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Paper on birthright citizenship

One argument made against Barack Obama’s eligibility to be President is a claim that citizen parents are a tacit requirement in the words “natural born citizen” in the US Constitution.

Much of the rhetoric from Obama’s opponents is derived from another controversy over the citizenship of any kind for those born in the United States to alien parents. The US Supreme Court decided the question of what the 14th Amendment meant back in 1898 in the case of United States v Wong Kim Ark; however, there are those who argue that this ruling should not apply to the children of illegal immigrants or that the Supreme Court was wrong, or that the Constitution should be changed. Proposals to change the Constitution’s citizenship criteria have come before Congress every year for the past decade, and legislation both federal and state has been proposed to get around the expansive definition of citizenship in the Constitution.

A March 2011 issue brief from the American Constitution Society titled Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, discusses the current political debate over birthright citizenship as well as its history in some detail. Federal and State proposed legislation is also covered.

The specific Obama controversy is rarely addressed directly in such papers, since the presidential eligibility of all persons born citizens in the United States is not really a matter of debate in the legal community. Nevertheless, since the arguments against Obama use the same gambits arrayed against citizenship of any kind for the children of non-citizens, much of it the ACS article is useful for our  purposes. In one instance it does get specific, as Wydra says:

Just as the Citizenship Clause sets forth birth on U.S. soil as the condition for citizenship–”not race or bloodline–”Article II specifies that the relevant qualification for the presidency is birth-conferred citizenship, not any particular ancestry.

Wydra describes the argument over “allegiance” frequently put forward by Obama opponents as a “red herring…., misleading and flawed.” She relies on the Congressional debates over the 14th Amendment to make it clear what the universal understanding of Congress was, both among opponents and supporters of the measure: the naturalization status of a child’s parents doesn’t matter.

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27 Responses to Paper on birthright citizenship

  1. avatar
    Atticus Finch September 21, 2011 at 4:18 pm #

    Dual citizenship at birth does not equate dual allegiance. All children of alien parents born in the United States have dual citizenship: United States citizenship and citizenship of his or her parents.

    Courts have long recognized that foreign nations have no jurisdiction over its citizens or subjects in the United States. “[T]he legal status of foreign nationals in the United States is determined solely by our domestic law — foreign law confers no privilege in this country that our courts are bound to recognize.” Vanity Fair Mills v. T. Eaton Co., 234 F. 2d 633, 638-639 (2nd Cir. 1956) . See also Rundell v. La Campagnie Generale Transatlantique, 100 Fed. 655, 660 (7th Cir. 1900)(“Such laws may give rise to personal relations between the sovereign and subjects, to be enforced in his own domains; but they do not rightfully extend to other nations.”)

    Moreover, United States’ jurisdiction over Obama while he was residing in the United States is complete and does not share its jurisdiction with “British jurisdiction” since “British jurisdiction” does not extend beyond British territorial limits. “`no sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals;'” Grover & Baker Sewing Machine Co. v. Radcliffe 137 U.S. 287,296 (1890)

    As such, United States jurisdiction over Obama was exclusive and absolute at the time of his birth. “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 11 U.S. 116 , 136 (1812

  2. avatar
    john September 21, 2011 at 5:41 pm #

    Mario Apuzzo has a different opinion;
    http://puzo1.blogspot.com/2011/09/having-status-of-birthright-citizenship.html

  3. avatar
    Dr. Conspiracy September 21, 2011 at 9:22 pm #

    Does the sun rise in the East?

    john: Mario Apuzzo has a different opinion;

  4. avatar
    G September 21, 2011 at 9:42 pm #

    Yeah, and based on Apuzzo’s record of utter failure on the matter and lack of any actual Constitutional Law training, why would anyone care what his opinion is?

    Apuzzo lacks any credibility whatsoever in these matters.

    john: Mario Apuzzo has a different opinion;http://puzo1.blogspot.com/2011/09/having-status-of-birthright-citizenship.html

  5. avatar
    obsolete September 21, 2011 at 11:31 pm #

    John, wake us when Apuzzo wins a non-DUI case…

  6. avatar
    nbc September 22, 2011 at 12:29 am #

    Was Apuzzo not the losing attorney when arguing this position? Well, well…

  7. avatar
    Majority Will September 22, 2011 at 3:51 am #

    obsolete:
    John, wake us when Apuzzo wins a non-DUI case…

    Do you know if this putative attorney has won any cases?

  8. avatar
    Lupin September 22, 2011 at 9:55 am #

    Atticus Finch: Courts have long recognized that foreign nations have no jurisdiction over its citizens or subjects in the United States.

    I an digressing but I wish the US would conversely accept that it has no jurisdiction over non-Americans abroad.

  9. avatar
    Lupin September 22, 2011 at 9:57 am #

    john: Mario Apuzzo has a different opinion;

    Meretricious Mario’s arguments have been thoroughly refuted here. They are, in one word, worthless.

    Mario is likely a sock puppet funded by lunatic right-wing organizations.

  10. avatar
    Ballantine September 22, 2011 at 10:20 am #

    The challenging thing wold be to find one thing that he says in that article that is correct. Hard to believe he still doesn’t understand that when someone cites Vattel on a subject unrelated to “natural born citizen” it doesn’t mean they are adopting his definition of natural born citizen.

  11. avatar
    JoZeppy September 22, 2011 at 10:46 am #

    john: Mario Apuzzo has a different opinion;http://puzo1.blogspot.com/2011/09/having-status-of-birthright-citizenship.html

    The only thing more rediculous than Mario’s complete grabage legal research and analysis, is our NM paralegal friend’s attempt to puff his statements by (mis)using big legal sounding words and phrases in the comments.

  12. avatar
    bob September 22, 2011 at 12:16 pm #

    ObBirther: ACS is a bunch of leftist commies: http://en.wikipedia.org/wiki/American_Constitution_Society

  13. avatar
    Ballantine September 22, 2011 at 12:41 pm #

    There is a lot of misunderstanding about allegiance. In the Civil War era, when our state department said our citizens didn’t owe allegiance to anyone else, they didn’t mean one wasn’t a citizen if some foreign nation claimed one owed them allegiance, it meant we didn’t recognize any foreign nation’s claim of allegiance on our citizens. England and Prussia claimed that our naturalized citizens born on their soil still owed allegiance to them and were under their protection. We refused to recognize such claims. For example, any effort by such nations to protect their subjects from the draft in the Civil War were rejected out of hand by our government.

    England didn’t claim that our native born citizens of English parents owed them allegiance even though such childern were British subjects under British statutes. England only treated them as subjects if they moved back to England. Such subjects who went to British embassies during the Civil war for protection were told they owed allegiance to the United States.

    The issue came to a head in 1868 when Congress formally declared that the United States would protect our naturalized citizens from claims of foreign allegaince to the same degree we had always protected our native born citizens. The point was made over and over that no nation had the right to claim the allegiance of either type of citizen and the act actually stated that any claim of foreign allegiance on our naturalized citizens and their descendants must be disavowed. Early drafts of the act actually said the President must be a native born citizen.

  14. avatar
    Jules September 24, 2011 at 11:12 pm #

    Lupin: I an digressing but I wish the US would conversely accept that it has no jurisdiction over non-Americans abroad.

    It’s a bit more complicated than just the quoted court decisions. The US certainly impose extraterritorial obligations on its citizens. It also imposes certain extraterritorial obligations on foreign nationals (which is why Osama bin Laden had been indicted in federal court even though, as far as I am aware, he never set foot in the US). The US does not, of course, prevent foreign countries from enacting laws that impose obligations on persons located in the US. However, other countries’ claims of extraterritorial jurisdiction over people in the US only have effect to the extent that the US allows it through domestic law and extradition treaties in force. Similarly, the US can only enforce its extraterritorial jurisdiction in other countries to the extent that it is practically possible in those countries. (As it happens, my understanding is that France is more hostile than the US to other countries’ claims of extraterritorial jurisdiction. Unlike the US, France has a ban on extradition of its citizens to other countries, except where required by European law.)

  15. avatar
    Jules September 24, 2011 at 11:23 pm #

    Ballantine: The issue came to a head in 1868 when Congress formally declared that the United States would protect our naturalized citizens from claims of foreign allegaince to the same degree we had always protected our native born citizens. The point was made over and over that no nation had the right to claim the allegiance of either type of citizen and the act actually stated that any claim of foreign allegiance on our naturalized citizens and their descendants must be disavowed. Early drafts of the act actually said the President must be a native born citizen.

    The US government now recognises that where someone is a dual national, the country in which he is located is the one with the stronger claim. The State Department warns those who have dual nationality that it can become difficult to impossible for the State Department to intervene on behalf of someone in a foreign state who is a citizen of that state.

    Of course, Obama only visited the UK after he had ceased to be a British national and only visited Kenya after he had ceased to be a Kenyan national. As a result, the strongest claim when he was a dual citizen was that of the United States and there was no means by which the UK or Kenya could enforce any obligations of citizenship against him. The only rights of citizenship that he ever exercised were those which he held as a US citizen. The technical imposition of nationality by other countries’ laws had no impact upon his status under US law and had no practical effect upon his life.

  16. avatar
    Jules September 24, 2011 at 11:47 pm #

    Atticus Finch: All children of alien parents born in the United States have dual citizenship: United States citizenship and citizenship of his or her parents.

    Not necessarily. It is quite easy to imagine (and not terribly difficult to find) an example of a situation where foreigners give birth in the US to a child who fails to acquire the citizenship of the parents.

    Additionally, there are the rare examples of persons who are born in the US to foreign diplomats and fail to acquire US citizenship.

  17. avatar
    Keith September 25, 2011 at 4:51 pm #

    Jules: (As it happens, my understanding is that France is more hostile than the US to other countries’ claims of extraterritorial jurisdiction. Unlike the US, France has a ban on extradition of its citizens to other countries, except where required by European law.)

    France is even more hostile than the US when it comes to exercising its extraterritorial ‘prerogatives’. Even to the point of ordering political executions on foreign soil, without even the pretense of establishing that any crime had taken place or attempt at extradiction. See: The sinking of the Rainbow Warrior

  18. avatar
    Paul Pieniezny September 25, 2011 at 8:14 pm #

    Jules: Not necessarily. It is quite easy to imagine (and not terribly difficult to find) an example of a situation where foreigners give birth in the US to a child who fails to acquire the citizenship of the parents.

    Additionally, there are the rare examples of persons who are born in the US to foreign diplomats and fail to acquire US citizenship.

    I seem to remember a claim that at the time Piyush Jindal was born in the USA, India still had no provisions for giving children of Indian parents born abroad Indian citizenship. However, a later law, did give such citizens the right to Indian citizenship (retroactive to 1950) or … to the status of overseas citizen of India. An overseas citizen may have dual citizenship, a full Indian citizen normally may not – unless the acquisition of the other citizenship happened involuntary.

    Though the way Piyush became a US citizen is not an impediment to full Indian citizenship, the Indian government does not tolerate such citizens to also hold an actual passport of the other country.

    Of course, the fact that Piyush is or was merely an Overseas citizen of India should not help him with the birfer dualing crowd, since Obama too was merely a Citizen of the United Kingdom and Colonies at birth – in addition to being a US citizen.

    Like Piyush, who would otherwise have been stateless for some time.

  19. avatar
    Romo Cop September 25, 2011 at 10:48 pm #

    The article is playing games with the Constitution. A “natural born citizen” is what is to be qualified for the presidency and vice presidency. In the same Article 2, “citizens” are eligible to be congressmen, but NOT eligible to be president.

    I can, but needn’t, go any further. People born under the 14th amendment are NOT natural born citizens any more than those eligible for Congress but NOT for the presidency. These are all clearly different things.

    Wong Kim Ark and Minor vs. Happersett both confirm this fact, as well, they don’t deny it.

    Let the ad hominems fly since you have no response. If you can, please convince me otherwise by addressing what I have. Thanks.

  20. avatar
    gorefan September 25, 2011 at 11:34 pm #

    Romo Cop: Let the ad hominems fly since you have no response.

    No need to fly anything around, but it might be helpful to consult with people who were actually alive in 1787.

    “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”William Rawle, 1826 “A View of the Constitution of the United States

    Mr. Rawle in the same paragraph writes,

    “Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”

    So “place of birth” creates the quality of being “natural born”.

    This is a reflection of the belief of James Madison,

    “It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; “James Madison, 1789, Speech on the Floor of the House of Representatives.

    Rawle’s statement is also a reflection of the laws of State of Connecticut as described by Zephaniah Swift,

    “The children of aliens born in this state are considerded as natural born subjects and have the same rights with the rest of the citizens. “Zephaniah Swift, 1795, “A System of the Laws of the State of Connecticut: in Six Books”

    BTW, William Rawle was a Philadelphia lawyer (he founded the law firm of Rawle and Henderson, the oldest law firm in the United States). He was appointed by President Washington to be the first U.S. Attorney for the District of Pennsylvania.

    Zephaniah Swift was a member of the Connecticut legislature, U.S. Congressman and eventually the Chief Justice of the Connecticut Supreme Court.

    I assume you know who James Madison was.

    Now how about you providing a quotation from the Founders that says two citizen parents were needed to be “natural born”. Or failing that, explain how the people of Connecticut would know that the the meaning of the term “natural born” had been changed in the Constitution.

  21. avatar
    Majority Will September 26, 2011 at 4:12 am #

    Romo Cop: These are all clearly different things.

    Clear to people who obviously have no understanding of U.S. history or law. Yeah, sure.

    All of our Presidents have, to date, been born in the 50 states. Notably, President Obama was born in the state of Hawaii, and so is clearly a natural born citizen.
    – US Supreme Court Justice Sandra Day O’Connor (retired)

    I can, but needn’t, go any further.

  22. avatar
    Ballantine September 26, 2011 at 10:07 am #

    Romo Cop: The article is playing games with the Constitution. A “natural born citizen” is what is to be qualified for the presidency and vice presidency. In the same Article 2, “citizens” are eligible to be congressmen, but NOT eligible to be president.I can, but needn’t, go any further. People born under the 14th amendment are NOT natural born citizens any more than those eligible for Congress but NOT for the presidency. These are all clearly different things.Wong Kim Ark and Minor vs. Happersett both confirm this fact, as well, they don’t deny it.Let the ad hominems fly since you have no response. If you can, please convince me otherwise by addressing what I have. Thanks.

    Uh, try reading the cases you cite. Minor never said the 14th Amendment meant something different than natural born citizens. The whole basis of the Wong Kim Ark decision was that thet 14th Amendment and the NBC clause meant the same thing. i can only assume you are regurgitating what you have read on birth blogs as you are claiming the case says exactly the opposite of what it actually stated. If you are not smart enough to understand the majority opinion, I suggest you read the dissent’s concise summary of the majority opinion where the dissenters way they disagree that the 14th Amendment and the NBC clause are defined by the English common law. If such summary is too difficult, I really can’t help you.

  23. avatar
    Rickey September 26, 2011 at 10:40 am #

    Romo Cop:
    The article is playing games with the Constitution. A “natural born citizen” is what is to be qualified for the presidency and vice presidency. In the same Article 2, “citizens” are eligible to be congressmen, but NOT eligible to be president.

    I can, but needn’t, go any further. People born under the 14th amendment are NOT natural born citizens any more than those eligible for Congress but NOT for the presidency. These are all clearly different things.

    Wong Kim Ark and Minor vs. Happersett both confirm this fact, as well, they don’t deny it.

    Please cite a single history textbook, civics textbook, or Constitutional law textbook which states that a natural-born citizen must have two citizen parents.

    When you’re done with that futile search, try reading the government’s Supreme Court brief in the Wong Kim Ark case. The government conceded that the District Court had ruled that Wong Kim Ark was a natural-born citizen, and the government conceded that if SCOTUS ruled that Wong Kim Ark was a citizen it would mean that he was eligible to be President.

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

  24. avatar
    Dr. Conspiracy September 27, 2011 at 9:15 pm #

    I’m sorry. What do you “have?” All you did was throw out a couple of case names and an unargued assertion.

    Even before the 14th Amendment, the courts were saying that the children of aliens could be president (Lynch v Clarke).

    Romo Cop: Let the ad hominems fly since you have no response. If you can, please convince me otherwise by addressing what I have.

  25. avatar
    Northland10 September 27, 2011 at 9:59 pm #

    Romo Cop: Let the ad hominems fly since you have no response.

    Ballantine: try reading the cases you cite.

    Rickey: try reading the government’s Supreme Court brief in the Wong Kim Ark case.

    Can I assume “try reading” is an ad hominem in the Vattel school.

  26. avatar
    SluggoJD September 27, 2011 at 10:26 pm #

    Romo Cop:
    The article is playing games with the Constitution. A “natural born citizen” is what is to be qualified for the presidency and vice presidency. In the same Article 2, “citizens” are eligible to be congressmen, but NOT eligible to be president.

    I can, but needn’t, go any further. People born under the 14th amendment are NOT natural born citizens any more than those eligible for Congress but NOT for the presidency. These are all clearly different things.

    Wong Kim Ark and Minor vs. Happersett both confirm this fact, as well, they don’t deny it.

    Let the ad hominems fly since you have no response. If you can, please convince me otherwise by addressing what I have. Thanks.

    You will never be convinced, because you’re a dishonest, racist Phuck.

  27. avatar
    gorefan September 28, 2011 at 3:01 pm #

    Romo Cop: you have no response

    Wow, what a surprise. Apparently you are the one who doesn’t have a response.