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Birthright Citizenship Roundtable

Some serious heavyweights in citizenship law have been debating birthright citizenship over at the PrawsBlawg. While the main question is citizenship of the children of illegal aliens, there is much relevant discussion to what we talk about here, and in particular US v Wong, jus soli, Calvin’s case and the 14th Amendment. It looks like there are two articles with comments so far:

I haven’t see much new language that could be applied to the eligibility of Barack Obama, the son of a US citizen and a foreign student. For the folks writing these articles, that is a settled question.

I also commend the cited article from the Georgetown Immigration Law Journal, “THE GESTATION OF BIRTHRIGHT CITIZENSHIP, 1868~1898: STATES’ RIGHTS, THE LAW OF NATIONS, AND MUTUAL CONSENT” from 2001.

It is important to remember that there was a debate in the late 19th century about just what the 14th Amendment meant for the children of foreigners. Writers from that time, like Alexander Porter Morse and George D. Collins, should be read in that context. At the close of the century came the landmark Supreme Court decision in United States v Wong Kim Ark that pretty well settled things. There are some today that want the Court to revisit that decision as to how it applies to the children of illegal immigrants.

 

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19 Responses to Birthright Citizenship Roundtable

  1. avatar
    Slartibartfast March 10, 2011 at 2:08 pm #

    I think that it is important to be wary of birthers trying to use people who want to reconsider Wong in regard to illegal immigrants (people who, right or wrong, have a legitimate legal argument about a legitimate issue) as a beard. These people have exactly what the birhters crave – legitimacy. If the birthers could insinuate themselves into this group, they could give their $hit a whole new level of polish (the Mythbusters proved that you can, in fact, shine $hit…).

  2. avatar
    bob March 10, 2011 at 3:08 pm #

    SB is correct.

    And please note (and someone tell MichaelN!) that the basis of birthright citizenship is Calvin’s Case and Wong Kim Ark. There is no dispute about their actual holdings; at best some argue they were wrongly decided.

  3. avatar
    gorefan March 10, 2011 at 3:53 pm #

    There is an interesting comment by Josh Blackman and a link to his article on Original Citizenship.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1654577

  4. avatar
    Rickey March 10, 2011 at 5:45 pm #

    George D. Collins, of course, wrote the government’s SCOTUS brief in the Wong Kim Ark case.

    http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA

    Everyone interested in the issue of citizenship should read it. Collins acknowledges in several places that the District Court had found Wong Kim Ark to be a natural-born U.S. citizen. He also uses the word “obnoxious” to describe Chinese subjects and their offspring.

  5. avatar
    Dr. Conspiracy March 10, 2011 at 5:55 pm #

    bob: And please note (and someone tell MichaelN!) that the basis of birthright citizenship is Calvin’s Case and Wong Kim Ark. There is no dispute about their actual holdings; at best some argue they were wrongly decided.

    September 3, 2009:

    Dr. Conspiracy: Which is why I keep telling Apuzzo that he has to overturn Wong.

  6. avatar
    bob March 10, 2011 at 6:55 pm #

    For MichaelN, Apuzzo, etc. to concede that these cases do not stand for they want them to stand for would also require them to concede there’s no legal basis for suggesting that Obama is ineligible.

    Pigs/fly, snowball/hell, etc.

  7. avatar
    Daniel March 10, 2011 at 7:52 pm #

    bob:
    For MichaelN, Apuzzo, etc. to concede that these cases do not stand for they want them to stand for would also require them to concede there’s no legal basis for suggesting that Obama is ineligible.

    Pigs/fly, snowball/hell, etc.

    Yes and they have to resort to flogging their ridiculous crap on internet blogs, because they can’t win in court, and they can’t get anyone in a position to do anything about it to pay attention to their puerile prattling.

  8. avatar
    brygenon March 10, 2011 at 7:56 pm #

    From Dr. C’s article:

    I haven’t see much new language that could be applied to the eligibility of Barack Obama, the son of a US citizen and a foreign student. For the folks writing these articles, that is a settled question.

    Near as I can tell, in Barack Obama’s lifetime, everyone who considered the question considered it settled, that is until a certain faction needed reasons to argue that Obama cannot be president.

    I recently asked Leo Donofrio, father of the recent two-citizen-parents nonsense: Are there sources from during Barack Obama’s lifetime, but before he declared his candidacy for the presidency, that imply a foreign father makes the child ineligible? I cited peer-reviewed papers from the legal literature stating that the issue is clear and settled in favor of the native-born.

    First, Donofrio cited Breckenridge Long’s opinion piece of 1916 questioning the eligibility of Charles Evans Hughes. I pointed out that it is obviously not from Obama’s lifetime, and in fact Long makes the point, “Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution, so the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” I repeated my question.

    Next, Donofrio answered that yes, there are sources — about which Obama is somehow expected to know — but named zero. I asked what these might be.

    Next, Donofrio cited to a 2008 article that the author later revised, or as Leo put it, “scrubbed”, to make clear that it was never meant to imply that a president’s parents must be citizens. I pointed out that this again does not respond to my question.

    Next, Donofrio challenged the validity of the question. I responded that if it was settled, as the legal literature asserted, before Obama ran, then that’s all he needs.

    Next, Donofrio turned ad hominem. I called his response “immature”, and also asked him: Correct me if I’m wrong on this: Only after Obama became a candidate did you start advancing the theory that both of a native-born child’s parents must be citizens for the child to be a natural-born citizen.

    Next, Donofrio stopped approving my comments. This was all in comments on his blog. That last question never appeared.

    http://naturalborncitizen.wordpress.com/2011/02/24/the-scrubbing-of-america-how-professor-lawrence-solum-disgraced-himself-to-protect-obamas-eligibility/#comments

    I’ve also asked Mario Apuzzo, another birther lawyer, when he first stated his theory on this. Apuzzo, like Donofrio, declined to answer. One might dismiss the two-citizen-parents theory as a minority view in disagreement with the prevailing consensus of the legal community. It’s actually much worse than that. In Barack Obama’s lifetime, it simply did not exist. The literature of the field declared the issue clear and settled and no one said otherwise.

    Now we hear that attorneys Donofrio, Apuzzo, Taitz and Hemenway disagree with the consensus of the legal community. If they do so on principle rather than to put down a particular individual, why did they not say one word about it until they needed reasons why Barack Hussein Obama cannot be President of the United States?

  9. avatar
    Slartibartfast March 10, 2011 at 8:14 pm #

    brygenon:

    I recently asked Leo Donofrio, father of the recent two-citizen-parents nonsense: Are there sources from during Barack Obama’s lifetime, but before he declared his candidacy for the presidency, that imply a foreign father makes the child ineligible? I cited peer-reviewed papers from the legal literature stating that the issue is clear and settled in favor of the native-born.

    First, Donofrio cited Breckenridge Long’s opinion piece of 1916 questioning the eligibility of Charles Evans Hughes. I pointed out that it is obviously not from Obama’s lifetime, and in fact Long makes the point, “Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution, so the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” I repeated my question.

    Next, Donofrio answered that yes, there are sources — about which Obama is somehow expected to know — but named zero. I asked what these might be.

    Next, Donofrio cited to a 2008 article that the author later revised, or as Leo put it, “scrubbed”, to make clear that it was never meant to imply that a president’s parents must be citizens. I pointed out that this again does not respond to my question.

    Next, Donofrio challenged the validity of the question. I responded that if it was settled, as the legal literature asserted, before Obama ran, then that’s all he needs.

    Next, Donofrio turned ad hominem. I called his response “immature”, and also asked him: Correct me if I’m wrong on this: Only after Obama became a candidate did you start advancing the theory that both of a native-born child’s parents must be citizens for the child to be a natural-born citizen.

    Next, Donofrio stopped approving my comments. This was all in comments on his blog. That last question never appeared.

    http://naturalborncitizen.wordpress.com/2011/02/24/the-scrubbing-of-america-how-professor-lawrence-solum-disgraced-himself-to-protect-obamas-eligibility/#comments

    I’ve also asked Mario Apuzzo, another birther lawyer, when he first stated his theory on this. Apuzzo, like Donofrio, declined to answer. One might dismiss the two-citizen-parents theory as a minority view in disagreement with the prevailing consensus of the legal community. It’s actually much worse than that. In Barack Obama’s lifetime, it simply did not exist. The literature of the field declared the issue clear and settled and no one said otherwise.

    Now we hear that attorneys Donofrio, Apuzzo, Taitz and Hemenway disagree with the consensus of the legal community. If they do so on principle rather than to put down a particular individual, why did they not say one word about it until they needed reasons why Barack Hussein Obama cannot be President of the United States?

    Well said.

  10. avatar
    The Magic M March 11, 2011 at 4:35 am #

    > If they do so on principle rather than to put down a particular individual, why did they not say one word about it until they needed reasons why Barack Hussein Obama cannot be President of the United States?

    Or, similarly, why don’t they subject all former US presidents retroactively to the same standards? That would mean they would have to assume, until convincingly proven otherwise, that all former presidents were ineligible (AFAIK only Reagan would be an exception). Then, using their “null and void” logic, they would have to ask which laws, international treaties, judge appointments (and, by extension, court decisions) would be “null and void” if the NBC status of these presidents cannot be proven to the same standard as they demand from Obama.
    So, if they actually believed in their crap, they would have to be shaking in their boots trying to fathom the consequences of decades, if not centuries, of stuff to unravel and “reboot”. That would be far more serious than just the potential ineligibility of the current president.

    Logically, the fact that they do not care the slightest bit about those things proves that it is all about Obama and not actual eligibility concerns.

    (As an aside, I see the same inconsequential reasoning from our right-wing cranks over here. They claim, using similar convoluted pseudo-legal arguments, that the German Constitution is void and the Weimar Constitution is still valid. When I point out to them that, using their own arguments on the WC, that would also be void and ask them what the consequences of that are, guess what their answer is? “I don’t care about that, I’m not going back that far in time.” ‘Nuff said.)

  11. avatar
    Paul Pieniezny March 11, 2011 at 4:52 am #

    What I have learnt from all this legal discussion (but do not expect birfers, even actual lawyers like Donofrio or the Putz to get it) is that when interpreting old court decisions it is vital to analyze the arguments of the losing side. Were they ignored by the judges making the final decision – it is obvious then that the judges did not think it necessary to refute them – so why?

    In Wong Kim Ark, one dissent, by Justice Fuller claimed Wong could not be a natural born citizen because this would mean he could run for the US Presidency. The winning side ignored this argument. Note for the birfers: Fuller wrote a dissenting opinion, not a concurring one (=something like “I agree with this final decision, but on different gounds”), so he actually agreed with the majority that if Wong was a citizen, he could only be so by being a natural born citizen.

    In Calvin’s Case, it is interesting to have a Captain Cook (meaning a good look) at what the defendants, who had seized two of Calvin’s property on the argument that he was an alien, had to say. “The defendants in both cases responded with a plea “in disability of Robert Calvin’s person” that the writs were inadmissible because Calvin was an alien. [FN42] Calvin was an alien, they argued, because he had been born “within [James’s] kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England.”

    (http://www.uniset.ca/naty/maternity/9YJLH73.htm)

    So, they were without any doubt arguing that Calvin could not be a natural born subject of England, because he was a natural born subject of Scotland! Lord Coke, by arguing that neither soil nor climate makes the natural born subject, in fact asserted that dual citizenship does not matter. Calvin could be a natural born subject of Scotland and still be entitled to all the rights of a natural born subject under English law.

    So on the basis of Wong Kim Ark relying on Calvin’s case (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html) these birfer bills disqualifying anyone with dual citizenship are clearly unconstitutional.

    Thanks to MichaelN for pointing that out. Soros will remember at the end of March.

  12. avatar
    The Magic M March 11, 2011 at 7:22 am #

    > to have a Captain Cook (meaning a good look)

    Cockney Rhyming Slang? 😉

  13. avatar
    Keith March 11, 2011 at 9:39 am #

    The Magic M:
    >to have a Captain Cook (meaning a good look)

    Cockney Rhyming Slang?

    Ken Dodds says you’re Isle of Wight.

  14. avatar
    The Magic M March 11, 2011 at 10:11 am #

    I always thought that CRS worked differently, by first taking an expression that rhymes with the original (such as “dog” => “hog”) and then take a synonym of that (“hog” => “pig”), so that finally “pig” means “dog”. That’s why I never bothered to learn it, too confusing…

  15. avatar
    Keith March 11, 2011 at 11:04 am #

    The Magic M:
    I always thought that CRS worked differently, by first taking an expression that rhymes with the original (such as “dog” => “hog”) and then take a synonym of that (“hog” => “pig”), so that finally “pig” means “dog”. That’s why I never bothered to learn it, too confusing…

    Sometimes. Sometimes not.

    Cockney Rhyming Slanc

  16. avatar
    Dr. Conspiracy March 11, 2011 at 1:21 pm #

    When I think of Cockney, I am reminded of this bit from the Goon Show:

    SEAGOON: In an Alambrhan tesselated forecourt, a fountain played on the purple water-lilies. Couched in lattice recesses, purdered Tureg beauties attended local sheiks. I was conducted to a low Morrocan coffee-table. My attendant wore the bleached robes of a Nomad arab. His burnoose was contained with a rope of black camel hair, at his waist a curved Hedjez dagger protruded from his cummerbund. He bowed low, touched his forehead in time-honoured Islamic salute and spoke.

    WILLIUM: [In a VERY broad English accent] The boiled fish and rice puddin’s orf mate.

    SEAGOON: I see… ahem, your accent is familiar, Oh Arab prince.

    WILLIUM: Yernnnn, I went to Kolidge in Kambridge, oh English mate.

    SEAGOON: What were you studying?

    WILLIUM: Cockney… I got it orf pat.

  17. avatar
    Welsh Dragon March 11, 2011 at 4:49 pm #

    Dr. Conspiracy: SEAGOON: What were you studying?
    WILLIUM: Cockney… I got it orf pat.

    And I immediatly thought of the next two lines:

    SEAGOON: Did you?

    WILLIUM: He didn’t mind.

    Actually I slightly misrembered it but Google rescued me!

  18. avatar
    Paul Pieniezny March 12, 2011 at 11:01 am #

    The Magic M:
    >to have a Captain Cook (meaning a good look)

    Cockney Rhyming Slang?

    No, It is Australian English. I would not be surprised if in 1607-8, both “Coke” and “Cook” were pronounced the same way in English, so for an Australian “rorter” (rort is Australian for scam) it is particularly apt advice to tell them to have a Captain Cook at Lord Coke.

    But there is some rhyming slang in Australian English, definitely. Unlike in Cockney, it is usually straight. Meaning that the word they mean practically always rhymes with the “code”, not with the word you’d normally associate with the code. Some exceptions: loaf for head (from loaf of bread) and Oxford for US dollar (from Oxford scholar – will probably die out when the last Australian who got paid in pounds dies). Of course, London Cockney has straight ones too, with the most famous one probably being “trouble and strife”. Also exists in Australia. That the language of Australia owes a few things to the language of the London lower classes, is not surprising, since most women who went as convicts to Australia were from London.

  19. avatar
    Mike March 12, 2011 at 1:20 pm #

    Paul Pieniezny: No, It is Australian English. I would not be surprised if in 1607-8, both “Coke” and “Cook” were pronounced the same way in English, so for an Australian “rorter” (rort is Australian for scam) it is particularly apt advice to tell them to have a Captain Cook at Lord Coke.

    In Cockney rhyming slang, you’d say to have a butcher’s. Butcher’s hook -> look. It’s actually entered mainstream English.