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The silence of the sheepskins

imageWhile a handful of attorneys have taken on the Obama eligibility issue on the negative side, they are far from authorities in Constitutional law. Herb Titus is the closest the birther side has to an authority and even he is not widely-considered so. From those attorneys we have a number of articles, papers and briefs arguing that US Presidents must be born in the United States of two citizen parents; and a number of people are persuaded by them – since they are the only game in town.

United Press International reports:

“The arguments aren’t crazy,” said Georgetown law Professor Lawrence Solum. But, he added, “The much stronger argument suggests that if you were born on American soil that you would be considered a natural-born citizen.”

Daniel P. Tokaji wrote:

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. [emphasis added]

If the birther argument isn’t “crazy” and indeed a “vital question” of “national importance”, then why is the issue being ignored as if it were a crazy sideshow by Tokaji, Solum and the other “big guns” in the legal profession?1 An entire issue of the Michigan Law Review First Impressions was devoted to John McCain’s eligibility. Laurence Tribe and Theodore Olson wrote a scholarly letter in support of McCain. If the birther argument were crazy, then it makes some sense that mainstream scholars would ignore it, but if there is a legitimate controversy, where is the definitive law review article in support of the eligibility of persons born in the United States to alien parents2. It’s not as if this issue will never come up again.

We have a pretty good idea where some scholars stand on the issue:

Gabriel Chin:

Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens…

Bruce Ledewitz:

It’s just accepted law that people born in the United States are natural-born citizens. That’s just been the understanding for a long time.

Lawrence Solum:

Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.”

Laurence Tribe and Theodore Olson:

…that fact alone would make [John McCain] a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark, 169 U.S. at 655-66.

Eugene Volokh :

I’m not an expert on this area of the law, but the Georgia judge’s reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.

It would be a very bad thing if a close 2012 election were decided based on misinformation about a candidate’s eligibility. I think it’s time for the recognized experts to step up and serve the public interest by publishing well-reasoned papers on the subject. How about an amicus brief submitted to the 4th Circuit Court of Appeals in Tisdale v. Obama? It’s time for the academic leaders to lead, so that the electorate has good information upon which make its decisions.

If the reader knows of any statements that show where recognized authorities stand on the topic, please leave them in comments with references so that I can update the article.


1 In researching this, I discovered a similarly-themed article at The American Thinker titled, “Academia Shrugs: Obama’s Citizenship and the Presidency.”

2 I would say that the most authoritative document that we have now is the Congressional Research Service report, “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement” by legislative attorney Jack Maskell. While that report was informally published, it remains essentially an internal report for Congress and is neither a legal brief, nor a work targeted to the general public or the legal community.

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41 Responses to The silence of the sheepskins

  1. avatar
    gorefan March 30, 2012 at 2:43 pm #

    http://baldwin-whitehall.patch.com/articles/whitehall-man-is-aiming-to-remove-obama-from-pa-ballot#photo-8080552

    But Bruce Ledewitz, a professor for the Duquesne University School of Law for over 30 years, is not convinced.

    It doesn’t matter,” Ledewitz said. “Since the 1870s, we’ve treated people born here as citizens … That’s been the understanding.”

    Ledewitz was asked if Barchfeld’s argument over the “natural born citizens” aspect holds any water.

    “No,” Ledewitz said. “And I’m not speaking about whether he’s a good president or a bad president or anything else. It’s just accepted law that people born in the United States are natural-born citizens. That’s just been the understanding for a long time.

    “It has nothing to do with Obama you understand. If you were born here, you’re a natural-born citizen.”

  2. avatar
    Scientist March 30, 2012 at 2:59 pm #

    Doc: I understand your concern, but preparing a journal article up to professional standards is a lot of work and scholars don’t generally want to expend that effort on settled matters. Nor do journals want to publish such work. It would be like someone asking me to write a paper proving that DNA is the genetic material. The matter was settled decades ago, so why would I want to do it? What granting agency would fund such work? What journal would waste space publishing it? Mr Maskell is a government employee and works on what he is requested to by members of Congress. Academic scholars have no such obligation.

    As for the electoral impact, I do not share your concern. The only population where such a question could matter is among pro-Obama birthers. And I have looked long and hard enough to be convinced that they don’t exist.

  3. avatar
    Dr. Conspiracy March 30, 2012 at 3:21 pm #

    The problem here is that these academics seem reluctant to say that the question is settled. Either it is settled, or there is yet work to do. They say that the issue is important (see updated comment from Tokaji in the article). Volokh and Turley have devoted many articles and hosted extensive debates on their blogs — suggesting that it’s important, but they won’t actually defend a side. If it is important then treat it as important, and if it is not important, then they shouldn’t act like it is.

    If the law review route is too arduous, they could file an amicus brief or at least publish a long blog article explaining why it is settled. Right now we’re watching Donofrio v. Empty Chair in the court of public opinion. You say: “it would be like someone asking me to write a paper proving that DNA is the genetic material.” But hasn’t that paper already been written?

    While I agree that this issue will probably not turn the next election, I am not confident of that outcome.

    Scientist: Doc: I understand your concern, but preparing a journal article up to professional standards is a lot of work and scholars don’t generally want to expend that effort on settled matters.

  4. avatar
    ballantine March 30, 2012 at 3:54 pm #

    I think plenty of scholars have said the issue is settled. Tribe said the two-parent theory was “wacky.” The truth is that most scholars and judges haven’t studied this area as it has never been controversial. I doubt I could not find a single lawyer in my firm that had heard of Wong Kim Ark. I doubt most constitutional lawyers could tell you off the top of their head what Wong Kim Ark held. To understand this or any particular area of law, one needs to do the research and any scholar or judge who actually does the research will find the issue has been settled long ago. Of course, a number of scholars have done so as there are a number of good law review articles out there, but there is simply not enough controversy for most scholars to look into it. Some more examples: Lawrence Freedman, An Idea Whose Time Has Come–The Curious History, Uncertain Effect, and Need for Amendment of the “Natural Born Citizen” Requirement for the Presidency, 52 St. Louis U. L.J. 137, 143 (2007)(“It is now generally assumed that the term “natural born” is synonymous with “native born”); Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005)(“United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens… unless a child’s parents are protected by the full immunity extended to foreign diplomats and their families, or they are enemy combatants”); Rebekka Bonner, Who May Be President? Constitutional Reinterpretation of Article II’s ‘Natural Born’ Presidential Eligibility Clause, (“There is near universal agreement that all persons born within the United States are natural born citizens”); Jill A.Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, at 881 and n. 2 (1988)(“It is well settled that “native-born” citizens, those born in the United States, qualify as natural born “).

  5. avatar
    donna March 30, 2012 at 4:16 pm #

    doc

    perhaps the birthers would find it “settled” if it went to the supremes and either the 4 liberals on the court recused themselves OR it was a 9-0 decision – i can’t imagine any other scenario being believable to them – of course, there will be those who will still say the judges were paid off, obama threatened them with irs investigations or a lifetime in a hut in kenya

  6. avatar
    JPotter March 30, 2012 at 4:19 pm #

    Being the legal equivalent of junk science, birther theories are toxic. What professional wants to be associated with them? It could be seen as piling on / mocking, or a sign of potential crackpottery. Why attract attention to an embarrassment to the profession?

    Lot of academic peer pressure. Is it right, no, but it exists. Happy to dismiss out of hand, but little to gain by publishing on it.

    But it sure would be satisfying, wouldn’t it?

  7. avatar
    Dr. Conspiracy March 30, 2012 at 4:28 pm #

    [The Doc gets out binoculars to follow his trial balloon.]

  8. avatar
    Dr. Conspiracy March 30, 2012 at 4:32 pm #

    While it is not the same thing at all, I still can’t help being reminded of certain congressmen pandering to their birther constituents by making noncommittal remarks.

    JPotter: Lot of academic peer pressure. Is it right, no, but it exists. Happy to dismiss out of hand, but little to gain by publishing on it.

  9. avatar
    G March 30, 2012 at 4:35 pm #

    You make a very compelling point. I agree with you on what you’ve said on this aspect.

    As with the examples you’ve demonstrated in the article, many of those other scholars were able to simply come straight out and definitively weigh in on the “born on US soil = NBC” scenario, even though there are other permutations in which the outcome is not as certain.

    With the reluctant academics, yeah, who knows what their internal reasoning is… Maybe it is a factor of their individual personalities – eager to endlessly wax philosophically but with some reluctance to make definitive statements on issues that aren’t seriously in front of the Supreme Court… Maybe they fear that the very act of seriously weighing in on an issue that they don’t really consider a serious problem, would itself just lend more attention and credibility than an issue does…

    I too prefer a “sh*t” or get off the pot” attitude over wishy-washy speculation that refuses to commit to a conclusion. But on the other hand, I can also respect an attitude of not needing to bother with travelling all the way down merely speculative roads that have no practical likelihood of being a “real” concern too.

    When I was dealing with and teaching Risk Management concepts, that was one of the dilemmas that frequently came up. It was fine to come up with various speculative risk event and trigger scenarios during the brainstorming phase, but once proper weights could be assigned to liklihood of occurance, frequency and severity of impact; then the focus of planning had to drastically change, based on those weights. The cost of both time and resources towards both the planning and implemenation of mitigating/countering certain risks meant that focus needed to be weaned and prioritized towards primarily tracking and dealing with only the most realistic scenarios, even if some extremely improbable event was weighted with a perceived catastrophic severity. Likewise, possible scenarios that ended up having a clear net negligible impact were not worth investing time and effort into processes to worry about either.

    So in the end, while I can appreciate the argument and reason for frustration that you’ve mentioned, I see the net conclusion from all this as still affirming that no realistic “Constitutional crisis” or serious concern on this issue is in front of us at all.

    Dr. Conspiracy: The problem here is that these academics seem reluctant to say that the question is settled. Either it is settled, or there is yet work to do. They say that the issue is important (see updated comment from Tokaji in the article). Volokh and Turley have devoted many articles and hosted extensive debates on their blogs — suggesting that it’s important, but they won’t actually defend a side. If it is important then treat it as important, and if it is not important, then they shouldn’t act like it is.

  10. avatar
    G March 30, 2012 at 4:42 pm #

    Based on how they’ve responded to every bit of evidence that has come out so far, I highly doubt that would satisfy the bulk of these remaining die-hards. It may peel off a few, but is that really worth it or necessary at all?

    No, I suspect that most of them will simply continue ranting in abject denialism of ANY result that doesn’t tell them what they want to hear. They have started with a stark assumption of “guilty” and expectations of “remove him from office” (and worse). They will accept NO reality or result that doesn’t give them that outcome.

    Entertaining and appeasing such mindsets is a complete waste of time.

    donna: doc perhaps the birthers would find it “settled” if it went to the supremes and either the 4 liberals on the court recused themselves OR it was a 9-0 decision – i can’t imagine any other scenario being believable to them – of course, there will be those who will still say the judges were paid off, obama threatened them with irs investigations or a lifetime in a hut in kenya

  11. avatar
    G March 30, 2012 at 4:48 pm #

    But I argue that has already been done as well.

    Isn’t that what the Congressional Research Service – Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement report was all about?

    http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement

    At what point is it necessary for every serious person to be goaded into paying attention and putting forth effort to respond to a bunch of die-hard cranks that won’t accept any answer other than “GUILTY” anyways?

    Any lawyer defending this, who feels it is necessary can cite the CRS report.

    Not that they even need that. In both the court rooms and the “court of public opinion”, the EMPTY CHAIR continues to win.

    Dr. Conspiracy: If the law review route is too arduous, they could file an amicus brief or at least publish a long blog article explaining why it is settled. Right now we’re watching Donofrio v. Empty Chair in the court of public opinion. You say: “it would be like someone asking me to write a paper proving that DNA is the genetic material.” But hasn’t that paper already been written?

  12. avatar
    JPotter March 30, 2012 at 5:03 pm #

    Dr. Conspiracy: While it is not the same thing at all, I still can’t help being reminded of certain congressmen pandering to their birther constituents by making noncommittal remarks.

    Not the same, but exactly the same in level of commitment …. both willing to play footsie only far enough to placate a situation with a denial or an assurance, but, the subject being radioactive to both, neither is willing to lay down a permanent marker.

  13. avatar
    Squeeky Fromm, Girl Reporter March 30, 2012 at 5:05 pm #

    Well, I wrote “A Place To Get The REALLY Right Answers About Natural Born Citizenship.” Does that count???

    Seriously though, Solum said this:”The arguments aren’t crazy,” said Georgetown law Professor Lawrence Solum. But, he added, “The much stronger argument suggests that if you were born on American soil that you would be considered a natural-born citizen.”

    I could not find where he ever went into any details, but here are some the areas that might be “not crazy”, none of which applies to Obama:

    1. What if one parent is a diplomat and one isn’t. The usual situation is a diplomat and his wife, both citizens of the same country. What if the French Ambassador, Poppy LePew impregnates Muffy Jones, an American college girl who he met at a bar???

    2. What if the father of Muffy Jr. is listed on the birth certificate as Skippy Smith, young American scion, but Muffy, Jr. looks like Poppy and likes cheeses and mimes???

    3. What if someone REALLY presses the “domicile” issue as regards a vacationing couple from France who have little Pierre prematurely here at Motel 6 in Orlando??? Because the WKA court specified “domiciled” in its ruling. This would not apply to Obama because his pops was living here and going to school.

    4. What if the baby is born on a foreign boat, not a ship, on an INLAND waterway??? Say in Des Moines???

    5. What if the issue of aliens in enmity doctrine is applied to a pregnant drug cartel member from Mexico, who is here temporarily selling drugs and guns to street gangs???

    These are just a few issues that come to mind.

    Squeeky Fromm
    Girl Reporter

  14. avatar
    G March 30, 2012 at 5:36 pm #

    I with Scientist on this and I see his question about “pro-Obama Birthers” as one of the key litmus tests to examine any basis of real electoral impact concern here.

    I too have been unable to find any “pro-Obama Birthers” in all these years. I *have* surprisingly encountered several open anti-black racists that actually still support Obama, but none of them were Birthers.

    No election outcome is certain. (Heck, that is the whole point of having an election). The fall campaign is nearly certain to be frought with ugly smears and accusations and very real bigger world domestic and foreign impact factors that could shift momentum and fortunes one way or another.

    However, I think it is quite a different stretch to still think that the particular memes of Birtherism will be a difference maker in any of that equation. On what objective basis could one make that argument? It certainly is a very pertinent and fascinating relevant topic for examination and re-examination as we watch the Birther efforts play out and the fall election approach.

    The picture seems to becoming increasingly clearer that Birtherism as a whole has two main objectives and I put forth the argument that those objectives differ between the “true believer” faction and the real “propagandist con artist factor” that has been feeding and manipulating Birtherism all along.

    From the “true believer” faction, their main objective seems to be to remove Obama from his existing office. That includes a bunch of subset objectives of the hopes of a “magical reset” to void that his presidency and policies ever happened, to see prosecution / harm come to Obama as a result, and to prevent him from even being able to run for re-election in the fall.

    The chances of the “true believer” faction getting any of those set of wishes through legal or legitimate means has become extremly implausible to the point that it is hard to come up with a compelling scenario in which they could happen. Does any non-Birther seriously have any worries that any of the Court or Legislative challenges has any chance of succeeding and removing him from office or the fall ballot? I argue those paths are all DOA. No matter how incessent Birthers are at continuing to pursue them, the end result is not going to change. Obama will simply NOT be removed from office via these means, nor will he be prevented from being on re-election ballots.

    I argue that the Propagandist faction of the Birthers has always had a different true agenda – the overall one being to damage and discredit Obama via smears. Within that overall agenda, there are various sub-set goals too: xenophobic desires to influence the argument and restrict WHO can be President and even who can be a citizen in this nation; a strong desire to come up with a way to sway the re-election against Obama via some sort of “swift boat” insertion of doubts.

    Arguably, this is the true and very real concern, as brainwashing and propaganda in general have the ability to suceed in influening behavior and swaying elections.

    However, there becomes a point where certain memes have run their course and have also reached the extent to which they can exert an effective influence, including causing others to become immune to their influence.

    All the evidence I’ve seen pretty much points to certain “swift boat” memes having already become past their prime and unable to appeal to anyone who isn’t already in their ODS suffering camp anyways. This includes the worn out bogeymen issues of “Birtherism”, “Alinsky”, “Ayers”, “Reverend Wright”, “teleprompter”, etc.

    Can anyone seriously argue that any of those arguments have any appeal outside of the ODS crowd at all?

    Can anyone seriously explain to folks like me and Scientist how the results of an election are impacted by memes that only take hold with those that were already casting votes against him, regardless? I mean really, that doesn’t change the dynamics of an election at all.

    So I argue that the Propagandists are a valid concern, but only so far as to whatever entirely new smear memes they are able to create during this election cycle, which *might* be able to appeal or hold sway beyond segments of the population whose voting preferences are already solidly factored into the equation… Where is there a plausible scenario that anyone can come up with in which BIrtherism memes can actually still do that?

    Dr. Conspiracy: While I agree that this issue will probably not turn the next election, I am not confident of that outcome.

    Scientist: As for the electoral impact, I do not share your concern. The only population where such a question could matter is among pro-Obama birthers. And I have looked long and hard enough to be convinced that they don’t exist.

  15. avatar
    Linda March 30, 2012 at 5:50 pm #

    Doc, I am not able to read through the links myself now, but the ABA has a “free, full-text, online law review/journal search”

    http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/free_journal_search.html

  16. avatar
    Scientist March 30, 2012 at 6:35 pm #

    Doc: A few points

    1. Volokh and Turley are pompous asses. Not critical to my argument, but true. What is important to them is generating eyes on their web siites. That doesn’t mean those things are important in the real world.
    2. Gabriel Chin’s statement IS from a law review article.
    3. More important than law review articles is what courts say. They have unanimously said that born in the US = natural born citizen. Even when the argument in favor was made by an empty chair. Settled law.
    4. What is the electoral impact of a law review article or amicus brief? How many people read them? They could all fit in a mid-sized lecture hall with room to spare.
    5. It REALLY is the economy stupid. With some role for foreign crises. When you have an incumbent President, that is what he is judged on. Right now the economy is on target to give Obama a comfortable re-election (as I predicted in 2009). I see little likelihood of that changing between now and election day as the “Scientist Economic Index” (SEI) is flashing green. Incumbent Presidents are hard to beat especially when they have no primary challenger and there is no strong 3rd party (i.e., 2004).
    6. Relax, Doc we appreciate your work, but if you leave the birther/anti-birther bubble, no one cares about this. Take any poll where people are asked to name issues-eligibility doesn’t even register at 0.01%.
    7. Remember your post on “The Real World”. In the real world this is not an issue.

  17. avatar
    jayHG March 30, 2012 at 7:46 pm #

    G wrote: “I too have been unable to find any “pro-Obama Birthers” in all these years. I *have* surprisingly encountered several open anti-black racists that actually still support Obama, but none of them were Birthers.”

    How is that possible. An anti-black/KKK member who is NOT a birther and is a supporter or President Obama??? How? If you’re anti-black, you don’t like black people, and while President Obama is half white, anti-black folks don’t like that race mixing thing, so can you tell me a little more about this dynamic: anti-black person who supports President Obama and is NOT a birther!???

    Thanks………

  18. avatar
    J. Potter March 30, 2012 at 7:53 pm #

    Scientist: The only population where such a question could matter is among pro-Obama birthers. And I have looked long and hard enough to be convinced that they don’t exist.

    You know what’s funny about this angle? My first reaction to all of this was the same: if there was a powerful, well-constructed argument, it would overpower bias. Obama supporters, some of them, would reluctantly recognize the “truth”. Tellingly, it’s only adopted those who want it to be true. So, the funny is, that in my experience, I have yet to even see a fake pro-Obama birther. Such a natural concern tack to take, bu tI haven’t seen it.

    Too obvious, or are birthers so biased they can’t even play the part? Surely I’m wrong, right? Someone has put on this act somewhere….right?

  19. avatar
    Judge Mental March 30, 2012 at 8:03 pm #

    Lawrence Solum:

    “Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.”

    Is it just me….or is the above one serious case of torture of the English language?

  20. avatar
    Dr. Conspiracy March 31, 2012 at 1:36 pm #

    Part of this discussion involves the principle of externality. It doesn’t cost me anything to say that a third part should do a lot of work.

  21. avatar
    anchorbaby March 31, 2012 at 1:59 pm #

    The answer to Squeeky’s #1 was In Re Thenault.

    Maskell mentioned the decision in a footnote in the latest CRS report, in order to disprove, in reverse fashion, the two-parent requirement– i.e., that both parents did not have to be diplomats for the child to be disqualified from citizenship, implying such as support for the opposite situation—i.e, both parents did not have to be citizens for the child to be “natural born.”

    Yet Maskell completely failed to note that the mother was a US citizen (not just, “not a foreign diplomat”), that she was married to a foreign diplomat (marriage after the 1922 Cable Act) and that it was in fact the status of the father that caused the denial of US citizenship at birth to their US-born children. These children were not considered to have been born with dual citizenship, deriving no US citizenship, at birth, from the citizen mother. They had to petition for it under naturalization law.

    Although the Thenault decision did not discuss the reasoning (other than the “recognized exception” for diplomats) that the children were not citizens at birth, it follows that it was because the children were not under the complete jurisdiction and allegiance of the US even though born here.

    Interesting…because we really have had no changes or additions to citizenship law since that decision–and now the popular view is that it makes no difference who the parents are–birth here on the soil is all that is required. Mutual consent, domicile, residence, allegiance–all of those concepts, once argued by many scholars, have been completely thrown out the window.

    Professors who once asserted that “subject to the jurisdiction” implied a requirement of complete allegiance, arising from parentage, as recently as the 2005 Congressional hearing on birthright and dual citizenship, have been silent on the related natural born issue.

    Even Harry Reid in 1993 argued that more was required for US citizenship than mere birth on the soil. What, in the field of law, has changed since then? How about Judge Posner–he has some interesting opinions on birthright citizenship–calling it “nonsense.”

    The Academia Shrugs article covered some of the interesting citizenship questions that are inextricably related to “natural born,” yet instead of being discussed in a scholarly way, are being ridiculed, ignored, or merely dismissed with vague statements like Volokh’s “strikes me as persuasive.”

    Many had argued prior to Ankeny that Obama’s citizen mother insured his “natural born” status, but now the argument is that no citizen parents are necessary. Were the previous arguments simply mistaken? Why–and why can’t these questions be discussed without ridicule?

  22. avatar
    Dr. Conspiracy March 31, 2012 at 2:04 pm #

    One of my “character flaws” is overoptimism and so I try to compensate. I’m quite optimistic that the birthers will not have any significant impact on the election. But I also know that despite decades of accumulated scientific evidence to the contrary, most Americans don’t believe the scientific version of the JFK assassination.

    I saw what Donald Trump did for birther poll numbers. I saw what the long form did to birther poll numbers. It’s that “one thing” that can trigger the conversion of a normal into a birther. I think the Arpaio investigation is one of those triggering events.

    Who would have thought yesterday that an Alabama Supreme Court judge would go coo coo for cocoa puffs? I say better safe than sorry.

  23. avatar
    nbc March 31, 2012 at 2:26 pm #

    anchorbaby:

    Interesting…because we really have had no changes or additions to citizenship law since that decision–and now the popular view is that it makes no difference who the parents are–birth here on the soil is all that is required. Mutual consent, domicile, residence, allegiance–all of those concepts, once argued by many scholars, have been completely thrown out the window.

    All these concepts are really irrelevant when discussing the meaning of natural born which simply means born on soil. The allegiance part merely decribes, in the fewest words, the common law exceptions such as birth to foreign dignitaries and invading military.

    Domicile, residence, or mutual consent are all irrelevant components

  24. avatar
    nbc March 31, 2012 at 2:32 pm #

    anchorbaby: Professors who once asserted that “subject to the jurisdiction” implied a requirement of complete allegiance, arising from parentage, as recently as the 2005 Congressional hearing on birthright and dual citizenship, have been silent on the related natural born issue.

    Perhaps because they never made such assertions? Allegiance is a simple concept which comes with jurisdiction and describes that when one is born on soil, one is born under full jurisdiction of said country, unless belonging to the few Common Law exceptions. Allegiance again is full, even though temporary. There have been some ‘researchers’ asserting a novel interpretation of the 14th Amendment and the term natural born, especially in efforts to deny citizenship to children born to illegal immigrants to our nation, but from a scholarly perspective such notions have found little traction.

  25. avatar
    Scientist March 31, 2012 at 2:36 pm #

    Doc: I think you need to distinguish between birther poll numbers and Obama poll numbers. The birthers are 100% in the anti-Obama camp (noting the failure to find pro-Obama birthers). It is simply one among many cited reasons they might choose not to vote for Obama. As a practical electoral matter it makes no difference if someone votes against Obama based on where they think he might have been born, what they think his religion might be or whether they oppose his policies. As an electoral matter, John Woodman and Orly Taitz each cast one vote and will presumably cast it the same way. In fact, to the extent that some birthers might doubt Romney and vote for a 3rd party or stay home, they might actually do less harm to Obama than non-birthers who oppose his policies.

    Now, let’s look at polls. In 2008, there was no change in support for Obama before and after he released his COLB. Now, fast forward to 2011. It’s hard to measure the effect of the LFBC on Obama approval (as distinct from birther sentiment) because of bin Laden, but if you compare approval in March vs June, it was actually a bit lower in June. The real effect on his approval over the summerr of 2011 was from the debt ceiling fiasco and the economic slowdown caused by the European crisis. Once he won victories over the House Republicans and the economy started moving forward, his approval recovered and is now positive in poll averages. Nor has Arpaio has any effect; Obama’s numbers did not drop after March 1; if anything they improved slightly over the month of March. So Arpaio is a nullity.

    Finally, your points regarding Trump and Arpaio and the Alabama judge are discordant with the topic of the post, because they all referred to birthplace rather than parentage. No law review journals could possibly disabuse those who continue to believe in a Kenyan birth despite mountains of evidence and the nonsensicality of the story. How would any law review article satisfy conspiracy theorists?

  26. avatar
    nbc March 31, 2012 at 2:42 pm #

    anchorbaby: Many had argued prior to Ankeny that Obama’s citizen mother insured his “natural born” status, but now the argument is that no citizen parents are necessary. Were the previous arguments simply mistaken? Why–and why can’t these questions be discussed without ridicule?

    I believe your premise is flawed. While it may have been argued that if Obama had been born abroad, he would have still been a natural born citizen by virtue of his mother, few serious contributors have the suggestion that the citizenship of the mother is a requirement.

    And why do you believe these questions cannot be discussed? Let me ask you: How familiar are you with US v Wong Kim Ark? Ankeny merely reflects the findings in US v Wong Kim Ark.

    Perhaps if we get to arguing the real issue and not some strawmen, we can come to some resolution?

  27. avatar
    Scientist March 31, 2012 at 2:45 pm #

    anchorbaby: Many had argued prior to Ankeny that Obama’s citizen mother insured his “natural born” status, but now the argument is that no citizen parents are necessary

    I love when people say “many had argued”. Who? Name names. The mother’s citizenship would be relevant in the event of a birth abroad, but not a birth in the US.

    Just as a fun exercise, name a single country on Earth that requires TWO citizen parents to be a citizen when born in the country. I’ll save you some trouble-there aren’t any. There are some in Europe and Asia that require one citizen parent, but the US (and the rest of the New World) do not. It might have something to do with the history of lands settled by newcomers, since it is the case not just in the US and Canada, which derive from english common law, but also in Brazil, Argentina, Mexico, etc, which do not.

  28. avatar
    anchorbaby March 31, 2012 at 2:55 pm #

    nbc–

    Yale Prof Peter Schuck wrote an entire book on the relevancy of “mutual consent” as it relates to citizenship law. You say consent is irrelevant–do you have equal academic credentials of Prof Schuck?

    And your statement that no professors made those assertions on allegiance and temporary residence–you need to go back and read the transcript of that 2005 hearing and the submitted statements.

    Also, you may find “domicile” irrelevant, but the justices in WKA did not.

    And there are many scholars who assert that “subject to the jurisdiction” is not redundant to “born in the country.” When you are on vacation in a foreign country, you are subject to the laws while there. I wouldn’t imagine you would feel any allegiance or membership in the political community. Nor would your child if they were born there while you were on vacation. Subject to the jurisdiction means more than simply subject to the laws. Many scholars have politely and intelligently debated that point, and up until a few years ago, were not labeled “birthers.”

    What–no comments on Thenault?

  29. avatar
    nbc March 31, 2012 at 3:05 pm #

    anchorbaby: Yale Prof Peter Schuck wrote an entire book on the relevancy of “mutual consent” as it relates to citizenship law. You say consent is irrelevant–do you have equal academic credentials of Prof Schuck?

    I do not need Schuck’s academic credentials. All I need to do is look at the 14th Amendment, the debates surrounding the amendment and the ruling in US v Wong Kim Ark.

    Also, you may find “domicile” irrelevant, but the justices in WKA did not.

    Nowhere in their ruling did they state that domicile was a requirement. They merely observed that given the facts of the case, a child born to two alien parents, domiciled in the US, was a natural born citizen. As their argument clearly indicates, there were no ‘domicile’ requirements found in the definition of Natural Born, neither in the English Common Law, as well as the Common Law that existed at the Founding of our Nation.

    They observed that

    By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

    When you are on vacation in a foreign country, you are subject to the laws while there. I wouldn’t imagine you would feel any allegiance or membership in the political community.

    A child thus born would be born not only under full jurisdiction but also owing allegiance to said country. Thus, in the US, as in England, such a child would be a natural born citizen. It’s not about the parents, it’s about the child… A common mistake.

    Subject to the jurisdiction means more than simply subject to the laws. Many scholars have politely and intelligently debated that point, and up until a few years ago, were not labeled “birthers.”

    While a few scholars have attempted to redefine birth right citizenship, the history is quite unfriendly to such a position. Revisionism hardly makes for good evidence I would argue.

    Citing Calvin’s case, the judges in US v WKA observed

    Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign.

    Glad to be of help

  30. avatar
    Scientist March 31, 2012 at 3:07 pm #

    anchorbaby: Also, you may find “domicile” irrelevant, but the justices in WKA did not.

    They did not say it was relevant; they noted it as a fact. Anyway, numerous cases since have said it iis irrelevant. Surely you are not suggesting that courts must remain frozen in time?

    anchorbaby: When you are on vacation in a foreign country, you are subject to the laws while there. I wouldn’t imagine you would feel any allegiance or membership in the political community. Nor would your child if they were born there while you were on vacation.

    Whatever you or your child might feel, the fact iis that a great many countries would consider that child their citizen (while some would not). That child would also be a US citiizen. That child could choose eventually to go live in that country and even rise to high office there.

  31. avatar
    nbc March 31, 2012 at 3:12 pm #

    anchorbaby: What–no comments on Thenault?

    Should I? Let me see how I can oblige your request.

    “Of course, the mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and to our own law, from the very first settlement of the Colonies.”

    Indeed, Re Thenault understands the common law exceptions to birth on soil, as such children are not born under our jurisdiction. This mirrors the findings in US v Wong Kim Ark. So what in Re Thenault do you find of particular interest?

    Let me give you even more context

    Of course, the mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and to our own law, from the very first settlement of the Colonies. United States v. Wong Kim Ark, 169 U.S. 649, 655 et seq., 18 S. Ct. 456, 42 L. Ed. 890, and the review of principles and collection of authorities therein found. .

    Yes, citing US v Wong Kim Ark… But nothing much to support your position I would say.

    Some people have misunderstood Senator Howard, a common affliction it seems amongst birthright revisionists.

    Senator Jacob Merritt Howard of Michigan observed that the Citizenship Clause was “simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural and national law, a citizen of the United States.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). He then emphasized that the Clause did not include people born on American soil to foreigners. “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Id.

  32. avatar
    nbc March 31, 2012 at 3:17 pm #

    Scientist: They did not say it was relevant; they noted it as a fact. Anyway, numerous cases since have said it iis irrelevant. Surely you are not suggesting that courts must remain frozen in time?

    See for instance

    Town of New Hartford v Town of Canaan, 5 A. 360 (Conn. 1886).

    A child born in this State of alien parents during its mother’s temporary sojourn here is a native born citizen”,/blockquote>

    Or

    Re Look Tin Sing, Cir Ct D California (1884)

    This subject was elaborately considered by Assistant Vice-chancellor SANDFORD in Lynch v. Clarke, found in the first volume of his re-ports. [1 Sandf. 583.] In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every per-son born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal pro-fession, and the universal impression of the public mind

    or Luria v. United States, 231 U.S. 9 (1913)

    Under the Constitution of the United States, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827.

  33. avatar
    nbc March 31, 2012 at 3:25 pm #

    For your education

    Citizenship, in the Immigration Context by Matthew J. Lister, Maryland Law Review, Vol. 70, Pg. 175, 2010

    Many international law scholars have begun to argue that the modern world is experiencing a “decline of citizenship,” and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a “civic” notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the jus sanguinis (citizenship based on “blood” or descent) approaches to citizenship acquisition. In the course of this argument I show why arguments made by Peter Schuck, Rogers Smith, Peter Spiro, Linda Bosniak, and Ayelet Shachar, among others, against this view, are mistaken. This justice-based approach to citizenship also has significant implications for naturalization law and policy. First, I argue that it requires open and easy naturalization and show why the use of naturalization policy to foster national identification is wrong. Second, I demonstrate that if naturalization is easy and open, some rules limiting certain social benefits and privileges to citizens may be compatible with justice, thereby providing a foundation for future discussions of alienage law.

  34. avatar
    nbc March 31, 2012 at 3:39 pm #

    I would also argue that Schucks and his co-author argue that US v Wong Kim Ark does not apply to illegal aliens but I doubt that they would have a problem with a child born to a US citizen mother and a alien father who was legally residing in the United States.

  35. avatar
    nbc March 31, 2012 at 3:47 pm #

    And a 1995 testimony

    I am aware of only one statement of the contrary view that birthright citizenship may be modified by a simple act of legislation. In their 1985 book, Professors Peter Schuck and Rogers Smith argue for a novel “reinterpretation” of the citizenship clause. (16) Briefly, the authors recommend replacing the “ascriptive” approach to citizenship — which determines citizenship by an objective circumstance, such as place of birth or citizenship of parents — with a “consensual” approach — which makes political membership a product of mutual consent by the polity and the individual. The authors argue that the Fourteenth Amendment may be reinterpreted to allow Congress to deny citizenship to children of illegal aliens by legislation (as opposed to constitutional amendment). As support, the authors attempt to show that the Framers of the Fourteenth Amendment intended the reference to “subject to the jurisdiction” of the United States to replace the existing ascriptive common law principle with one of express mutual consent. As one reviewer recommends, the authors’ proposals “should be relegated to academic debate.” (17)

  36. avatar
    Scientist March 31, 2012 at 3:48 pm #

    nbc: I would also argue that Schucks and his co-author argue that US v Wong Kim Ark does not apply to illegal aliens but I doubt that they would have a problem with a child born to a US citizen mother and a alien father who was legally residing in the United States.

    A child of a citizen mother, born in the country is a citizen in every country on Earth, as far as I know, without exception.

  37. avatar
    anchorbaby March 31, 2012 at 4:23 pm #

    Sorry, guys.

    To channel Volokh, none of the responses here “strike me as very persuasive.”

  38. avatar
    Scientist March 31, 2012 at 4:31 pm #

    anchorbaby: Sorry, guys.
    To channel Volokh, none of the responses here “strike me as very persuasive.”

    Who cares?

    Look, buddy, you can pretend that all the courts are wrong, but it really doesn’t matter. They are the courts and you aren’t. What I don’t get is why those who want to deny citiizenship to the kids of 2 illegals waste their time in futile arguments rather than trying to amend the Constitution. A properly worded, narrowly-drawn amendment that required one parent to be a citizen or legally present in the country shouldn’t be that hard a sell. Many fine, democratic nations have such policies-Britain, France, Australia. It wouldn’t be the end of the US if such policies were put in here. So, instead of wasting time pretending court rulings say things they don’t say, follow what is laid out as the proper route and get an amendment through.

    Sheesh…

  39. avatar
    nbc March 31, 2012 at 4:38 pm #

    anchorbaby: To channel Volokh, none of the responses here “strike me as very persuasive.”

    Is that the best you have to offer. Hilarious…

    Overwhelmed by the facts? I understand…. Unable to argue the issue even though you, for a fleeting moment, suggested an interest in such a conversation:

    Why–and why can’t these questions be discussed without ridicule?

    Funny how quickly you are to forget your own words.

  40. avatar
    nbc March 31, 2012 at 4:40 pm #

    Let’s up the ante

    In INS v. Rios-Pineda (1985), the Court said in dicta, or language not directly part of the holding in the case, that children born in the United States to illegal immigrants are citizens.47 The Court did rule in Plyler v. Doe (1983)48 that another part of the Fourteenth Amendment, the Equal Protection Clause, does apply to illegal immigrants because they are “persons within the jurisdiction” of a state. This is a different legal standard than that used for the Citizenship Clause.

  41. avatar
    G March 31, 2012 at 4:47 pm #

    Too bad that it doesn’t matter at all whether you are “persuaded” or not…

    You can remain “un-persuaded” that the world is round too, but that doesn’t change reality either. Satellites will not fly off the edge of the earth and will continue to circumnavigate their orbits, no matter how much you doubt them.

    Sorry, but the world doesn’t revolve around you and the only one who cares what you think is simply you.

    anchorbaby: Sorry, guys. To channel Volokh, none of the responses here “strike me as very persuasive.”