born abroad to US citizens.
    The problem is that Congress quickly removed the term natural born in its subsequent legislation but still granted regular citizenship under its naturalization powers. Since under the Constitution such children would not be born on soil nor owing allegiance, there is no foundation for the argument that these children were natural born per Constitutional right.
    In fact, as the court in Rogers v Bellei has argued, they are not even 14th Amendment citizens…

  202. avatar
    Northland10 October 10, 2010 at 5:37 pm #

    Sef: To brygenon: If McCain’s parents were not in the military & he had been born in London, UK would he be eligible?

    A more specific question might be: Would the children of President Hoover been considered eligible? Both sons were born in London when Herbert Hoover was working for Bewick, Moreing and Company.

  203. avatar
    NBC October 10, 2010 at 5:49 pm #

    brygenon: Yes. I’m the one who cited it and gave a link to the download site.

    Good, let’s discuss it shall we?

    “Who Can Be President of the United States: The Unresolved Enigma” by Charles Gordon, 1968

    First of all, Gordon did not have the wisdom of the Court in Rogers v Bellei in 1971.

    What I saw with the Dicey quote was your failure to distinguish what he says the term “means” from what he says is the rule in the Comman Law on who qualifies. You saw that differently. Well, professors Chin and Amar seem to have seen it my way.

    In context the meaning is clear and it has nothing to do with your proposition. You quoted a part which avoided the clear reference to ‘on soil’. In fact I provided you with additional information from Dicey that further undermines your position.

    Ain’t that a bummer

  204. avatar
    NBC October 10, 2010 at 6:04 pm #

    At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States. Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797.”

    The Court is quoting a statute granting citizenship at birth. According to NbC, one who gets citizenship at birth by statute rather than by Constitutional principle cannot be a natural-born citizen.

    That is correct.

    Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already.

    That’s likely linked to the concept that the Canal Zone was US territory. If the court is saying that this by reason of birth then the court has failed to follow legal precedent in US v WKA as well as Rogers v Bellei. Too bad that the pure dicta in a denial rather than a judgment is not going to be of much precedential value.

    Now I understand that you prefer others to make the argument for you, yet it is clear that under WKA and Rogers v Bellei, citizens at birth are not natural born unless birth is on soil and owing allegiance.

    The Court did not embrace NbC’s theory, to put it mildly.

    And yet, my theory has far better precedent in actual Supreme Court rulings, the understanding of common law and contemporaneous scholarly understanding of the terms.
    So you’d rather prefer an opinion which is neither legally binding and pure dicta over one which is a clear precedential ruling, cited over a hundred times by the Courts?
    Needless to say I am not too impressed by the ruling but it was one raised in a request for an injunction as you point out and anyway because the plaintiff lacked standing. Thus the merits of the case have no relevance and in fact, the whole case was void ab initio.

    I notice that you are still reluctant to address the relevant rulings I have provided. That’s too bad because they provide one with a much better informed background to make the determinations as to whether or not children born abroad to US citizens are natural born. That the judge quoted Wong Kim Ark without realizing how inappropriate the reference was is regrettable.
    Luckily it does not affect the ruling which was limited to ‘lack of standing’.

    So let’s look at some of the relevant cases I have cited, shall we?

    Explain under the Supreme Court precedent of US v Wong Kim Ark how a child born abroad to a us citizen could be a natural born citizen

  205. avatar
    NBC October 10, 2010 at 6:09 pm #

    You also stated that there are no cases which looked at natural born status of children born abroad. I did provide you with several that contradict not just this claim but also put to doubt your speculative ideas

    Zimmer v Acheson, 191 F.2d 209 (1951)

    Harry Ward Zimmer was born to a naturalized US citizen father and a native born citizen mother, while they were residing abroad. This clearly qualiefies Zimmer as a child born abroad of US citizens. In discussing the status of Zimmer, the court observed that there are only two classes of citizens “natural born” and “naturalized”. So far the Courts are following the same argument which US v Wong Kim Ark used to grant natural born citizenship status to Wong Kim Ark. But the Court also finds that if a citizen does not acquire the status of citizens by birth in the United States he is therefor naturalized and not a native born citizen.

    There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;[1] and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.[2]

    Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer, provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

    If Werner Herman Zimmer, by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.

    Schaufus v Attorney General 45 F.Supp. 61 (1942)

    There are only two types of citizens: those who are native born and those who are naturalized. There is no basis for differentiating between the status of those who are naturalized by the court procedure prescribed by Congress and embraced in the statutes with which we are not here concerned, and those who become naturalized by a derivative right from their parent or parents.

    Not to mention WKA and Rogers v Bellei.

    But you’d prefer dicta in a motion rejecting a lawsuit on standing as somehow more relevant?

    So let’s apply logic and reason here. Care to present your argument in your own words, referencing primary resources?

  206. avatar
    NBC October 10, 2010 at 6:16 pm #

    In Akeny v Daniels, the court observed that under the arguments presented by the plaintiff, he had failed to show that McCain failed to be a natural born citizen

    The United States Senate passed a resolution on April 30, 2008 which explicitly recognized Senator John McCain as a natural born citizen. S.J. Res. 511, 110th Cong. (2008). Also, the supposed authority cited by the Plaintiffs to support their claim as to the meaning of Article II, Section 1, Clause 4 of the U.S. Constitution does not support the argument that John McCain is not a natural born citizen. Plaintiffs state in their brief that the difference between being a “citizen of the United States” and a “natural born Citizen” “involves having [two] parents of U.S. Citizenship, owing no foreign allegiance.” Appellant’s Brief at 23. The Plaintiffs then concede that “John McCain . . . qualifie[s] as a „citizen of the United States,’ by being born of [two] parents who were in turn „citizens of the United States,’ and owed no foreign allegiance . . . .” Id. Their brief continues that “John McCain was born „subject to the jurisdiction’ of the United States, but he was not born in one of the 50 States of the Union under Article IV of the Constitution, and thus . . . was not a „natural born Citizen . . . .’” Id. at 23-24. 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.

    Now if he had not focused on the two citizen parents argument and owing allegiance, he could have presented a much better argument namely

    Wong Kim Ark had ruled that the term natural born citizen as used in the Constitution meant ‘jus soli’ and owing allegiance. The only way for McCain to have an arguable chance of being natural born was for him to have been born on US soil, but even there, as Puerto Ricans know, the Courts have been quite reluctant.

  207. avatar
    NBC October 10, 2010 at 6:25 pm #

    As I expected, in Robinson the argument was that McCain was not a citizen at birth. Again the court can only respond to the arguments raised and I agree with the court that the plaintiff has failed to make a compelling case here.
    As I have stated before, if the plaintiff fails to raise the correct argument than the court has no choice but to deny injunctive relief as there is no reason the plaintiff will succeed under said argument.

    If the plaintiff instead had made the correct argument, there would have been a better case for injunctive release, were it not for the fact that there was still this issue of lack of standing.

  208. avatar
    Keith October 10, 2010 at 8:45 pm #

    I am convinced that McCain was a citizen at birth, but not a native born citizen, and thus not eligible for the Presidency. There is really no legal argument around the fact that the Canal Zone was never ‘U.S. Soil’.

    Even though I wouldn’t have voted for him in a fit, I am also convinced that this is an extremely unfortunate and undesirable outcome. I simply cannot accept that children of American military personnel serving abroad on official duty should be barred from the Presidency because the country sent their parents overseas, and Lord knows his own service record shows he deserves to be eligible.

    I think Congress did a ‘good thing’, the ‘right thing’, in declaring that they would not accept challenges to McCain’s eligibility if he were to be elected. However, since McCain is not, in fact, eligible, I wonder if the birthers would be out trying to bring him down like they are Obama. Because agree with it or not, a McCain presidency would be a violation of the Constitutional eligibility clause, and Congress would have been complicit in that violation.

    I believe that an Ambassador’s child, born at his overseas posting, is considered Natural Born, according to the Common Law definition, isn’t that so? Why shouldn’t serving military personnel have similar benefit under the diplomatic rules? Maybe, since embassies are considered American soil, every embassy should have a maternity ward attached for the use of U.S. Citizens abroad, especially when the post is near an American military base.

  209. avatar
    NBC October 10, 2010 at 9:37 pm #

    Some more rulings to ponder

    In Wong Foong v. U.S., 69 F 2d 681, the court said:

    “Under the common law of England a child born abroad of a father who is a subject of England does not become a citizen of England.”

    And in Weedin v . Chin Bow, 274 US 657, l.c. 663, the court said

    “under the common law which applied in this country, the children of citizens born abroad were not citizens, but aliens.”

    I have also explored the comments leading up to the 1790 Naturalization Act and tracked down the comments to Mr. Aedanus Burke of South Carolina,

    “The case of children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III” Debates in Congress, February 4,1790.

    Which treats such children as if they were naturalized or natural born subjects. Which may help understand the ‘as natural born” to refer to what Blackstone observed: only natural born citizens from birth on soil, not naturalized citizens, could run for the highest offices. In other words, the statutory meaning and the constitutional meaning of natural born may, as the Department of State observed, not be the same.

  210. avatar
    NBC October 10, 2010 at 9:44 pm #

    Keith: I believe that an Ambassador’s child, born at his overseas posting, is considered Natural Born, according to the Common Law definition, isn’t that so? Why shouldn’t serving military personnel have similar benefit under the diplomatic rules? Maybe, since embassies are considered American soil, every embassy should have a maternity ward attached for the use of U.S. Citizens abroad, especially when the post is near an American military base.

    Because under Common Law such military would only have the benefit during a hostile action.

    Also note that American Embassies are not foreign soil for the purpose of the 14th amendment.

    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.

    Note how they also talk about ‘by reason of birth’ referring to Jus soli principle which some may confuse as birthright citizenship…

  211. avatar
    Keith October 11, 2010 at 1:01 am #

    NBC: Because under Common Law such military would only have the benefit during a hostile action.

    I understand that. However, the authors of the Constitution would not have imagined the idea of a standing army let alone one stationed overseas. They just kicked one such army out of the country and were extremely suspicious of such things.

  212. avatar
    Dr. Conspiracy October 11, 2010 at 8:37 am #

    Keith: I am convinced that McCain was a citizen at birth, but not a native born citizen, and thus not eligible for the Presidency. There is really no legal argument around the fact that the Canal Zone was never ‘U.S. Soil’.

    There were lawsuits brought to prevent John McCain from running, but they were dismissed for lack of standing.

    The parallels are interesting: rumors said that McCain was born in the Republic of Panama (not the Canal Zone) and rumors place Obama’s place of birth in Mombasa, not Honolulu. Fake birth certificates circulated to support both rumors.

    One wonders why one of these rumors caught on and grew large (before the election) and one is largely unknown. I think that it’s because the birthers have professional backing, while the other was a true grass roots movement.

  213. avatar
    Sef October 11, 2010 at 10:45 am #

    Most of the points discussed in this thread are summarized in the following government document: http://www.state.gov/documents/organization/86757.pdf Take a look at it.

  214. avatar
    ballantine October 11, 2010 at 12:27 pm #

    NBC: Some more rulings to ponderIn Wong Foong v. U.S., 69 F 2d 681, the court said:And in Weedin v . Chin Bow, 274 US 657, l.c. 663, the court saidI have also explored the comments leading up to the 1790 Naturalization Act and tracked down the comments to Mr. Aedanus Burke of South Carolina,Which treats such children as if they were naturalized or natural born subjects. Which may help understand the as natural born” to refer to what Blackstone observed: only natural born citizens from birth on soil, not naturalized citizens, could run for the highest offices. In other words, the statutory meaning and the constitutional meaning of natural born may, as the Department of State observed, not be the same.

    I have a feeling this debate could go on forever without resolution as we have so little evidence on the subject. Rep. Burke and his one sentence appears to be the only legislative history of the 1790 Act and it clearly implies that they were looking to copy Parliament. However, scholars have pointed out that he seems to be citing the wrong statute as there was no stutute in the 12th year of William IIII making children of natural born subjects. There is a statute in such year, 12 & 13 William III. c. 2, that provided no naturalized subject could sit in Parliament or Privy Council except for children of English parents:

    “THAT after the said limitation shall take effect as aforesaid, no person born out of the kingdoms of England Scotland or Inland, or thedominions thereunto belonging (although he be naturalized or made a Denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a Member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands tenements or hereditaments from the Crown, to himself or to any other or others in trust for him.”

    Some naturalization statutes specifically stated that they conferred no right to sit in Parliament or Privy Council. I believe 7 Anne. c.5 and 4 Geo. II, c.21 don’t say anything on the subject. 13 Geo. III, c.21, enacted a few years prior to the revolution, entends 4 Geo. II c.21 by confering natural born status to grandchildren of natural born subjects nothwithinstanding anything in in 12 & 13 William III. c. 2 to the contrary (I suppose their parents might not be deemed to be English). It appears that the law in this area evolved as there were seemingly always new statutes being enacted but I don’t think there was any new statute between 13 Geo. III, c.21 and 1787.

    Hence, it is not certain what exactly Burke’s position was as it isn’t entirely clear which statute he was referring to. In addition, the statement of one man doesn’t mean very much. It is quite possible that the “natural born” language in the 1790 was a mistake and was corrected in the next act. However, that is just speculation as there is no evidence to such effect. It is also possible that the 1790 Act was copying English law and its omission in 1795 was a mistake or a result of different people being in Congress. It is also possible that Morse and others were right in that the language in the 1790 statute was simply to clarify any doubts that such persons were natural born. There is really not enough evidence regarding the act to make any argument with conviction. We do know in 18th censury state naturalization statutes, the term “natural born” was sometimes used and sometimes not used. In Massachusetts, in the same year, there are nearly identical naturalization statutes with some using “natural born citizen” and some using just “citizen” in identical contexts. If is thus not surprising that no one seems to have given much thought to the language in either the 1790 or 1795 acts as there is, in total, one comment by one person on the subject and it is far from clear what it means.

  215. avatar
    brygenon October 11, 2010 at 1:31 pm #

    NBC: brygenon: Yes. I’m the one who cited it and gave a link to the download site.

    Good, let’s discuss it shall we?

    “Who Can Be President of the United States: The Unresolved Enigma” by Charles Gordon, 1968

    Life is short, but sure, there are some bits seriously at issue. First, you claimed, “In fact, the reason why the 1790 act contained natural born is likely because of clerical error in copying the English act. Of course, realizing their follies, Congress quickly removed the term in subsequent acts.” Gordon says there’s no record on the motivation, and incidentally Jill A. Pryor’s 1988 paper agrees with Gordon. You have some evidence, unknown to Gordon and Pryor at the time of their papers, that Congress changed the wording out of “realizing their follies”. Please do present that evidence.

    NBC: First of all, Gordon did not have the wisdom of the Court in Rogers v Bellei in 1971.

    Nor did Gordon have the wisdom of any other post-1968 reference. He did a moderately impressive job of anticipating the possibility that the judiciary would find Congress’s power to grant citizenship at birth to foreign-born children of Americans came from the Article I Section 8 power: “To establish an uniform Rule of Naturalization”. More importantly, he was jaw-droopingly prescient in anticipating the eligibility challenges we talk about on this site. Forty years before the 2008 election, he nailed it.

    Presidential eligibility was not at issue in Rogers v Bellei; the Congress’s power over citizenship was. The Court allowed Congress the power in question, based on the “establish uniform Rule of Naturalization” clause, making the arguably counter-intuitive finding that when Congress grants citizenship by birth to one who is not native born, that’s a form of naturalization. That upsets many conventional descriptions of naturalization, and in some places Gordon uses the term in the familiar sense of a foreigner going through a process to become a U.S. citizen. Nevertheless, Gordon does anticipate the possibility, writing “since the presidential qualification clause does not, as we have noted, refer to naturalization, there may still be room for qualification as a natural born citizen, even though the process of acquisition at birth abroad was characterized as naturalization.”

    brygenon: What I saw with the Dicey quote was your failure to distinguish what he says the term “means” from what he says is the rule in the Common Law on who qualifies. You saw that differently. Well, professors Chin and Amar seem to have seen it my way.

    In context the meaning is clear and it has nothing to do with your proposition. You quoted a part which avoided the clear reference to on soil’. In fact I provided you with additional information from Dicey that further undermines your position.

    You demonstrate very well exactly what I said. We adopted the language of English Common Law, not the rule of English Common Law. I quoted Dicey on what the term “means”, the matter of language. “Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.” You insisted on adding context explaining who is natural born subject according to a principle of English Common Law. “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.” We use the English language, but we do not live under English law. The meaning of the term is the issue, not who England decided should qualify as a citizen from birth.

    NBC: As I expected, in Robinson the argument was that McCain was not a citizen at birth.

    Robinson’s briefs simply cited Gabriel Chin’s paper. That’s the most respectable source I know of arguing against McCain’s eligibility. I’ve asked you a couple times if you have other citation-worthy sources claiming McCain ineligible. Robinson’s attorney can’t very well write, “There’s this guy NBC who makes comments on blogs, and he has interpreted the law to mean…”

    NBC: Again the court can only respond to the arguments raised and I agree with the court that the plaintiff has failed to make a compelling case here.

    Whether you think the Court can or not, the Court went a lot farther than saying the plaintiff had not made a compelling case. I understand the principle there that the Court decides the actual case or controversy and all else is dicta, and I would urge you to apply it to the opinions you cite. Check out, for example, the single question presented in WKA.

  216. avatar
    brygenon October 11, 2010 at 1:33 pm #

    This paragraph from my previous comment should have been attributed to NBC:

    In context the meaning is clear and it has nothing to do with your proposition. You quoted a part which avoided the clear reference to on soil’. In fact I provided you with additional information from Dicey that further undermines your position.

  217. avatar
    gorefan October 11, 2010 at 1:35 pm #

    ballantine: I have a feeling this debate could go on forever without resolution as we have so little evidence on the subject.

    This debate has already been going on for quite some time. Beside the case of George Rominey in the 1960’s, there was the situation that occurred in the early 1900’s. The Mayor of New York City in 1904 was George B. McCellan Jr. (son of General George B. McCellan of Civil War fame). For a time, he was being tauted as a potential candidate for President. But, he was born in Dresden, Saxon (Germany). There were newspaper articles saying he was not eligible due to being only a citizen at birth. When the press asked him, not surprisingly, he said that he considered himself a natural born citizen. Unfortunately, he didn’t get the nomination or else this issue might have been resolved.

  218. avatar
    brygenon October 11, 2010 at 2:15 pm #

    ballantine: I have a feeling this debate could go on forever without resolution as we have so little evidence on the subject.

    Plus, even if we were by some miracle to reach resolution here in comments on a blog article about Apuzzo’s petition, so what? We’re not all that big a deal. When people want answers on a subtle point of law, they’re going to look to the experts in the legal community, not us.

  219. avatar
    brygenon October 11, 2010 at 2:17 pm #

    NBC: You also stated that there are no cases which looked at natural born status of children born abroad.

    It would be helpful if you would identify whoever you are addressing there and actually quote them stating that.