Main Menu

Paper on natural born citizenship

Many of you are familiar with long treatises on the subject who is a natural born citizen of the United States, a requirement to become the US President, written by those who doubt that Barack Obama qualifies. Articles on this subject seem to garner more comments on this site than on most any other topic. Well, here we go again.

The Birthers (referring to the web site by that name) have published a lengthy treatise by Mikhail (Mike) Godkin, titled “And Nothing but the Truth: Original v. Modern Meaning of the Natural Born Citizenship.” Godkin is a Soviet émigré with a 1976 Ph. D. in Electrical Engineering from the Novosibirsk Institute of Electrical Engineering. He came to the US in 1977 and earned a MBA from the University of Chicago Business School in 1984. He became interested in the natural born citizenship clause in September of 2008.

Mr. Godkin would like your views on his paper. I have already written up some of mine and sent them to him; I’ll share some of those below in comments. Always, the optimist, I hope the discussion will proceed civilly. The paper follows:

717 Responses to Paper on natural born citizenship

  1. avatar
    Rickey September 14, 2012 at 6:32 pm #

    It is interesting that Mr. Godkin cites Professor Lawrence Solum to support his arguments. Here is what Professor Solum had to say in his 2010 paper, “Originalism and the Natural Born Citizen Clause”:

    As a matter of inclusion, anyone born on American soil with an American parent is clearly a “natural born citizen.”

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263885

    Notice that he did not say “parents.” He said “parent.”

  2. avatar
    Dr. Conspiracy September 14, 2012 at 6:42 pm #

    A pervasive problem with Godkin’s article is that it’s not explained those journal articles are generally not talking about the eligibility of the children of aliens born in the US, but the children of citizens of citizens born abroad. The article is highly misleading when it cites questions about one as evidence of doubts about the other. This flaw is woven throughout the article time and time again. Professor Chin makes this clear in his Michigan Law Review article:

    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.

    One is controversial. One is not. A fair reading of most of the article’s sources say the same thing.

  3. avatar
    Dr. Conspiracy September 14, 2012 at 6:45 pm #

    The article has an error of fact in the section on Jill Pryor. It says, “…Hamilton’s draft was rejected… ” In fact, contrary to Pryor’s scholarly error, the Hamilton Draft was never submitted to the Convention for discussion and was never “rejected.” Max Farrand in his indispensable 3-volume Records of the Federal Convention 1787 is the original source for Hamilton’s Draft, and Farrand says:

    [The Draft] was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.

    Volume 3, Appendix F, p. 619.

    The argument based on a rejection of Hamilton’s proposal falls.

    See:

    http://www.obamaconspiracy.org/2012/02/alexander-hamilton-on-presidential-eligibility-2/

  4. avatar
    Dr. Conspiracy September 14, 2012 at 6:48 pm #

    One of the arguments Godkin (and his citations) make strikes me as distinctly odd, namely that legislation cannot change the Constitution. I would point out that Senators must be citizens of the United States. Congress can pass a law making anyone a citizen. The Constitution mentions felonies. The Congress can create a new felony any time they and the President want to. In 1790, they passed an Act declaring the children of US citizens born overseas “natural born citizens.” These are some of the same folks who drafted the Constitution.

    While legislation cannot overrule the Constitution, in those cases where the Constitution relies on terms dependent on legislation, the effect of the Constitution is changed. If it is true, as I believe it is, that anyone born a citizen of the United States is a natural born citizen, then Congress has changed numerous times precisely who was born a citizen (outside of the United States).

  5. avatar
    Mike Godkin September 14, 2012 at 6:53 pm #

    Rickey,

    I am quoting the same paper written by the same Professor Solum. At the beginning of his 2008 version of this paper, Professor Solum did talk about two parents. (Please take a look again at the section “Evolving views of professor Solum.) Almost two years later he changed his tune and mentioned one parent. But in the body of his paper he is still talking about two American parents.
    Ironically, it doesn’t matter because the majority of the commentators assert that ANYBODY born on American soil is a natural born Citizen. So he is not on the same wave length as everybody else.

  6. avatar
    Dr. Conspiracy September 14, 2012 at 6:55 pm #

    Solum later commented on that statement, to make it clear that he was coming up with the absolute smallest indisputable criterion that nobody nowhere nohow has ever objected to. He is not saying that US Presidents must have one citizen parent.

    Rickey: Notice that he did not say “parents.” He said “parent.”

  7. avatar
    gorefan September 14, 2012 at 6:57 pm #

    He perpetuates Jill Pryor’s earlier mistake that Alexander Hamilton’s June 18th, 1787 had a “born a citizen” clause. That always bugs me.

    And he ignores the early references to the President needing to be a native born citizen. And the interchangeable use of the term “natural born citizen” and “natural born subject”.
    And he ignored Chief Justice Fuller’s dissenting opinion.

    But other that his article was real long.

  8. avatar
    Dr. Conspiracy September 14, 2012 at 6:59 pm #

    The paper says: “Wong Kim Ark would have been pleasantly surprised, had he learned that he, according to Christina Lohman, was indeed eligible.”

    Wong, in his original suit against the United States asserted that he was a “natural-born” citizen. The government in its appellate brief to the Supreme Court said that the District Court had erred declaring him a natural born citizen. The government brief went on to ask:

    Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth?

    Certainly the government understood the implications of their losing the case. As to the issue of racism. The government brief in Wong used distinctly racist language describing the offspring of the Chinese as “obnoxious” and their alienage “foul and corrupt.”

  9. avatar
    Mike Godkin September 14, 2012 at 7:12 pm #

    Dr. Conspiracy,

    You quoted Professor Chin as saying:
    “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.”

    This is just an opinion of another professor. Why should we assign more weight to his opinion than, say, that of Professor Solum or anybody else’s?

    The Constitution doesn’t give a definition of a natural born Citizen when it comes to presidential eligibility.

    The SCOTUS never considered the case in which it was supposed to decide whether a particular person is eligible to become and be President.

    So we are left with opinions, which range from an emotional and highly partisan declaration to a conclusion based on analysis of historic documents (if any) and a political situation in 1787 when the Constitution was drafted.

  10. avatar
    Mike Godkin September 14, 2012 at 7:25 pm #

    Gorefan,

    You made a statement:

    “And he ignores the early references to the President needing to be a native born citizen. And the interchangeable use of the term ‘natural born citizen’ and ‘natural born subject.’

    You probably missed my section “Natural born or native-born?” in which I discuss the issue.
    “And he ignored Chief Justice Fuller’s dissenting opinion.”

    I didn’t ignore his opinion. You just complained that my “article was real long.” It would have been much longer had I included everything related to this topic.

    In any case, what Justice Fuller said was a DICTUM, in other words, he just expressed his opinion for the record.

  11. avatar
    Tarrant September 14, 2012 at 7:25 pm #

    Mike Godkin:
    Dr. Conspiracy,

    You quoted Professor Chin as saying:
    “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.”

    This is just an opinion of another professor. Why should we assign more weight to his opinion than, say, that of Professor Solum or anybody else’s?

    Since Solum says that being born with a single American parent is sufficient, at least for the case at hand – this election – it doesn’t seem like Professor Chin and Professor Solum’s interpretations would differ on the eligibility of President Obama.

  12. avatar
    Scientist September 14, 2012 at 8:21 pm #

    Mike Godkin: The SCOTUS never considered the case in which it was supposed to decide whether a particular person is eligible to become and be President.

    The SCOTUS knows very well who the President is and what his father’s situation was. Numerous birther cases have reached their desks and they have declined to hear any of them. So they are much less worried about this than you are apparently.

  13. avatar
    gorefan September 14, 2012 at 8:22 pm #

    Mike Godkin: You probably missed my section “Natural born or native-born?”

    I’m sorry perhaps you misunderstood me when I wrote, “early references to the President needing to be a native born citizen”. I was referring to statements by Founders like St. George Tucker, James Iredell and James Kent.

    Mike Godkin: I didn’t ignore his opinion.

    Chief justice Fuller wrote,

    “Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”

    Would you say that he believed the majority’s opinion made Wong Kim Ark eligible to be President?

    BTW, if you are going to discuss the derivation of the term “natural born citizen” and its relationship to “natural born subject”, you are almost required to explain why the Massachusett legislature in their naturalization acts used both terms interchangeably between 1785 and 1791.

  14. avatar
    Andy September 14, 2012 at 8:36 pm #

    1. You treat WKA as dictum because it wasn’t a case of Presidential eligibility, but Minor as holding why, again? Neither case was an eligibility case, so if WKA is mere dictum, so is Minor.

    2. American society has never been closed. To suggest changing the definition soley based on a fallacious premise makes the rest of the paper just as fallacious.

  15. avatar
    Scientist September 14, 2012 at 8:45 pm #

    Mr Godkin has also ignored the many courts that have ruled specifically on Obama’s eligibility and in particular have considered the 2-parent citizen argument and soundly rejected it. He should read Ankeny vs Governor of Indiana, as most of the others have followed the same logic. The law is not made only by the Supreme Court, and judgements by other federal and state courts are the law of the land unless and until the Supreme Court says otherwise, which, in this case, they have not.

    Now you are welcome to argue that all these judges are wrong, but frankly, they make the law and you don’t. I apologize if that sounds harsh, but it iis the truth..

  16. avatar
    gorefan September 14, 2012 at 9:09 pm #

    Mike Godkin: I didn’t ignore his opinion. You just complained that my “article was real long.” It would have been much longer had I included everything related to this topic.

    And yet you felt compelled to add,

    “It is a very interesting interpretation [Christina Lohman’s interpetation of Wong]. The U.S. Supreme Court was supposed to decide whether Wong Kim Ark was an American citizen and not whether he was eligible to become a U.S. President. Wong Kim Ark would have been pleasantly surprised, had he learned that he, according to Christina Lohman, was indeed eligible.”

    Do you think Wong Kim Ark would have been equally surprised to find that the Chief Justice of the Supreme Court also considered him eligible to be President?

  17. avatar
    Rickey September 14, 2012 at 9:48 pm #

    Mike Godkin:
    .
    Ironically, it doesn’t matter because the majority of the commentators assert that ANYBODY born on American soil is a natural born Citizen. So he is not on the same wave length as everybody else.

    That is precisely my point. Even if you accept Professor Solum’s more narrow opinion, Obama still is indisputably a natural born citizen.

  18. avatar
    Rickey September 14, 2012 at 9:56 pm #

    Did Mr. Godkin consult with former Supreme Court Justice Sandra Day O’Connor?

    “President Obama was born in the state of Hawaii, and so is clearly a natural born citizen.”

  19. avatar
    Slartibartfast September 14, 2012 at 10:12 pm #

    I see a couple of problems with your interpretation of the Wong Kim Ark case. First of all, the opinion that Justice Fuller expressed for the record unquestionably implies that Mr. Wong (assuming he met the other requirements) would have been eligible for the presidency. Second, since the case was about citizenship, the reasoning by which Mr. Wong was found to be a citizen is part of the holding rather than dicta (the ruling would not be supported were said reasoning removed). On the other hand, Minor is a voting rights case and it is irrelevant how the court determined Virginia Minor’s citizenship—the holding was that citizenship (from whatever source) does not convey the right to vote. However, in my view, the biggest problem you have is that Mr. Wong was held to be a citizen (you can’t argue that wasn’t part of the holding…) and, by law, he could not have been naturalized. Assuming that the 14th Amendment was declarative of existing law rather than defining new law (something that seems well-established), the Constitution only recognizes two classes of citizens: naturalized and natural born—therefore Mr. Wong was necessarily either a natural born citizen or an alien and we know that he wasn’t an alien.

    Mike Godkin: In any case, what Justice Fuller said was a DICTUM, in other words, he just expressed his opinion for the record.

  20. avatar
    Slartibartfast September 14, 2012 at 10:16 pm #

    Good point—he cites the many cases that were dismissed for lack of standing, but doesn’t note that there are now several cases in which the court found President Obama to be natural born. Also, he comes to conclusions regarding Rebekka Bonner’s motivations based on the assumption that President Obama was ineligible—thus committing the logical fallacy of “begging the question”.

    Scientist:
    Mr Godkin has also ignored the many courts that have ruled specifically on Obama’s eligibility and in particular have considered the 2-parent citizen argument and soundly rejected it.He should read Ankeny vs Governor of Indiana, as most of the others have followed the same logic. The law is not made only by the Supreme Court, and judgements by other federal and state courts are the law of the land unless and until the Supreme Court says otherwise, which, in this case, they have not.

    Now you are welcome to argue that all these judges are wrong, but frankly, they make the law and you don’t. I apologize if that sounds harsh, but it iis the truth..

  21. avatar
    JPotter September 14, 2012 at 11:08 pm #

    Really? He had NO idea what NBC meant? Not the first clue?

    Immigrants taking a nativist viewpoint on the NBCship. He’s not the first. What’s up with that?

    Perhaps NBCs take this place for granted.

  22. avatar
    Mike Godkin September 14, 2012 at 11:08 pm #

    Dr. Conspiracy,

    You wrote:

    “One of the arguments Godkin (and his citations) make strikes me as distinctly odd, namely that legislation cannot change the Constitution. I would point out that Senators must be citizens of the United States. Congress can pass a law making anyone a citizen. The Constitution mentions felonies. The Congress can create a new felony any time they and the President want to. In 1790, they passed an Act declaring the children of US citizens born overseas ‘natural born citizens.’ These are some of the same folks who drafted the Constitution.”

    Let me express my opinion again:

    It is not up to the U.S. Congress to change the Constitution. There is only one way to change it –by going through the amendment process.
    For example, there were several attempts to make naturalized citizens eligible for presidency. One of such attempts was a proposal by Senator Orin Hatch.

    Who was against it? The Senate Democrats (please see ref. [38]).How could that possibly happen? Most of liberal commentators that I quoted in my paper are – theoretically – against the “Natural born citizen” presidential eligibility clause.

    The answer is very simple: They were afraid that Republican Arnold Schwarzenegger would become eligible to run for President, and nobody, given his level of popularity at that time, could stop him. So sadly enough, the partisanship prevailed over common sense.

    As far as the 1790 Act passed by the Congress, it was repealed in 1795. Perhaps, “some of the same folks who drafted the Constitution” realized that it may have been unconstitutional.

  23. avatar
    Thomas Brown September 14, 2012 at 11:25 pm #

    I love it. When I first began anti-birthing, I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders. But arguing that it isn’t what it currently is, is. Birthers ignored this fine distinction generally, but I tried.

    So this thread is sort of a delight. Godkin is wrong, of course, but his intellectual integrity deserves, and has so far been largely afforded, polite refutation.

  24. avatar
    Mike Godkin September 14, 2012 at 11:38 pm #

    Tarrant:

    “Since Solum says that being born with a single American parent is sufficient, at least for the case at hand – this election – it doesn’t seem like Professor Chin and Professor Solum’s interpretations would differ on the eligibility of President Obama.”

    You missed my point. One may agree or disagree with Professor Chin’s opinion, but at least it was ONE opinion. On the other hand, in September, 2008, Professor Solum wrote about two parents. But then lawsuits challenging Obama’s eligibility sprang like mushrooms, and, in my opinion, Solum realized that his assertion about presence of two American parents as a requirement to become President would not help Obama at all.

    He disappeared from the “radar” screen for two years, and when the political dust settled
    he made a ”correction” to his 2008 version.

    Again, his political preference prevailed over his scholarship.

    The major “weapon” of all the commentators asserting that anybody born on American soil is eligible for presidency is that there is a consensus among constitutional scholars and legal experts with regard to this issue. I think that I have demonstrated that there is no such consensus. Most of these scholars contradict each other. For example, if anybody born here regardless of the parents can become President, then there is no point to talk about Obama’s American mother. She could have been born in Kenya, Mongolia, or Russia, and it would be irrelevant to Obama’s eligibility. However, many of my opponents over the last four years had presented the same argument: “Obama’s mother was an American, and he was born in Hawaii. Leave him alone!”
    People were confused in 2008, and they are still confused now.

  25. avatar
    Mike Godkin September 14, 2012 at 11:52 pm #

    Rickey,

    You quoted me:

    “Ironically, it doesn’t matter because the majority of the commentators assert that ANYBODY born on American soil is a natural born Citizen. So he is not on the same wave length as everybody else.”

    Then you said:

    “That is precisely my point. Even if you accept Professor Solum’s more narrow opinion, Obama still is indisputably a natural born citizen.”

    It may very well be your point, but it isn’t mine.

    Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

  26. avatar
    Slartibartfast September 14, 2012 at 11:58 pm #

    I completely agree—he’s wrong, but he’s arguing his case in the right way and should be afforded respect for that.

    Thomas Brown:
    I love it.When I first began anti-birthing, I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders.But arguing that it isn’t what it currently is, is.Birthers ignored this fine distinction generally, but I tried.

    So this thread is sort of a delight.Godkin is wrong, of course, but his intellectual integrity deserves, and has so far been largely afforded, polite refutation.

  27. avatar
    Mike Godkin September 15, 2012 at 12:08 am #

    Thomas Brown:

    “I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders. But arguing that it isn’t what it currently is, is. Birthers ignored this fine distinction generally, but I tried.”

    I am not going to give you my opinion on you comment. Instead, I am going to quote Christina Lohman (ref. [16]):

    “Her [Ms. Pryor’s] position allows the Natural-Born Citizen Clause to mean one thing today, and something quite different tomorrow. This possibility does not reflect bright-line guidance, but rather suggests that the meaning of the Constitution is alterable at the whim of Congress. In light of Article V, this may not be a reliable method of interpreting the Natural-Born Citizen Clause.”

    For your information, Ms. Lohman is a quite liberal Professor of Law.

  28. avatar
    Mike Godkin September 15, 2012 at 12:15 am #

    Scientist:

    “The SCOTUS knows very well who the President is and what his father’s situation was. Numerous birther cases have reached their desks and they have declined to hear any of them. So they are much less worried about this than you are apparently.”

    It has nothing to do with who is worried more or less. Please see the Section “Lack of standing” of my paper.

  29. avatar
    Slartibartfast September 15, 2012 at 12:35 am #

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.

    Which Constitutional scholars think that being born on the soil (except for the usual qualifiers) does not make a person natural born? It seems to me that if you make a list of people who were known as respected Constitutional scholars before 2007 who have given opinions regarding native birth being sufficient for natural born citizenship it looks an awful lot like there is a consensus.

    And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate.

    We have Mr. Wong who was a citizen, but not a naturalized citizen according to SCOTUS (and the Chinese Exclusion Act) and several lower courts that have found President Obama to be natural born—some of which have been appealed to the SCOTUS. One would expect that they wouldn’t refuse to hear a case about which they had doubts.

    The State courts don’t count: their opinions are not binding for other courts and people.

    They are still precedent and may be cited—even though, for instance, the Ankeny decision isn’t binding anywhere but Indiana, lawyers anywhere can still cite it and opposing counsel would need to refute its reasoning and conclusion in order to prevail—there is absolutely no evidence that such a persuasive legal argument exists and much evidence to the contrary. Furthermore, one ruling in a lower court may be ignored as a fluke, but when you’ve got around a half dozen all saying the same thing then it starts to look like a pattern…

  30. avatar
    Mike Godkin September 15, 2012 at 12:35 am #

    Andy,

    1) Both WKA and Minor are Dicta.

    2) I used the John Rawls’ basic structure of society as a model (References [40], [41], and [42]) as an additional argument. His model is an approximation of the nation state.
    Between 1780 and 1790, about 60,000 people came to America. By 1790, the total population of the USA was about 4 million. Please do the math.

  31. avatar
    Reality Check September 15, 2012 at 12:37 am #

    Although decisions like Ankeny v Daniels are only binding in the jurisdiction of the court they are rendered by people whose job it is to interpret the law. Akeny has been cited now multiple times because judges in other jurisdictions have found it to be persuasive.

    Also, any search of the literature prior to a pollution by Birthers beginning in late 2008 will show that the overwhelming opinion by historians and authors of anything pertaining to the subject of presidential eligibility agree that anyone born on US soil regardless of parentage is eligible. There are contemporary articles written after the Wong Kim Ark decision that note that it would confer eligibility on Chinese Americans of like circumstances. See my article titled Funk & Wagnalls: President Obama is Eligible for a couple of examples. On the other hand I found exactly zero articles in the late 1800’s saying that Minor v Happersett in any way defined the term natural born citizen.

    My conclusion is that the Supreme Court will never accept any case imaginable concerning the eligibility of Barack Obama. Every court that has even touched upon the question of his eligibility has ruled that the term natural born citizen is defined inclusively such that all those born as a citizen are eligible. You state “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” then proceed to provide no evidence at all to support that assertion.

    You also ignore such sources as simple and direct as the dictionaries including Blacks Law that define “natural born” as a condition acquired at birth. To propose any other definition would require explicit and direct proof that the framers clearly had something else in mind than the meaning derived from English common law that they were all familiar. No such evidence exists.

    Mike Godkin: And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

  32. avatar
    Slartibartfast September 15, 2012 at 12:45 am #

    Cases dismissed for lack of standing do not support (or necessarily refute) your argument, but all of the cases which have passed the standing hurdle have disagreed with your position. The simple fact is that if we are correct, the SCOTUS will never grant cert on this subject (because there is no Constitutional question in their opinion), which means that if the only proof you will accept is a SCOTUS ruling, then your hypothesis is not scientific (i.e. it cannot be falsified).

    Mike Godkin: It has nothing to do with who is worried more or less. Please see the Section “Lack of standing” of my paper.

  33. avatar
    Mike Godkin September 15, 2012 at 12:47 am #

    Slartibartfast::

    “Which Constitutional scholars think that being born on the soil (except for the usual qualifiers) does not make a person natural born?”

    Please see Section “Who is a natural born Citizen of the United States?” of my paper.

    By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?

  34. avatar
    Reality Check September 15, 2012 at 12:51 am #

    Yes. What is your point? If they grew up and are found to be worthy of our votes based on their record as good citizens and in public service then what is the problem?

    Mike Godkin: By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?

  35. avatar
    Slartibartfast September 15, 2012 at 12:55 am #

    Mike,

    As illegal aliens did not exist in the Founder’s day (any immigrants were welcome), they would not have considered this, so they would not have made any laws distinguishing between legal and illegal immigrants. According to 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; it will therefore be unnecessary to investigate any other.”

    So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.

    Mike Godkin:
    Slartibartfast::

    “Which Constitutional scholars think that being born on the soil (except for the usual qualifiers) does not make a person natural born?”

    Please see Section “Who is a natural born Citizen of the United States?” of my paper.

    By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?

  36. avatar
    Slartibartfast September 15, 2012 at 1:15 am #

    That is an absurd statement—all rulings have holdings (and may or may not have dicta), otherwise they wouldn’t be rulings.

    The holding in Minor was that the right to vote was not guaranteed by citizenship—the court’s musings on how to establish Virginia Minor’s citizenship were not relevant to this (i.e. they were dicta).

    The holding in Wong Kim Ark was that Mr. Wong was a citizen. The court’s reasoning which led to this conclusion cannot be dicta—they could not have reached the decision without it. Furthermore, we know that the court could not have ruled that Mr. Wong was a naturalized citizen, therefore he must have been natural born (which, in fact, they said in the holding).

    I think this is clear from reading Mr. Drumm’s article which you cited, but just to make sure, I’ll email him a link to this comment and ask him.

    Mike Godkin: 1) Both WKA and Minor are Dicta.

  37. avatar
    Mike Godkin September 15, 2012 at 1:18 am #

    Reality Check:

    “My conclusion is that the Supreme Court will never accept any case imaginable concerning the eligibility of Barack Obama. Every court that has even touched upon the question of his eligibility has ruled that the term natural born citizen is defined inclusively such that all those born as a citizen are eligible. You state ‘There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.’ then proceed to provide no evidence at all to support that assertion.”

    Please go back to my paper and read Section “Who is a natural born Citizen of the United States?” You will find the evidence.

    In my opinion, the SCOTUS may never accept the case related to Obama’s eligibility, but for the different reason than you stated. It would be the “Lack of Standing.”
    There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?

    But even this is not the point. The point is this: Barack Obama was a lecturer on the Constitutional law. He must have been aware that having the father who was a British subject when Barack Obama Jr. was born was not exactly a usual situation for a presidential candidate. He was born with dual citizenship. What about the sole allegiance to one country.

    Let me go one step further. Imagine this picture: Founding Fathers are informed that a person, who was born on American soil to two British (or any other) subjects, is running for presidency. What, in your opinion, would be their reaction? Let’s keep in mind that this person is a native-born citizen.

  38. avatar
    G September 15, 2012 at 1:25 am #

    Very few people are confused at all. From reading your paper, I suspect some of your problem in understanding the purpose and nature of our system and some of the context of our language comes from your own quite different foreign experience and unfamiliarity with english as a native tongue. I do not fault you for this, but think that it colors your perspective.

    In general, yes, a legal consensus is fairly solid on the matter of jus soli NBC status. In reading your paper, I did not see any sustained case law in which jus soli was refuted or challenged. You try to argue that it isn’t set in stone; yet provide no decisions that point to any other conclusion.

    Yes, whether you or I like the concept or not, “anchor babies” are citizens at birth, by mere virtue of being born on US soil. (Hence they are NBC).

    In reading your paper, I simply did not detect a serious legal set of “contradictions” that you allude.

    Nor do I see much sense in your taking issue of pointing out that Obama’s mother is BOTH an American citizen AND the fact that his birth took place on US soil. Both of those happen to be true. Nothing about stating those two true facts contradicts each other or causes problems with his NBC status. Nor are both a requirement for his citizenship.

    Your messed up argument here is as problematic as those who read a case, which just happened to involve two citizen parents AND a birth on US soil, and who misconstrue all of those elements to be a combined requirement, instead of a set of mere conditions, of which one or more on their own can lead to NBC. Such constrained conclusions are not supported by the actual language used in those rulings.

    Therefore, in pointing out that jus soli alone (his birth on US soil) gives him his NBC status does not in any way conflict with also pointing out that his mother happens to be an NBC herself.

    Where you seem to be most confused on this issue of parentage (and go off to issues of other countries instead of focusing on the American structure of governance) is that the body of US law on the matter pretty much only delves into being concerned about the parentage when the birth takes place OUTSIDE of US soil. It is only under those circumstances that the principle of jus sanguinis becomes an alternative path to US citizenship via birth.

    Bottom line in making this real simple for you to hopefully finally grasp – there are ZERO instances of someone born on US soil who derived their citizenship here via any form of naturalization process. That only leaves citizenship via birth, which is synonomous with the term NBC in this country. The converse also holds true here – there are ZERO instances of someone born on US soil (regardless of parentage), who has been found to be anything BUT a citizen, as a result of their birth. So your arguments against jus soli are just silly and don’t hold up. The only areas of where there are any real scholarly doubts are in a few permutations of those eligible for US citizenship via birth, who are NOT born on US soil.

    Mike Godkin: The major “weapon” of all the commentators asserting that anybody born on American soil is eligible for presidency is that there is a consensus among constitutional scholars and legal experts with regard to this issue. I think that I have demonstrated that there is no such consensus. Most of these scholars contradict each other. For example, if anybody born here regardless of the parents can become President, then there is no point to talk about Obama’s American mother. She could have been born in Kenya, Mongolia, or Russia, and it would be irrelevant to Obama’s eligibility. However, many of my opponents over the last four years had presented the same argument: “Obama’s mother was an American, and he was born in Hawaii. Leave him alone!”
    People were confused in 2008, and they are still confused now.

  39. avatar
    Slartibartfast September 15, 2012 at 1:34 am #

    Mike Godkin: But even this is not the point. The point is this: Barack Obama was a lecturer on the Constitutional law. He must have been aware that having the father who was a British subject when Barack Obama Jr. was born was not exactly a usual situation for a presidential candidate.

    In addition, he would have known that he was, in fact, natural born and eligible.

    He was born with dual citizenship.

    Irrelevant. Besides, Vice President Agnew was Greek and President Jefferson was French while in office—nobody cared.

    What about the sole allegiance to one country.

    I see nowhere that says “sole allegiance” is required for the presidency, in fact:

    James “Father of the Constitution” 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; it will therefore be unnecessary to investigate any other.”

    Let me go one step further. Imagine this picture: Founding Fathers are informed that a person, who was born on American soil to two British (or any other) subjects, is running for presidency. What, in your opinion, would be their reaction? Let’s keep in mind that this person is a native-born citizen.

    It seems that President Madison, at the very least, would be fine with it. The situation that they were concerned with was foreign-born (and all growed up), out-of-work royalty coming in and taking over the country—anyone who came to the US and had children in the Founder’s day had effectively become Americans—people didn’t go back to “the old country”.

  40. avatar
    Paper September 15, 2012 at 1:36 am #

    What.G says.

  41. avatar
    G September 15, 2012 at 1:38 am #

    That is absolute silly nonsense and a completely incorrect understanding of how our laws work.

    Simply put, there is NO “magic reset button” – period. If Obama or any other President was deemed ineligible at some point DURING or after a presidency and removed from office, it would NOT invalidate any actions, laws or executive orders of that administration at all. A future administration could recind an executive order, but that is the extent of it.

    The very fact that you say make such a ludicrous statement, demonstrates that you do not properly grasp how our governance structure actually functions.

    Mike Godkin: If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?

  42. avatar
    Mike Godkin September 15, 2012 at 1:38 am #

    Slartibartfast :

    “So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.”

    According to the current laws on the books, they are citizens, but nobody proclaimed them to be natural born Citizens.

    Let me remind you that on February 25, 2004, Senator NIckles etc. introduced the Bill S.2128, which was entitled “Natural Born Citizen Act.”

    In the first paragraph, they proposed that the term “natural born Citizen” be applied to “any person born in the United States and subject to the jurisdiction thereof.”
    In other words, they proposed that any 14th Amendment citizen would be eligible for presidency.

    But this bill never became a law, however unconstitutional it might have been.
    Doesn’t it mean to you that as of now not every 14th Amendment citizen is qualified to become President?

  43. avatar
    Mike Godkin September 15, 2012 at 1:44 am #

    Slartibartfast:

    “That is an absurd statement—all rulings have holdings (and may or may not have dicta), otherwise they wouldn’t be rulings.”

    You know quite well that I meant that in both cases Court was not supposed to decide whether a person was or wasn’t a natural born Citizen. So all talk about natural born citizen in each case was a dictum.

  44. avatar
    MattR September 15, 2012 at 1:46 am #

    Mike Godkin: Doesn’t it mean to you that as of now not every 14th Amendment citizen is qualified to become President?

    No. They were not trying to change the definition. They were trying to clarify and reaffirm it so there wouldn’t be any confusion by people such as yourself.

  45. avatar
    G September 15, 2012 at 1:47 am #

    First of all, there is nothing in US law that precludes one from having dual citizenship, nor that states such a conditiion would be a barrier to holding any office.

    US law is supreme over its own jurisdiction and therefore its own citizens. Therefore, US law doesn’t care that some other nation might also impart or offer citizenship to someone who already was born with US citizenship. In the view of US law, our own citizenship rights would be supreme over any others.

    Further, it doesn’t even matter that Obama once had access to dual citizenship either. He never took any action to claim those citizen rights and they have long expired. He was born with US citizenship and that is all that he currently retains.

    Your worries about “sole allegience to one’s country” are lacking any foundation.

    Mike Godkin: He was born with dual citizenship. What about the sole allegiance to one country.

  46. avatar
    Slartibartfast September 15, 2012 at 1:47 am #

    Mike,

    You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this. If the 2004 bill was intended to redefine the term “natural born citizen”, then it would need to include both the classes of citizens which were previously and would remain NBC and the classes of citizens which were to become NBC, otherwise it would be incomplete. Under your interpretation, this would imply that there are no natural born citizens—something that is clearly absurd on its face.

    Mike Godkin:
    Slartibartfast :

    “So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.”

    According to the current laws on the books, they are citizens, but nobody proclaimed them to be natural born Citizens.

    Let me remind you that on February 25, 2004, Senator NIckles etc. introduced the Bill S.2128, which was entitled “Natural Born Citizen Act.”

    In the first paragraph, they proposed that the term “natural born Citizen” be applied to “any person born in the United States and subject to the jurisdiction thereof.”
    In other words, they proposed that any 14th Amendment citizen would be eligible for presidency.

    But this bill never became a law, however unconstitutional it might have been.
    Doesn’t it mean to you that as of now not every 14th Amendment citizen is qualified to become President?

  47. avatar
    Slartibartfast September 15, 2012 at 1:52 am #

    Mike Godkin:
    Slartibartfast:

    “That is an absurd statement—all rulings have holdings (and may or may not have dicta), otherwise they wouldn’t be rulings.”

    You know quite well that I meant that in both cases Court was not supposed to decide whether a person was or wasn’t a natural born Citizen.

    I’m sorry I assumed you meant what you said, but, in the case of WKA, this is simply not true—the only choices the court had were natural born or alien and their reasoning makes it crystal clear that they considered Mr. Wong natural born—something which was necessarily part of the holding.

    So all talk about natural born citizen in each case was a dictum.

    Please give the reasoning by which Mr. Wong was held to be a citizen without including any reference to him being natural born—if you cannot do this, then it wasn’t dicta.

  48. avatar
    MattR September 15, 2012 at 1:57 am #

    G: Further, it doesn’t even matter that Obama once had access to dual citizenship either. He never took any action to claim those citizen rights and they have long expired. He was born with US citizenship and that is all that he currently retains.
    Your worries about “sole allegience to one’s country” are lacking any foundation.

    Would it really matter if some hypothetical candidate had claimed dual citizenship at some point in their life as long as they never lost their US citizenship (and of course they are a natural born citizen)?

  49. avatar
    Slartibartfast September 15, 2012 at 1:59 am #

    Mike,

    This is a very important point—for the US to consider the laws of other countries when determining who is or isn’t a citizen would be to surrender a portion of their sovereignity. Do you seriously mean to imply that Cuba, for instance, could make anyone born in the US to US parents ineligible for the presidency just by declaring them to be Cuban citizens from birth? (something that Cuba clearly has the right to do)

    G: US law is supreme over its own jurisdiction and therefore its own citizens. Therefore, US law doesn’t care that some other nation might also impart or offer citizenship to someone who already was born with US citizenship. In the view of US law, our own citizenship rights would be supreme over any others.

  50. avatar
    Slartibartfast September 15, 2012 at 2:01 am #

    There is no need for a hypothetical here, Matt. Thomas Jefferson is unquestionably guilty of “presidenting while French” and Spiro Agnew was a Greek citizen for his entire life.

    MattR: Would it really matter if some hypothetical candidate had claimed dual citizenship at some point in their life as long as they never lost their US citizenship (and of course they are a natural born citizen)?

  51. avatar
    G September 15, 2012 at 2:03 am #

    They clearly were not worried by that, as that very circumstance would have applied to many who lived during that time period. In fact, the Founding Fathers added a whole additional path to the Presidency that would have included a number of folks who happened to be born on what became US soil (formerly British Colonies), yet who could easily have had their parents still be British subjects. Those folks would have been quite eligible under the portion of the clause that states “or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”

    The worry during the Founder’s time of “foreign influence” was in reference to the concerns of foreign royalty and similar types of heads of state trying to come here and re-install a form of monarchy, as those structures were very driven by bloodline and could retain claims to other thrones. Hence why there are specific exclusions in terms of both citizenship and jurisdiction against such things, as well as ambassadors or invading armies. But they were not anti-immigrant.

    Mike Godkin: Let me go one step further. Imagine this picture: Founding Fathers are informed that a person, who was born on American soil to two British (or any other) subjects, is running for presidency. What, in your opinion, would be their reaction? Let’s keep in mind that this person is a native-born citizen.

  52. avatar
    Slartibartfast September 15, 2012 at 2:07 am #

    G,

    I would add that, in addition to ambassadors, foreign royalty would not be “subject to the jurisdiction” of the US government as they would be accorded diplomatic immunity.

    G: The worry during the Founder’s time of “foreign influence” was in reference to the concerns of foreign royalty and similar types of heads of state trying to come here and re-install a form of monarchy, as those structures were very driven by bloodline and could retain claims to other thrones. Hence why there are specific exclusions in terms of both citizenship and jurisdiction against such things, as well as ambassadors or invading armies. But they were not anti-immigrant.

  53. avatar
    Keith September 15, 2012 at 2:08 am #

    Mike Godkin: By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?

    Yes.

  54. avatar
    MattR September 15, 2012 at 2:09 am #

    Slartibartfast:
    There is no need for a hypothetical here, Matt.Thomas Jefferson is unquestionably guilty of “presidenting while French” and Spiro Agnew was a Greek citizen for his entire life.

    Thanks. That is what I thought. I kinda assumed G took into account that a birther might not accept that definition and wanted to show that even under their stricter definition Obama is still eligible, but I wanted to be sure and am glad to know I am still eligible for a job I have zero interest in.

  55. avatar
    G September 15, 2012 at 2:12 am #

    Agreed! You are both correct. I really am sick of hearing people try to invent some sort of mythical “3rd type of citizen” called a “14th Amendment citizen”. No such creature. The 14th Amendment did NOT create any new type of citizen, it merely was, as you both pointed out, declaratory of the existing structure and crystal clear that there are ONLY two overall paths to US citizenship – you are either BORN one (which is what a NBC is) or you obtain such citizenship at some later point, via a naturalization process.

    MattR: No. They were not trying to change the definition. They were trying to clarify and reaffirm it so there wouldn’t be any confusion by people such as yourself.

    Slartibartfast: Mike,
    You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this. If the 2004 bill was intended to redefine the term “natural born citizen”, then it would need to include both the classes of citizens which were previously and would remain NBC and the classes of citizens which were to become NBC, otherwise it would be incomplete. Under your interpretation, this would imply that there are no natural born citizens—something that is clearly absurd on its face.

  56. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 2:13 am #

    There were a gazillion comments on the Jonathan Turley article. I was there, as was Slarti, Ballantine, and even Leo Donofrio, before he slunk off in shame. The dicta was issue was discussed in detail.

    Problem 1 with this paper is confusion over “dicta.” WKA was nearly 20,000 words long, and divided into 7 sections. There were findings and holdings throughout the case that were necessary and relevant to the determination Wong was a citizen. These findings were NOT dicta.

    For example, in trying to figure out whether or not the 14th Amendment was brand new law, or declaratory of previous law, the WKA Court had to determine what the old law (common law on natural born citizenship) was. It did, and this became vital to the final decision.

    WKA found the old law was basically “born in the U.S. and not a child of a foreign diplomat or invading soldier. That was also part of determining what “subject to the jurisdiction” meant. The Court specifically stated that the 14th Amendment AFFIRMED this old law, and since it did, Wong the Chinaman was born in the jurisdiction.

    You can not separate the common law nbc stuff from out of that holding,or you have no basis for the holding. Therefore, all the natural born subject and natural born citizenship findings were NOT dicta.

    Different people have different ideas on what constitutes dicta and what doesn’t. However, in Ankeny, a three judge panel reviewed WKA. These are not Small Claims Court judges, but appellate level jurists. They know their business, and all three of them were quite comfortable citing these findings and none of them were concerned that it was “dicta.”

    My BFF Fabia Sheen, Esq., a lawyer, has a much blunter take on it. She says when you see words like this:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [ kids of diplomats or invading soldiers] The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;

    IT AIN’T DICTA. It’s the Court telling you what it’s CONCLUSIONS are on a relevant issue of law.

    Further, since this is a CONCLUSION, from the highest court in the land, it is highly unlikely its descendants are going to classify it as “dicta” based on the opinions of a few law professors and scattered lawyers here and there. There may still be some open collateral issues about natural born citizenship, but as far as people born in U.S., and not the kids of diplomats, or invading soldier, there aren’t any valid questions.

    This paper fails at the practical level of practicing law. There isn’t a lawyer in the country who wouldn’t use that “money quote” above from WKA in a brief, or fail to argue it before a court. Because it isn’t dicta. It’s what you find in every case you use in support of your position: a judicial statement of the relevant law.

    With this gaping hole, the entire paper becomes an exercise in futility. Interesting, but futile.

    Squeeky Fromm
    Girl Reporter

  57. avatar
    G September 15, 2012 at 2:15 am #

    No, it would not. Nothing in our laws prevents, precludes, nor even discourages such a scenario at all.

    MattR: Would it really matter if some hypothetical candidate had claimed dual citizenship at some point in their life as long as they never lost their US citizenship (and of course they are a natural born citizen)?

  58. avatar
    G September 15, 2012 at 2:17 am #

    Yes, you are correct. A very important point.

    Slartibartfast: G,
    I would add that, in addition to ambassadors, foreign royalty would not be “subject to the jurisdiction” of the US government as they would be accorded diplomatic immunity.

  59. avatar
    Lupin September 15, 2012 at 2:19 am #

    Mike Godkin: But even this is not the point. The point is this: Barack Obama was a lecturer on the Constitutional law. He must have been aware that having the father who was a British subject when Barack Obama Jr. was born was not exactly a usual situation for a presidential candidate. He was born with dual citizenship. What about the sole allegiance to one country.

    Mr. Godkin,

    As i recently mentioned here (Dr. C can provide you with links if you need to review the evidence), in August 1792 the French Assembly conferred French citizenship upon George Washington, Alexander Hamilton and James Madison. (It may also be that Thomas Jefferson was also granted French citizen at another time.)

    This means that James Madison, for instance, was elected President while holding dual citizenship. Judging from this enthusiastic letter of acceptance to the French Assembly, he also not only accepted the citizenship, but wasn’t shy about bragging about it. One can only infer that such dual citizenship played no role whatsoever in his being elected and serving as President.

    I don’t know what these two — three if you include Jefferson — precedents do to you thesis, but if I were you, I would certainly refrain from stating that dual citizenship is an impediment to being President.

  60. avatar
    Keith September 15, 2012 at 2:21 am #

    Mike Godkin:
    Slartibartfast :

    “So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.”

    According to the current laws on the books, they are citizens, but nobody proclaimed them to be natural born Citizens.

    Yes, in fact they were.. To wit: Amendment 14 Section 1:

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

    Born Citizen = Natural Born Citizen

    Let me remind you that on February 25, 2004, Senator NIckles etc. introduced the Bill S.2128, which was entitled “Natural Born Citizen Act.”

    In the first paragraph, they proposed that the term “natural born Citizen” be applied to “any person born in the United States and subject to the jurisdiction thereof.”
    In other words, they proposed that any 14th Amendment citizen would be eligible for presidency.

    But this bill never became a law, however unconstitutional it might have been.
    Doesn’t it mean to you that as of now not every 14th Amendment citizen is qualified to become President?

    No. It means that Senator Nickles, et al, don’t understand the U. S. Constitution any better than you do.

  61. avatar
    Slartibartfast September 15, 2012 at 2:23 am #

    G,

    I think it is also very telling that they almost always try to slip the 3rd class of citizenship in under the radar by “begging the question”—usually a necessity since any overt attempt to do this results in a tangle of logical inconsistencies (like most everything written on the subject by Mario Appuzo).

    Mike,

    Why wont you respond to or even acknowledge this quote?

    President 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; it will therefore be unnecessary to investigate any other.”

  62. avatar
    G September 15, 2012 at 2:26 am #

    Excellent explanation, Squeeky!

    Everything in your post was well said, but for the sake of space, I’ve just restated some of what I feel are the most important excerpts that need to be driven home for poor confused Mike. Maybe it will finally sink in and make sense to him.

    Squeeky Fromm, Girl Reporter:
    There were findings and holdings throughout the case that were necessary and relevant to the determination Wong was a citizen. These findings were NOT dicta.For example, in trying to figure out whether or not the 14th Amendment was brand new law, or declaratory of previous law, the WKA Court had to determine what the old law (common law on natural born citizenship) was. It did, and this became vital to the final decision.WKA found the old law was basically “born in the U.S. and not a child of a foreign diplomat or invading soldier. That was also part of determining what “subject to the jurisdiction” meant. The Court specifically stated that the 14th Amendment AFFIRMED this old law, and since it did, Wong the Chinaman was born in the jurisdiction.You can not separate the common law nbc stuff from out of that holding,or you have no basis for the holding. Therefore, all the natural born subject and natural born citizenship findings were NOT dicta.

    IT AIN’T DICTA. It’s the Court telling you what it’s CONCLUSIONS are on a relevant issue of law. Further, since this is a CONCLUSION, from the highest court in the land, it is highly unlikely its descendants are going to classify it as “dicta” based on the opinions of a few law professors and scattered lawyers here and there. There may still be some open collateral issues about natural born citizenship, but as far as people born in U.S., and not the kids of diplomats, or invading soldier, there aren’t any valid questions.

  63. avatar
    Slartibartfast September 15, 2012 at 2:40 am #

    Lupin,

    I once came up with a historical reference to this, but I can’t find it now (the first two hits for “Thomas Jefferson French citizenship” are this blog and the next several are blogs, forums or links where the terms are unrelated). Remember, you may be able to claim three Presidents as French (and you might have had four if not for Aaron Burr…), but the Marquis de Lafayette and all of his male descendants are Yankees! 😛

    Lupin: (It may also be that Thomas Jefferson was also granted French citizen at another time.)

  64. avatar
    Lupin September 15, 2012 at 2:42 am #

    Mr Godkin:

    I find your baseless comment at the end of the document:

    “So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”

    utterly contemptible. It turns what might have been scholarly (if mistaken) research into a screed.

    Any credibility you might have had go straight out of the window.

  65. avatar
    Slartibartfast September 15, 2012 at 2:44 am #

    Squeeky,

    Thanks for making the point I was trying to (only better and more thoroughly).

    If I recall correctly, though, Leo’s stated reason for fleeing the thread at JT’s blog was that I was mean to him…

    Squeeky Fromm, Girl Reporter: There were a gazillion comments on the Jonathan Turley article. I was there, as was Slarti, Ballantine, and even Leo Donofrio, before he slunk off in shame. The dicta was issue was discussed in detail.

  66. avatar
    Lupin September 15, 2012 at 2:45 am #

    Slartibartfast: I once came up with a historical reference to this, but I can’t find it now (the first two hits for “Thomas Jefferson French citizenship” are this blog and the next several are blogs, forums or links where the terms are unrelated). Remember, you may be able to claim three Presidents as French (and you might have had four if not for Aaron Burr…), but the Marquis de Lafayette and all of his male descendants are Yankees!

    The US source Dr. C found is indeed compelling. I am simply disturbed by the fact I can;’t seem to find a French source.

    Re the Lafayette you are indeed correct; I wonder if the Marquis’ descendents have made use of this and asked for US passports?

    (I can well imagine how the average Homeland Security employee at JFK would deal with this. :-))

  67. avatar
    Slartibartfast September 15, 2012 at 2:57 am #

    René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. 😉 I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?

    Lupin: The US source Dr. C found is indeed compelling. I am simply disturbed by the fact I can;’t seem to find a French source.

    Re the Lafayette you are indeed correct; I wonder if the Marquis’ descendents have made use of this and asked for US passports?

    (I can well imagine how the average Homeland Security employee at JFK would deal with this. )

  68. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 3:07 am #

    G and Slarti:

    Thank you both. I hope this helps him understand dicta better. For some reason, people ignore the bulk of the WKA case, and what it was there for.

    But, if a naturalized citizen tried to accept the Presidency under the 14th’s privileges and immunities clause, and it made it to the SCOTUS, they would start right back where the WKA Court did, and go right back through the same analysis:

    Where did “natural born citizen” come from, what did it mean, did the 14th replace it or affirm it, etc. etc.

    Squeeky Fromm
    Girl Reporter
    Squeeky Fromm
    Girl Reporter

  69. avatar
    Slartibartfast September 15, 2012 at 3:27 am #

    Squeeky,

    You’re welcome. We’ll see if he comes back, but we both know that no one can argue the birther point of view in good faith for very long. Once the facts are presented to someone, their ignorance becomes willful and that is that. It takes a very rare person to accept it when they are shown to be wrong—most birthers just move the goalposts and keep on going—and an even rarer one to stick around and admit it. Let’s face it, Mike is no Squeeky Fromm. Tee Hee 😉

    Squeeky Fromm, Girl Reporter: Thank you both. I hope this helps him understand dicta better. For some reason, people ignore the bulk of the WKA case, and what it was there for.

  70. avatar
    Lupin September 15, 2012 at 4:12 am #

    Slartibartfast: René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. 😉 I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?

    Very interesting; thank you! I was aware of him (mostly because of his Quixotic defense of Pierre Laval), but not of the many additional details mentioned on the wiki page. I was amazed to discover that he was instrumental in getting Franz Werfel safely out of occupied France.

  71. avatar
    Lupin September 15, 2012 at 4:19 am #

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

    says:

    Lafayette did not receive honorary citizenship of the United States until 2002, but did become a natural born citizen during his lifetime. On 28 December 1784, the Maryland General Assembly passed a resolution stating that Lafayette and his male heirs “forever shall be…natural born Citizens” of the state. This made him a natural born citizen of the United States under the Articles of Confederation and as defined in Section 1 of Article Two of the United States Constitution. In 1803 and 1804, President Jefferson offered to make him Governor of Louisiana, and in 1932, descendant René de Chambrun established his American citizenship based on the Maryland resolution. For the others, what rights honorary citizenship bestows, if any, is unclear; it does not grant eligibility for United States passports.

    Interesting that:
    (a) the Maryland Resolution used the term “NBC”
    (b) but limited the grant to male heirs only
    (c) and gets only a strange, hybrid passport (image on wiki) that shows there there is indeed, after all, a THIRD CATEGORY of US citizens (granted, limited to a handful of people) — but still.

    So technically when we all say there’s only two kinds of US citizens: NBC and Naturalized, we’re incorrect.

  72. avatar
    Lupin September 15, 2012 at 4:24 am #

    More on foreigners granted Honorary French Citizenship during the French Revolution:

    Joel Barlow
    Ludwig van Beethoven
    Jeremy Bentham
    Robert Burns
    Johann Heinrich Campe
    Thomas Clarkson
    Anacharsis Cloots
    Cornelius de Pauw
    Giuseppe Gorani
    Alexander Hamilton
    Friedrich Gottlieb Klopstock
    Tadeusz Kościuszko
    James Mackintosh
    James Madison
    Thomas Paine
    Johann Heinrich Pestalozzi
    Joseph Priestley
    Friedrich Schiller
    George Washington
    William Wilberforce
    David Williams
    Thomas Muir

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

    However the article does not quote sources and includes at least one “spam” entry (which the editors haven’t removed); that said, Thomas Jefferson is not on that list. Madison, Washington, Paine and Hamilton are.

  73. avatar
    Lupin September 15, 2012 at 4:38 am #

    FWIW here is a pdf copy of Lafayette’s Maryland Act from the NYT archives:

    http://query.nytimes.com/mem/archive-free/pdf?res=9E00EFDE1F3BEE3ABC4F53DFBF668382609EDE

    Of interest to those who like to trace the usage of the term NBC throughout American legal history.

  74. avatar
    bovril September 15, 2012 at 4:55 am #

    Mr Godkin,

    As I have regularly asked The Second Worst Lawyer in the Western World, Falio the Putz, First of His Name, Supreme Muppet, Duke Of Delusional Thought and Lying of Birferstan….

    1. Name a single, solitary, unchallenged, winning Supreme Court case that states and defines that there is a “magical” 3rd category of Citizen, what the racist bigots usually drool and call 14th Amendment or “statuatory” citizenship

    2. Name, prior to 2008 and Berg the Failing PUMA, a single case that argued successfully that the ciizenship of the parent or parents had ANY bearing on the citizenship status of a child born on the soil.

    The answer of course is that there are none for either above .

    Without these the question is settled, full stop, end of story.

    The only ones who have any voice in the matter are the Supreme Court or Congress via a Constitutional Amendment.

    Don’t like it, tough titty.

  75. avatar
    foreigner September 15, 2012 at 5:49 am #

    > Conclusions
    > 7) Whether the term “native-born” or “natural born” was used, its original meaning
    > was that this person born on American soil had both parents who were the U.S. citizens.

    just the author’s opinion or is there some general agreement on this ?
    he presents the (other) points as agreement, not just his opinion

  76. avatar
    Scientist September 15, 2012 at 6:46 am #

    Mike Godkin: Let me go one step further. Imagine this picture: Founding Fathers are informed that a person, who was born on American soil to two British (or any other) subjects, is running for presidency. What, in your opinion, would be their reaction?

    That would describe every single one of the Founding Fathers.

    In fact, you are simply guessing at what YOU think their reaction might be. More importantly, we are not bound by the feellngs or reactions of the Founding Fathers. Most of them would probaly not have been ready to accept a black or female President. Maybe not a Catholic or Jewish one, let alone Moslem or Hindu or Buddhist. That doesn’t matter. Every one of those is eligible, no matter how much that might shock or annoy some or all of the Founders.

  77. avatar
    Scientist September 15, 2012 at 6:54 am #

    Mike Godkin: In my opinion, the SCOTUS may never accept the case related to Obama’s eligibility, but for the different reason than you stated. It would be the “Lack of Standing.”
    There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?

    Several cases that were dismissed on grounds other than standing have been petitioned to SCOTUS for review and none have been accepted. The SCOTUS swore Obama in and has dealt with dozens of cases involving the President and the Executive Branch exactly as cases involving previous Presidents were dealt with. The 4 Justices that wanted to overturn the ACA did not cite Obama’s birth as a reason. There is not even an iota of evidence, not a molecule, to suggest that they consider him ineligible (though I am pretty sure 5 didn’t vote for him and won’t this year).

    The fact is that your presumptions as to the motives of the Court have no legal validity. Only their actions do. But the rulings of Ankeny and all the other state courts and bodies that have followed Ankeny are the law of the land. You are free to speculate as to why and what if, but they remain the law.

  78. avatar
    elmo September 15, 2012 at 8:10 am #

    Mike Godkin:
    Dr. Conspiracy,

    So we are left with opinions, which range from an emotional and highly partisan declaration to a conclusion based on analysis of historic documents (if any) and a political situation in 1787 when the Constitution was drafted.

    Well, that’s not all we are left with. We also have the hundred or so modern courts who have rejected birther challenges to President Obama’s eligibility, including at least one appellate court in Indiana specifically rejecting the argument that the citizenship of either parent has anything to do with the question. And then there is the fact that President Obama was sworn into office (twice) by the Chief Justice of the United States Supreme Court.

    Even if you did have substantial serious legal scholarship supporting the two citizens parent theory (which you don’t, you don’t even have any), legal scholarship means nothing when the courts aren’t buying it.

  79. avatar
    realist September 15, 2012 at 9:13 am #

    Mike Godkin: And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

    The Supreme Court would be surprised to know that state court opinions “don’t count” as Lynch v Clarke is cited many, many times by SCOTUS.

    Respectfully, you lose me when you state, for instance, that neither Dred Scott nor Wong Kim Ark were running for president and (I assume) based on your reasoning they can’t be held as precedent for the definition of natural born citizen. That, in my opinion, is faulty reasoning. To think that a case must involve a presidential candidate to be precedent for what is a natural born citizen is a faulty premise.

    The Wong court did indeed hold that Kim Ark was a citizen. There are only two paths to citizenship, birth and naturalization. Kim Ark was certainly not naturalized nor did he need to be. He is, therefore, a “born citizen”. The government certainly understood (from their brief) that if they lost the case Kim Ark would be eligible to the presidency, as did the dissenting opinion.

    The Supreme Court of the United States has never, not once, differentiated between “natural born”, “native born” and “born citizen”.

    Virginia Minor’s citizenship was not in question and in fact it was conceded she was not only a citizen but a natural born citizen. Her citizenship, however, was immaterial to the holding in Minor. The Court did not have to determine her citizenship and therefore the oft-quoted paragraph by “birthers” as declarative of the definition of natural born citizenship is mere dictum. Minor has also never, not once, been cited by SCOTUS on the principle of citizenship. The Court in Wong Kim Ark, however, went in to great detail in settling the question, and determining Kim Ark’s citizenship was necessary and is therefore not dictum.

  80. avatar
    Reality Check September 15, 2012 at 9:20 am #

    What this paper really is all about and what becomes even more clear from the questions posed by Mike Godkin is to ponder whether WKA was wrongly decided. To claim otherwise is to claim the existence of a third class of “born citizen” that no one except overt racists and fringe groups like sovereign citizens openly argue exists. Mario Apuzzo tries to tap dance around this by inventing a class of citizens called “Citizen of the United States” which is supposed to include all the second class citizens who are not “natural born” via BIrther standards. The argument is so silly it is not really even worthy of serious discussion. It also helps explain why courts have used words like “frivolous” and “without legal merit” in their denials of his cases where he presented this.

    Since the founding fathers didn’t see the need to define the term the obvious conclusion is that there was a consensus definition already in place. What both Minor and WKA concluded was that when there is no definition for a term in the Constitution then English common law was to be used as a guide. The court in Minor commented in dicta that there was certainly no doubt that Virgina was a citizen. In WKA the court had to delve into the definition of NBC to arrive at a decision on Ark’s citizenship status. Until the court decides to directly over-turn the holding WKA it is law that those children of Ark’s status are eligible for the US presidency.

  81. avatar
    Dr. Conspiracy September 15, 2012 at 9:22 am #

    I don’t think they disagree either. They are just approaching the same material from a different direction.

    Tarrant: it doesn’t seem like Professor Chin and Professor Solum’s interpretations would differ on the eligibility of President Obama.

  82. avatar
    Dr. Conspiracy September 15, 2012 at 9:27 am #

    You stated that “Solum changed his tune” but that is not consistent with what he said. What he said is that people misunderstood him, and so he reworded it. That is very different from “changing his tune.” It would be confirmation bias to take the uncorrected statement as authoritative and reject the correction. No responsible scholar would do that.

    The problem is that you cannot fairly represent the state of controversy by picking and choosing sources. Chin is not saying who is eligible; he is stating an expert opinion on the state of the controversy. He says the question you argue is not settled is settled. The seven courts who have ruled on the question since 2008 have in one way or another said that this is already settled, and that there is no controversy.

    Mike Godkin: This is just an opinion of another professor. Why should we assign more weight to his opinion than, say, that of Professor Solum or anybody else’s?

  83. avatar
    elmo September 15, 2012 at 9:32 am #

    Mike Godkin:
    Scientist:

    It has nothing to do with who is worried more or less. Please see the Section “Lack of standing”of my paper.

    When the Supreme Court wishes to reach the merits of a case, it doesn’t let standing ..um..stand in the way. See, for example, Bush v. Gore.

  84. avatar
    Andy September 15, 2012 at 9:34 am #

    Okay, I’ll bite:

    “Between 1780 and 1790, about 60,000 people came to America. By 1790, the total population of the USA was about 4 million. Please do the math.”

    Considering that 1/4 of those before the revolution were not British citizens to begin with, I’m still not sure your numbers add up.

    Let’s look:

    1790
    Population: 3,918,000
    Immigrants: 60,000 (for past decade)
    % Population: 2.1%

    2011
    Population: 311,800,000
    Immigrants: 10,500,000 (for past decade)
    % of Population: 3.3%

    Is 1.2% really the difference between an “open” and a “closed” society at this level, really?

  85. avatar
    Dr. Conspiracy September 15, 2012 at 9:34 am #

    Mr. Godkin makes the comment in his paper:

    Justice Waite equates natives (native-born) with natural born citizens, which is perfectly fine for a closed society at the time of adoption of the Constitution. However, for an open society, such as the USA in the 21st century, not every native-born citizen is automatically a natural born citizen as well.

    I can find no sense in that remark. First the United States in 1789 was being fueled by immigration. At least in some states the population would have collapsed if not for immigration because of the high death rate from malaria and yellow fever.

    Prominent Americans, including John Jay, traveled to Europe and their children were born there. Talking about “open,” we didn’t even have immigration laws in the 18th century. No passports, no visas — you just showed up.

  86. avatar
    G September 15, 2012 at 9:36 am #

    Just the author’s opinion and that of a few online Birthers. There are no official sources he can cite that agree with that opinion.

    foreigner: just the author’s opinion or is there some general agreement on this ?
    he presents the (other) points as agreement, not just his opinion

  87. avatar
    elmo September 15, 2012 at 9:38 am #

    Lupin:
    Mr Godkin:

    I find your baseless comment at the end of the document:

    “So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”

    utterly contemptible. It turns what might have been scholarly (if mistaken) research into a screed.

    Any credibility you might have had go straight out of the window.

    Well, any conspiracy theorist must always come back to some variation of this line of reasoning. Anyone who disagrees with them must, obviously, be bought off, blackmailed, threatened or for some other unspecified reason part of the conspiracy to allow Barack Obama to be president.

  88. avatar
    Dr. Conspiracy September 15, 2012 at 9:55 am #

    Here is a reference.

    Slartibartfast: I once came up with a historical reference to this, but I can’t find it now (the first two hits for “Thomas Jefferson French citizenship” are this blog and the next several are blogs, forums or links where the terms are unrelated).

  89. avatar
    Dr. Conspiracy September 15, 2012 at 10:00 am #

    Bush had standing.

    elmo: When the Supreme Court wishes to reach the merits of a case, it doesn’t let standing ..um..stand in the way. See, for example, Bush v. Gore.

  90. avatar
    Dr. Conspiracy September 15, 2012 at 10:15 am #

    In the late 19th century, there was a legitimate debate on whether Congress had the power to make the children of aliens born in the United States not citizens. Congress tried this in the Chinese Exclusion Act, saying that the Chinese could not become citizens. However, that question was decided by the US Supreme Court in 1898 and it has now been settled law for over 100 years.

    The United States is a nation of immigrants, and we probably better than any other Country do a good job of welcoming immigrants and integrating them into our society. It is one of our great strengths. But with with so many immigrants it is understandable that some would feel threatened by the competition. We see this played out in anti-immigration activism.

    “Racist” is a dirty word today, and I could not conceive of the government filing a legal brief calling the Chinese “obnoxious” today, as they did 100 years ago. The human emotions that were once expressed in racist language are channeled in other ways. They can’t call someone a “nigger” any more, so they have to find some other way to delegitimize the President.

    Reality Check: What this paper really is all about and what becomes even more clear from the questions posed by Mike Godkin is to ponder whether WKA was wrongly decided.

  91. avatar
    Dr. Conspiracy September 15, 2012 at 10:20 am #

    And this was made clear by Minor v. Happersett as well. One is either a natural born citizen or one is naturalized. The Supreme Court in Dred Scott said that no one born in the United States can be naturalized.

    Slartibartfast: Assuming that the 14th Amendment was declarative of existing law rather than defining new law (something that seems well-established), the Constitution only recognizes two classes of citizens: naturalized and natural born—therefore Mr. Wong was necessarily either a natural born citizen or an alien and we know that he wasn’t an alien.

  92. avatar
    Dr. Conspiracy September 15, 2012 at 10:26 am #

    I don’t quite agree there. Persons born citizens outside of the United States have a special status because the 14th Amendment doesn’t apply to them (being neither born in the United States nor naturalized in the United States).

    See Rogers v. Bellei.

    realist: The Supreme Court of the United States has never, not once, differentiated between “natural born”, “native born” and “born citizen”.

  93. avatar
    Majority Will September 15, 2012 at 10:43 am #

    Mike Godkin: If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?

    Where did you come up with that idea? Can you cite a credible source?

    What is a political disaster of biblical proportions?

    Is that your creative concoction of ominous, fear mongering hyperbole or do you actually measure in palms, spans and cubits?

    Here’s what I found:

    The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.

    http://www.law.cornell.edu/supct/html/94-431.ZO.html

  94. avatar
    Reality Check September 15, 2012 at 11:55 am #

    I do not think the conclusion that the SCOTUS is “afraid” to take an eligibility case is founded in fact. The more logical conclusion is that the cases that have been submitted for certification to date were dismissed for entirely proper reasons by the lower courts and in fact most of the cases were just based on nonsense. To embrace the “two parent citizen” exclusive theory for NBC the court would have to reopen WKA. There is zero evidence the court has any desire to do that.

  95. avatar
    LW September 15, 2012 at 12:05 pm #

    Majority Will: Where did you come up with that idea? Can you cite a credible source?

    Venkman v. Peck, heard in extraordinary circumstances in New York City mayoral chambers, 1984.

  96. avatar
    brygenon September 15, 2012 at 1:04 pm #

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.

    A stupid point, particularly after the reading you’ve done, Mr. Godkin.

    You found scholar after scholar agreeing with what you claim is no consensus, so you imputed motives and added your own sophistry.

    On the other side, you found what? Breckinridge Long’s 1916 hit piece on Republican nominee Charles Evans Hughes, in which Long noted, “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.” Long is best known for his obstruction of refugee visas as Assistant Secretary of State in the early 1940’s.

    Then there’s a long gap, until a November 2008 brief in Wrotnowski Bysiewicz, in which birthers Cort Wrotnowski and Leo Donofrio argue that Barack Obama cannot be president. Donofrio was licensed to practice law at the time, though after staggering court defeats in birther pursuits he decided to give up his license.

    There is a consensus among the constitutional scholars that those born in the United States (and not exempt from U.S. law) are natural-born citizens. A broad consensus. A universal consensus. The consensus dates from before President Obama was born. Mr. Godkin, your own evidence demonstrates it, desperately as you want to spin otherwise.

    Vattel-birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.

  97. avatar
    Majority Will September 15, 2012 at 2:28 pm #

    LW: Venkman v. Peck, heard in extraordinary circumstances in New York City mayoral chambers, 1984.

    Indeed.

    “Human sacrifice, dogs and cats living together… mass hysteria!”

  98. avatar
    Slartibartfast September 15, 2012 at 2:50 pm #

    I believe the holding in this one was that Mr. Peck was, in fact,… um… phallically deficient.

    LW: Venkman v. Peck, heard in extraordinary circumstances in New York City mayoral chambers, 1984.

  99. avatar
    Majority Will September 15, 2012 at 2:54 pm #

    Slartibartfast:
    I believe the holding in this one was that Mr. Peck was, in fact,… um… phallically deficient.

    So much for being cocksure.

  100. avatar
    gorefan September 15, 2012 at 2:57 pm #

    brygenon: Breckinridge Long’s 1916 hit piece on Republican nominee Charles Evans Hughes

    As an indication of Mr. Godkin’s intellectual dishonesty, there are these items from various sources:

    “Long waged a political battle in Missouri for the League of Nations and Wilsonian Democracy for five years. At the Democratic National Convention in St. Louis in 1916 he aided in drafting the foreign policy plank which favored a league of nations and provided the basis for the “he kept us out of war” slogan that was credited with winning re-election for Woodrow Wilson (q.v.). Following the election, Long was appointed in 1917 by Wilson as third assistant U.S. secretary of state in charge of all Far Eastern matters, a post he filled until 1920.” Breckinridge Long Biograohy from Breckinridge Family website

    http://breckinridgefamily.com/breckbio.htm

    Assistant Secretary Breckinridge Long, a former student of Wilson’s at Princeton, believed this exchange of letters would hurt the president and went to the White House and talked with Grayson, who evidently got Wilson to send a brief note simply accepting Lansing’s resignation.” From John Milton Cooper, Jr., “Woodrow Wilson”

    Biographical Note

    1916 Active in organizing the “St. Louis Democrats for Woodrow Wilson” from “Breckinridge Long Papers A Finding Aid to the Collection in the Library of Congress”

    “The situation was ameliorated by a gift from Breckinridge Long of $5000 and a loan of $30,000 to keep the McCormick’s Campaign office functioning.” from “The Presidential election of 1916” by S. D. Lovell 1980.

    Vance McCormick was Woodrow Wilson’s campaign manager.

  101. avatar
    Thomas Brown September 15, 2012 at 3:00 pm #

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.

    Allow me to fix it for you:

    There is no absolute consensus among the constitutional scholars whether being born on American soil should be enough to run for presidency.

    There is, however, an overwhelming consensus that that is the way NBCship is currently interpreted and applied.

    I will mention for the umpteenth time Tom Vilsack. He is currently in line of emergency succession to the Presidency. He was a foundling. Nobody knows who his parents were, whether they were Russian spies, or if he was born with dual citizenship, or his parents were aliens— nothing is known except that he was born in Philadelphia. And yet he is considered a NBC, eligible to be President.

    His example completely destroys the Vattelist argument, and any other jus sanguinis argument. Born on soil to anyone, or to a citizen overseas=NBC. That’s just the way it is.

    Now, you can argue that it SHOULDN’T be that way, but no sane person us going to respect your integrity if you rather argue that it ISN’T that way now.

  102. avatar
    Mike Godkin September 15, 2012 at 3:05 pm #

    On December 4, 208, Jonathan Turley published an article on his blog entitled “Eligibility Questions: Can Clinton Serve Obama and Can Obama Serve the Country?”

    http://jonathanturley.org/2008/12/04/eligibility-questions-can-clinton-serve-obama-and-can-obama-serve-the-country/

    Among other things, he wrote this:

    “It was inevitable that we would deal with this controversy since both John McCain and Barack Obama had people challenging their eligibility. However, still stinging from the Bush v. Gore controversy, this is not the type of case that either conservatives or liberals on the Court will likely embrace — absent the strongest possible evidence.”

    Isn’t it the same thing as saying that the Supreme Court doesn’t want to touch this subject with aten-foot pole?

    But the most interesting to me was a comments section.

    This is what one of the participants, Vince Treacy, a lawyer himself, said on December 4, 2008 at 9:20 pm:

    “The 14th Amendment had nothing to do with the Presidency. It reversed the Dred Scott case’s definition of US citizen. It applied to all citizens, not just the President.
    The 14th Amendment did not amend the eligibility clause.
    It said all persons, born or naturalized in the US, and subject to the jurisdiction therof, are citizens of the US. That is the rule for citizens.
    So. One. Obama was born in Hawaii, part of the US, so he is a citizen under the 14th.
    Obama is a citizen because he was born in the US.
    Two. He is eligible for President because, like every President elected since van Buren, he was born in the USA.”

    Of course he fogot to mention that every president elected since Van Buren had both parents who were American citizens when the future presidents were born. Except for Chester Arthur, but this another story.

    You see, quite a liberal lawyer acknowledged that Obama is a citizen under the 14th Amendment. So I did not create a “third category” of citizens.

    On December 5, 2008 at 1:25 am, Vince Treacy wrote:

    “Obama is eligible for President because he is a natural born citizen, not a naturalized citizen, is over 35, and a resident for the requisite number of years. That is all the Constitution provides. The rest of the things you and your friends are reading into it are nothing but personal predelictions that you would like to see in the Constitution, but that were not written in there.”

    Isn’t it an example of circular logic? The topic of discussion is whether or not Obama is a natural born Citizen eligible to be President., but toVince Treacy Obama is eligible because he IS a natural born Citizen.

    But the most remakable to me was an exchange between Vince treacy and Jonathan Turley (quote):

    Vince Treacy 1, December 7, 2008 at 5:26 pm

    “A natural born citizen is one who was born within the United States and its territories and possessions. It is someone who is born under the American flag.” Jerome Barron, Law Professor, GW Law School, quoted by Afro:
    http://www.afro.com/tabid/456/itemid/2273/Obamas-Eligibility-Challenged.aspx
    The newspaper The Afro asked Professor Barron, an esteemed colleague of Professor Turley, his opinion. Barron has studied and taught the Constitution for his entire professional life. He was my con law teacher nearly 40 years ago, and on of my best teachers ever.
    For arguments from authority, this is as strong as it gets.

    jonathanturley 1, December 7, 2008 at 6:21 pm

    Vince:
    If you had Jerry, you need no advice from the likes of me. Whatever Jerry taught you 40 years ago is still twice as good as what I could teach you today.
    JT (unquote)

    So, in absence of a Supreme Court decision whether or not Obama is qualified to be President, the highest authority is an opinion of a Professor of Law. And a few of my oponents argued against my thesis that all we have now is opinions of the Constitutional scholars and some supposedly legal experts.

  103. avatar
    Rickey September 15, 2012 at 3:06 pm #

    Mike Godkin:

    There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

    Nonsense. I have in my possession textbooks by conservative Constitutionalists who say that there is no difference between a native-born citizen and a natural-born citizen. Of course, it may be that your definition of “consensus” is “100% agreement.” By that standard, there is no consensus that the earth is not flat.

    Your statement that “State courts don’t count” is proof positive that people who have no legal training have no business writing papers on legal issues. In fact, state courts rulings can be binding upon other courts in the same state. And even though state court rulings are not binding upon other states, state court rulings are often cited by courts in other states as precedent. Such citations are not binding precedent, but they are persuasive precedent.

    .

  104. avatar
    Reality Check September 15, 2012 at 3:27 pm #

    This is what William D. Guthrie said shortly after the decision in Wong Kim Ark was handed down:

    The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States, by virtue of the Fourteenth Amendment, all persons born in United States of alien parents and permanently domiciled here, except the children of the diplomatic representatives of foreign powers; and therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, altho his parents could not be naturalized under our laws.

    Guthrie was one of the most successful young attorneys around and went on to become the a chaired professor of constitutional law at Columbia College just a few years after writing his lectures on citizenship from which the quote above was taken.

    http://rcradioblog.wordpress.com/2012/06/28/funk-wagnalls-president-obama-is-eligible/

  105. avatar
    Mike Godkin September 15, 2012 at 3:38 pm #

    Brygenon,

    This is what I wrote:

    “Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.”

    This was your reaction:

    “A stupid point, particularly after the reading you’ve done, Mr. Godkin.”

    Then you wrote this:

    “There is a consensus among the constitutional scholars that those born in the United States (and not exempt from U.S. law) are natural-born citizens. A broad consensus. A universal consensus. The consensus dates from before President Obama was born. Mr. Godkin, your own evidence demonstrates it, desperately as you want to spin otherwise.”

    Rebekka Bonner made a statement that “There is near-universal agreement that all persons born within the United States are natural born.”

    What do you know Ms. Bonner didn’t know? I spent a lot of time studying this “broad and universal” consensus and provided quite a few quotes from the constitutional scholars. It’s your turn now. Emotions aside, could you provide such a document (documents) proving such a consensus? I would be happy to learn something I didn’t know before. Please do it, and I will publicly acknowledge my “stupid point.”

    You concluded your comment with this:

    “Vattel-birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.”

    Did I ever mention Vattel?

  106. avatar
    Andy September 15, 2012 at 3:48 pm #

    Mike Godkin:

    You see, quite a liberal lawyer acknowledged that Obama is a citizen under the 14th Amendment. So I did not create a “third category” of citizens.

    Yes. Every president born since it has been passed has been a citizen under it. Bush is a citizen under the 14th Amendment.

    Had it not been passed, I would have been anyway, because I’m white and was born here.

    You seem to work under the assumption that the 14th Amendment created citizens. It didn’t. It recognized an previous principle that was withheld from some who weren’t white males. It put it into the highest law, so that racist and bigoted people who didn’t like that their former property wanted rights could not continue to deny them their rights.

  107. avatar
    Andy September 15, 2012 at 3:52 pm #

    “So, in absence of a Supreme Court decision…”

    Except we aren’t in absence of a decision. Read the words of Wong Kim Ark. Read them again.

    Courts often make very narrow opinions on broad principles. In the case of WKA, they laid out very, very clearly where American law is when it comes to citizenship at birth.

    Tell me the discussion of natural born subjectship isn’t convincing, and then actually back up your argument.

  108. avatar
    Mike Godkin September 15, 2012 at 3:53 pm #

    Reality Check,

    I have no doubt that William D. Guthrie was “one of the most successful young attorneys around” and his view was that “a male child born here of alien Chinese subjects is now eligible to the office of President.”

    But you just proved my point: It was HIS OPINION. Nothing less, nothing more.

  109. avatar
    Mike Godkin September 15, 2012 at 4:02 pm #

    Andy,
    You quoted me:
    “So, in absence of a Supreme Court decision…”

    And then asserted this:

    “Except we aren’t in absence of a decision. Read the words of Wong Kim Ark. Read them again. “

    Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.

    By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.

  110. avatar
    Slartibartfast September 15, 2012 at 4:05 pm #

    Umm… how about a Supreme Court justice? At least one of whom has stated that President Obama is natural born.

    Mike Godkin: So, in absence of a Supreme Court decision whether or not Obama is qualified to be President, the highest authority is an opinion of a Professor of Law. And a few of my oponents argued against my thesis that all we have now is opinions of the Constitutional scholars and some supposedly legal experts.

  111. avatar
    Andy September 15, 2012 at 4:08 pm #

    Mike Godkin:
    Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.

    By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.

    Weird! So was the Supreme Court at the time. Good thing they are smarter than us, eh?

    Did you read what I said? A narrow decision can have broad grounds. What you cite as dictum, has been held as precedent by the Supreme Court itself. Read some of their citizenship cases. See if you don’t see that reference to WKA there.

  112. avatar
    gorefan September 15, 2012 at 4:10 pm #

    Mike Godkin: By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.

    Why not cite William Rawle’s definition of natural born?

    You also cite A. P. Morse’s 1904 letter but ignore his 1888 treaties on citizenship. Why? Could it be because of this:

    ” In the law of nations, ” citizen” is a term applicable to every member of the civil society, every individual who belongs to the nation.
    This character is acquired in various ways, according to the laws of each state. In many states birth is sufficient to confer it; so that the child of an alien is a citizen from the fact of having been born within the territorial limits and the jurisdiction.2″

    And in footnote 2: ” It is so in England and in the United States [but the births must be ” within the jurisdiction”‘].”

    or this

    The Constitution does not make the citizens (it is, in fact, made by them) ; it only recognizes such of them as are natural, home-born, and provides for the naturalization of such of them as are alien, foreign-born, making the latter, as far as nature will allow, like the former.”

  113. avatar
    nbc September 15, 2012 at 4:12 pm #

    Mike Godkin: Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.

    Yes and no. The ruling found WKA to be a citizen because he was natural born. While not discussing presidential eligibility, the conclusion is simple.

  114. avatar
    nbc September 15, 2012 at 4:13 pm #

    Mike Godkin: By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.

    That is what the Court did as well, as had previous courts before. They did an excellent job that set the precedent.

  115. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 4:13 pm #

    Mike:

    You said:

    “Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.

    By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.”

    Then what you need to do is contact a law school, and see if they would like to publish whatever you discover on your personal quest for knowledge about dicta and original meanings in a law review article. You will, of course, have to provide massive footnoting and show some competence in your piece.

    What you do not need to do is attempt to go into any court room and attempt to tell REAL WORLD judges what is dicta, and what is not. You would NOT be successful. You do not have a clue how REAL law is practiced.

    If I may be so bold as to suggest a course of study for you, might I suggest that you attempt to do is a short legal analysis of Wong Kim Ark BY SECTION. For example, briefly recap the reason for Section II, and what the WKA Court concluded about whatever the section is about.

    Then, move on to Section III, and do the same and so forth and so on. This may help you understand the case better, and you will not keep making the same mistake about what is dicta, and what is not.

    Squeeky Fromm
    Girl Reporter

  116. avatar
    Reality Check September 15, 2012 at 4:17 pm #

    So your point is that because the Supreme Court has never rendered a decision on a specific case that involved Presidential eligibility of a person born in the United States with a citizen mother and an alien father that the question is not settled? If so, you have a very poor understanding of the way the law works.

    Mike Godkin: But you just proved my point: It was HIS OPINION. Nothing less, nothing more.

  117. avatar
    Andy September 15, 2012 at 4:21 pm #

    Reality Check:
    So your point is that because the Supreme Court has never rendered a decision on a specific case that involved Presidential eligibility of a person born in the United States with a citizen mother and an alien father that the question is not settled? If so, you have a very poor understanding of the way the law works.

    In fact, by his reasoning, we will never know if ANY of our presidents have been eligible! I’m getting nervous now!

  118. avatar
    Reality Check September 15, 2012 at 4:37 pm #

    That means every law pased in history is null and void! Oh noes!!

    Andy: In fact, by his reasoning, we will never know if ANY of our presidents have been eligible!I’m getting nervous now!

  119. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 4:48 pm #

    Reality Check:

    You know, not having a SCOTUS case about presidential eligibilty is just killing us in this argument. What we need is a Supreme Court case that discusses natural born citizenship and tells us what that is. If there was such a case, we might be able to work around not having the eligibility case. Is there a case out there where the SCOTUS discusses natural born citizenship???

    Squeeky Fromm
    Girl Reporter

  120. avatar
    Slartibartfast September 15, 2012 at 4:50 pm #

    Mike Godkin:
    On December 4, 208, Jonathan Turley published an article on his blog entitled“Eligibility Questions: Can Clinton Serve Obama and Can Obama Serve the Country?”

    http://jonathanturley.org/2008/12/04/eligibility-questions-can-clinton-serve-obama-and-can-obama-serve-the-country/

    Among other things, he wrote this:

    “It was inevitable that we would deal with this controversy since both John McCain and Barack Obama had people challenging their eligibility. However, still stinging from the Bush v. Gore controversy, this is not the type of case that either conservatives or liberals on the Court will likely embrace — absent the strongest possible evidence.”

    Isn’t it the same thing as saying that the Supreme Court doesn’t want to touch this subject withaten-foot pole?

    But the most interesting to me was a comments section.

    This is what one of the participants, Vince Treacy, a lawyer himself, said on December 4, 2008 at 9:20 pm:

    “The 14th Amendment had nothing to do with the Presidency. It reversed the Dred Scott case’s definition of US citizen. It applied to all citizens, not just the President.
    The 14th Amendment did not amend the eligibility clause.
    It said all persons, born or naturalized in the US, and subject to the jurisdiction therof, are citizens of the US. That is the rule for citizens.
    So. One. Obama was born in Hawaii, part of the US, so he is a citizen under the 14th.
    Obama is a citizen because he was born in the US.
    Two. He is eligible for President because, like every President elected since van Buren, he was born in the USA.”

    Of course he fogot to mention that every president elected since Van Buren had both parents who were American citizens when the future presidents were born. Except for Chester Arthur, but this another story.

    Vice President Agnew’s father was Greek and did not naturalize before his son was born. The children of Greek citizens are Greek citizens and the Greek government does not allow people to renounce their Greek citizenship. Furthermore, every single president and vice president has been a natural born citizen (the grandfather clause, for people in situations like Alexander Hamilton, was never used) and many of them had two parents who were British subjects when they were born.

    You see, quite a liberal lawyer acknowledged that Obama is a citizen under the 14th Amendment. So I did not create a “third category” of citizens.

    If you had read (and understood) Mr. Treacy’s extensive and impeccably supported comments on the thread you linked, you would know that Mr. Treacy has completely shredded the argument that the 14th amendment created a third category of citizens.

    On December 5, 2008 at 1:25 am, Vince Treacy wrote:

    “Obama is eligible for President because he is a natural born citizen, not a naturalized citizen, is over 35, and a resident for the requisite number of years. That is all the Constitution provides. The rest of the things you and your friends are reading into it are nothing but personal predelictions that you would like to see in the Constitution, but that were not written in there.”

    Isn’t it an example of circular logic? The topic of discussion is whether or not Obama is a natural born Citizen eligible to be President., but toVince Treacy Obama is eligible because he IS a natural born Citizen.

    No—it is an example of you cherry picking. Mr. Treacy had already established that President Obama was a natural born citizen before making this comment.

    But the most remakable to me was an exchange between Vince treacy and Jonathan Turley (quote):

    Vince Treacy 1, December 7, 2008 at 5:26 pm

    “A natural born citizen is one who was born within the United States and its territories and possessions. It is someone who is born under the American flag.” Jerome Barron, Law Professor, GW Law School, quoted by Afro:
    http://www.afro.com/tabid/456/itemid/2273/Obamas-Eligibility-Challenged.aspx
    The newspaper The Afro asked Professor Barron, an esteemed colleague of Professor Turley, his opinion. Barron has studied and taught the Constitution for his entire professional life. He was my con law teacher nearly 40 years ago, and on of my best teachers ever.
    For arguments from authority, this is as strong as it gets.

    jonathanturley 1, December 7, 2008 at 6:21 pm

    Vince:
    If you had Jerry, you need no advice from the likes of me. Whatever Jerry taught you 40 years ago is still twice as good as what I could teach you today.
    JT (unquote)

    So, in absence of a Supreme Court decision whether or not Obama is qualified to be President, the highest authority is an opinion of a Professor of Law. And a few of my oponents argued against my thesis that all we have now is opinions of the Constitutional scholars and some supposedly legal experts.

    What’s your point? This quote (which Mr. Treacy explicitly acknowledged was an argument from authority) was far from the only support that Mr. Treacy provided for his position. Your own arguments, on the other hand, are becoming more and more intellectually dishonest by the second…

    Your attempt to use logical fallacies to twist the words of someone who has clearly and thoroughly destroyed your position many times over, like your baseless accusations against Ms. Bonner, is contemptible. You should be ashamed of yourself.

  121. avatar
    Dr. Conspiracy September 15, 2012 at 5:30 pm #

    FESTIVAL!

    Reality Check: That means every law passed in history is null and void! Oh noes!!

  122. avatar
    Dr. Conspiracy September 15, 2012 at 5:38 pm #

    Unfortunately the only mention of “natural born citizen” anywhere in US law is the Article II section on presidential eligibility. That means that one can’t have a case trying a controversy about “natural born citizen” apart from presidential eligibility.

    What the courts have said as precedent is that the terms in the Constitution are to be understood in the context of the English Common Law. While the Common Law makes it clear that the children of aliens in England are natural born subjects, it is not clear whether the provisions for the children of subjects born overseas is part of the common law or a statute. This leaves a small area for controversy about folks like John McCain.

    Seven courts over the past 4 years have made it abundantly clear that the precedent in US v. Wong makes Barack Obama a natural born citizen. It is well-settled. However, starting with Ankeny, they have not ruled on whether foreign-born citizens at birth are eligible. This point of controversy is why the Senate passed SR 511 on behalf of John McCain.

    Squeeky Fromm, Girl Reporter: You know, not having a SCOTUS case about presidential eligibility is just killing us in this argument. What we need is a Supreme Court case that discusses natural born citizenship and tells us what that is

  123. avatar
    Andrew Vrba, PmG September 15, 2012 at 5:39 pm #

    Reality Check:
    That means every law pased in history is null and void! Oh noes!!

    HA! Go suck a trout, GRAVITY! I don’t have to take your crap any more! Awwwwwww yeah!

  124. avatar
    Dr. Conspiracy September 15, 2012 at 6:05 pm #

    With all due respect, you have no qualifications as an authority (not to mention being biased), and you present a false dichotomy between “holding” and “dictum” when the correct dichotomy is between “ratio decidendi” and “dictum.” In order to arrive at the holding that Wong Kim Ark was born a citizen is was necessary to argue that he was a citizen by the English Common Law definition of natural born subject and that subject and citizen were convertible terms.

    Remember that the Constitution only specifies two sources of citizenship “natural born” and “naturalized” (see Minor v. Happersett et al). For Wong Kim Ark to be a citizen, he must be one or the other.

    Mike Godkin: Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.

  125. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 6:08 pm #

    Dr. C:

    I don’t entirely agree with this statement:

    “That means that one can’t have a case trying a controversy about “natural born citizen” apart from presidential eligibility.”

    While the president must be a natural born citizen, there is a pretty large pool of people to choose from. Hundreds of millions of us are natural born citizens at this very moment. Should any of us become involved in a citizenship case, then at least some of the issues relating to natural born citizenship will be involved, whether we are running for the Presidency or not.

    This is what happened with Wong Kim Ark. He was a natural born citizen. That is still a good term, and it is NOT restricted in usage to presidents. I am a natural born citizen, and can truthfully put “I am a natural born citizen” on a tee shirt and wear it.

    With Wong, most issues relating to natural born citizenship were solved en route to determining his citizenship. They were necessary findings because the 14th Amendment phraseology was in question, and since the 14th amendment was declaratory and affirming of previous common law, the court had to first determine what a natural born citizen was.

    Frankly, unless some person runs for office who has one parent who is a diplomat, or someone is a child of rape by an invading soldier, there aren’t a whole lot of nbc issues to be resolved. I guess Congress could over-reach or under-reach in declaring foreign born persons to be natural born citizens, or someone could raise the “aliens in amity” argument, but outside of that, WKA is dispositive of what a natural born citizen is.

    Squeeky Fromm
    Girl Reporter

  126. avatar
    Mike Godkin September 15, 2012 at 6:23 pm #

    Slartibartfast,

    You wrote to me:

    “Mike,
    You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this.”

    On the other hand, here is Andy’s opinion:

    “Yes. Every president born since it has been passed has been a citizen under it. Bush is a citizen under the 14th Amendment.”

    You two should have a round table discussion to come to a consensus.

  127. avatar
    Andy September 15, 2012 at 6:33 pm #

    Mike:

    Under and by are two different words.

    The 14th Amendment doesn’t create anything. It recognizes what is already law.
    You misstate my thesis, like you did with others’ in your writing.

    Shame, shame.

  128. avatar
    nbc September 15, 2012 at 6:42 pm #

    Mike Godkin: You two should have a round table discussion to come to a consensus.

    Or you should try to understand the arguments?

    The 14th Amendment merely restated that one is either born on soil or naturalized to become a citizen of the United States. On Rogers v Bellei, the court ruled however that children born abroad to US citizens, are not protected by the 14th Amendment.

    The same logic was followed by the Court in US v WKA where the Court found that the term natural born remained undefined in the Constitution. Realizing that WKA could not be a citizen through naturalization, they recognized that the only logical path to citizenship would be for WKA to be natural born.
    The Court looked at the history of the meaning of the word and found that it consistently referred to the location of birth, regardless of the status of the parents.

    There are only two categories of citizens although some of these citizens are not protected by the 14th Amendment due to the formulation of who are citizens.

  129. avatar
    Slartibartfast September 15, 2012 at 6:45 pm #

    Mike,

    That’s a false dichotomy (you’re really racking up the logical fallacies, aren’t you…). There is no conflict between our positions—that the 14th Amendment was simply declaratory of existing law. You, on the other hand, seem to be trying to argue that Andy is asserting that President Bush would not have been a citizen absent the 14th Amendment—in other words, you are constructing a straw man out of his argument.

    The use of logical fallacies in a discussion is rude and unbecoming for someone with a PhD in a technical field. You really should know better, but maybe that’s just my personal bias. However, when you take to distorting the words of people like Mr. Treacy who have demonstrated true scholarship and understanding your behavior is nothing short of reprehensible.

    I know Vince Treacy, and you, sir, are no Vince Treacy.

    Mike Godkin:
    Slartibartfast,

    You wrote to me:

    “Mike,
    You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this.”

    On the other hand, here is Andy’s opinion:

    “Yes. Every president born since it has been passed has been a citizen under it. Bush is a citizen under the 14th Amendment.”

    You two should have a round table discussion to come to a consensus.

  130. avatar
    nbc September 15, 2012 at 6:48 pm #

    Rebekka Bonner, following what she calls a “Strict Constructionist Approach,” asserted that, according to British common law, which was very familiar to the Founding Fathers, the natural born Citizen status comes from being born within the territory.

    Yes this was also observed by the judges in US v WKA, and the dissenting judge was upset as he believed that under the ruling children born to US citizens abroad would not be able to run as President while children born on US soil to alien parents, would.

    British Common Law indeed did not include children born abroad as such were governed through statute. The fact that the Founders saw it necessary to care for the citizenship of children born abroad to US citizens supports such an interpretation, although the initial act unfortunately copied the English Act too literally and made them natural born, an oversight cured in a later version of the act.

  131. avatar
    nbc September 15, 2012 at 6:53 pm #

    “Senate Bill 2128, introduced by Senator Don Nickles February 25, 2004 and entitled the Natural-Born Citizen Act, seeks to change the definition of natural-born citizen in the Constitution to include children of American citizens who were born abroad and foreign-born children adopted by American citizens.” [4]

    There is no definition of a natural born Citizen in the Constitution, so perhaps Professor Seymore meant that the Senate Bill 2128 was supposed to introduce a definition of a natural born Citizen.

    Her next sentence of the same paragraph says just that:

    “The bill does not purport to amend the Constitution’s Natural-Born Citizen Clause; instead, it seeks to offer a statutory definition of natural-born citizenship.”

    Then the third part of the paragraph contradicts the second one:

    “Of course, Congress lacks the authority to change the Constitution by statute. Thus, to the extent that the Natural-Born Citizenship Act is seen as expanding or changing the Constitution’s meaning, it would be unconstitutional.”

    So, how can an unconstitutional Bill change the definition of the phrase, which was never defined in the first place?

    Imprecise and missing the point. The Constitutional meaning was to be found in Common Law as it existed at the time of the signing. The Court in US v WKA explored the meaning of the term natural born in quite some detail finding that it used to and had continued to refer to birth on soil, regardless of the citizenship of the parents.

    So, when properly read within the understanding reached by US v WKA, the comments make sense.

  132. avatar
    nbc September 15, 2012 at 6:56 pm #

    I will come back to the Senate Bill 2128 later. But right now I have a question for Ms. Bonner: Wouldn’t the Children of Military Families Natural Born Citizen Act be unconstitutional as well?

    Of course, as long as the birth takes place outside the United States. Since such children are not born on US soil, their citizenship status should follow from our statutes.

    It would also include bills which redefine citizenship by excluding children born to alien parents.

  133. avatar
    nbc September 15, 2012 at 7:01 pm #

    Since we know now what the holding is, could Ms. Bonner possibly provide a citation of a specific Court holding that “children born in the United States to alien parents would be eligible” to become President of this country?

    A better question would be: Has there been any court which has ruled that such children become natural born citizens? Logic then takes on to the next step as eligibility is determined by three factors.
    The case in question is US v Wong Kim Ark, and although the detractors are correctly observing that the Court never pronounced WKA to be natural born, there is no logical way for one not to reach this conclusion from the arguments. In fact, the Government, arguing against WKA’s citizenship presented the issue as: Did the lower court err in finding Wong Kim Ark to be a natural born citizen.
    Similarly, the dissenting judge also observed that it was unfair that under the ruling, children like WKA could run for the office of the President, but children born abroad to US parents would not be able to do so.

    So yes, I would say that US v WKA is ‘spot on’

  134. avatar
    nbc September 15, 2012 at 7:04 pm #

    Had Ms. Bonner used this longer version, her further discussion of the natural born Citizen presidential requirement would have been substantially different. However, she chose not to do it and instead made the following statement:

    “There is near-universal agreement that all persons born within the United States are natural born.”

    She is correct, she pointed out that in Minor the court observed that some had doubts, but those doubts were laid to rest in US v WKA where the court observed how other courts before it had appealed to common law in defining citizenship of those born on US soil. Most scholars held to such beliefs, many courts had found the same, and since US v WKA, the courts have only strengthened this interpretation.

    Again, you are nit picking at details without seeing the full picture of the arguments involved.

  135. avatar
    nbc September 15, 2012 at 7:07 pm #

    Neither Dred Scott nor Wong Kim Ark was running for presidency of this country, so whatever comments the Court made about the natural born citizenship on a number of occasions were not holdings, but dicta.

    That is poor logic. Natural born has nothing to do with running for president. It defines a class of citizens who if they meet two additional requirements may run for the office of the President.
    Ruling someone to be Natural Born is the first step in establishing eligibility, as there are two other requirements that need to be met.
    A court can rule on whether or not someone is a natural born citizen without the case involving one running for President.
    Once you remove this fallacy, things fall in place so nicely.

  136. avatar
    nbc September 15, 2012 at 7:10 pm #

    You may also have missed the following reference

    Kip Wainscott (Perkins Coie) provides the following citations in reply to Kobach:

    It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution,2 and the latter is provided for by the enactments of Congress.

    U.S. v. Marguet-Pillado, 560 F.3d 1078 (9th Cir., 2009)

    A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person’s birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.

    U.S. v. Marguet-Pillado, 648 F.3d 1001 (2011)

  137. avatar
    nbc September 15, 2012 at 7:22 pm #

    I will come back to the Fourteenth Amendment “impact,” but at this point, I’d like to examine the Ms. Bonner’s statement with regard to that “near-universal agreement.”

    In his paper, The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement, J. Michael Medina asks a very important question: “Who is a Natural Born Citizen?” [10]

    In his own words, “The answer to the question above is, quite simply, we don’t know.” It’s fair enough.

    Again missing the point. We do know who are natural born citizens but we are not certain about certain classes, and those born abroad would count in such a class
    Remember what Ms Bonner actually said?

    “There is near-universal agreement that all persons born within the United States are natural born.”

    That is however logically speaking, not necessarily at odds with: We may not know who are natural born citizens.

    Perhaps you should have read Medina as he admits

    The constitutional provision granting citizenship to all those born in the United States is subject to one important restriction: those so born must be subject to the jurisdiction of the United States. This reservation is narrow, and has been generally found to exclude four classes: (a) Indians belonging to tribal nations; (b) persons born to foreign diplomats and heads of state having diplomatic immunity; (c) persons born on American territory to members of occupying forces; and (d) persons born on foreign public vessels within United States territorial waters. While it is clear that persons born of aliens legally in this nation become American citizens,” it has only been assumed, lacking any direct cases, that children of illegal aliens also become citizens at birth.”

    As to Medina’s quote, it too needs to be understood and presented in its proper context

    The answer to the above question is, quite simply, we don’t know. “The Constitution does not, in words, say who shall be natural born citizens. Resort must be had elsewhere to ascertain that”.

  138. avatar
    nbc September 15, 2012 at 7:24 pm #

    However, little by little, his opinion changes: “It was presumed that the English law of jus soli was incorporated into the law of the several former colonies and then into the Constitution. Under the law of jus soli, a person born in the United States became at birth a citizen of the United States.” And Medina also cites the Wong Kim Ark Case, which had nothing to do with the presidential eligibility clause.

    Again misunderstanding the issues. The Presidential Eligibility Clause defines three requirements, one of which is that the person needs to be natural born. Thus, even if the court does not hear a case involving presidential eligibility, it can still rule on whether someone is a natural born citizen and that is what the US v WKA effective has done.

    You are conflating two separate principles here.

  139. avatar
    nbc September 15, 2012 at 7:28 pm #

    Going back to J. Michael Medina, what I don’t understand is how, knowing this information, he can jump to the following conclusion:

    “Of the categories of citizen, then, it is clear that persons born in the United States and subject to its jurisdiction are natural born; persons naturalized in the United States are not, and persons born as American citizens abroad probably, but not uncontrovertedly, are natural born.”

    Pure logic based on historical rulings, and scholarly understanding. It is clear that persons naturalized in the United States are not natural born, and based on the US v WKA ruling, as well as other court rulings, those born on soil are definitely natural born. There is a question as to the status of children born abroad to US citizens may or may not be so.
    But that has no impact on Donner’s statement that it is nearly universally recognized that birth on soil creates natural born citizenship or the observations of others, that there is lack of clarity.

    I find the logic quite straightforward and well reasoned.

  140. avatar
    nbc September 15, 2012 at 7:32 pm #

    However, on the next page, Ms. Pryor wrote:

    “But the extent to which the colonies adopted British nationality law varied widely. It was unclear how existing precedents of nationality law applied to the colonies, since these cases dealt specifically with England or previously independent lands acquired by conquest or descent. Prominent jurists of the time disagreed over the proper legal analogy for the colonies, while the colonists wanted the protection of the British common law without being subject to control by Parliament.”

    Ms. Pryor makes a very important statement:

    “Thus, at the time of the framing of the Constitution, there was no common understanding of what ‘natural born citizen’ meant.”

    Again missing the point. You are confusing common law and nationality law, the latter is statute, the former, well common law. So there may indeed not have been a common understanding and yet universal acceptance that those born on soil were indeed natural born.

    There is a severe logical problem with you arguments, in addition to a failure to understand common law versus statutory law.

  141. avatar
    nbc September 15, 2012 at 7:36 pm #

    So far I conclude that this is an impressive effort to unravel the meaning of the term natural born but it fails so far as it confuses common and statutory law, as well as invokes a logical fallacy.

    Still, lots of good things to think about.

  142. avatar
    Mike Godkin September 15, 2012 at 8:01 pm #

    Dr. Conspiracy,

    Did I try to fool you into believing that I do have qualifications as an authority on Law.
    Whatever I wrote so far, was my opinion. If we have an authority among the commentators, I wouldn’t mind at all to be corrected by them.

    You wrote:

    “Remember that the Constitution only specifies two sources of citizenship ‘natural born’ and ‘naturalized’ (see Minor v. Happersett et al). For Wong Kim Ark to be a citizen, he must be one or the other.”

    I don’t remember that because the Constitution, as I remember, talks about a “citizen” and a “natural born Citizen” (once). Therefore, the second sentence of the above-mentioned paragraph doesn’t make much sense, does it? On the other hand, WKA was pronounced a citizen by the Court, but not a natural born Citizen.

  143. avatar
    nbc September 15, 2012 at 8:07 pm #

    I don’t remember that because the Constitution, as I remember, talks about a “citizen” and a “natural born Citizen” (once). Therefore, the second sentence of the above-mentioned paragraph doesn’t make much sense, does it? On the other hand, WKA was pronounced a citizen by the Court, but not a natural born Citizen.

    You really need to read US v WKA. The court observed only two source, birth and naturalization. Since the court observed that WKA could not be naturalized under the laws of the US, the court had to look at the other source of citizenship, called natural born citizenship.

    The court observed that the word natural born was left undefined in the Constitution so its meaning had to be found in common law. The court then showed how Common Law considered anyone born on soil, a natural born citizen, with some minor exceptions.

    Note that the government’s appeal brief raised the issue as follows:

    “Did the lower court err in finding Wong Kim Ark to be a natural born citizen”

    The dissenting judge similarly observed that under the majority ruling, it was unfair that children born to alien parent on US soil could run for president but children born to US citizens abroad, could not.

    I have quite an extensive resource on the lower court case, the Supreme Court case and the briefs filed in WKA. Check out nativeborncitizen.wordpress.com

    The Doc makes an excellent observation which you ignore

    With all due respect, you have no qualifications as an authority (not to mention being biased), and you present a false dichotomy between “holding” and “dictum” when the correct dichotomy is between “ratio decidendi” and “dictum.” In order to arrive at the holding that Wong Kim Ark was born a citizen is was necessary to argue that he was a citizen by the English Common Law definition of natural born subject and that subject and citizen were convertible terms.

    Do you understand the difference? Do you understand the distinction between common law and statutory law?

  144. avatar
    nbc September 15, 2012 at 8:35 pm #

    We don’t know what the term “natural born” means, but it is the same as “native-born?”

    We know for sure that it is native-born and that it excludes naturalized but are not sure about those born abroad to US citizens.

    It’s logically simple and I am somewhat confused why you keep making this fallacy?

  145. avatar
    brygenon September 15, 2012 at 8:39 pm #

    Mike Godkin: Rebekka Bonner made a statement that “There is near-universal agreement that all persons born within the United States are natural born.”

    What do you know Ms. Bonner didn’t know?

    Mike, that line, “What do you know [that so-and-so] didn’t?” That’s for when you find a good citation on *your* side. Your point was, “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” Your own citations show otherwise.

    Mike Godkin
    I spent a lot of time studying this “broad and universal” consensus and provided quite a few quotes from the constitutional scholars.

    You spent time trying to convince yourself of what you wanted to believe, and on that front, you succeeded. ‘Twas not easy to convince yourself of something so stupid, but you rose to the challenge.

    Mike Godkin
    It’s your turn now. Emotions aside, could you provide such a document (documents) proving such a consensus? I would be happy to learn something I didn’t know before. Please do it, and I will publicly acknowledge my “stupid point.”

    Been there. Done that.
    Contrary to what you now state, Mr. Godkin, your reaction was not to “publicly acknowledge” your errors. You simply snipped. I”m not anti-snipping — I wish people would snip more in the laudable cause of brevity — but snipping in denial of reality deserves to be called out.

    Now you say, “It’s your turn”. O.K. Same as my previous turn: It’s not like you had any counter to my observation: “You found scholar after scholar agreeing with what you claim is no consensus”. That’s just plain true. I noted the non-scholars you quoted who actually disagreed with the consensus: Breckinridge Long in 1916, then Cort Wrotnowski and Leo Donforio in 2008. Those are not *my* sources, Mike. They’re yours.

    Discredited as Long and the birthers stand, the bigger issue is the century in between. In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.

    The two-citizen-parent birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.

  146. avatar
    nbc September 15, 2012 at 8:52 pm #

    Let me repeat here a quotation from Bonner:

    “Native-born citizens are natural born pursuant to the almost universally recognized principle of jus soli, or citizenship as conferred by place of birth.”

    I have yet to find this quote in the article in question.

  147. avatar
    nbc September 15, 2012 at 9:35 pm #

    Dr. Conspiracy: The article is highly misleading when it cites questions about one as evidence of doubts about the other. This flaw is woven throughout the article time and time again. Professor Chin makes this clear in his Michigan Law Review article:

    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.

    One is controversial. One is not. A fair reading of most of the article’s sources say the same thing.

    My point exactly

  148. avatar
    Andy September 15, 2012 at 9:37 pm #

    Mike Godkin:
    Dr. Conspiracy,

    You wrote:

    “Remember that the Constitution only specifies two sources of citizenship ‘natural born’ and ‘naturalized’ (see Minor v. Happersett et al). For Wong Kim Ark to be a citizen, he must be one or the other.”

    I don’t remember that because the Constitution, as I remember, talks about a “citizen” and a “natural born Citizen” (once). Therefore, the second sentence of the above-mentioned paragraph doesn’t make much sense, does it? On the other hand, WKA was pronounced a citizen by the Court, but not a natural born Citizen.

    Sure it does. He is quoting Minor:
    “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”

  149. avatar
    Thomas Brown September 15, 2012 at 9:38 pm #

    I just love the duplicity of Birthers. I have now mentioned the case of Tom Vilsack to David Farrar, Mario Apuzzo, Jerry Collette, Tracy Fair, Scott Erlandson, and now Mike Godkin. Not one has ever responded. They just ignored me and changed the subject (see above), because the example of Vilsack PROVES that jus soli is the relevant (to BHO) basis of NBCship currently, and every jus sanguinis argument is dead… game over, checkmate, QED, end of story.

    Little wonder not a single Birther has yet dared to addressed this fact.

  150. avatar
    nbc September 15, 2012 at 9:38 pm #

    Mike Godkin:
    Gorefan,

    You made a statement:

    “And he ignores the early references to the President needing to be a native born citizen. And the interchangeable use of the term ‘natural born citizen’ and ‘natural born subject.’

    You probably missed my section “Natural born or native-born?” in which I discuss the issue.
    “And he ignored Chief Justice Fuller’s dissenting opinion.”

    I didn’t ignore his opinion. You just complained that my “article was real long.” It would have been much longer had I included everything related to this topic.

    In any case, what Justice Fuller said was a DICTUM, in other words, he just expressed his opinion for the record.

    Yes, but it helps understand what everyone else understood as well. So it put to rest your argument that WKA has nothing to do with natural born or the eligibility requirement.

    His opinion was based on a fair reading of the majority opinion…

  151. avatar
    Slartibartfast September 15, 2012 at 9:49 pm #

    Mike,

    Who would you accept as an authority?

    Mike Godkin: If we have an authority among the commentators, I wouldn’t mind at all to be corrected by them.

  152. avatar
    Jesus H. Christ September 15, 2012 at 10:14 pm #

    Slartibartfast:
    Mike,

    Who would you accept as an authority?

    Mike is wrong, I am the highest authority.

  153. avatar
    Dr. Conspiracy September 15, 2012 at 11:03 pm #

    I could have used Minor as the authority for my remark, but actually I had in mind the Supreme Court decision in Elk v. Wilkins (1884):

    The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’Const. art. 2, 1; art. 1, 8.

    As an additional authority, I add this from Congressman Hiram Bingham (1862):

    The Constitution leaves no room for doubt upon this subject. The words “natural-born citizen of the United States” occur in it, and the other provision also occurs in it that “Congress shall have power to pass a uniform system of naturalization.” To naturalize a person is to admit him to citizenship. Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth — natural-born citizens.

    Andy: Sure it does. He is quoting Minor:
    “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”

  154. avatar
    Andy September 15, 2012 at 11:08 pm #

    Dr. Conspiracy:
    I could have used Minor as the authority for my remark, but actually I had in mind the Supreme Court decision in Elk v. Wilkins (1884):

    As an additional authority, I add this from Congressman Hiram Bingham (1862):

    Oops! Sorry!

  155. avatar
    Squeeky Fromm, Girl Reporter September 15, 2012 at 11:11 pm #

    Actually, there are three kinds of natural born citizens:

    1. The Birther natural born citizens, born inside the United States, to two citizen parents, based on French law, and checked-out library books;

    2. Natural born citizens born outside the United States as declared by Congress; and

    3. The WKA natural born citizens, born inside the United States, to parents who are neither foreign diplomats, nor invading soldiers, based on English common law, American common law, and a long line of legal cases.

    Snark.

    Squeeky Fromm
    Girl Reporter

  156. avatar
    G September 15, 2012 at 11:12 pm #

    I agree with you assumptions and reasoning here.

    Squeeky Fromm, Girl Reporter: With Wong, most issues relating to natural born citizenship were solved en route to determining his citizenship. They were necessary findings because the 14th Amendment phraseology was in question, and since the 14th amendment was declaratory and affirming of previous common law, the court had to first determine what a natural born citizen was.

    Frankly, unless some person runs for office who has one parent who is a diplomat, or someone is a child of rape by an invading soldier, there aren’t a whole lot of nbc issues to be resolved. I guess Congress could over-reach or under-reach in declaring foreign born persons to be natural born citizens, or someone could raise the “aliens in amity” argument, but outside of that, WKA is dispositive of what a natural born citizen is.

  157. avatar
    Dr. Conspiracy September 15, 2012 at 11:18 pm #

    You’re violating context, equating a bit of the conversation to the whole argument.

    Mike Godkin: Isn’t it an example of circular logic? The topic of discussion is whether or not Obama is a natural born Citizen eligible to be President., but toVince Treacy Obama is eligible because he IS a natural born Citizen.

  158. avatar
    Expelliarmus September 16, 2012 at 12:33 am #

    Thomas Brown: I will mention for the umpteenth time Tom Vilsack. He is currently in line of emergency succession to the Presidency. He was a foundling. Nobody knows who his parents were, whether they were Russian spies, or if he was born with dual citizenship, or his parents were aliens— nothing is known except that he was born in Philadelphia. And yet he is considered a NBC, eligible to be President.

    Obviously I agree that anyone who is born on American soil is eligible to be President, but your Vilsack argument makes no sense. Vilsack is cabinet secretary — there is absolutely now requirement that a person be a natural-born (Presidential-eligible) citizen to be appointed to the Cabinet or elected to Congress.

    Former Secretary State Madeline Albright was a naturalized citizen, born in Czechoslovakia. Born in 1937, she became a US citizen in 1957, at age 20.

    Former Secretary of State Henry Kissinger was a naturalized citizen, born in Germany in 1923. He also became a citizen at age 20, after entering the US army in 1943.

    I am sure there are many other examples. Those are just the ones that leap immediately to mind for me.

    The Presidential Succession Act — http://www.law.cornell.edu/uscode/text/3/19 – specifies the order in which a Presidential vacancy is filled in the event of “death, resignation, removal from office, inability, or failure to qualify” of everyone who is up the ladder of succession. If the person holding office — whether as President of the Senate, Speaker of the House, or as cabinet member — is ineligible due to the citizenship clause, then that person would “fail to qualify” and next person down the list would become acting President.

    Thomas Vilsack would be deemed a natural born citizen — foundlings are presumed by law to be born in the place where they were found — but his status as Secretary of Agriculture is irrelevant to that determination.

  159. avatar
    Slartibartfast September 16, 2012 at 12:47 am #

    Expelliarmus,

    All of the other times (and there were several) that Thomas Brown mentioned Vilsack, he pointed out that he was a presidential candidate (and thus his relevancy to this discussion). Personally, as someone who’s birth certificate doesn’t list his parents (it lists my adoptive parents), I think that the question of Vilsack’s eligibility (and mine) is something every birther should be made to answer.

    Expelliarmus: Thomas Vilsack would be deemed a natural born citizen — foundlings are presumed by law to be born in the place where they were found — but his status as Secretary of Agriculture is irrelevant to that determination.

  160. avatar
    Expelliarmus September 16, 2012 at 1:09 am #

    Róger Calero was a candidate, and managed to get his name listed on the ballot in 5 states.

    I don’t believe Vilsack ever got as far as having his name listed even on any primary ballot. He announced his candidacy at the end of November in 2007, but withdrew three months later, more than 10 months before the Iowa primary. http://www.nytimes.com/2007/02/23/us/politics/23cnd-vilsack.html

    Again — I have no doubt that he would have qualified — but the fact that he once considered running for the office is not proof of that.

    Certainly there were more significant question raised about John McCain’s eligibility, and that never stopped him from running.

  161. avatar
    Slartibartfast September 16, 2012 at 1:14 am #

    Expelliarmus,

    That’s not the point—the point is that the birthers should be made to answer as to what they believe his status is as it is a case where their version of NBC cannot possibly be established even though he is, in all likelihood, the child of citizen parents.

  162. avatar
    Slartibartfast September 16, 2012 at 2:21 am #

    Doc,

    Mike’s use of cherry picking, straw men, and other logical fallacies in reference to Vince’s writing in particular annoys me. My first exposure to anti-birthing was Vince’s posts at Turley’s site and I know that in the face of the impeccably researched, flawlessly reasoned, meticulously supported (not to mention ever polite) legal arguments that Vince used to tirelessly unload on birthers of every ilk Mike wouldn’t last for a femtosecond. Mike’s twisting of Vince’s words—probably confident in the knowledge that Vince isn’t likely to notice something on a blog unrelated to Professor Turley’s and possibly aware that he hasn’t been filleting birthers for quite some time—seems pretty cowardly to me. I’m a big believer that people’s words should be held against them, which implies that dishonestly distorting someone’s words is, in essence, accusing them of something they did not do. I really wish that something like this would happen…

    Dr. Conspiracy:
    You’re violating context, equating a bit of the conversation to the whole argument.

  163. avatar
    Lupin September 16, 2012 at 2:29 am #

    Dr. Conspiracy: Unfortunately the only mention of “natural born citizen” anywhere in US law is the Article II section on presidential eligibility.

    Hello? Hello?

    We now know that is not true, since that very same term is employed in the law making Lafayette a NBC.

    I just posted that above.

  164. avatar
    Lupin September 16, 2012 at 2:34 am #

    I note with interest that Mr Godkin who felt the need to answer minute quibbles about his arguments did not answer my comment regarding his baseless and contemptible accusation:

    “So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”

  165. avatar
    Lupin September 16, 2012 at 2:36 am #

    Andy: “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”

    I’ll grant you that it is irrelevant to the present debate, and only concerned a few handful of persons in all of US history, but we have now established that this is FALSE.

    There is a third category: Honorary Citizens, who are NOT naturalized citizens.

  166. avatar
    Slartibartfast September 16, 2012 at 2:44 am #

    Lupin,

    You’re absolutely right—his baseless smear of Ms. Bonner, as well as his distortion of the writings of Mr. Treacy show that his polite, pseudo-scholarly facade is merely a flimsy cover for another shameless and dishonest birther.

    Lupin:
    I note with interest that Mr Godkin who felt the need to answer minute quibbles about his arguments did not answer my comment regarding his baseless and contemptible accusation:

    “So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”

  167. avatar
    Lupin September 16, 2012 at 2:52 am #

    Slartibartfast: You’re absolutely right—his baseless smear of Ms. Bonner, as well as his distortion of the writings of Mr. Treacy show that his polite, pseudo-scholarly facade is merely a flimsy cover for another shameless and dishonest birther.

    I guess he couldn’t contain his bile any longer and when he reached the end of his document, it erupted. The mask dropped.

  168. avatar
    Mike Godkin September 16, 2012 at 3:35 am #

    Nbc,

    You’ve stated;

    1) The 14th Amendment merely restated that one is either born on soil or naturalized to become a citizen of the United States.
    2) The same logic was followed by the Court in US v WKA where the Court found that the term natural born remained undefined in the Constitution. Realizing that WKA could not be a citizen through naturalization, they recognized that the only logical path to citizenship would be for WKA to be natural born.
    The Court looked at the history of the meaning of the word and found that it consistently referred to the location of birth, regardless of the status of the parents.

    I have a question for you and for everybody else: Why did the Court in the WKA case have to use common law to prove that WKA was a U.S. citizen?
    Why didn’t they just use Section 1 of the 14th Amendment?
    As we know, it says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
    WKA was born on American soil. What was the problem?

  169. avatar
    Slartibartfast September 16, 2012 at 3:46 am #

    Mike,

    Since the 14th Amendment was simply declaratory of existing law, they (being thorough) explored the basis of that law. Their job isn’t to get to the point quickly—it’s to provide a complete rationale for their decision.

    Will you answer my question about who you would accept as an authority? How about apologizing to Ms. Bonner for your unfounded accusations or Mr. Treacy for your distortions of his position?

    Mike Godkin: I have a question for you and for everybody else: Why did the Court in the WKA case have to use common law to prove that WKA was a U.S. citizen?
    Why didn’t they just use Section 1 of the 14th Amendment?

  170. avatar
    Mike Godkin September 16, 2012 at 3:51 am #

    Squeeky Fromm, Girl Reporter,

    Dr. Conspiracy wrote this:

    “That means that one can’t have a case trying a controversy about ‘natural born citizen’ apart from presidential eligibility.”

    You didn’t “entirely agree with this statement” and you wrote:

    “While the president must be a natural born citizen, there is a pretty large pool of people to choose from. Hundreds of millions of us are natural born citizens at this very moment. Should any of us become involved in a citizenship case, then at least some of the issues relating to natural born citizenship will be involved, whether we are running for the Presidency or not.”

    Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?

  171. avatar
    Slartibartfast September 16, 2012 at 3:58 am #

    Mike,

    US v. Wong Kim Ark. Since Mr. Wong could not, by law, have been naturalized, the court needed to find him natural born (or an alien).

    Are you going to answer my questions?

    Mike Godkin: Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?

  172. avatar
    Mike Godkin September 16, 2012 at 4:44 am #

    Brygenon,

    This is what you said:

    “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”

    You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

  173. avatar
    Lupin September 16, 2012 at 5:25 am #

    Mr Godkin:

    You keep repeating the same things & twisting or playing on words, but you have pointedly ignored the points made here (including by me) that blatantly contradict your weird theories regarding NB and dual citizens.

    It’s hard to take you seriously; you’re not debating, you’re parroting.

  174. avatar
    Northland10 September 16, 2012 at 7:18 am #

    Expelliarmus: Obviously I agree that anyone who is born on American soil is eligible to be President, but your Vilsack argument makes no sense. Vilsack is cabinet secretary — there is absolutely now requirement that a person be a natural-born (Presidential-eligible) citizen to be appointed to the Cabinet or elected to Congress.

    Thomas’s point might help if it looks into the Designated Survivor tradition. In 2000 and 2003 designated survivors both were born of one or two non-citizen parents. Loren did an article about a while ago.

    http://barackryphal.blogspot.com/2011/10/presidential-succession-and-designated.html

  175. avatar
    Northland10 September 16, 2012 at 7:28 am #

    Mike Godkin: You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

    Yet, there is a previous President born on American soil, after the Constitution, whose father was not an American citizen. This President was sworn in (the second time, to be safe) by the same Justice who wrote the the Minor decision. That would be Justice Waite who swore in President Chester Arthur.

    When I have mentioned this previously, the response, when it was not crickets, was that Waite did not really have much of a choice and it had to be done. However, Chester Arthur had already been sworn in by a state judge after Garfield died and Waite’s administration of the was done out of an abundance of caution since the first one was not a federal judge. Waite did not need to do it himself.

    I guess we have a tradition of Presidents with a non-citizen father being sworn in twice for their first term.

  176. avatar
    Andy September 16, 2012 at 8:25 am #

    Mike Godkin:
    Brygenon,

    This is what you said:

    “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”

    You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

    You know that for a fact? You’ve seen the birth records of all of those parents of every President we’ve had “in your time?” I doubt it.

  177. avatar
    Majority Will September 16, 2012 at 8:54 am #

    Andy: You know that for a fact?You’ve seen the birth records of all of those parents of every President we’ve had “in your time?”I doubt it.

    As well as all presidential and vice-presidential candidates.

  178. avatar
    Squeeky Fromm, Girl Reporter September 16, 2012 at 9:03 am #

    Mike,

    Wong Kim Ark. He was not a naturalized citizen.

    That also answers your question why the first line of the 14th Amendment wasn’t sufficient to find WKA a citizen. The problem was the “subject to the jurisdiction thereof” language. Everyone admitted he was born in the U.S.

    That is why the court determined the meaning of natural born citizenship. That common law concept was what the 14th Amendment was declarative of. And what the 14th Amendment affirmed.

    This is also why all the natural born citizenship analysis was not just gratuitous dicta, but essential to the decision.

    Squeeky Fromm
    Girl Reporter

  179. avatar
    realist September 16, 2012 at 9:43 am #

    Dr. Conspiracy:
    I don’t quite agree there. Persons born citizens outside of the United States have a special status because the 14th Amendment doesn’t apply to them (being neither born in the United States nor naturalized in the United States).

    See Rogers v. Bellei.

    Since this thread is about Mr. Godwin’s interpretation of nbc, I’ll not get into it here except to say that i disagree that Rogers v Bellei does any such thing and distinguish between those three terms. Perhaps for a later discussion.

  180. avatar
    Paper September 16, 2012 at 10:24 am #

    Ha, ha. There’s a fourth kind, sort of, we can argue about it!

    A person of unknown parentage found in the United States while under the age of five years who is not shown, before reaching the age of twenty-one, to have been born elsewhere.

    Yes, it’s one of the circumstances as declared by Congress, but what makes it a fourth kind is that we don’t know where the person was born.

    Squeeky Fromm, Girl Reporter:
    Actually, there are three kinds of natural born citizens:

    1. The Birther natural born citizens, born inside the United States, to two citizen parents, based on French law, and checked-out library books;

    2. Natural born citizens born outside the United States as declared by Congress; and

    3.The WKA natural born citizens, born inside the United States, to parents who are neither foreign diplomats, nor invading soldiers, based on English common law, American common law, and a long line of legal cases.

    Snark.

    Squeeky Fromm
    Girl Reporter

  181. avatar
    Reality Check September 16, 2012 at 10:25 am #

    I do not know if Mike Godkin is a Birther or not but he certainly seems to be devolving towards the classic Birther arguments. Eventually, they all hit a stone wall at WKA and have to start lying and tap dancing to get around this simple truth. They can never get around this simple set of questions:

    1. The SC has stated multiple times (and even in WKA) that there are only two ways to make citizens and therefore two classes of citizens, natural or native born and naturalized. Correct?
    2. The court said WKA could not be a naturalized citizen. So what kind of citizen was WKA? (HINT: see #1).

    Birthers, apparently devoid of any ability to use deductive reasoning at the most basic level say WKA is a citizen, period. Then they wonder why every judge laughs at their arguments.

  182. avatar
    Paper September 16, 2012 at 10:37 am #

    I think an honorary citizen would likely fall under the category of naturalization, a kind of naturalization fitting under the constitutional authority of Congress to naturalize. Otherwise, where is the authority to make honorary citizens?

    Lupin: I’ll grant you that it is irrelevant to the present debate, and only concerned a few handful of persons in all of US history, but we have now established that this is FALSE.

    There is a third category: Honorary Citizens, who are NOT naturalized citizens.

  183. avatar
    Lupin September 16, 2012 at 11:30 am #

    Paper: I think an honorary citizen would likely fall under the category of naturalization, a kind of naturalization fitting under the constitutional authority of Congress to naturalize. Otherwise, where is the authority to make honorary citizens?

    Not according to the wikipage I linked to above, Honorary Citizenship is something quite different; being a Honorary Citizen, for example, does not entitle you to a US passport (which I find incomprehensible).

    So you’re less than a Naturalized citizen; to me it does look like a third, distinct category of citizenship.

    Now, clearly, we’re talking the equivalent of a footnote to a footnote, since it concerned seven people in the entire US history –and in some cases their male descendents.

    This is likely why this rare and special category is routinely ignored when discussing the matter of US citizenship.

    But i was extremely punctilious about details and meanings when I translated Vattel here, and I can’t help but feel that I — perhaps, we — should be equally meticulous here.

  184. avatar
    brygenon September 16, 2012 at 12:04 pm #

    Mike Godkin:
    Brygenon,

    This is what you said:

    “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”

    You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

    Before we turn to this other matter, are you retracting your false claim: “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency”? That was what you said was your point, even as your own citations soundly refuted it.

    Clearly we also need a big red X through your line, “nothing but the truth.”

  185. avatar
    Thomas Brown September 16, 2012 at 12:20 pm #

    Northland10: Thomas’s point might help if it looks into the Designated Survivor tradition.In 2000 and 2003 designated survivors both were born of one or two non-citizen parents.Loren did an article about a while ago.

    http://barackryphal.blogspot.com/2011/10/presidential-succession-and-designated.html

    That was exactly my point: numerous people have been put in the line of succession to take over as President in an emergency who didn’t have two citizen parents, and numerous others have been run, by both parties, as candidates. I contend that this proves that until the scary black guy with the foreign-sounding name became President, the definition of NBC as “born on US soil to anyone (with minor exceptions), or off-soil to a citizen” was never in doubt, and the only reason it is being argued now is partisan animus. It’s a lynching attempt with no rope, and it stinks to high heaven.

    Arguing otherwise is insane. Period. You can argue that the currently accepted definition is wrong, but not that it isn’t what it is.

  186. avatar
    Dr Kenneth Noisewater September 16, 2012 at 2:20 pm #

    Mike Godkin:
    Brygenon,

    This is what you said:

    “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”

    You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

    Or there was no requirement for one to be born of Citizen parents. Like for instance Chester A Arthur whose father wasn’t naturalized when he was born. Or VP Charles Curtis whose mother wasn’t.

  187. avatar
    nbc September 16, 2012 at 2:21 pm #

    I have a question for you and for everybody else: Why did the Court in the WKA case have to use common law to prove that WKA was a U.S. citizen?
    Why didn’t they just use Section 1 of the 14th Amendment?
    As we know, it says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
    WKA was born on American soil. What was the problem?

    Because the Government had claimed that it was international law not common law, and certainly not English common law which guided the interpretation and meaning of the term natural born.

    If you had read the 1) lower court ruling 2) the appeal briefs, you would not have to ask these questions.

    The court in WKA explains

    he question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,

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

    I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.

    Did you read the case?

  188. avatar
    nbc September 16, 2012 at 2:31 pm #

    Lupin: It’s hard to take you seriously; you’re not debating, you’re parroting.

    What I find also fascinating is his focus on Ms Bonner who wrote a minor contribution on a blog. He starts with insinuating that she was working on behalf of the Obama campaign, then he pretends that her arguments are somehow illogical when it is his own logic that has failed him.

    So far I am not very impressed as at the foundation of his article lie some assumptions which are fallacious. Time to rewrite I guess.

    PS: You quoted from Ms Bonner’s blog contribution a reference which you claimed was similar to Pryor’s but I have yet to find it?

  189. avatar
    Paper September 16, 2012 at 2:53 pm #

    I agree about being meticulous, and I’m not much invested here. I do like exploring fine distinctions.

    Regarding the limits of honorary citizenship, I don’t find that much strange. An honorary degree, for example, doesn’t make Stephen Colbert a doctor no matter how much he has fun with it.

    My question was about where Congress gets the authority to pass such acts in the first place. The Wikipedia page you reference just says these citizenships result from acts of Congress, but the Congress gets its authority from the constitution (it cannot just pass any act it desires), and in the constitution Congress is given authority over naturalization, or making citizens of those not born here. That authority, as I read it, lets them set limits, of any nature they decide.

    Even a regular naturalized citizen is not 100% unlimited in their citizenship, beyond the presidency, as they can be stripped of their citizenship in certain extreme circumstances in a way that natural born citizens cannot. So from that 99.9999999% limit to something much less in an honorary citizenship.

    So for me, that reads as a subset of naturalization. I would not be put off by some other legal showing or result, but I don’t as yet see that as a separate category of citizenship.

    Lupin: Not according to the wikipage I linked to above, Honorary Citizenship is something quite different; being a Honorary Citizen, for example, does not entitle you to a US passport (which I find incomprehensible).

    So you’re less than a Naturalized citizen; to me it does look like a third, distinct category of citizenship.

    Now, clearly, we’re talking the equivalent of a footnote to a footnote, since it concerned seven peoplein the entire US history –and in some cases their male descendents.

    This is likely why this rare and special category is routinely ignored when discussing the matter of US citizenship.

    But i was extremely punctilious about details and meanings when I translated Vattel here, and I can’t help but feel that I — perhaps, we — should be equally meticulous here.

  190. avatar
    nbc September 16, 2012 at 3:02 pm #

    I agree about being meticulous, and I’m not much invested here. I do like exploring fine distinctions.

    Yes there is also citizenship by “private bill”

    Private bills are, on rare occasions, used to provide relief to individuals, often in immigration cases, and are also passed by Congress and signed into law by the President. One such statute, granting Elian Gonzalez U.S. citizenship, was suggested in 1999, but was never enacted.[19]

  191. avatar
    nbc September 16, 2012 at 3:04 pm #

    Mike Godkin: You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.

    Which of course means that one should be careful not to confuse necessary with sufficient. Surely you would not engage in such a logical fallacy?

  192. avatar
    roadburner September 16, 2012 at 5:07 pm #

    Lupin: Not according to the wikipage I linked to above, Honorary Citizenship is something quite different; being a Honorary Citizen, for example, does not entitle you to a US passport (which I find incomprehensible).

    So you’re less than a Naturalized citizen; to me it does look like a third, distinct category of citizenship.

    it’s pretty much like an honorary doctorate – you know it actually means squat apart from a `we give you thumbs up’ from the place that issued it. if you actually tried to use it, you’d end up in the crap.

    in the world that i move in, there was a time when some MC’s would honour freinds of the club who were serving military, and therefore unable to fulfil their obligations to the club. an honourary full patch would be granted including the right to wear full colours. but as far as vote and voice was concerned, there was none within the club for an honourary member, just simply the right to wear the colours.

  193. avatar
    Mike Godkin September 16, 2012 at 5:37 pm #

    Slartibartfast ,
    “Are you going to answer my questions?”
    Yes.

  194. avatar
    nbc September 16, 2012 at 5:42 pm #

    Can’t wait for your much revised version of your paper. Let’s see if you have learned.

  195. avatar
    Slartibartfast September 16, 2012 at 5:54 pm #

    As I noted to Lupin upthread:

    Slartibartfast:
    René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?

    It appears that it means more than “squat”… 😉

    roadburner: it’s pretty much like an honorary doctorate – you know it actually means squat apart from a `we give you thumbs up’ from the place that issued it. if you actually tried to use it, you’d end up in the crap.

  196. avatar
    Slartibartfast September 16, 2012 at 5:55 pm #

    Thank you.

    Mike Godkin:
    Slartibartfast ,
    “Are you going to answer my questions?”
    Yes.

  197. avatar
    Mike Godkin September 16, 2012 at 6:07 pm #

    Brygenon,

    Let’s try to put two and two together.

    1) You said: “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”

    2) I said: “You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the ‘natural born Citizen’ because all the presidents ‘in our time’ were born on American soil to the parents who were at that time American citizens.”

    3) You said: “Before we turn to this other matter, are you retracting your false claim: ‘There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency’? That was what you said was your point, even as your own citations soundly refuted it.
    Clearly we also need a big red X through your line, ‘nothing but the truth.’”

    Do you see the difference between just “being born on American soil” and being born on American soil to two American citizens when it comes to presidential eligibility?

    As far as “nothing but the truth,” you’ve missed my point entirely. And you missed the irony of it. In my “Final remarks” I mentioned that Professor Seymore made a disclaimer:
    “This article was not written to advance the political candidacy of anyone currently on the political scene.”

    I suggested that Ms. Bonner, Jack Maskell, or really anybody else writing on such a politically sensitive subject should have made this statement, which would be a substitute for the oath to tell “nothing but the truth.”

  198. avatar
    Keith September 16, 2012 at 6:42 pm #

    Lupin: Not according to the wikipage I linked to above, Honorary Citizenship is something quite different; being a Honorary Citizen, for example, does not entitle you to a US passport (which I find incomprehensible).

    So you’re less than a Naturalized citizen; to me it does look like a third, distinct category of citizenship.

    Its like getting the “Keys to the City”. Its an honor but it doesn’t get you anything tangible.

  199. avatar
    Dr Kenneth Noisewater September 16, 2012 at 6:42 pm #

    Mike Godkin: 2) I said: “You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the ‘natural born Citizen’ because all the presidents ‘in our time’ were born on American soil to the parents who were at that time American citizens.”

    Probably because in our time no one cared about two citizen parents until a black man came close to being nominated. There isn’t a general consensus of when VP Agnew’s father naturalized. According to the 12th amendment in order to be VP you need to qualify to be President. Also VP Charles Curtis’ mother wasn’t a citizen at his birth

  200. avatar
    Mike Godkin September 16, 2012 at 6:45 pm #

    I have a question for everyone.

    All of you are talking about the WKA case. That’s great!
    When did it take place? In 1898, right”
    The Constitution was adopted in 1787.

    Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
    Somehow, all those Courts reached conclusions without a reference to the WKA case.

    Let me remind to everybody that I am not a lawyer.

    Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

    After all, the U.S. Constitution is the Supreme Law of the land.

  201. avatar
    Slartibartfast September 16, 2012 at 6:46 pm #

    Except it does:

    Slartibartfast: René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?

    Keith: Its like getting the “Keys to the City”. Its an honor but it doesn’t get you anything tangible.

  202. avatar
    Slartibartfast September 16, 2012 at 6:52 pm #

    Mike,

    The 14th Amendment, being merely declaratory of existing law, does not provide the rationale as to why Mr. Wong would have been a citizen had he been born in the country in 1787 (or 1760, for that matter). They were being thorough—as is appropriate for the highest judicial body in our nation.

    Mike Godkin:
    I have a question for everyone.

    All of you are talking about the WKA case. That’s great!
    When did it take place? In 1898, right”
    The Constitution was adopted in 1787.

    Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
    Somehow, all those Courts reached conclusions without a reference to the WKA case.

    Let me remind to everybody that I am not a lawyer.

    Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

    After all, the U.S. Constitution is the Supreme Law of the land.

  203. avatar
    Keith September 16, 2012 at 6:52 pm #

    Slartibartfast:
    As I noted to Lupin upthread:

    It appears that it means more than “squat”…

    From Wikipedia on Honorary Citizenship:

    Lafayette did not receive honorary citizenship of the United States until 2002, but did become a natural born citizen during his lifetime. On 28 December 1784, the Maryland General Assembly passed a resolution stating that Lafayette and his male heirs “forever shall be…natural born Citizens” of the state.[12] This made him a natural born citizen of the United States under the Articles of Confederation and as defined in Section 1 of Article Two of the United States Constitution.[13][14][15][2] In 1803 and 1804, President Jefferson offered to make him Governor of Louisiana,[16] and in 1932, descendant René de Chambrun established his American citizenship based on the Maryland resolution.[17][18] For the others, what rights honorary citizenship bestows, if any, is unclear; it does not grant eligibility for United States passports.[1]

    Honorary citizenship should not be confused with citizenship or permanent residency bestowed by a private bill. Private bills are, on rare occasions, used to provide relief to individuals, often in immigration cases, and are also passed by Congress and signed into law by the President. One such statute, granting Elian Gonzalez U.S. citizenship, was suggested in 1999, but was never enacted.[

    de Chambrun didn’t sue for NBC under the Honorary Citizenship granted in 2002; he sued under the NBC granted in 1784.

  204. avatar
    nbc September 16, 2012 at 6:52 pm #

    Mike Godkin: Do you see the difference between just “being born on American soil” and being born on American soil to two American citizens when it comes to presidential eligibility?

    Nope, they are the same as the eligibility requirement includes that such a person must have been “natural-born”, a concept which was well understood in common law to mean “born on soil, subject to jurisdiction”, the latter to exclude the well known common law exceptions of children born to foreign dignitaries or invading military, and in the US, Indians not paying taxes as they were not born under our jurisdiction.

    I am still confused as to what causes your confusions here.

  205. avatar
    Keith September 16, 2012 at 6:54 pm #

    Mike Godkin: Do you see the difference between just “being born on American soil” and being born on American soil to two American citizens when it comes to presidential eligibility?

    No. There is no distinction (except for those not under jurisdiction of the United States).

    End of story.

    Why is this so hard for you?

  206. avatar
    nbc September 16, 2012 at 6:54 pm #

    Mike Godkin: Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

    After all, the U.S. Constitution is the Supreme Law of the land.

    I already attempted to explain this, as did the Court in US v Wong Kim Ark.

    If you had familiarized yourself with the case, the briefs filed and the ruling, you would not have had to make such a foolish request.

    Please Mike show at least some familiarity with the case… There is no excuse for not having read the lower court opinion, the briefs, and the ruling (and dissent) as well as the law article written soon thereafter.

    So what is preventing you from doing so?

  207. avatar
    Slartibartfast September 16, 2012 at 6:55 pm #

    I stand corrected. Sorry. Thank you for pointing out the nuance that I was missing.

    Keith: de Chambrun didn’t sue for NBC under the Honorary Citizenship granted in 2002; he sued under the NBC granted in 1784.

  208. avatar
    Paper September 16, 2012 at 6:56 pm #

    That is different. The honorary citizenship given in 2002 is not what helped de Chambrun. His case was based on Maryland’s 1784 resolution that Lafayette and his male heirs would forever be natural born citizens. That is its own fine wine of distinctions.

    Slartibartfast:
    Except it [honorary citizenship] does:

  209. avatar
    Slartibartfast September 16, 2012 at 7:00 pm #

    I would also note that it has been pointed out to me here in the past that the language of the Maryland law is typical “naturalization” language and doesn’t necessarily make Mr. de Chambrun (or Lafayette) natural born—hence my question about his presidential eligibility depending on the parent his descent from Lafayette was through (if it was his father, then he would have been the child of a US citizen as well as a citizen by the Maryland law).

    Keith: de Chambrun didn’t sue for NBC under the Honorary Citizenship granted in 2002; he sued under the NBC granted in 1784.

  210. avatar
    Keith September 16, 2012 at 7:04 pm #

    Mike Godkin: Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
    Somehow, all those Courts reached conclusions without a reference to the WKA case.

    Only one was significant to the matter at hand. Scott v. Sanford – the “Dred Scott decision”. Universally acknowledged as the worst, most wrongheaded decision in the history of the SCOTUS.

    The universal condemnation of the Dred Scott decision led directly to the 14th Amendment the 1st sentence of the 1st section of which specifically overturns the Dred Scott Decision (the 2nd sentence in the 1st section overturned Barron v Baltimore, another wrongheaded SCOTUS decision which held that the Bill of Rights did not apply to State Governments).

  211. avatar
    Paper September 16, 2012 at 7:04 pm #

    Keep in mind that in 1784 we were operating under the Articles of Confederation, in which states, such as Maryland, had much more autonomy and power. This is a classic case of being grandfathered in, before the Constitution was adopted.

    Slartibartfast:
    I would also note that it has been pointed out to me here in the past that the language of the Maryland law is typical “naturalization” language and doesn’t necessarily make Mr. de Chambrun (or Lafayette) natural born…

  212. avatar
    nbc September 16, 2012 at 7:08 pm #

    Mike Godkin: As far as “nothing but the truth,” you’ve missed my point entirely. And you missed the irony of it. In my “Final remarks” I mentioned that Professor Seymore made a disclaimer:
    “This article was not written to advance the political candidacy of anyone currently on the political scene.”

    I suggested that Ms. Bonner, Jack Maskell, or really anybody else writing on such a politically sensitive subject should have made this statement, which would be a substitute for the oath to tell “nothing but the truth.”

    This is just beyond belief. You are basically calling us and others to be ‘liars’? Confirming that which already was clear from the onset with your poor treatment of Ms Bonner’s paper and the mysterious reference.

    Telling the truth my friend does not mean telling the ‘truth as you believe it to be’.

    So I am looking forward to you revising the many flaws in your paper.

  213. avatar
    Squeeky Fromm, Girl Reporter September 16, 2012 at 7:09 pm #

    Mike,

    I done told you why, above. I also gave you a natural born citizen case. Here it is again:

    That also answers your question why the first line of the 14th Amendment wasn’t sufficient to find WKA a citizen. The problem was the “subject to the jurisdiction thereof” language. Everyone admitted he was born in the U.S.

    That is why the court determined the meaning of natural born citizenship. That common law concept was what the 14th Amendment was declarative of. And what the 14th Amendment affirmed.

    This is also why all the natural born citizenship analysis was not just gratuitous dicta, but essential to the decision.
    —————–
    Now, for something new. You seem to be surprised that there is an Arrow of Time, and it moves in one direction. The judges in cases prior to 1898 did not yet know about WKA. That is why they didn’t reference it.

    Moving along to the next point, Courts had to decide whether the 14th Amendment was a brand spanking new law, or simply declarative of the old common law concept of natural born citizenship. This was because the 14th Amendment also had the “Privileges and Immunities” and “Equal Protection” clauses built into it, where every citizen was supposed to have the same rights.

    Did the 14th Amendment therefore expand the individual rights of citizens???This is what Virginia Minor sued under in 1875 in the Minor case. She said, “Gee, if I have the same rights as every other citizen”, then when can’t I vote like the men can???

    The Minor court found that “voting” was NOT an inherent right of citizenship PRIOR to the 14th Amendment, and therefore was not an inherent right after. Because the 14th Amendment did not create any new rights. Here is what the Minor Court said:

    “The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.”

    See, the 14th Amendment did not create new classes of citizens. If you study the history of natural born citizenship, you find that the Dred Scott decision made exception to the old common law rule, and held blacks were not natural born citizens. The 14th Amendment got things back on course.

    And, if the concept of “jurisdiction” was already present in the concept of natural born citizenship, then it was obvious that the 14th Amendment, being declarative in nature, and NOT brand spanking new law, had the same definition. This is why 14th Amendment “born in the U.S.” citizens are the same as the old natural born citizens.

    Both are born here, and both are under the jurisdiction. And neither requires two citizen parents.

    Squeeky Fromm
    Girl Reporter

  214. avatar
    Slartibartfast September 16, 2012 at 7:12 pm #

    Just more reason why I find the question of Mr. de Chambrun’s eligibility for the presidency fascinating…

    Paper:
    Keep in mind that in 1784 we were operating under the Articles of Confederation, in which states, such as Maryland, had much more autonomy and power. This is a classic case of being grandfathered in, before the Constitution was adopted.

  215. avatar
    Scientist September 16, 2012 at 7:13 pm #

    Mike Godkin: Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.
    After all, the U.S. Constitution is the Supreme Law of the land.

    It was quite sufficient as the Supreme Court ruled. If you are asking why a govenment official attempted to deny his citizenship, the simple answer is that they were wrong (which is what the court said). it has to do with the Chinese Exclusion Acts, a sad chapter in American history, which you ought to read about before shooting your mouth off.

    Now that I have answered your question, please answer mine: Why do you disregard state courts and lower federal courts, which have ruled that Obama is eligible? The way the system works is that they are assumed not to be idiots and their decisions are law unless and until the Supreme Court decides to overturn them, which is frankly a rather uncommon event. At least 99% of appeals to the SCOTUS from state and lower federal courts are not heard and of the <1% that are heard the majority are upheld. So Ankeny is the law unless and until the SCOTUS says otherwise. Don't hold your breath. Or do. They are your lungs, not mine.

    You pretend that the only opinions are from scholars, But that isn't so. Courts have spoken. That you block your ears to what they say doesn't change the fcs.

  216. avatar
    Paper September 16, 2012 at 7:18 pm #

    As Squeeky pointed out upthread, “subject to jurisdiction” is the whole point of WKA.

    And, to address your concern, it *was* the end of the story. Thus, there are no serious questions about Obama’s eligibility based on the invention of a parental requirement. People bring it up and get pointed right back to WKA. Simple. Done. No one has made a dent in WKA. Time for an after dinner stroll.

    Mike Godkin:

    Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

  217. avatar
    Paper September 16, 2012 at 7:20 pm #

    It is fascinating, but I think it doesn’t change much. I do not think a state could do this today.

    Slartibartfast:
    Just more reason why I find the question of Mr. de Chambrun’s eligibility for the presidency fascinating…

  218. avatar
    Scientist September 16, 2012 at 7:24 pm #

    Let me repeat again for Mr Godkin- State and lower federal courts ARE NOT CHOPPED LIVER. They are real actual courts whose judgements are fully valid. When they say Mr Obama is eligible, whether he had 2,1 or 0 citizen parents, then HE IS ELIGIBLE. If SCOTUS disagrees then they can overturn one of the decisions, but up until the very instant they do so, the lower court rulings are the LAW. Since SCOTUS has not overturned a single one of the decisons stating Mr Obama is eligible, HE IS ELIGIBLE.

    So what scholars say or don’t say is all very well, but the law is what courts say. And in case Mr Godkin missed it, COURTS SAY YOU DON’T NEED CITIZEN PARENTS.

    Did you get that? Should I say it again?

  219. avatar
    Paper September 16, 2012 at 7:28 pm #

    As Scientist points out, it is the end of the story unless and until it isn’t. So you can try and change the story going forward, if you so desire, but you’re not going to succeed by misinterpreting the past.

  220. avatar
    Scientist September 16, 2012 at 7:34 pm #

    Paper: As Scientist points out, it is the end of the story unless and until it isn’t. So you can try and change the story going forward, if you so desire, but you’re not going to succeed by misinterpreting the past.

    Although Ankeny was not appealed to SCOTUS, I expect that some of the other state court decisions that have followed the logic of Ankeny will be once all other appeals are denied. I would bet a considerable amount of money that SCOTUS declines to hear the appeals.

    What does that mean Mr Godkin? That OBAMA IS ELIGIBLE. Whether or not you agree is irrelevant, since you are not a judge (sorry to be so blunt, but your opinions are not law unless you are a judge).

  221. avatar
    Northland10 September 16, 2012 at 7:46 pm #

    Squeeky Fromm, Girl Reporter: Now, for something new. You seem to be surprised that there is an Arrow of Time, and it moves in one direction. The judges in cases prior to 1898 did not yet know about WKA. That is why they didn’t reference it.

    Wonderful.

  222. avatar
    Rickey September 16, 2012 at 8:12 pm #

    Scientist:

    Now that I have answered your question, please answer mine:Why do you disregard state courts and lower federal courts, which have ruled that Obama is eligible?

    Godkin appears to be under the false impression that the only precedent which counts is binding precedent. Of course, the reality is that courts will consider any relevant precedent, whether binding or not. That is why the defendants keep bringing up the Ankeny decision and why courts outside of Indiana have referenced Ankeny.

    Godkin has no discernible legal training or experience, so it is not surprising that he does not understand such things.

  223. avatar
    Rickey September 16, 2012 at 8:25 pm #

    Mike Godkin:

    Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

    After all, the U.S. Constitution is the Supreme Law of the land.

    If you read the Wong Kim Ark case, as well as the brief filed by the government, you will find the answer for yourself.

    The government argued that WKA was not subject to the jurisdiction of the United States because he was subject to the jurisdiction of China. The Supreme Court rejected that argument.

    As others have pointed out, the government’s brief also stated that the Court of Appeals ruled that WKA was a natural-born citizen AND that if WKA was a citizen, it meant that he was eligible to be President.

    http://nativeborncitizen.wordpress.com/2012/05/26/us-v-wong-kim-ark-brief-on-behalf-of-the-appellant-government/

  224. avatar
    Thomas Brown September 16, 2012 at 8:57 pm #

    Mike hasn’t considered the Chinese Exclusion Act.

  225. avatar
    Mike Godkin September 16, 2012 at 9:18 pm #

    Northland10

    Squeeky Fromm, Girl Reporter:

    “Now, for something new. You seem to be surprised that there is an Arrow of Time, and it moves in one direction. The judges in cases prior to 1898 did not yet know about WKA. That is why they didn’t reference it.”

    Northland10:
    “Wonderful.”

    Neither you, nor Squeeky has a sense of humor. I’ve learned my lesson.

    This is what I wrote:

    “Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
    Somehow, all those Courts reached conclusions without a reference to the WKA case.”

    Let me re-phrase myself:

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

    Did you really think that I am disoriented in time?

  226. avatar
    G September 16, 2012 at 9:27 pm #

    Your reasoning and points are often hard to follow.

    Because I’m still not sure what exactly your point is, in regards to the 14th Amendment at all…

    I just want to add a point of clarification here that the 14th Amendment was ratified in 1868 and was one of the post Civil War Reconstruction Amendments. Much of the 14th Amendment was in direct response and opposition to the travesty of the Dred Scott case in 1857, which was trying to prevent black people from being citizens.

    Mike Godkin:
    I have a question for everyone.

    All of you are talking about the WKA case. That’s great!
    When did it take place? In 1898, right”
    The Constitution was adopted in 1787.

    Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
    Somehow, all those Courts reached conclusions without a reference to the WKA case.

    Let me remind to everybody that I am not a lawyer.

    Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

    After all, the U.S. Constitution is the Supreme Law of the land.

  227. avatar
    Keith September 16, 2012 at 9:30 pm #

    Mike Godkin: Let me re-phrase myself:

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

    Did you see my answer to your statement? I understood you perfectly. Do you understand my reply?

  228. avatar
    Rickey September 16, 2012 at 9:36 pm #

    Mike Godkin:

    Let me re-phrase myself:

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

    That’s easy. The Supreme Court never before had to address the same issues which were raised in the WKA case, and it never before had to respond to the same legal arguments.

    Minor v. Happersett, for example, was not about Minor’s citizenship. It was about whether Minor’s citizenship meant that she had the right to vote.

  229. avatar
    nbc September 16, 2012 at 9:44 pm #

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

    Did you really think that I am disoriented in time?

    Just confused as to the reason the Court in WKA followed precedent and why it looked at the meaning of the term natural born.

    Have you even read the case?

  230. avatar
    Paper September 16, 2012 at 9:47 pm #

    Perhaps you could list some of these cases you are thinking of, so that they could be considered here. We wouldn’t want anyone to think you are just assuming the existence of such cases, correct?

    Mike Godkin:
    Let me re-phrase myself:

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

  231. avatar
    nbc September 16, 2012 at 9:58 pm #

    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.

    Which shows that the 14th amendment is irrelevant to WKA being a citizen.

  232. avatar
    Northland10 September 16, 2012 at 10:03 pm #

    Paper: Perhaps you could list some of these cases you are thinking of, so that they could be considered here.

    There was pretty well known one around 160 years ago, I think. Maybe he was referring to that one.

  233. avatar
    G September 16, 2012 at 10:16 pm #

    Ok. That does help better translate what you intended to say.

    In regards to what you have just said, the answer is what many have already pointed out – because a common law understanding of citizenship already existed. As repeatedly mentioned, neither the 14th Amendment nor any of these other cases created new types of citizenship, they merely reiterated and reinforced the general understanding that was already there, which was:

    There are two general paths to citizenship – obtaining it via birth or via a naturalization process. Simple as that.

    Mike Godkin: Let me re-phrase myself:
    Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.
    Did you really think that I am disoriented in time?

  234. avatar
    brygenon September 16, 2012 at 10:43 pm #

    Mike Godkin: Do you see the difference between just “being born on American soil” and being born on American soil to two American citizens when it comes to presidential eligibility?

    Before turning to your tangents, how about your point that I disputed:

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.

    Your own citations show your point to be false. You found scholar after scholar agreeing with what you claim is no consensus. On the other side, you had to go back to a 1916 hit piece against Charles Evans Hughes, and it argued, “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.” Are you aware whether Barack Obama was born before or after the adoption of the 14’th Amendment?

    Then there’s a long gap, then you cite a November 2008 brief by the *losers* of Wrotnowski v. Bysiewicz. Those are not constitutional scholars; they’re birthers and they only started with their two-citizen-parent nonsense when Barack Obama was winning.

    Do you know what a consensus is? What you found — scholars agreeing that birth on American soil is sufficient and none saying it’s not — that’s a consensus. I can find more disagreement with the laws of thermodynamics.

  235. avatar
    Dr. Conspiracy September 16, 2012 at 11:28 pm #

    It would have been the end of the story except for the Chinese Exclusion Act. I suggest you read Mr. Collins brief in support of the government position. He argues that a nation has the right to determine who its citizens are, and that the Congress has the right to exclude someone from citizenship if it wants to, and therefore the Chinese Exclusion Act that made Wonk Kim Ark not a citizen by birth is, according to him, constitutional.

    The Constitution never goes into any detail as to who the citizens of the United States are except that some are “natural born citizens” which is a citizenship obtained by the situation of someone’s birth and not the same as naturalization. If someone is a citizen by the common law, then a statute can be passed to change that law.

    In the case of Wong Kim Ark, I think the 14th amendment is important in the decision. While Wong was clearly a citizen at birth under the common law definition of natural born citizen, the 14th Amendment made it impossible to legislate against the citizenship of someone born in the United States and subject to its jurisdiction.

    Wong Kim Ark was the first case where the Supreme Court addressed the question of whether Congress could exclude someone born in the US as a citizen. Prior to Wong, the Circuit Court in California had made a similar determination in the case of Look Tin Sing (but it was not appealed to the Supreme Court for some reason).

    Mike Godkin: Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.

  236. avatar
    Paper September 16, 2012 at 11:37 pm #

    That is a really excellent point.

    Dr. Conspiracy:

    …the 14th Amendment made it impossible to legislate against the citizenship of someone born in the United States and subject to its jurisdiction.

  237. avatar
    G September 17, 2012 at 12:16 am #

    Agreed. Yes.

    Paper: That is a really excellent point.

    Dr. Conspiracy:
    …the 14th Amendment made it impossible to legislate against the citizenship of someone born in the United States and subject to its jurisdiction.

  238. avatar
    chancery September 17, 2012 at 12:59 am #

    Slartibartfast:
    René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?

    Does someone have a reference for the “successfully sued” part? René de Chambrun doesn’t show up in reported NY cases that I can access online. That doesn’t necessarily mean much; a trial court decision is not likely to show up in the reporters, and it would be understandable that there wasn’t an appeal.

  239. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 2:25 am #

    Mike,

    You asked, “Do you really think I am disoriented in time?”

    Perhaps I misunderstood your question. Having said that..you might be surprised to learn how much “Time Disorientation” enters into legal discussions about natural born citizenship. Many of the people we deal with are quite comfortable with the concept of earlier cases trumping subsequent ones. How else could Minor v. Happersett (1875) assume such importance for Article II experts like Mario Apuzzo and Larry Klayman over the WKA (1898)???

    Heck, around this topic, old newspaper articles from 1811 can trump 1898 SCOTUS cases.

    Please re-ask your question in a different fashion, because I can’t figure out what you are wanting to know.

    Squeeky Fromm
    Girl Reporter

  240. avatar
    Mike Godkin September 17, 2012 at 2:26 am #

    A few words about the14th Amendment and the WKA case.

    Just to clarify the issue: not my words, but the words of the constitutional scholars.
    I will refer to my paper now.

    Page 7.

    Bonner:
    “Although facially clear, the ‘natural-born citizen’ provision of Article II’s
    presidential eligibility clause has never been definitively interpreted by the courts.” [8]

    Page 8.

    Bonner:
    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”

    Medina:
    “Professor Morse, in a ground-breaking article on the issue, defined the natural born citizen as: ‘one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.’ The definition would include the born-abroad American and clearly constitutes the better view.”

    Page 14.

    Lohman:
    “Thus, this begs the question whether Wong Kim Ark is determinative with
    regard to who may or may not be considered ‘natural-born’ United States
    citizens for purposes of presidential eligibility. While clearly not dispositive, as
    the case primarily discusses the Fourteenth Amendment and does not
    specifically address the presidential eligibility requirement, Wong Kim Ark is
    influential in that it purports to exhaustively examine the sources by which the
    Constitutional Framers derived citizenship terminology-the English common
    law.”

    Page 24.

    Gordon:
    “On its face, the fourteenth amendment did not purport to define or limit the presidential qualifications or the naturalization clauses of the Constitution.”
    Gordon (again):

    “It seems to me, therefore, that the fourteenth amendment has little significant relevance to the appraisal of the presidential qualification clause…”

    Han:
    “One can argue that the Reconstruction Congress could have used the phrase ‘natural born citizen’ but chose not to, and therefore while Congress cannot abridge citizenship rights under the Fourteenth Amendment, it can enact a statute declaring that while all persons born within the United States are citizens, only a subset of those are natural born citizens.”

    Page 25-26.

    Justice Samuel Miller:
    “To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
    ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’
    The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” [28]

    Van Dyne, criticizing Justice Miller for an inaccuracy:
    “The classing together of foreign ministers and consuls, when it was at that time well-settled law that consuls, as such, and unless expressly invested with a diplomatic character, are not entitled, by the law of nations, to the privileges and immunities of ambassadors, shows that the statement was not formulated with the same care and exactness as if the case before the court has called for a precise definition of the phrase.”

  241. avatar
    Sudoku September 17, 2012 at 2:32 am #

    They didn’t have to be deemed NBCs, but they were. Here are a a couple cases, other than WKA:

    Perkins v Elg, 307 u.s. 325
    Lynch v Clarke (NY 1844)
    Diaz-Salazar v INS., 700 F.2d 1156 (1983) The court refers to the American born children of Diaz-Salazar, an illegal alien, as NBCs.

    Mike Godkin: Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?

  242. avatar
    Scientist September 17, 2012 at 2:41 am #

    Mike Godkin: Bonner:
    “Although facially clear, the ‘natural-born citizen’ provision of Article II’s
    presidential eligibility clause has never been definitively interpreted by the courts.” [8]

    Subsequent to the time in 2008 when Bonner wrote those words, the Ankeny court did definitively interpret the presidential eligibility clause for the case of everyone born in the United States (THEY ARE ELIGIBLE).

    Your continuing to ignore this FACT ;leads me, as a scientist to question your integrity. In science one cannot write a paper in 2012 and pretend that science stopped in 2008 or at some earlier date before a paper of whose conclusion one disapproves appeared.

    In 2012, we know that anyone born in the US is eligible to be President. If you doubt this, do the following:

    1. Read Ankeny
    2. Read it agan.
    3. Read it again until you get that it was decided by real judges and is the law in 2012..
    4. Read it one more time for good luck.
    5.. Stop pretending it doesn’t exist

  243. avatar
    Scientist September 17, 2012 at 2:47 am #

    Mike Godkin: Bonner:
    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”

    The Ankeny court disagreed wth Bonner.

    Who prevails in that disagreement? The Ankeny court. Why? Because they are judges. When a baseball manager argues with the umpires who wins? The umpires. Why? Because they are umpires.

    You need to accept that scholars argue and courts decide.

  244. avatar
    Mike Godkin September 17, 2012 at 2:52 am #

    Squeeky Fromm, Girl Reporter,

    In one of my previous post, I asked you a question:

    “Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”

    Did I miss your answer?

  245. avatar
    G September 17, 2012 at 3:02 am #

    I assume that YOU have missed this:

    Sudoku:
    They didn’t have to be deemed NBCs, but they were.Here are a a couple cases, other than WKA:

    Perkins v Elg, 307 u.s. 325
    Lynch v Clarke (NY 1844)
    Diaz-Salazar v INS., 700 F.2d 1156 (1983) The court refers to the American born children of Diaz-Salazar, an illegal alien, as NBCs.

    Does that answer YOUR question?

    Mike Godkin:
    Squeeky Fromm, Girl Reporter,

    In one of my previous post, I asked you a question:

    “Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”

    Did I miss your answer?

  246. avatar
    Scientist September 17, 2012 at 3:02 am #

    Mike Godkin: Did I miss your answer?

    Yes.

    I don’t know what the standards for a PhD in Electrical Engineering were in Novosibirsk, but where I got my PhD, we were not allowed to just ignore findings that didn’t support our pet theories.

    To paraphrase a famous line from a candidate for US Vice President: I am a scientist, I have known scientists, scientists are friends of mine and sir, you are no scientist.

  247. avatar
    nbc September 17, 2012 at 3:09 am #

    Mike Godkin: Just to clarify the issue: not my words, but the words of the constitutional scholars.
    I will refer to my paper now.

    Now we have a random set of quotes with no context. I have already shown how such quote mining is to be avoided.
    Yet you insist.

    Are you interested in scoring some points or finding the truth? You show little interest in the latter but rather appear to resort to quote mining without being willing to explain your logical fallacies.

    Is that your intent?

  248. avatar
    nbc September 17, 2012 at 3:12 am #

    “Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”

    Julia Lynch in Lynch v Clarke comes to mind but I am sure you must have heard of that case.

    Or more recently

    t is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution,2 and the latter is provided for by the enactments of Congress.

    U.S. v. Marguet-Pillado, 560 F.3d 1078 (9th Cir., 2009)

    A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person’s birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.

    U.S. v. Marguet-Pillado, 648 F.3d 1001 (2011)

    Just a few examples.
    I understand why you are reluctant to explain your logical fallacies and provide explanations for your follies…

  249. avatar
    nbc September 17, 2012 at 3:14 am #

    Mike you still appear to be lacking understanding that while birth on soil was almost universally accepted as making one a natural born citizen, it was less clear as to the status of children born abroad to US citizens.

    Once you come to realize this, you may want to significantly revise your contribution.

    The question is: Will you abide by logic and reason?

  250. avatar
    Mike Godkin September 17, 2012 at 3:16 am #

    Scientist ,

    Let’s stay cool and do a quick analysis.

    According to Bonner, the U.S. Supreme Court case, Wong Kim Ark, “is not determinative with respect who may or may not be considered ‘natural-born’ for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the ‘natural born’ eligibility clause.”

    According to you, a State Court decision does determine that.

    Let me use your terminology now.

    Who prevails in that disagreement? Ms.Bonner does. Why? Because, if she is right, then a State court ruling, which is not binding for other State courts and for the U.S. Supreme Court, is in essence irrelevant. President of the United States is a federal position. Barack Obama is not president of Indiana. His eligibility must be decided by the SCOTUS.

    You need to accept that the State courts may decide whatever they want, but the last word is up to the SCOTUS.

  251. avatar
    nbc September 17, 2012 at 3:17 am #

    G: I assume that YOU have missed this:

    Mike appears to be ‘missing’ many rebuttals of his follies.

  252. avatar
    nbc September 17, 2012 at 3:24 am #

    Mike Godkin: Let’s stay cool and do a quick analysis.

    According to Bonner, the U.S. Supreme Court case, Wong Kim Ark, “is not determinative with respect who may or may not be considered ‘natural-born’ for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the ‘natural born’ eligibility clause.”

    I am not sure why you rely on a minor blog posting by Ms Bonner, but you do assign to her some quotes which I have been unable to find in her posting. Furthermore, you seem to be confused by some of her arguments, leading you to make some logically inconsistent conclusions.

    Have you yet to realize that birth on soil has been accepted by most to result in natural born citizenship while there is some confusion as to other cases?

    Understanding requires a willingness to appreciate the arguments, not ridicule them.

    PS: I checked out her article, where does she make these claims? Ah I see you are referring to her SSRN paper, not her blog posting. More in the next posting.

  253. avatar
    Scientist September 17, 2012 at 3:27 am #

    Mike Godkin: Who prevails in that disagreement? Ms.Bonner does. Why? Because, if she is right, then a State court ruling, which is not binding for other State courts and for the U.S. Supreme Court, is in essence irrelevant. President of the United States is a federal position. Barack Obama is not president of Indiana. His eligibility must be decided by the SCOTUS.

    Well, several other state courts have agreed with Ankeny and cited it, as well as a number of federal district courts. Lower court decisions are the law of the land unless and until SCOTUS says otherwise. When SCOTUS is silent, the lower courts prevail. If you were found guilty of a crime by a state court and you appealed to SCOTUS, you are considered guilty unless and until they overturn your conviction. If they decide not to hear your case, what are you? Guilty.

    Barack Obama, like everyone else who has held the office, is eligible unless and until SCOTUS were to say he isn’t (even assuming that they, rather than Congress, have any authority in this area, which is very debatable). You have the presumption 180 degrees backwards.

    As for what SCOTUS “must decide”, they are not taking advice from you. They have decided not to hear any of the appeals of eligibility cases regarding Obama. Therefore Obama is eligible whether Mike Godkin likes it or not.

  254. avatar
    nbc September 17, 2012 at 3:31 am #

    As I expected Ms Bonner observes

    However, although traditional interpreters of the ìnatural-bornî clause have attempted to invoke Wong Kim Ark as support for the proposition that ìnatural-bornî citizens follow the jus soli principle only, and all juri sanguinis and statutory extensions of citizenship are ìnaturalizationsî as a distinct category, these to categories are not mutually exclusive. Indeed, Wong Kim Ark is not determinative with respect to who may or man not be considered ìnatural-bornî for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendmentís impact upon the ìnatural bornî eligibility clause. In fact, one commentator has noted that the ìnatural-born citizenî clause, via the English common law, ìcan be interpreted without disrupting Wong Kim Ark to include some foreign-born children of United States citizens. Lohman, supra note 16, at 363.

    Hope this help clarify.

  255. avatar
    Scientist September 17, 2012 at 3:33 am #

    Mike Godkin: You need to accept that the State courts may decide whatever they want, but the last word is up to the SCOTUS.

    Where SCOTUS is silent State court’s word is final. And they certainly prevail over blog postings even by much more reknowned scholars than Ms Bonner.

  256. avatar
    nbc September 17, 2012 at 3:33 am #

    Mike Godkin: Because, if she is right, then a State court ruling, which is not binding for other State courts and for the U.S. Supreme Court, is in essence irrelevant. President of the United States is a federal position. Barack Obama is not president of Indiana. His eligibility must be decided by the SCOTUS.

    You need to accept that the State courts may decide whatever they want, but the last word is up to the SCOTUS.

    Sure but the State Courts are bound by SCOTUS precedent and Wong Kim Ark is quite relevant in their findings. Nothing earth shattering here.

    While such rulings may not be precedential, we have seen that they are not irrelevant as other courts are similarly convinced by the soundness of the finding.

  257. avatar
    nbc September 17, 2012 at 3:36 am #

    Scientist: Where SCOTUS is silent State court’s word is final. And they certainly prevail over blog postings even by much more reknowned scholars than Ms Bonner.

    Indeed. But they are appealing to a SCOTUS ruling which is quite relevant so I doubt that SCOTUS would disagree with the well reasoned ruling. In fact, other courts have come to accept Ankeny even though not bound by its precedent.

    And the 9th Circuit Court has now set a much more precedential ruling. What now?

  258. avatar
    nbc September 17, 2012 at 3:37 am #

    I do hope that Mike will eventually address the shortcomings in his logic and reasoning. So far he appears to be mostly avoiding them.

    Too bad, I had hoped for a more intellectually stimulating discussion, but Mike appears to have turned into another Mario.

  259. avatar
    Scientist September 17, 2012 at 3:43 am #

    nbc: And the 9th Circuit Court has now set a much more precedential ruling. What now?

    Well, the losers can appeal to SCOTUS, which will decline to hear arguments. Godkin and Apuzzo can argue until they are blue in the face that that leaves the matter undecided, but legally speaking, when SCOTUS stays silent, lower court rulings are the law.

  260. avatar
    nbc September 17, 2012 at 3:50 am #

    Scientist: legally speaking, when SCOTUS stays silent, lower court rulings are the law.

    Especially when the lower courts base their rulings on Supreme Court precedent.

  261. avatar
    Keith September 17, 2012 at 3:57 am #

    nbc: As I expected Ms Bonner observes

    However, although traditional interpreters of the ìnatural-bornî clause have attempted to invoke Wong Kim Ark as support for the proposition that ìnatural-bornî citizens follow the jus soli principle only, and all juri sanguinis and statutory extensions of citizenship are ìnaturalizationsî as a distinct category, these to categories are not mutually exclusive. Indeed, Wong Kim Ark is not determinative with respect to who may or man not be considered ìnatural-bornî for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendmentís impact upon the ìnatural bornî eligibility clause. In fact, one commentator has noted that the ìnatural-born citizenî clause, via the English common law, ìcan be interpreted without disrupting Wong Kim Ark to include some foreign-born children of United States citizens. Lohman, supra note 16, at 363.

    Hope this help clarify.

    Let me attempt to clarify further…

    Bonner is saying that:

    1) WKA did not address every possible path to “Natural Born Citizen”.

    2) There may be other ways to become a “Natural Born Citizen” than just being born on American Soil.

    3) WKA is very clear: if you are born on American Soil you are a “Natural Born Citizen”.

    4) WKA is silent on whether you can be born overseas and still be considered a Natural Born Citizen. It is in this respect that Bonner says that WKA is not determinative.

    Therefore:

    1) WKA is very clear: if Obama was born in Hawaii, he is a “Natural Born Citizen”

    2) WKA is silent on whether John McCain, born overseas, can be considered a Natural Born Citizen.

    3) The Obama example shows that we do not need to look anywhere beyond WKA to decide if he is eligible; his NBC status is absolutely certain. There is no scholarly controversy about it.

    4) The McCain example shows that we need to look elsewhere than WKA to decide if he is eligible, his NBC status is uncertain. There is an actual scholarly controversy about it.

    In McCain’s case, Congress decided, correctly in my opinion, to preempt any such unworthy debate by informing the American electorate that they would not consider an objection based on this uncertainty.

  262. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 4:02 am #

    Mike:

    You are hitting all around the edges of WKA, when you should just do what lawyers and judges do, and read Wong Kim Ark and then pull the meanings from the case. Let’s use an analogy. You are an electrical engineer. Someone asks you how much juice is flowing through a certain gizmo. You pull out your little machine, hook it up, and tell him the answer.

    Your client seems upset. He asks you why you didn’t go outside during a thunderstorm, and send a key up on a kite string. He asks if you have read the latest M.I.T. report on “What Is An Electron??? Does Anybody Really Know???” He tells you the company that made your measuring device, also provided electrical supplies to concentration camps during World War II, and then tried to cover that up.

    Meanwhile, you look on in amazement. That is the situation the non-Birther world finds itself in. Ask yourself, did the WKA court define natural born citizenship as “being born in the United States, and having parents who were neither foreign diplomats or invading soldiers, regardless of their citizenship? Did that same court state that Congress could also declare certain persons born overseas to be natural born citizens???

    The answer to both questions is YES. Is everybody going to agree with that answer? Of course not. 25% of the Supreme Court judges in the room disagreed with it. (2 out of 8) Those two justices realized a Chino-American could become president, because this decision was finding Wong to be, in effect, a natural born citizen.

    Could a legal pundit disagree? Yes. Could a legal pundit invent different scenarios which would test the boundaries of the decision? Of course. Law professors do that all the time, particularly on their exams. I have seen some of the questions and they are devious.

    But does any of this change the holding? Real World lawyers and judges approach the law the same way you approach measuring current. They go to case law, pull out a definition, and then compare that to subsequent decisions to see if anything has changed. They do not go to Africa, and study lion prides to see if any of them have alpha male rhinoceri for pack leaders.

    All those things you quoted above, while interesting, do not defeat the central holding in WKA, to wit:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [exceptions omitted]. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”

    Squeeky Fromm
    Girl Reporter

  263. avatar
    nbc September 17, 2012 at 4:06 am #

    Squeeky Fromm, Girl Reporter:

    You are hitting all around the edges of WKA, when you should just do what lawyers and judges do, and read Wong Kim Ark and then pull the meanings from the case.

    A good suggestion but perhaps lost on Mike? Too bad that he shows little familiarity with US v Wong Kim Ark although he tries to minimize the impact by continuously claiming he is not a lawyer.

    Fascinating. Has Mike read the original case, the appeal briefs, the ruling and dissent? Contemporaneous articles?

    Well Mike?

  264. avatar
    Mike Godkin September 17, 2012 at 4:07 am #

    Scientist,

    At the end of your post you wrote:
    “As for what SCOTUS ‘must decide’, they are not taking advice from you. They have decided not to hear any of the appeals of eligibility cases regarding Obama. Therefore Obama is eligible whether Mike Godkin likes it or not.”

    Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach. It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him. Congratulations!

  265. avatar
    Slartibartfast September 17, 2012 at 4:15 am #

    I read it in the Wikipedia article maybe a year or so ago—all it says now is that he was a lawyer with the New York Bar (I believe that requires US citizenship, but I don’t know for sure).

    chancery: Does someone have a reference for the “successfully sued” part? René de Chambrun doesn’t show up in reported NY cases that I can access online. That doesn’t necessarily mean much;a trial court decision is not likely to show up in the reporters, and it would be understandable that there wasn’t an appeal.

  266. avatar
    Slartibartfast September 17, 2012 at 4:19 am #

    I answered you—US v. Wong Kim Ark. The Chinese Exclusion Act meant that Mr. Wong could not possibly be a naturalized citizen, therefore he was alien or natural born.

    Mike Godkin:
    Squeeky Fromm, Girl Reporter,

    In one of my previous post, I asked you a question:

    “Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”

    Did I miss your answer?

  267. avatar
    nbc September 17, 2012 at 4:20 am #

    Mike Godkin:

    Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach. It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him.

    I see, so when you ridicule Ms Bonner, you were doing exactly what? But Scientist is correct, when SCOTUS refuses to hear a case relevant to Obama’s eligibilty, their ruling stands.

    When such cases are based on solid SCOTUS precedent, such as US v Wong Kim Ark, the court may very well be not inclined to further address the issue.

    So when it comes to motives or ridicule, your own ‘paper’ does exactly that with Ms Bonner. Ironic is it not?

    As I said, you may want to significantly revise your poorly formulated paper. Can we expect any updates any time soon which correct some of the more obvious flaws?

  268. avatar
    nbc September 17, 2012 at 4:22 am #

    Slartibartfast: I answered you—US v. Wong Kim Ark. The Chinese Exclusion Act meant that Mr. Wong could not possibly be a naturalized citizen, therefore he was alien or natural born.

    Yes but Mike is still getting ready to read the case and the relevant documents, or so it appears. No need to pressure him,he has already a lot to deal with.

  269. avatar
    Slartibartfast September 17, 2012 at 4:23 am #

    Mike,

    You just got caught cherry picking—what do you have to say for yourself?

    nbc:
    As I expected Ms Bonner observes

    Hope this help clarify.

  270. avatar
    nbc September 17, 2012 at 4:26 am #

    Slartibartfast: You just got caught cherry picking—what do you have to say for yourself?

    It’s hard to call it cherry picking when Mike appears to be so reluctant to make his argument. All he appears to be doing is to show what he believes to be inconsistencies both internal and external. But simple logic would have resolved many of what he believed to be telltale signs of inconsistent, or worse, failure to tel the truth.

    Mike takes the following claim by Bonner

    “There is near-universal agreement that all persons born within the United States are natural born.”

    and then quotes

    In her Note 77, discussing U.S. v. Wong Kim Ark, Rebekka Bonner managed to contradict herself:

    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”

    But he fails to present the full context.

    Fascinating..

  271. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 4:29 am #

    Mike:

    Did you miss my earlier answer to this???

    Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”

    An answer is Wong Kim Ark. Another answer is Julia Lynch.

    Wong has to be identified as an NBC to determine the meaning of the term “subject to the jurisdiction.” This is because the 14th Amendment was not brand spanking new law, but only declarative of the common law concept of natural born citizenship and its jurisdiction requirements.

    Julia Lynch has to be identified as an NBC because she was never “naturalized”, and if she wasn’t an NBC, then she wasn’t a citizen and would lose her inheritance.

    Squeeky Fromm
    Girl Reporter

  272. avatar
    Slartibartfast September 17, 2012 at 4:33 am #

    Mike Godkin:
    Scientist,

    At the end of your post you wrote:
    “As for what SCOTUS ‘must decide’, they are not taking advice from you. They have decided not to hear any of the appeals of eligibility cases regarding Obama. Therefore Obama is eligible whether Mike Godkin likes it or not.”

    Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach.

    Respecting lower court rulings in the absence of a SCOTUS decision is partisan? How so?

    It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him. Congratulations!

    You have shown a distinct lack of ability in the area in which you are trying to offer an opinion while repeatedly admitting you have no relevant credentials. Sorry, but being ridiculous invites ridicule.

    You still haven’t answered who you would accept as an authority or apologized to Ms. Bonner (for your baseless allegation—or the “cherry picking” of her words that nbc caught you at) or Mr. Treacy (for distorting his words using several logical fallacies).

  273. avatar
    The Magic M September 17, 2012 at 4:39 am #

    Mike Godkin: Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?

    I don’t quite get the fixation on what the case was or should’ve been about. (Of course I understand it from the viewpoint of “desperately seeking for an argument why we can ignore WKA”.)

    *If* WKA ruled that being born in the US is enough to be NBC, it does not matter if it was an eligibility case or not.

    If I sue you for breach of contract and the court finds you are a US citizen, this ruling stands regardless of the fact that it was not a citizenship case to begin with.

    For the same reason, WKA stands even if it was not a presidential eligiblity case to begin with.

    The fixation on “(part of) a ruling does not hold if the case was about something else entirely” is both totally stupid (as any lawyer in the world will tell you) and childish (because it shows no argument is too dumb for you to believe in if it only helps your case).

    Do you really think SCOTUS would’ve made a ruling that makes Wong an NBC and then go “hey, but we really don’t mean NBC in the Constitutional sense”?

    That’s about as sane as the birthers believing “Obama’s original BC may say ‘born in Hawaii’, but it definitely has a footnote saying ‘just kidding, we really meant Kenya'”.

  274. avatar
    nbc September 17, 2012 at 4:42 am #

    Slartibartfast: You still haven’t answered who you would accept as an authority or apologized to Ms. Bonner (for your baseless allegation—or the “cherry picking” of her words that nbc caught you at) or Mr. Treacy (for distorting his words using several logical fallacies).

    Wow, more than just Bonner. I had my suspicions and will be checking more of his ‘quotes/

  275. avatar
    nbc September 17, 2012 at 4:43 am #

    The Magic M: *If* WKA ruled that being born in the US is enough to be NBC, it does not matter if it was an eligibility case or not.

    Yes, that;s one of mike’s logical fallacies..

  276. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 4:45 am #

    Fascinating. Has Mike read the original case, the appeal briefs, the ruling and dissent? Contemporaneous articles?

    Well Mike?

    What usually seems to happen, is that the person already has an opinion that there is a difference between a natural born citizen, and a 14th Amendment “Born in the USA” citizen. Then, they read the case trying to find support for that proposition. And when they can’t find much of anything, they ignore WKA, and turn to outside sources, like Vattel, for the support they need. That was true in Ankeny, and it is true today.

    Squeeky Fromm
    Girl Reporter

  277. avatar
    nbc September 17, 2012 at 4:45 am #

    The Magic M: If I sue you for breach of contract and the court finds you are a US citizen, this ruling stands regardless of the fact that it was not a citizenship case to begin with.

    For the same reason, WKA stands even if it was not a presidential eligiblity case to begin with.

    Hmm, somewhat of a poor analogy. That the Court found WKA to be natural born was necessary to find him to be a citizen. Of course, that it also made him eligible to be a president was incidental

  278. avatar
    Paper September 17, 2012 at 4:46 am #

    The sources referenced by Wikipedia are the Time magazine Letters section behind a pay wall and an obituary where the link fails.

    At first glance, it seems he did not “sue.”

    I did find this reference:

    “Count Rene de Chambrun, direct descendant of LaFayette was among the notables. In this connection it is interesting to note that recently a young Frenchman made application for admis- sion to the bar in New York. He was well qualified but not a citizen. One re- quirement of admittance to the bar is citizenship. It looked hopeless for him. Suddenly, he presented a certificate showing that he was a direct descendant
    of the Marquis de LaFayette. Then he presented a resolution passed in one of the original thirteen states almost a I00 years ago, conferring citizenship
    upon the Marquis de LaFayette and all his male descendants. The young French- man received his certificate.”

    http://www.dirksencenter.org/guides_emd/Dirksen_Newsletters/Congressional%20Front%2005.19.34.pdf

    And this reference in Americans in Paris: Life and Death under Nazi Occupation, which states that: “The paper [New York Herald Tribune] called his dual citizenship ‘nebulous’, although both his parents were American-born and he had demonstrated his right to American citizenship in court when The New York Bar Association admitted him in 1930.”

    http://books.google.com/books?id=SInGHEUZx64C&pg=PT275&lpg=PT275&dq=rene+de+chambrun+citizenship&source=bl&ots=6iRLaJ_sU2&sig=QYL_CoiEmy3BjaUdU_AydOoTeNI&hl=en#v=onepage&q=rene%20de%20chambrun%20citizenship&f=false

    chancery: Does someone have a reference for the “successfully sued” part? René de Chambrun doesn’t show up in reported NY cases that I can access online. That doesn’t necessarily mean much;a trial court decision is not likely to show up in the reporters, and it would be understandable that there wasn’t an appeal.

  279. avatar
    nbc September 17, 2012 at 4:47 am #

    Squeeky Fromm, Girl Reporter: Fascinating. Has Mike read the original case, the appeal briefs, the ruling and dissent? Contemporaneous articles?

    Well Mike?

    What usually seems to happen, is that the person already has an opinion that there is a difference between a natural born citizen, and a 14th Amendment “Born in the USA” citizen.

    It’s often too tempting and fraught with problems.

    So far Mike has shown himself to be woefully ignorant of the US v Wong Kim Ark case or the lower court case, the appeal briefs etc etc.

    WKA even explains why they explore common law before the 14th Amendment and if Mike had read the briefs, he would have understood.

    Poor Mike… He and Mario should get together and exchange notes.

  280. avatar
    nbc September 17, 2012 at 4:53 am #

    On second thought, that may be somewhat cruel 😉

  281. avatar
    Slartibartfast September 17, 2012 at 4:54 am #

    nbc,

    Lupin pointed out his false accusation against Ms. Bonner (a standard birther tactic—it speaks very poorly of him that he doesn’t apologize or even acknowledge it…) and I found at least three logical fallacies in a comment that referenced Vince Treacy’s comments at Jonathan Turley’s site and he has also misinterpreted David Drumm’s guest post on Professor Turley’s blog. I’m guessing that you could find logical fallacies easily in all of his quotes if you care to look…

    nbc: Wow, more than just Bonner. I had my suspicions and will be checking more of his ‘quotes/

  282. avatar
    Slartibartfast September 17, 2012 at 4:56 am #

    Thanks Paper!

  283. avatar
    nbc September 17, 2012 at 4:56 am #

    Slartibartfast: I’m guessing that you could find logical fallacies easily in all of his quotes if you care to look…

    Yes, things do not look too promising for our friend. But I will let him explain himself. What I find fascinating how Mike objects to what he perceives to be attempts to undermine his credibility and yet his unfounded accusations in his paper show no such restraint on his part.

  284. avatar
    nbc September 17, 2012 at 5:01 am #

    Slartibartfast: Lupin pointed out his false accusation against Ms. Bonner

    Technically, it’s not false but rather purely speculative and unsupported. Either way, I find Mike’s approach highly unscientific and yet he seems to accuse others of such.

    Truly fascinating.

  285. avatar
    Slartibartfast September 17, 2012 at 5:03 am #

    Yes, hypocrisy is never a good sign… I’m doubting that he will ever even acknowledge his fallacies, let alone answer my questions, but hopefully he’ll surprise me.

    nbc: Yes, things do not look too promising for our friend. But I will let him explain himself. What I find fascinating how Mike objects to what he perceives to be attempts to undermine his credibility and yet his unfounded accusations in his paper show no such restraint on his part.

  286. avatar
    Paper September 17, 2012 at 5:05 am #

    Ha! Because it is well-known that African lion prides would never accept alpha male rhinoceri. Only a female rhinocerous or a beta male are ever accepted.

    Well put post, otherwise!

    Squeeky Fromm, Girl Reporter:

    Real World lawyers and judges approach the law the same way you approach measuring current. They go to case law, pull out a definition, and then compare that to subsequent decisions to see if anything has changed. They do not go to Africa, and study lion prides to see if any of them have alpha male rhinoceri for pack leaders.

  287. avatar
    Slartibartfast September 17, 2012 at 5:07 am #

    Sorry, I should have said “baseless” rather than false. (See how easy it is to admit when you make a mistake Mike? You should try it some time—you’ll feel better)

    I found his attack on Scientist to be a particularly good example of the sort of projection that you are fascinated by…

    nbc: Technically, it’s not false but rather purely speculative and unsupported. Either way, I find Mike’s approach highly unscientific and yet he seems to accuse others of such.

    Truly fascinating.

  288. avatar
    Scientist September 17, 2012 at 6:45 am #

    Mike Godkin: Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach. It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him. Congratulations!

    But, it is you who fail the scientific approach. When I write a scientific paper today, September 2012, I must acknowledge and cite ALL publications as of the date I write my paper, both those that support my position and those that contradict it. Yet, in your paper, published in 2012, you ignore Ankeny, a highly relevant court ruling from 2009, as well as several others from earlier this year that cited Ankeny. In fact, all of these were real courts that clearly said that all those born in the US were natural born citizens and specifically held-not dicta, but the central holding-that Barack Obama is eligible to be President.

    I can’t speak to legal ethics, but in my opinion you have violated scientifc ethics. You have cherry picked statements you liked by scholars, but ignored legal decisions by judges that you don’t agree with. That makes you a justifiable object of ridicule, as you are ridiculous.

    As for the, “Those courts aren’t SCOTUS”, go to any law text and you will see many, if not most of the citations are of state and lower federal court decisions. Why would they do that? Because those cases are the law, as Ankeny and the other related cases are the law. Because all courts make law, not just SCOTUS. If you cannot understand that, you ought not to pretend you have anything worthwhile to say regarding the law.

  289. avatar
    Majority Will September 17, 2012 at 7:18 am #

    Scientist: But, it is you who fail the scientific approach.

    A failure of “biblical proportions” . . . whatever that means.

    (“There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?” http://www.obamaconspiracy.org/2012/09/paper-on-natural-born-citizenship/#comment-212181)

    Baseless fear mongering is real scientific, right?

  290. avatar
    Scientist September 17, 2012 at 7:33 am #

    Majority Will: Baseless fear mongering is real scientific, right?

    Generally, SCOTUS only gets involved where different lower courts disagree. In this case, every single court that has spoken has said the same thing; that being born in the US makes you a natural born citizen. Also, that Obama is eligible. End of story. No role for SCOTUS.

    I also would like to address Godkin’s speculative scenario. Let’s say courts were asked to rule in a way that would cause enormous harm to the interests of the country. Even if that ruling were legally correct, a wise court would have to consider the implications very, very carefully. As Justice Jackson, said, paraphrasing Lincoln, “The Constitution is not a suicide pact.”

  291. avatar
    The Magic M September 17, 2012 at 7:43 am #

    nbc: Hmm, somewhat of a poor analogy. That the Court found WKA to be natural born was necessary to find him to be a citizen. Of course, that it also made him eligible to be a president was incidental

    My analogy was to illustrate that it is stupid to claim that a ruling concerning a certain fact (or legal issue) is only valid if it is under the parenthetical “this is the core of the issue at hand”.
    That birthers claim such is best illustrated by such a “poor” example.

    It’s in line with other crackpot “legal arguments” like Orly’s “WKA isn’t binding because it wasn’t unanimous” or Mario’s “WKA isn’t binding because Judge X misrepresented something in his argument”.

    But birthers somehow believe that either

    (a) SCOTUS did not really want to rule what they ruled in WKA, so it is “void” (“if they had known their ruling made Wong eligible for presidency, they would’ve ruled otherwise, so their intent clearly never was to rule native-born children of aliens are NBC, so they aren’t”, another variant of “this actually means the opposite of what it says”) or

    (b) SCOTUS was part of a conspiracy to “sneak in” a “wrong” meaning of NBC by putting it in a case where it really didn’t belong (a notion probably motivated by some modern-day political tactics of pushing controversial issues through in a committee that is supposed to handle different things, or exchanging entire bills with a totally different content).

  292. avatar
    Reality Check September 17, 2012 at 9:12 am #

    My favorite is Leo Donofrio’s claim that Justice Gray “forced” the court to rule in favor of WKA because he was appointed by an illegal President Arthur so he was somehow protecting his job. When you think about it that was a tacit admission by Leo that WKA determined a definition of natural born citizen.

    The Magic M: It’s in line with other crackpot “legal arguments” like Orly’s “WKA isn’t binding because it wasn’t unanimous” or Mario’s “WKA isn’t binding because Judge X misrepresented something in his argument”.

  293. avatar
    Dr. Conspiracy September 17, 2012 at 9:55 am #

    And it is also typical when a birther is losing badly, and has been caught in all manner of dishonesty and fallacy, to find some slight or insult and focus on it, as if it were the substance of the discussion, whose very presence invalidates all that came before.

    Mike Godkin: Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach. It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him. Congratulations!

  294. avatar
    Rickey September 17, 2012 at 10:13 am #

    nbc:
    As I expected Ms Bonner observes

    Thanks you for catching that. It is now abundantly clear that Godkin quoted Bonner out of context to give the impression that she had doubts that Wong Kim Ark settled the issue of jus soli citizens being natural born citizens But she wasn’t expressing any doubts about that – she was questioning whether jus soli is the only way to be a natural born citizen, and she correctly pointed out that WKA does not resolve the issue of children born abroad to U.S. citizens.

    Now that we know that Godkin is skilled at taking quotations out of context, every quotation which he has provided deserves to be greeted with skepticism.

  295. avatar
    Dr. Conspiracy September 17, 2012 at 10:20 am #

    I am still waiting for Mr. Godkin to respond to the error in his paper regarding Hamilton’s draft constitution. In fact, I do don’t seem much substantive response to any of the criticisms of his factual errors and contextual misrepresentations.

  296. avatar
    G September 17, 2012 at 10:34 am #

    Well said! I would like to see an honest discussion from Mike Godkin on these issues, but as you mentioned, his peculiar selectiveness to ignore all the well-reasoned serious questions on the flaws in his paper; yet pounce to reply on some minor quibble of a barely tangential slight; is quite revealing of his own disingenuous intent.

    He fails any scientific scholarly test of behavior – period. His intent is not to learn nor discuss, but merely to cast spurious accusations and then distract and dodge from any critical analysis. He wishes to play the part of a scholar, yet behaves as nothing more than a closed-minded and confirmation-bias driven sham provocateur.

    Dr. Conspiracy:
    And it is also typical when a birther is losing badly, and has been caught in all manner of dishonesty and fallacy, to find some slight or insult and focus on it, as if it were the substance of the discussion, whose very presence invalidates all that came before.

  297. avatar
    G September 17, 2012 at 10:38 am #

    Nor do I. I had hoped that this was someone who was trying to have a serious discussion and gain a serious understanding of the issue.

    However, his conversation behavior has so far revealed that his motives are both biased and quite incincere.

    Dr. Conspiracy:
    I am still waiting for Mr. Godkin to respond to the error in his paper regarding Hamilton’s draft constitution. In fact, I do don’t seem much substantive response to any of the criticisms of his factual errors and contextual misrepresentations.

  298. avatar
    Slartibartfast September 17, 2012 at 12:18 pm #

    Doc,

    Something we’ve all seen play out time and again on your blog—the only real suspense is whether he will become more and more confrontational about it until you are forced to ban him or if he will just play the aggrieved victim and decide that interacting with all of us meanies is beneath him—I’d bet on the latter with a small chance he’ll just cut his losses and slink away silently…

    Mike,

    Please—prove me wrong and show that you have integrity after all. The only thing you have to lose is your confirmation bias.

    Dr. Conspiracy:
    And it is also typical when a birther is losing badly, and has been caught in all manner of dishonesty and fallacy, to find some slight or insult and focus on it, as if it were the substance of the discussion, whose very presence invalidates all that came before.

  299. avatar
    Slartibartfast September 17, 2012 at 12:20 pm #

    Agreed—and very disappointing, if not in any way surprising…

    G:
    Nor do I.I had hoped that this was someone who was trying to have a serious discussion and gain a serious understanding of the issue.

    However, his conversation behavior has so far revealed that his motives are both biased and quite incincere.

  300. avatar
    nbc September 17, 2012 at 1:10 pm #

    Dr. Conspiracy: I am still waiting for Mr. Godkin to respond to the error in his paper regarding Hamilton’s draft constitution. In fact, I do don’t seem much substantive response to any of the criticisms of his factual errors and contextual misrepresentations.

    I agree but perhaps Mike may have a change of heart and address the many shortcomings in his article? After all Mike was so insisting on what he called the truth. Was it all a ruse?

  301. avatar
    Horus September 17, 2012 at 2:03 pm #

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

    There are only two classes of citizen; Natural Born and Naturalized.
    Just because you refuse to accept that Obama IS NBC does not give you license to invent a third class of citizen.
    Deal with it!

  302. avatar
    Tarrant September 17, 2012 at 3:21 pm #

    Mike Godkin:

    Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

    This is disingenuous though – no matter what the topic, no matter how non controversial, you can always find somebody that will take a contrary position. That does not mean there is a controversy.

    There are people out there that say the moon landing never happened. That does not mean there is any legitimate controversy on the whole “Man on the moon: Yes or No?” question. It happened, there is no controversy. The mere presence of someone who disagrees does not mean their opinion has value or is correct. If 99.9% of people agree 1+1=2 and the remaining ones say 1+1=3, you don’t have to give those people the benefit of the doubt, or split the difference and say “Well let’s just make it 2.01 to settle the controversy.” One is right, the other is wrong. And if your teacher marks you off for it you don’t get to say “Well until the International Math Council rules, your opinion is really only binding at this school.”

    Regardless of whether you believe about state courts, they are cited all the time by other states and even by federal courts at times because while not binding they can be persuasive. In this case, well over half a dozen have affirmatively said what the NBC definition is with respect to Presidential eligibility and all have agreed with one another. Some of the federal courts have also cited cases like Ankeny, such as the Tennessee federal court. Herb Titus and Mario Apuzzo may say the definition used by all those courts is wrong and it should be defined in a way that excludes President Obama, but that does not a controversy make, any more than the existence of moon landing deniers makes one.

    SCOTUS won’t get involved because every court in the country so far has agreed on the outcome of these cases and they think those answers are correct.

    Ball your fists and declare “There’s a controversy!” all you want, much like the moon landing deniers, that does not mean there is one.

  303. avatar
    Stanislaw September 17, 2012 at 4:15 pm #

    Tarrant: This is disingenuous though – no matter what the topic, no matter how non controversial, you can always find somebody that will take a contrary position. That does not mean there is a controversy.

    There are people out there that say the moon landing never happened. That does not mean there is any legitimate controversy on the whole “Man on the moon: Yes or No?” question. It happened, there is no controversy. The mere presence of someone who disagrees does not mean their opinion has value or is correct. If 99.9% of people agree 1+1=2 and the remaining ones say 1+1=3, you don’t have to give those people the benefit of the doubt, or split the difference and say “Well let’s just make it 2.01 to settle the controversy.” One is right, the other is wrong. And if your teacher marks you off for it you don’t get to say “Well until the International Math Council rules, your opinion is really only binding at this school.”

    Regardless of whether you believe about state courts, they are cited all the time by other states and even by federal courts at times because while not binding they can be persuasive. In this case, well over half a dozen have affirmatively said what the NBC definition is with respect to Presidential eligibility and all have agreed with one another. Some of the federal courts have also cited cases like Ankeny, such as the Tennessee federal court. Herb Titus and Mario Apuzzo may say the definition used by all those courts is wrong and it should be defined in a way that excludes President Obama, but that does not a controversy make, any more than the existence of moon landing deniers makes one.

    SCOTUS won’t get involved because every court in the country so far has agreed on the outcome of these cases and they think those answers are correct.

    Ball your fists and declare “There’s a controversy!” all you want, much like the moon landing deniers, that does not mean there is one.

    Well said! Comments like these really make me wish for a thumbs up button.

  304. avatar
    Majority Will September 17, 2012 at 4:19 pm #

    Tarrant: This is disingenuous though – no matter what the topic, no matter how non controversial, you can always find somebody that will take a contrary position. That does not mean there is a controversy.

    There are people out there that say the moon landing never happened. That does not mean there is any legitimate controversy on the whole “Man on the moon: Yes or No?” question. It happened, there is no controversy. The mere presence of someone who disagrees does not mean their opinion has value or is correct. If 99.9% of people agree 1+1=2 and the remaining ones say 1+1=3, you don’t have to give those people the benefit of the doubt, or split the difference and say “Well let’s just make it 2.01 to settle the controversy.” One is right, the other is wrong. And if your teacher marks you off for it you don’t get to say “Well until the International Math Council rules, your opinion is really only binding at this school.”

    Regardless of whether you believe about state courts, they are cited all the time by other states and even by federal courts at times because while not binding they can be persuasive. In this case, well over half a dozen have affirmatively said what the NBC definition is with respect to Presidential eligibility and all have agreed with one another. Some of the federal courts have also cited cases like Ankeny, such as the Tennessee federal court. Herb Titus and Mario Apuzzo may say the definition used by all those courts is wrong and it should be defined in a way that excludes President Obama, but that does not a controversy make, any more than the existence of moon landing deniers makes one.

    SCOTUS won’t get involved because every court in the country so far has agreed on the outcome of these cases and they think those answers are correct.

    Ball your fists and declare “There’s a controversy!” all you want, much like the moon landing deniers, that does not mean there is one.

    Hear, hear.

  305. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 4:45 pm #

    And you know something else that really bothers me??? The Birthers are always whining that Ankeny isn’t binding outside of Indiana. But the reasoning in Ankeny is something that other courts can accept, and many now have accepted and openly say so in their decisons.

    But why aren’t the Birthers whining about Vattel not being binding outside of France???And actually, not even there because all he did was write a book??? Courts could accept his reasoning, and on some issues they do, and they openly say so in the decision. But they never accept his view of citizenship as requiring two citizen parents.

    Squeeky Fromm
    Girl Reporter

  306. avatar
    nbc September 17, 2012 at 5:06 pm #

    Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.

    And your attempt at quote mining to support this overlooked how all agreed that a child born on soil, under our jurisdiction is a natural born citizen.
    While the Supreme Court never has ruled on Presidential eligibility, it has ruled on what it takes to be a natural born citizen. Since it was essential to WKA’s claim that he was a citizen that he was found to be a natural born citizen, the ruling is highly relevant and precedential.

    What happened? Are you going to update your poorly argued ‘paper’?

  307. avatar
    Paul Pieniezny September 17, 2012 at 6:52 pm #

    Squeeky Fromm, Girl Reporter: But why aren’t the Birthers whining about Vattel not being binding outside of France???And actually, not even there because all he did was write a book??? Courts could accept his reasoning, and on some issues they do, and they openly say so in the decision. But they never accept his view of citizenship as requiring two citizen parents.

    There is a lot in this paragraph that is, er, economical with the truth. Vattel was born in a Prussian enclave in what is now French-speaking Switzerland. His view of citizenship rights based on descent through the father was not French, it was German. France at the time was not a legally unified country. Areas that had once belonged to the German Empire, but also some areas in the South based land inheritance rights on descent through the father, while the important courts of Paris based citizenship rights on birth on the soil and restricted land inheritance to French citizens. After 1789. when the King was still alive, the revolutionaries settled the issue by a citizenship right law based on ius soli, with a notable exception: descendants of the French protestants who had had to leave France to keep their protestant religion were giving the right to claim French citizenship as if they had been born in France as “francais naturels”. It is not Vattel’s fault that the revolutionaries turned his word into a term of art. Napoleon, of course, would change French citizenship laws to base them on blood lines.

    My other objection is that Vattel never said that a naturel (the word he used to describe a native of the land, it was not a term of art but became one because of the acclaim of his book) needs two citizen parents. The word deux is not in the text, and it would have to be because of the pecularities of French grammar, and to top it all, Vattel always used the French word parent in its official meaning of “relative”,

    Your point, that Vattel wrote a book, explaining his own view of the law of nations, and not a legal codex that defines the law of nations is of course a very valid one – Vattel expressly said they do things differently in England and we (meaning the international community) have to respect that AND a lot of Vattel’s other tenets would be anathema to many right-wing birthers or appeasers of birtherism (like his view on the right to carry arms).

  308. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 6:57 pm #

    NBC:

    He CAN’T update it. Think a minute about who is audience is. It sure isn’t the sane people who can read the 6 pages of so of Ankeny and understand what is going on. Why do we need his paper? We aren’t confused.

    This paper is written for Birthers who will use it for two reasons:

    1. To convince themselves they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable;

    2. To convince their future victims they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable.

    If he does update it, it will be to wrap some more bullsh*t around the weaker parts to make more difficult for the sun shine to penetrate.

    Squeeky Fromm
    Girl Reporter

  309. avatar
    Paul Pieniezny September 17, 2012 at 7:00 pm #

    As for Ankeny, the question remains: why was it not appealed to SCOTUS? If I remember well, some birther lawyers (Donofrio and Apuzzo?) suggested doing it, but dropped the idea because they knew the court would not take it under consideration.

    Damning, I would say. And until another court decides otherwise, but why would they, Ankeny is the law of the land. Because it basically has the silent assent of SCOTUS.

  310. avatar
    Stanislaw September 17, 2012 at 7:19 pm #

    Paul Pieniezny:
    As for Ankeny, the question remains: why was it not appealed to SCOTUS? If I remember well, some birther lawyers (Donofrio and Apuzzo?) suggested doing it, but dropped the idea because they knew the court would not take it under consideration.

    Or even worse (for the birthers), they knew the Supreme Court would affirm the ruling, thus making it binding precedent on every state and federal court in the land. If that were to happen, the birther fleecing would come to a quick and sudden end.

  311. avatar
    nbc September 17, 2012 at 8:26 pm #

    Squeeky Fromm, Girl Reporter: He CAN’T update it.

    In that case, his title “And Nothing but the Truth” appears to be highly ironic.

  312. avatar
    Scientist September 17, 2012 at 8:38 pm #

    Paul Pieniezny: As for Ankeny, the question remains: why was it not appealed to SCOTUS? If I remember well, some birther lawyers (Donofrio and Apuzzo?) suggested doing it, but dropped the idea because they knew the court would not take it under consideration

    I have asked Mario that question directly (either here or at nbc’s site) and got no real response.

    I think they hoped if they kept it quiet that somehow judges in other cases wouldn’t find it. Of course, the judges who have all cited Ankeny would have all independently arrived at the same conclusion as it is the only one possible in the light of the last 100 years or so of jurisprudence. That is why “It’s only valid in Indiana” is b.s. While strictly true, I told Mario right away that any other court would reach the same conclusion, a statement which has proven correct.

    There is little point in Godkin modifying his “paper”. First of all it is a meaningless document that no one who matters is going to read. Second, the issue is settled legally, as far as judges are concerned and that is all that matters. Finding some lawyer or` even a law professor who feels differently is irrelevant, since judges, not bloggers, make the law (sorry Doc). Third, Obama has, by his serving his term, whether re-elected or not, shown that someone with one citizen parent can be President. That would imply that someone with no citizen parents can do likewise, The precedent for Presidents is now established beyond any doubt,

    So, Godkin is mere entertainment. A feast of intellectual dishonesty. Those who hoped for an honest discussion are bound to be disappointed, because it is impossible to make the birther case through honest argument. It can only be argued by twisting words, pulling phrases out of context, dismissing inconvenient facts, personal slurs and similar gymnastics.

  313. avatar
    Thomas Brown September 17, 2012 at 8:49 pm #

    Squeeky Fromm, Girl Reporter:
    NBC:

    If he does update it, it will be to wrap some more bullsh*t around the weaker parts to make more difficult for the sun shine to penetrate. –Famous Girl Reporter

    I thought that paper would be most at home in a place where the sun don’t shine!

  314. avatar
    Squeeky Fromm, Girl Reporter September 17, 2012 at 8:50 pm #

    PaulP:

    What you said is all true, but I wasn’t trying to over-write my point, which is Birthers choking on Indiana, and swallowing France, Switzerland, and Germany whatever. Plus, like you said, in paragraph 214 Vattel comes right out and tells them England does things differently.

    I was just “taking five” from being too detailed, or like they say in France:

    C’est la vee!

    Squeeky Fromm
    Girl Reporter

  315. avatar
    G September 17, 2012 at 10:54 pm #

    AGREED!

    Squeeky Fromm, Girl Reporter:
    NBC:

    He CAN’T update it. Think a minute about who is audience is. It sure isn’t the sane people who can read the 6 pages of so of Ankeny and understand what is going on. Why do we need his paper? We aren’t confused.

    This paper is written for Birthers who will use it for two reasons:

    1. To convince themselves they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable;

    2. To convince their future victims they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable.

    If he does update it, it will be to wrap some more bullsh*t around the weaker parts to make more difficult for the sun shine to penetrate.

    Squeeky Fromm
    Girl Reporter

  316. avatar
    G September 17, 2012 at 11:10 pm #

    Well said!

    Scientist: So, Godkin is mere entertainment. A feast of intellectual dishonesty. Those who hoped for an honest discussion are bound to be disappointed, because it is impossible to make the birther case through honest argument. It can only be argued by twisting words, pulling phrases out of context, dismissing inconvenient facts, personal slurs and similar gymnastics.

  317. avatar
    Keith September 17, 2012 at 11:52 pm #

    Squeeky Fromm, Girl Reporter: This paper is written for Birthers who will use it for two reasons:

    1. To convince themselves they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable;

    2. To convince their future victims they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable.

    And, not only but also…

    Your description of his paper is EXACTLY the description of the ‘psuedo-Science’ babble that characterizes stuff like the ‘free energy’ magnetic motor perpetual motion machines that pop up periodically.

    The ‘inventors’ really try to make it sound like they know what they are talking about to the careless reader who already has a bias toward believing that over-unity devices just might be possible. I really like the part when they say that the Government (FBI, CIA, KGB, or Mossad usually) is suppressing their idea and to get in with your “investment” quickly and get a copy of their plans so they can get it into as many hands as possible. Then you do the most trivial search possible and come up with 23 million hits on kits and plans and discussion forums, all pushing the same set of plans and kits. That’s a very successful suppression campaign the ‘Government’ runs.

    Just for giggles, I looked up to see if there were any traces on the internet about Mr. Godkin’s electrical engineering exploits. I am happy to report that the evidence I could find indicates that he is probably legitimate.

    There is a dozen or so patents mostly relating to ‘linear motors’ that are probably his. What say you, Mikhail? Are you the patent holder? Congratulations if so.

    It would be cool if it came out of perpetual motion machine research, but I doubt it.

    Oh, hey! Mikhail… I’m looking for a power board, with about 10 remotely controlled, separately switchable power outlets. I’d like to use it with a Logitech Harmony One remote control to power up only the devices used for a specific activity. i.e. To watch TV I need the TV, SetTop box, Amp, and Subwoofer; I don’t need the CD, BluRay, or digital radio tuner. A lot of commercial power boards can power up everything when a master device goes from standby to active, but nobody seems to be ‘doing it right’. You guys could come up with a design and market it through Logitech, I bet. There might even be a patent for you in there somewhere.

  318. avatar
    Majority Will September 18, 2012 at 1:15 am #

    Scientist: So, Godkin is mere entertainment. A feast of intellectual dishonesty. Those who hoped for an honest discussion are bound to be disappointed, because it is impossible to make the birther case through honest argument. It can only be argued by twisting words, pulling phrases out of context, dismissing inconvenient facts, personal slurs and similar gymnastics.

    There is also the hidden motive of fear mongering.

    Note the similarities between Godkin’s following statement and the familiar birther troll, john:

    Godkin: “There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?”

    john: “The courts can never make a ruling that Obama is somehow ineligible. The ramifications of such a ruling the courts believe would too much for this country. For this reason, no court is willing to seriously consider Obama’s eligiblity.”

    It’s a meme that pervades birtherism – – spread fear through the specter of lawlessness and riots by the “others” and the implication that our law makers and law enforcers are all gutless cowards.

  319. avatar
    brygenon September 18, 2012 at 1:15 am #

    Mike Godkin:
    A few words about the14th Amendment and the WKA case.

    Just to clarify the issue: not my words, but the words of the constitutional scholars.
    I will refer to my paper now.

    Mr. Godkin, if you are trying to show that you are confused by the legal literature, I agree; you are. If someone told you that constitutional scholars generally explain the WKA case the same way, please cite the person telling you such; I missed where anyone made that claim.

    I remember what *you* claimed, and so clearly stated to be your point. How come you cower away from the actual point in contention, neither defending nor retracting your assertion? You now cite scholars arguably disagreeing on other points, but none supporting *your* point. Why is that?

  320. avatar
    Mike Godkin September 18, 2012 at 2:17 am #

    A few more words about the14th Amendment and the WKA case.

    I am just reminding to everybody what Rebekka Bonner said on this subject:

    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”

    And this is Professor Lohman’ opinion:

    “Thus, this begs the question whether Wong Kim Ark is determinative with
    regard to who may or may not be considered ‘natural-born’ United States
    citizens for purposes of presidential eligibility. While clearly not dispositive, as
    the case primarily discusses the Fourteenth Amendment and does not
    specifically address the presidential eligibility requirement, Wong Kim Ark is
    influential in that it purports to exhaustively examine the sources by which the
    Constitutional Framers derived citizenship terminology-the English common
    law.”

    Charles Gordon:

    “The fact is that the ‘natural-born’ designation was eliminated in the 1795 statute and has not since reappeared in any legislation dealing with citizenship. Indeed, the only American uses of this term are in the constitutional qualification and the1790 act. Modern nationality usage, in the United States and elsewhere, does not include any provision for natural-born citizens. The accepted modern designations, which will be discussed later, refer only to citizenship at birth and by naturalization, with the former group divided into native-born citizens and citizens at birth abroad. Therefore the designation of natural-born citizens is virtually obsolete and is relevant only because this antiquated term in inscribed in our Constitution.”

    I would add that it is relevant only because it is related to the presidential eligibility. The rest of the U.S. population not running for presidency shouldn’t even care about this term.

    This is a Gordon’s view on the 14th Amendment:

    “The fourteenth amendment was an aftermath of the Civil War and the language in question was fashioned to safeguard the citizenship rights of Negroes which previously had been questioned.” Charles Gordon acknowledged that “The purpose was to protect existing citizenship rights, not to curtail benefits which previously were recognized.”
    According to Gordon, “On its face, the fourteenth amendment did not purport to define or limit the presidential qualifications or the naturalization clauses of the Constitution.”

    He concludes this discussion by saying:

    “It seems to me, therefore, that the fourteenth amendment has little significant relevance to the appraisal of the presidential qualification clause…”

    Justice Samuel Miller:

    That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” [28]

    Van Dyne didn’t dispute Justice Miller’s reading of the 14th Amendment but criticized him for an inaccuracy:

    “The classing together of foreign ministers and consuls, when it was at that time well-settled law that consuls, as such, and unless expressly invested with a diplomatic character, are not entitled, by the law of nations, to the privileges and immunities of ambassadors, shows that the statement was not formulated with the same care and exactness as if the case before the court has called for a precise definition of the phrase.”

    As to the Wong Kim Ark case, Gordon stated:

    “In any event, the majority’s opinion did not discuss the presidential qualification clause of the Constitution and not necessarily relevant to its interpretation, except possibly by interference.”

    Gordon briefly talked about Lynch v. Clarke, which was mentioned in Wong Kim Ark and was decided in 1844, fifty four years before the WKA case:

    “The court ruled that a child born in the United States to British parents during their temporary sojourn acquired United States citizenship at birth under the “original and ancient” common law rule…”

    As we have noticed, neither WKA nor Lynch v. Clarke was supposed to answer a specific question about anybody’s presidential eligibility. Any talks about the NBC were, in the Gordon’s terminology, “dicta, pure and simple.”

    Let’s come back to WKA.

    Here is the District Judge William W. Morrow’s decision:

    “From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.”

    Justice Gray delivered the opinion of the U.S. Supreme Court:

    “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

    http://supreme.justia.com/cases/federal/us/169/649/case.html

    In both cases the Judges pronounced WKA a citizen, not natural born Citizen. In both cases the above-mentioned opinions were holdings, were they not?

    Am I supposed to read between the lines that he was indeed a natural born Citizen eligible to become President? I call it a wishful thinking.

    Some of you (maybe most of you) insisted that a child of illegal aliens born on American soil is also eligible to become president of this country.

    Following this logic, this is how we can visualize an opinion of the Supreme Court in 2012:

    “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of XYZ descent, who, at the time of his birth, are citizens of the XYZ country, have no permanent domicil and residence in the United States and have no business to be here in the first place, and have violated our law by entering this country illegally, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

    You can’t possibly accuse me of being anti-immigrant. I am against illegal immigration. It is insult to the people who came here through the front gates instead of the back door.

    Now you should understand why the second half of the title of my paper is this: Original vs. Modern Meaning of the Natural Born Citizenship. The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents. The modern meaning, on the other hand, is that ANYBODY born here can theoretically become President.

    As the famous Virginia Slims Commercials said: You’ve Come a Long Way Baby!

  321. avatar
    brygenon September 18, 2012 at 2:20 am #

    Mike Godkin: According to Bonner, the U.S. Supreme Court case, Wong Kim Ark, “is not determinative with respect who may or may not be considered ‘natural-born’ for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the ‘natural born’ eligibility clause.”

    According to you, a State Court decision does determine that.

    Let me use your terminology now.

    Who prevails in that disagreement? Ms.Bonner does. Why? Because, if she is right, then a State court ruling, which is not binding for other State courts and for the U.S. Supreme Court, is in essence irrelevant.

    Mr. Godkin, you like to lecture about scholars holding mere opinions, court holdings versus dicta, or state versus federal court jurisdiction, what’s binding and such. That can be tricky stuff for learned professionals. What about *your* stuff? Let’s check your citations on your side, the ones that actually argued that birth in the United States is not sufficient.

    As you cited, 96 years ago historically infamous xenophobe Breckinridge Long held that since Charles Evans Hughes was born before the adoption of the 14’th Amendment, “the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” There’s no record of legal scholars agreeing with Long on any of it, but that aside: Mike, on your scale of legal relevance, where fall arguments explicitly not considering the current law?

    You had one other citation doubting the eligibility of a native-born child of a foreign parent. It was from the case of Wrotnowski v. Bysiewicz. What if, Mike, we apply your own standards to your own citation? Was what you cited a “holding” of the Court, or mere “dicta”? You made a thing of the distinction when considering other people’s citations, so what about yours? Yours was neither a holding nor dicta. Was it, perhaps, at least worth noting a winning argument? No. Mike, what you have on your side is a brief by the *losers* of Wrotnowski v. Bysiewicz.

    Mike Godkin:
    President of the United States is a federal position. Barack Obama is not president of Indiana. His eligibility must be decided by the SCOTUS.

    You need to accept that the State courts may decide whatever they want, but the last word is up to the SCOTUS.

    On this issue the SCOTUS has said: “denied”, “denied”, “Congratulations Mr. President”, “denied”, “dismissed”, “dismissed”, “Welcome to the Court Madam Justice”, “dismissed”, “dismissed”, “Welcome to the Court Madam Justice”, “dismissed”, “denied”, “dismissed”, “dismissed”.

    I might be missing a “denied” or “dismissed” or two, or have something out of order, but that’s what they’ve said. If it’s too subtle, I can explain.

  322. avatar
    nbc September 18, 2012 at 2:25 am #

    I am just reminding to everybody what Rebekka Bonner said on this subject:

    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”

    Do you even attempt to understand? You quote mine, you use logical fallacies, quote out of context and you make little attempt to understand.

    You my friend need to significantly revise you ‘paper’ but somehow I doubt that you have the strength of mind and soul to do so.

    In both cases the Judges pronounced WKA a citizen, not natural born Citizen. In both cases the above-mentioned opinions were holdings, were they not?

    Am I supposed to read between the lines that he was indeed a natural born Citizen eligible to become President? I call it a wishful thinking

    I’d call it “reading the ruling”. As long as you are too lazy to read the ruling and the relevant documents, you should not blame the Court for your confusions.

    Do you understand the concept of ratio decidendi? Are you so intellectually lazy as to not pursue the logic that led to the ruling?

    Sorry Mike for being so blunt but you have shown no evidence of having learned from your mistakes, and instead hide behind your ignorance.

    It provides a large shield but one should not be proud to hide behind it. Instead one should pursue ways to resolve one’s lack of understanding.

    You my friend have a lot to learn. And your inability to correct your errors indicts you more than anything else.

  323. avatar
    nbc September 18, 2012 at 2:29 am #

    Mike Godkin: Now you should understand why the second half of the title of my paper is this: Original vs. Modern Meaning of the Natural Born Citizenship. The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents. The modern meaning, on the other hand, is that ANYBODY born here can theoretically become President.

    Which of course is a foolish opinion and a strawman. Congratulations my friend you have come a long way exploring ‘the truth’. Sadly your idea of the latter is somewhat tainted.

  324. avatar
    nbc September 18, 2012 at 2:39 am #

    As we have noticed, neither WKA nor Lynch v. Clarke was supposed to answer a specific question about anybody’s presidential eligibility. Any talks about the NBC were, in the Gordon’s terminology, “dicta, pure and simple.”

    Are you sure you are describing Gordon correctly? Given your quote mining of Bonner and others, I sincerely doubt it as I have read Gordon.

    Neither ruling ruled on presidential eligibility which depends on three requirements. These ruling merely decided who are natural born citizens,

    Are you still that confused about the logic here? Shameful, you make no attempt to address these issue, pretend they were never raised, and continue to repeat your foolish arguments.

    And you tried to pretend that you were interested in the truth? So far I have seen little to support this. Perhaps you might want to address why you ignore these rebuttals and instead continue to repeat the same nonsense? Am I to conclude that you lack the ability to defend yourself?

  325. avatar
    brygenon September 18, 2012 at 2:52 am #

    Mike Godkin
    I am just reminding to everybody what Rebekka Bonner said on this subject:

    You are so not fooling anyone. Long-windiness is not going to work either. Not here; not this crowd. We’ve read Apuzzo’s briefs all the way through. Taitz too.

    [… snip …]

    Mike Godkin
    As the famous Virginia Slims Commercials said: You’ve Come a Long Way Baby!

    Gee, how subtle and clever. Let’s see who that reference sets off.
    Mike, you are not even a good troll.

  326. avatar
    G September 18, 2012 at 3:19 am #

    It seems you have a problem properly understanding what “determinative” means here.

    Those statements you quoted are accurate assessments; however you’re understanding of what they said is what is flawed.

    Both of them are mentioning the simple fact that not EVERY permutation of obtaining natural born citizenship are addressed under WKA. Of course not. WKA is only going to address the pertinent permutation of the situation that is before the courts to rule upon. As is true with ANY legal case – only specific relevant scenarios will be addressed – not every possible speculative combination and permutation out there.

    What you continue to fail to grasp is that the particular permutations that remain “unsettled” are all elements of jus sanguinis. Jus soli (NBC via birth on US soil) is a fairly long-settled issue.

    You have your head in the sand, seemingly because you take issue with illegal aliens. However, that doesn’t change the reality that there is ZERO legal evidence contradicting NBC via birth on US soil.

    All you can do is grasp at straws and twist delusionally, on the mere non-related scope of unresolved speculative NBC designations for childrens born OFF of US soil, to one or more US citizen parents.

    But NO, you have shown nothing to support your ficticious argument that contradicts the reality of automatic NBC status via birth within the US.

    Mike Godkin: A few more words about the14th Amendment and the WKA case.
    I am just reminding to everybody what Rebekka Bonner said on this subject:
    “Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”
    And this is Professor Lohman’ opinion:
    “Thus, this begs the question whether Wong Kim Ark is determinative with
    regard to who may or may not be considered ‘natural-born’ United States
    citizens for purposes of presidential eligibility. While clearly not dispositive, as
    the case primarily discusses the Fourteenth Amendment and does not
    specifically address the presidential eligibility requirement, Wong Kim Ark is
    influential in that it purports to exhaustively examine the sources by which the
    Constitutional Framers derived citizenship terminology-the English common
    law.”

  327. avatar
    Mike Godkin September 18, 2012 at 3:23 am #

    Dr. Conspiracy,
    As far as the “Hamilton Draft issue,” I have two choices;
    1) to check the information or
    2) to believe you.
    I am going to believe you.
    OK, Hamilton was not rejected; he was ignored. If I’m wrong, I’m wrong.

    Now, if you don’t mind, let’s switch the subject.

    This is what you wrote:

    “You stated that ‘Solum changed his tune’ but that is not consistent with what he said. What he said is that people misunderstood him, and so he reworded it. That is very different from ‘changing his tune.’ It would be confirmation bias to take the uncorrected statement as authoritative and reject the correction. No responsible scholar would do that.”

    Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
    I gave you an honest answer, and I expect an honest answer from you.

  328. avatar
    G September 18, 2012 at 3:31 am #

    I agree with the portion of your commentary stated in bold. However, that doesn’t change the reality that birth on US soil makes those children NBC, regardless of the immigration status of their parents. That simply is what it is.

    I don’t know enough about your positions to weigh in yet on whether they are “anti-immigrant”…although the disingenuous arguments you make certainly smack of such an attitude.

    As I said, I am against “illegal immigration”. But by that, I mean that I want a broken system fixed, so that any level of necessary or valuable immigration is properly managed, regulated and protective of human rights and fair minimum workplace compensation.

    I see part of the biggest problem in our broken system being on the shady employer’s side – folks who wish to simply pad their profits by skirting around fair labor laws and who are the main impetus for encouraging a stream of illegal labor flowing over our borders.

    I think our INS department has always been underfunded and understaffed. If the workforce needs end up needing more temporary seasonal visa workers, then let’s do it via a proper and official system and NOT via illegal immigration, which I agree is cheating and is unfair both to citizens of this country and all the legal immigrants who’ve been in line and waiting and who obeyed the rules.

    So in summary, if our immigration system is inadequate, bogged down and too slow, then that is what needs to be revised and fixed. That would be better for ALL legal immigrants too, who often have a similar list of legitimate gripes about being stuck in a long queue of an inadequately staffed and overburdened, inefficient system.

    Mike Godkin: You can’t possibly accuse me of being anti-immigrant. I am against illegal immigration. It is insult to the people who came here through the front gates instead of the back door.

  329. avatar
    G September 18, 2012 at 3:36 am #

    This blog has been around since 2009. During that time, like all humans, Dr. C has made mistakes. Whenever they have been brought to his attention, he has been very quick to both correct the mistake, openly admit the mistake, and also blog about his notice of correction.

    So NO, he doesn’t take two years to correct it, he addresses these things fairly quickly.

    There is an honest answer for you.

    Mike Godkin: Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
    I gave you an honest answer, and I expect an honest answer from you.

  330. avatar
    nbc September 18, 2012 at 3:47 am #

    Mike Godkin:
    Dr. Conspiracy,
    As far as the “Hamilton Draft issue,” I have two choices;
    1)to check the information or
    2)to believe you.
    I am going to believe you.

    Why not check the information? How hard can that be? One should never rely on a single source of information.

    OK, Hamilton was not rejected; he was ignored. If I’m wrong, I’m wrong.

    A very common occurrence.

    No responsible scholar would do that.”

    Oh my god that is the pot calling the kettle black… Mike, why not address the major short comings in your article rather that make foolish accusations?

    Makes sense? So far your contributions have shown yourself to be foolish at a minimum when representing statements made by for instance Bonner and now Gordon/

  331. avatar
    Mike Godkin September 18, 2012 at 3:47 am #

    G,

    Did you read the Section “The ‘effect’ of the 14th Amendment?”
    Nobody commented on it so far.

  332. avatar
    Mike Godkin September 18, 2012 at 3:54 am #

    G,

    I asked Dr. Conspiracy:

    “Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
    I gave you an honest answer, and I expect an honest answer from you.”

    You answered for him:

    “So NO, he doesn’t take two years to correct it, he addresses these things fairly quickly.
    There is an honest answer for you.”

    I rest my case (almost).
    I’d like to see the answer from Dr. C., if possible, though.

  333. avatar
    nbc September 18, 2012 at 4:00 am #

    Mike Godkin: Did you read the Section “The ‘effect’ of the 14th Amendment?”
    Nobody commented on it so far.

    Did you read the parts that had comments? Care to explain why you ignore them. Do not confuse lack of response with your arguments having any relevance. Let’s start from the beginning and work our way through this mediocre paper.

    Deal?

  334. avatar
    brygenon September 18, 2012 at 4:31 am #

    Mike Godkin: Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
    I gave you an honest answer, and I expect an honest answer from you.

    You ask that of our our host, Dr. Conspiracy? He has an exemplary record. Remarkably few errors, and within those rare occasions, a self correction rate approaching perfection.

    That said, Dr. C. has the blogger’s advantage in speed. Contrast it with the academic literature, which moves at a pace oft described by insiders as “glacial”.

    What about you, Mike Godkin? You challenge Dr. C. on what he might do if he published a mistake. We know that already: it’s rare, but when Dr. C. makes a mistake he corrects. He’s never said anything so profoundly and obviously wrong as your assertion, Mike, “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” Your own citations prove otherwise. How long is it going to take you to retract?

  335. avatar
    Paper September 18, 2012 at 5:18 am #

    While we’re on this topic, I would make note of a related topic: Original Immigration Practices vs. Modern immigration Practices. Originally, anyone could just come, no restrictions. As Dr. C noted recently (was it upthread in this post? I don’t recall exactly.)

    While I am against illegal immigration (I have legal immigrant friends and yes they too do not like illegal immigration), if we were to go with Original Practices, we wouldn’t have to worry about illegal immigrants as there wouldn’t be any.

    Moreover, as illegal immigration is a modern concern, not an original concern, it’s a little hard to imagine or find original concern with the idea of natural born citizenship including every single person born on American soil, subject to American jurisdiction, no matter how they are so born, based on whether or not the parents are legal immigrants.

    Mike Godkin: .

    Some of you (maybe most of you) insisted that a child of illegal aliens born on American soil is also eligible to become president of this country.

    Following this logic, this is how we can visualize an opinion of the Supreme Court in 2012:

    “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of XYZ descent, who, at the time of his birth, are citizens of the XYZ country, have no permanent domicil and residence in the United States and have no business to be here in the first place, and have violated our law by entering this country illegally, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

    You can’t possibly accuse me of being anti-immigrant. I am against illegal immigration. It is insult to the people who came here through the front gates instead of the back door.

    Now you should understand why the second half of the title of my paper is this: Original vs. Modern Meaning of the Natural Born Citizenship. The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents. The modern meaning, on the other hand, is that ANYBODY born here can theoretically become President.

  336. avatar
    nbc September 18, 2012 at 5:41 am #

    Mike quotes Gordon

    On its face, the fourteenth amendment did not purport to define or limit the presidential qualification or the naturalization clauses

    and

    “It seems to me, therefore, that the fourteenth amendment has little significant relevance to the appraisal of the presidential qualification clause…”

    Note that Gordon is trying to establish if children born abroad to US citizens are natural born citizens

    Read his introduction

    The approach of our 45th presidential election evokes once again the question of constitutional eligibility. Under the presidential qualification clause of the Constitution, only “natural-born” citizens are qualified for this highest office. It is clear enough that native-born citizens are eligible and that naturalized citizens are not.’ The recurring doubts relate to those who have acquired United States citizenship through birth abroad to American parents. Can they be regarded as “natural-born” within the contemplation of the Constitution?

    Quote mining again Mike? Please read these papers before looking totally foolish.

  337. avatar
    nbc September 18, 2012 at 5:46 am #

    See also my rebuttal of Mr Apuzzo’s similar follies regarding Charles Gordon

  338. avatar
    Scientist September 18, 2012 at 6:52 am #

    Mike Godkin: In both cases the Judges pronounced WKA a citizen, not natural born Citizen. In both cases the above-mentioned opinions were holdings, were they not?
    Am I supposed to read between the lines that he was indeed a natural born Citizen eligible to become President? I call it a wishful thinking

    I don’t know if you are supposed to read between the lines, but courts, when faced with a case involving presidential eligibility, are supposed to take previous decisions and apply them to the circumstances in front of them. That is what the Ankeny court did, and they did so in a matter that has been seen as sound by numerous other state and federal courts, which have cited Ankeny.

    You have the legal process completely backwards. You believe only the US Supreme Court counts and all other courts are worthless. But that is not how things work. Laws passed by legislatures are presumed constitutional unless ruled otherwise; lower court decisions are presumed correct unless overturned and elected officials in office are presumed eligible unless ruled otherwise.

    So, courts are perfectly entitled to take Wong (even though the Supreme Court didn’t explicitly say Wong was eligiible to be President) and apply the logic of the Wong case to say Obama or Rubio or Jindal are eligible. If the Supreme Court believes they are wrong, they can take one of those cases and overturn it. Since they have not done so, Ankeny and all the other cases stand and are the law. Most laws have never been formally reviewed by the US Supreme Court-however, they are fully valid and are applied by courts every day. Go break one and you will find out.

    It is simply an incontrovertible fact that the law in 2012, as applied by the courts, says that if you are born in the US you are eligible to be President. Period. Now, if you want to argue that that wasn’t the law in 1788, feel free. In my opinion, it was also the law in 1788. But I actually don’t care. Laws can and must evolve as conditions change. Courts take previious laws and apply them to situations that have never arisen before. That is how it works, in the US and everywhere else. Sorry if that upsets you.

  339. avatar
    The Magic M September 18, 2012 at 8:13 am #

    Mike Godkin: The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents.

    Then why only 14 years of residence? Why not demand the person spent his entire life in the US, or at least his forming years (childhood, school)? How does that fit in with your “maximum attachment” argument?

    And why only naturalized parents? Why not demand the parents be NBC as well?
    Why was it allegedly enough for the Founders if the parents naturalized one day before the child was born, but not if they naturalized one day after? How does the former create “more attachment”, let alone “maximum attachment”?

    You are not making sense even outside any legal argument.

  340. avatar
    Dr. Conspiracy September 18, 2012 at 8:52 am #

    Perhaps you have not fully grasped the language of the 14th Amendment. Let me refresh your memory:

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

    Note that it only apples to those born in the United States or those naturalized in the United States. It does not apply to persons who become citizens at birth OUTSIDE of the United States, such as those who are born abroad to US citizen parents. That is why the 14th Amendment is not definitive on who can be president because there are persons who are citizens at birth, but not protected by the 14th Amendment.

    The doubts and questions in your citations relate to the foreign born, not those born in the US, and therefore they are useless to forward any argument about the US born Barack Obama.

    Mike Godkin: A few more words about the14th Amendment and the WKA case.

  341. avatar
    Paper September 18, 2012 at 9:08 am #

    And yet after all is said and done, you haven’t demonstrated your premise that there is no consensus. That is a hard premise to demonstrate in the first place because consensus does not mean 100% agreement. That is a loose, broad, imprecise measurement. But you don’t even get close regardless. As others have pointed out, you are misrepresenting these individuals’ opinions.

    Furthermore, your fifteen minutes of “for the sake of the argument” are up. Forget about your premise. Where are the authoritative, explicit, outright, affirmative statements through the centuries that citizen parents are required even if you are born on American soil? Where are these original statements to support your opinion that such was the original meaning?

    Mike Godkin:

    Now you should understand why the second half of the title of my paper is this: Original vs. Modern Meaning of the Natural Born Citizenship. The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents. The modern meaning, on the other hand, is that ANYBODY born here can theoretically become President.

  342. avatar
    Dr. Conspiracy September 18, 2012 at 9:09 am #

    It appears to me that you are imposing your own views on the framers and not letting them talk for themselves. The one framer who did comment on the rationale for the qualifications of the President, Charles Pinckney (himself a delegate to the Federal Convention), said:

    They [the framers] well knew, that to give to the members of Congress a right to give votes [as presidential electors] in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible. . . .

    He said “attachment to the country,” not “maximum possible attachment.”

    If you honestly want to understand what the Framers thought, and at this point I have grave doubts that you do, let me suggest you read Bancroft’s account of the debate, as found in his History of the United States, from the Discovery of the American Continent, Volume 6. pp 326-347. Where is the concern about parentage mentioned ever in the debate of the Federal Convention?

    Mike Godkin: The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents.

  343. avatar
    Scientist September 18, 2012 at 9:16 am #

    The Magic M: Then why only 14 years of residence? Why not demand the person spent his entire life in the US, or at least his forming years (childhood, school)? How does that fit in with your “maximum attachment” argument?

    I find this whole issue of “attachment” to be quite perplexing. Here is Mike Godkin, a guy born and educated in the USSR. Let me ask, is Mike (who is presumably a naturalized US citizen) attached to the US? Supposing Mike could become President, would he serve the citizens who elected him or sell the country out to Putin? Is Mike’s paper the honest work of a loyal, if misguided, American or is it an attempt by the Russian intelligence services to undermine the US by sowing discord and suspicion?

    I will be a charitable fellow and say that I assume Mike is as attached to the US as the average person born here or even the average person born here with 2 citiizen parents. Perhaps even more so. So, then, really, what is all the fuss about? Pehaps it’s time to acknowledge that the Founders wrote not only poorly drafted eligibility criteria, forcing people to guess what they meant, but also ones whose very basis lacks logic and coherence.

    So when Mike says that scolars disagree on the meaning of the phrase “natural born citizen”, what he is realy saying is that it is unconstitutionally vague, and thus, essentially unenforcable. And the only solution, really, is to have a national debate and decide whether such restrictions are even necessary, and, if they are, to draft crystal clear language. You want 2 citizen parents? Then say so in the Constitution. You think the voters are the proper folks to judge someone’s attachment to the country (as I do)? Then get rid of these arbitrary restrictions and let the voters choose. But let’s stop trying to guess what dead people meant. It’s frankly disrespectful and a bit macabre. When I am dead, I really hope no one twists anything I wrote while I was alive. And if I do want people to pay attention to what I wrote, then it is my job to write clearly and not use code words that will have to be decipherd by using double secret code breaking.

  344. avatar
    Keith September 18, 2012 at 10:22 am #

    Mike Godkin: Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
    I gave you an honest answer, and I expect an honest answer from you.

    That is a straw man question.

    Solum didn’t make a mistake, his essay was not in error. His comments in the essay were misunderstood.

    (I’m assuming you are referring to a 2 year lag between Solum’s first article and his reworking of it – I’m don’t have time to check right now).

    This “mistake” was not brought to his attention by hundreds of people right away, because it wasn’t a mistake. I would guess that he eventually got tired of explaining that he was being misread. Maybe that took a 18 months, and another 6 to get it into the journal print cycle. That would explain the 2 year lag if that is what it was.

    And, just FYI, the answer to your straw man question is that Doc does correct errors quickly and advertises those corrections when they crop up from time to time. Doc is not, however, publishing through an academic publication schedule in which the issue content is selected months in advance. He is publishing via his own blog and can choose his content at whim.

    Also please learn how to use the “quote” function. It will make it a lot easier to read what is your comment and what is the comment you are replying to. Thanks in advance.

  345. avatar
    Keith September 18, 2012 at 10:26 am #

    nbc: No responsible scholar would do that.”

    Oh my god that is the pot calling the kettle black… Mike, why not address the major short comings in your article rather that make foolish accusations?

    I think that was part of Doc’s remark, not Mike’s.

  346. avatar
    Squeeky Fromm, Girl Reporter September 18, 2012 at 10:48 am #

    Mike:

    Might I suggest an experiment for you. Go to Wong Kim Ark, and determine the definition of a natural born citizen who is born inside the United States.

    Now, determine the definition of a 14th Amendment “citizen at birth” born inside the United States.

    Now, don’t read any further, because I am going to provide the answers for everybody else, but I don’t want to spoil your homework assignment.

    NBC = born in the U.S. and in the allegiance of the U.S.

    In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

    All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

    1 Abbott (U.S.) 28, 40, 41.

    And, from the bottom of Section V:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions []

    The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”

    Therefore NBC = being born here and within the allegiance, which means NOT falling within the 2 exceptions.

    What about the 14th Amendment for people born here?:

    Being born here and “subject to the jurisdiction of the U.S”

    What does “subject to the jurisdiction mean”

    NOT being within the two exceptions.

    Therefore 14th Citizen at birth = being born here and not falling within the 2 exceptions.

    From above,
    Therefore NBC = being born here and not falling within the 2 exceptions.

    The two things are the same. This is about as simple as you can get. “Being born here and not falling within the 2 exceptions.

    That one sentence above which is BOLDED, says it all. “Within the allegiance” is the same thing as “subject to the jurisdiction” – Both mean NOT falling within the 2 exceptions.

    Being born here is being born here.

    The friggin’ damn WKA court did not have to specify Wong was a NBC because when they analyzed his status under the 14th Amendment, it was the same thing. That 14th Amendment citizen at birth is a NATURAL BORN CITIZEN

    Plus, they done told him right above that, at the end of Section V, that the two were the same thing:

    PLUS, the darn dissent done told him that if Wong was a citizen then he was a natural born citizen:

    Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

    So, I wonder if he will do the exercise or not.

    Squeeky Fromm
    Girl Reporter

  347. avatar
    The Magic M September 18, 2012 at 11:10 am #

    Scientist: I find this whole issue of “attachment” to be quite perplexing.

    It ultimately hearkens back to the notion of “he’s not one of us”. If you read birther cesspools, the general consensus behind “attachment” is “a guy like me”.
    So no atheists, no-one who loves Canada or think the national anthem is a dissonant piece of crap, no-one who would rather save the lives of 300 Jamaicans than of one American etc.
    Some even want some Iranian-style Council of Guardians that “evaluates” the “patriotism” of every candidate (hopefully coming out with “scary black people don’t qualify”).

    Because in the end, when they talk about allegiance, they’re talking about thoughts and feelings, not legal issues. And that’s the dissonance, that’s the point where their “how I like it to be” turns into “what I think the law says”.

    I still think there are some forces who would love to open the can of worms labelled “what the Founders really meant” because they hope it would revert most of the things that happened since 1776, with women’s and non-whites’ rights on the forefront, but possibly more, and even against clear SCOTUS rulings. Because, y’know, the Founders were gods and their intents trump anything, even the clear wording of the Constitution if necessary.

    Scientist:

    Pehaps it’s time to acknowledge that the Founders wrote not only poorly drafted eligibility criteria, forcing people to guess what they meant, but also ones whose very basis lacks logic and coherence.

    I wouldn’t subscribe to that. I always tell the birthers that that is what *their* point of view amounts to – the Founders using some secret code language that was supposed to mean something (“needs two citizen parents”) different than what the people on the streets understood it to mean (“born on the soil, except American Indians and foreign diplomats”). Some birthers even go so far that they acknowledge that only the Founders could’ve understood that term since there was no edition of Vattel that said “natural born citizen” when the Constitution was written. They tell you with a straight face “the Founders understood French” and don’t understand that the people on the streets didn’t, so the Founders must’ve written the Constitution for bilingual legal experts, not the people.

    When the Founders wrote “natural born citizen”, people certainly understood what it meant (analogous to “natural born subject”), though I don’t know if really *everyone* did.

    As for “illogical/incoherent”, I don’t think that holds. True, they may have left some cases open (born to one citizen parent abroad, for example) and they *could* have made it easier to understand (though typically legal people prefer to use terms of art instead of making a grocery list, for the same reason the 14th Amendment does not clearly define what “subject to the jurisdiction” means).

    However, just because some laymen try to twist up into down doesn’t mean the Founders wrote poor regulations. I’d say anything short of a phonebook of a Constitution would leave wiggle room for wingnut interpretations of things that no scholar and no sane person would disagree on.

  348. avatar
    Scientist September 18, 2012 at 11:49 am #

    The Magic M: As for “illogical/incoherent”, I don’t think that holds.

    What is the stated goal of the restictions on eligibility? Preventing “foreign influence”. But how would a foreign country obtain influence? Send someone to father a child in the US (making sure to naturalize before the child is born to please Mike Godkin) and wait 50 years for that child to have a 1 in 100 million chance of getting elected President? Hardly. No, they would select several of the top contenders and hire them as agents. Much more certain to work and more immediate. No Constitutional provision forbids a paid agent of China, Russia, Iran or any other country from being President. No, we rely on the common sense of the voters and the vigilance of the press and the opposing candidates to point out the interests that the candidate may serve.

    So we trust the voters not to elect natural born citizens working for foreign governnments, like Alger Hiss, John Walker, or Aldrich Ames, yet the Constitution must save us from the grave threat to the nation of electing Bob Hope, Arnold Schwarzenegger or Jennifer Granholm. That, my frend is illogical and incoherent.

  349. avatar
    dunstvangeet September 18, 2012 at 12:12 pm #

    Mike, let me propose a thought experiment for you.

    You have 2 people here.

    1. Person 1 was born in the United States, to two citizen parents. One day that after he was born, he was taken to a foreign country, where he and his parents naturalized. He never set foot on American Soil until his 21st birthday, when he returned to the United States, lived there ever since.

    2. Person 2 was born in the United States to one citizen parent, one foreigner. One day after he was born, his foreigner parent naturalized. He never set foot outside the United States.

    On their 35th birthday, which one has the “Maximum attachment” to the country? According to you, the person who spent 21 of his 35 years outside the United States, and not the one who spent his entire life in the United States.

  350. avatar
    The Magic M September 18, 2012 at 12:18 pm #

    Scientist: What is the stated goal of the restictions on eligibility? Preventing “foreign influence”.

    AFAIK, the only motivation of the Founders was to prevent a member of the royal family to come to the US, naturalize and run for President.

    I don’t think it ever was about some abstract “foreign influence” (after all, most of the Founders were “foreigners” to begin with).
    (Of course I didn’t read as many sources as many on this site did during those long NBC discussions.)

  351. avatar
    Scientist September 18, 2012 at 12:25 pm #

    The Magic M: AFAIK, the only motivation of the Founders was to prevent a member of the royal family to come to the US, naturalize and run for President.

    Since Obama is not foreign royalty, there should be no problem then.

  352. avatar
    G September 18, 2012 at 12:28 pm #

    Agreed. Well said.

    Paper: While I am against illegal immigration (I have legal immigrant friends and yes they too do not like illegal immigration), if we were to go with Original Practices, we wouldn’t have to worry about illegal immigrants as there wouldn’t be any.
    Moreover, as illegal immigration is a modern concern, not an original concern, it’s a little hard to imagine or find original concern with the idea of natural born citizenship including every single person born on American soil, subject to American jurisdiction, no matter how they are so born, based on whether or not the parents are legal immigrants.

  353. avatar
    G September 18, 2012 at 12:33 pm #

    Agreed! Well said!

    Scientist: I don’t know if you are supposed to read between the lines, but courts, when faced with a case involving presidential eligibility, are supposed to take previous decisions and apply them to the circumstances in front of them.That is what the Ankeny court did , and they did so in a matter that has been seen as sound by numerous other state and federal courts, which have cited Ankeny.

    You have the legal process completely backwards.You believe only the US Supreme Court counts and all other courts are worthless.But that is not how things work.Laws passed by legislatures are presumed constitutional unless ruled otherwise; lower court decisions are presumed correct unless overturned and elected officials in office are presumed eligible unless ruled otherwise.

    So, courts are perfectly entitled to take Wong (even though the Supreme Court didn’t explicitly say Wong was eligiible to be President) and apply the logic of the Wong case to say Obama or Rubio or Jindal are eligible. If the Supreme Court believes they are wrong, they can take one of those cases and overturn it.Since they have not done so, Ankeny and all the other cases stand and are the law.Most laws have never been formally reviewed by the US Supreme Court-however, they are fully valid and are applied by courts every day. Go break one and you will find out.

    It is simply an incontrovertible fact that the law in 2012, as applied by the courts, says that if you are born in the US you are eligible to be President.Period. Now, if you want to argue that that wasn’t the law in 1788, feel free.In my opinion, it was alsothe law in 1788.But I actually don’t care. Laws can and must evolve as conditions change. Courts take previious laws and apply them to situations that have never arisen before. That is how it works, in the US and everywhere else. Sorry if that upsets you.

  354. avatar
    ballantine September 18, 2012 at 12:35 pm #

    The problem for the birthers is there are no statements from any framers supporting the two parent theory. Hence all they can do is exaggerate Vattel’s influence or the framers fear of foreign influence and then speculate that the framers must have agreed with them. Such is not legal argument. In any event, their exaggerations are not based in reality

    There are no real statements from the framers themselves on the reason for the NBC clause. Jay wasn’t there and his letter talks of a “strong check” against appointment of foreigners, not the strongest possible check. There is no evidence that Jay wasn’t referring to the English rule requiring native birth to hold office as the “strong check” and his use of an English legal term of art only re-enforces such conclusion. It is also unclear what impact Jay’s letter had on the Convention.

    In the Convention, only eligilbity of Congress was discussed (at a time when the President was to be appointed by Congress). Some people did raise concerns about foreign attachements but they meant of the foreign born as the only things discussed but requiring native birth or requiring the foreign born to be here for long periods before being eligible. But the debates show there was no great concern as some of the most important framers didn’t want any restrictions on eligibility at all. Mr. Madison:

    “There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people wd. prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected; and among natives having full Confidence of the people not among strangers who would be regarded with a jeoulous eye.”

    Not much concern there. Notice, he is clearly distinguishing natives of this country versus natives of a foreign country. Notice he also says if foreign nations were to engage in bribery, they would do so with natives who had the confidence of the people, not strangers would be regarded with a jeoulous eye.

    Simply put, there is not evidence there wa any great fear of foreign influence or that even a single person thought parentage should be relevant.

  355. avatar
    G September 18, 2012 at 12:46 pm #

    Agreed!

    ballantine: Simply put, there is not evidence there wa any great fear of foreign influence or that even a single person thought parentage should be relevant.

  356. avatar
    nbc September 18, 2012 at 2:56 pm #

    Mike:

    The above is a modified quotation from the article written by Charles Gordon and published by Maryland Law Review in 1968. [14]

    Mr. Gordon cites the same source as Mr. Friedman (Schneider v. Rusk case) as well as the similar cases: Luria v. U S, 231 U.S. 9 (1913), Baumgarten v. United States, 322 U.S. 665 (1944), and Knauer v. United States, 328 U.S. 654 (1946). Whatever statements were made there on the subject of presidential eligibility were dicta.

    They are however not dicta on the subject of natural born citizenship. You are arguing a strawman. Presidential eligibility is determined by three factors

    1. Age
    2. Residence on US soil
    3. Natural Born

    There are no doubts in Obama’s case that he meets 1 and 2. As to 3, it is sufficient to show that President Obama is a natural born citizen to show that he indeed is eligible. Your understanding of dicta versus ratio decidendi versus precedent are quite poorly developed.

  357. avatar
    predicto September 18, 2012 at 7:11 pm #

    As someone who is actually a constitutional law attorney for a living, who has taught legal writing and research, and who has drafted judicial opinions, all I can say is:

    Mr. Godkin’s “reasoning” is so convoluted and unpersuasive that it gives me a headache. There are at least 20 reasons why it would not pass muster in any court in the land (and of course, HASN’T passed muster in over 100 courts to date).

    It kind of reminds me of pro per briefs I have read from “sovereign citizen” tax protestors, where they make up an entire body of law out of whole cloth, and then try to shoehorn everything into their bizarre prexisting meritless legal construct.

  358. avatar
    Thrifty September 18, 2012 at 8:55 pm #

    predicto: As someone who is actually a constitutional law attorney for a living, who has taught legal writing and research, and who has drafted judicial opinions

    This may sound like a stupid question, but what is a “constitutional law attorney”? Isn’t all law in the United States derived from the Constitution, being the supreme law of the land?

  359. avatar
    Squeeky Fromm, Girl Reporter September 18, 2012 at 10:24 pm #

    Dear Predicto:

    Please accept this comment as official notification that I intend to exercise adverse possession over your words, to wit:

    ” bizarre prexisting meritless legal construct”

    I do so openly and visibly and in a manner inconsistent with your rights. They are sooo much better than Ankeny’s:

    “we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true.”

    Squeeky Fromm
    Girl Reporter

  360. avatar
    Mike Godkin September 19, 2012 at 1:50 am #

    Predicto,

    Maybe, you can help me.

    As we know, the Founding Fathers did not specifically require a presidential candidate to have two citizen parents. I admit that without any problem. But what they did require was an attachment to the land. How, in your opinion, could that attachment be achieved back in 1787 and, for that matter, now? And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way. Isn’t it why the Founding Fathers approved the “natural born Citizen” clause without any discussion? Putting aside our political affiliations, do you think it is a plausible explanation without going into natural born subject vs. natural born citizen issue?

    Quite a few commentators on this thread insist that a child, born on American soil to illegal aliens, is also eligible to become President. What attachment to what land are we talking about in this case? What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    Did you have a chance to read the Section “Who is the Sovereign in the United States” of my paper? It’s only two-page long. If you did, what do you think of it?
    It’s a rare occasion to get a professional opinion.

    And the last question I have for you (for now): Did the 14th Amendment and the WKA case affect in any way the NBC presidential requirement and if it did, why?

    Thank you very much in advance.

  361. avatar
    Slartibartfast September 19, 2012 at 2:26 am #

    Mike Godkin:
    But what they did require was an attachment to the land. How, in your opinion, could that attachment be achieved back in 1787 and, for that matter, now?

    Why would you want anyone else’s opinion when the Father of the Constitution tells you in no uncertain terms what the criterion of allegiance (i.e. attachment to the land) was in the Founders’ day:

    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; it will therefore be unnecessary to investigate any other.—James Madison

    And what is the easier and simpler way to achieve it through one’s parents?

    It may seem simpler and easier to you, but the opinion of someone as dishonest and contemptible as yourself is of little value to anyone else.

    It is the most natural way.

    To an irrelevant fool like yourself, maybe…

    Isn’t it why the Founding Fathers approved the “natural born Citizen” clause without any discussion?

    Actually, that can’t possibly be true—natural born subject was a well understood term of art which was also the law of the land before the Revolutionary War, and it was also used interchangeably with natural born citizen in state legislation for many years thereafter. Had the Founders intended a different meaning for the term natural born THEY WOULD HAVE SAID SO. We know they were aware of such things—they did it with the term “treason”. No discussion meant that there was no argument as to the meaning of the term and the only way their could possibly be no argument is if they kept the meaning that every single one of these English trained lawyers understood.

    Putting aside our political affiliations, do you think it is a plausible explanation without going into natural born subject vs. natural born citizen issue?

    You’ve never shown any ability to put aside your political affiliations—you’ve been trying to smear President Obama with lies since before the election in 2008.

    Quite a few commentators on this thread insist that a child, born on American soil to illegal aliens, is also eligible to become President. What attachment to what land are we talking about in this case? What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    THE FOUNDERS DIDN’T WORRY ABOUT ILLEGAL ALIENS BECAUSE THERE WAS NO SUCH THING IN THEIR TIME.

    Did you have a chance to read the Section “Who is the Sovereign in the United States” of my paper? It’s only two-page long. If you did, what do you think of it?
    It’s a rare occasion to get a professional opinion.

    Yes, I’d like to hear Predicto’s opinion of that dreck as well.

    And the last question I have for you (for now): Did the 14th Amendment and the WKA case affect in any way the NBC presidential requirement and if it did, why?

    The answer to your question is obviously “no” (the President was required to be a natural born citizen both before and after). The question you want to ask is did either case affect the definition of the term “natural born citizen”.

    Thank you very much in advance.

    If you had a shred of integrity or good faith, you would answer some of the myriad questions raised by the commenters here. I would advise predicto not to make any response to you unless you state clearly that you are willing to accept his authority even if he tells you that you are completely full of crap (which, if you were paying attention, he already has). Face it, you are nothing more than a birther troll who cares nothing about the truth of any statement that can be used to smear President Obama.

  362. avatar
    Mike Godkin September 19, 2012 at 3:41 am #

    To Whom It May Concern

    Let me repeat what I have already said before: On October 23, 2011, David Drumm posted an article entitled “Holdings, Dicta, And Stare Decisis” on Jonathan Turlley’s blog.
    Among other things, he said the following:

    “Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.
    …While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
    A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold””.

    http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/

    So my question to the public is:

    By what magic did the dicta in the WKA case turn into the holding to be used by generations to come?

    As I know, there was no precedent on the Supreme Court level as far as consideration whether a person with an American mother and a father who was a British subject, when his child was born, is indeed qualified to become an be President.

    I’d like to make a few comments now about the Ankeny case and particularly about the Section B:
    “Natural Born Citizen.”

    It was an “equal opportunity” for both candidates:

    “Second, the Plaintiffs argue that both President Barack Obama and Senator John McCain are not ‘natural born Citizens’ as required for qualification to be President under Article II, Section 1, Clause 49 of the U.S. Constitution, and that therefore because neither person was constitutionally eligible to become President…”

    Note 10:
    “The United States Senate passed a resolution on April 30, 2008 which explicitly recognized Senator John McCain as a natural born citizen. S.J. Res. 511, 110th Cong. (2008).”

    The court forgot to mention that this Resolution was non-binding and totally useless. (See the Section “U.S. Senate to the rescue” of my paper.)

    Note 12:
    “Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.”

    Remember, the Court said:

    “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”

    The key word here id “doubt.” In case of two parents, there is no doubt. In case of two aliens, there is a doubt. In case of one citizen and one alien, I would say, there is still a doubt, but apparently not in your minds.

    Note 16:
    “We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS C. REEVES, GENTLEMAN BOSS, THE LIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a rumor “that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible to become the Chief Executive.” Id. at 3. Although President Arthur’s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur’s father was an Irish citizen he was constitutionally ineligible to be President.”

    The last argument was not made because people didn’t know about it:
    New evidence came to light on December 6, 2008 which revealed that the naturalization records for President Chester Arthur’s father, William Arthur, had been located in the “Chester A. Arthur Papers” at the Library of Congress. The New York State record proved William Arthur wasn’t naturalized as a United States citizen until August 1843, fourteen years after Chester Arthur was born in 1829. The fact of Chester Arthur’s having been born a British subject was published for the first time on Dec. 6, 2008 and is therefore an “intervening matter not available at the time of the party’s last filing.” The twenty-first President of the United States, Chester Arthur, was a British subject at the time of his birth, and it is respectfully submitted that he was therefore not a “natural born citizen” of the United States.”

    http://www.scribd.com/doc/8830185/Wrotnowski-v-Bysiewicz-Supplemental-Brief#archive_trial#archive_trial

    To make the long story short, I’d like to conclude that had Barack Obama run for president of Indiana, the case would have been closed.

    But he is running again for President of the United States.

  363. avatar
    Slartibartfast September 19, 2012 at 4:04 am #

    Mike Godkin: By what magic did the dicta in the WKA case turn into the holding to be used by generations to come?

    As you have been repeatedly told, the holding was that Mr. Wong was a natural born citizen. Once again you show that while you may have read Mr. Drumm’s article, you IN NO WAY UNDERSTAND IT.

    As I know [sic], there was no precedent on the Supreme Court level as far as consideration whether a person with an American mother and a father who was a British subject, when his child was born, is indeed qualified to become an be President.

    Do you honestly (I realize the irony of using that word in reference to you) believe that the child of two aliens prevented by law from ever becoming citizens is natural born, but the child of a US citizen is not?

    Mike Godkin: To make the long story short, I’d like to conclude that had Barack Obama run for president of Indiana, the case would have been closed.

    The argument made in the Ankeny decision must be addressed (and refuted) as a necessary condition for any pro-birther ruling to occur in any court. It is a precedent which, in the absence of a valid argument to the contrary, would likely sway any court in the country. It has already been cited in multiple decisions, which only raises the bar for a contrary argument even higher (I would also note that the birthers have demonstrated that an empty chair is a far more formidable opponent than they can overcome).

  364. avatar
    Slartibartfast September 19, 2012 at 4:10 am #

    The key word is dicta. The court in Minor specifically declined to address these “doubts”. The court in Wong resolved all doubt in the case of two alien parents in its holding. Your argument may have flown between 1874 and 1898, but it is now 2012 and merely demonstrates the depth of your lack of understanding.

    Mike Godkin: The key word here id “doubt.” In case of two parents, there is no doubt. In case of two aliens, there is a doubt. In case of one citizen and one alien, I would say, there is still a doubt, but apparently not in your minds.

  365. avatar
    nbc September 19, 2012 at 4:11 am #

    Mike Godkin: By what magic did the dicta in the WKA case turn into the holding to be used by generations to come?

    It never did. You presume that it was dicta when in fact it was essential to the ration decidendi

    As I know, there was no precedent on the Supreme Court level as far as consideration whether a person with an American mother and a father who was a Brxitish subject, when his child was born, is indeed qualified to become an be President.

    Under US v WKA such a person is a natural born citizen. If he meets the other 2 requirements then indeed he would be eligible

    You’re still arguing this foolish position?

    Your quote mining, your logical fallacies and your unwillingness to address them all are strong indictments of your position.

    When can we expect an up date to your ‘paper’ which will result in it better reflecting the cited papers, and which avoids the various logical fallacies and misunderstandings of issues of law.

    Since you implied that various of the people you quoted may have been less than truthful, it behooves you to either update your foolish accusations or be known for promoting misrepresentations, misunderstandings and fallacies.

    I presume that you are interested in the truth. Now follow that to its logical conclusion.

  366. avatar
    nbc September 19, 2012 at 4:12 am #

    The key word here id “doubt.” In case of two parents, there is no doubt. In case of two aliens, there is a doubt. In case of one citizen and one alien, I would say, there is still a doubt, but apparently not in your minds

    US v WKA laid that question to rest. It’s not just our minds my friend.

  367. avatar
    The Magic M September 19, 2012 at 4:12 am #

    Mike Godkin: How, in your opinion, could that attachment be achieved back in 1787 and, for that matter, now? And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way.

    Let’s again move away from the legal perspective and look at the practical one (and this has been said here many times before):

    From the point of view how you *prove* that “attachment”, especially back in 1787, it is way better to affix that to “place of birth”.

    First, proving place of birth is quite easy, you usually even have neutral witnesses to the birth.
    Proving who the father is is extremely difficult, even for the mother (if she slept with an American and a Canadian during the time of conception, how can you, or *anyone*, be sure the child was the American’s son and not the Canadian’s?).
    And don’t reply with “it only matters who educated the child” because the Constitution does not prevent giving the child up for adoption to a Mexican couple right after birth, it would still be considered an NBC even by Vattelist standards.

    Second, giving birth abroad was quite unusual in a time when international travel was few and far between (except for people already living near the Canadian or Mexican border). So the chances for an mother to give birth to a child abroad were already slim, and if corroborated by a neutral witness, it’s nearly impossible to mask foreign birth as local birth.
    OTOH it’s the easiest thing in the world to claim an American father when there actually was none.

    So summing up, “born on the soil” was a more reliable and thus better check than “born to citizen parents” in a time where things like DNA tests were unheard of.

    Mike Godkin: By what magic did the dicta in the WKA case turn into the holding to be used by generations to come?

    Again for the stupid: SCOTUS ruled that Wong was a citizen at birth. He did not have to naturalize, nor was he “naturalized at birth” (a pure birther invention with no precedent in law). Since there are only two types of citizen (NBC and naturalized) and Wong was not naturalized, he was an NBC. q.e.d.

    Any different interpretation (that there is a third kind of citizen, that people can be “naturalized at birth” etc.) has no basis in law or SCOTUS rulings.

    Also, the ruling did not “make” Wong a citizen at birth, it stated the fact that he was a citizen at birth.

  368. avatar
    nbc September 19, 2012 at 4:13 am #

    Mike Godkin: Quite a few commentators on this thread insist that a child, born on American soil to illegal aliens, is also eligible to become President. What attachment to what land are we talking about in this case? What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    Are you punishing the child for the follies of his parents? Quite foolish.

    Have you ever considered taking a class in logic?

  369. avatar
    Slartibartfast September 19, 2012 at 4:18 am #

    I’m not disappointed—I’m disgusted by Mr. Godkin and his complete lack of integrity.

    Scientist: So, Godkin is mere entertainment. A feast of intellectual dishonesty. Those who hoped for an honest discussion are bound to be disappointed, because it is impossible to make the birther case through honest argument. It can only be argued by twisting words, pulling phrases out of context, dismissing inconvenient facts, personal slurs and similar gymnastics.

  370. avatar
    Slartibartfast September 19, 2012 at 4:20 am #

    It should also be pointed out that Mr. Wong was prevented by law from ever becoming a naturalized citizen.

    The Magic M: Again for the stupid: SCOTUS ruled that Wong was a citizen at birth. He did not have to naturalize, nor was he “naturalized at birth” (a pure birther invention with no precedent in law). Since there are only two types of citizen (NBC and naturalized) and Wong was not naturalized, he was an NBC. q.e.d.

    Any different interpretation (that there is a third kind of citizen, that people can be “naturalized at birth” etc.) has no basis in law or SCOTUS rulings.

    Also, the ruling did not “make” Wong a citizen at birth, it stated the fact that he was a citizen at birth.

  371. avatar
    dunstvangeet September 19, 2012 at 4:48 am #

    Mike a few things.

    1. It’s not dicta in U.S. v. Wong Kim Ark because it is essential to the decision. Here’s a breakdown of the argument in Wong.

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

    II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King.

    III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

    IV. At the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and “mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;” (this section was to refute the argument that the citizenship law of the United States was based upon the Roman System).

    V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.

    They can’t get to their conclusion and the core of their argument without the essential subsection II and III.

    The Supreme Court directly said in U.S. v. Wong Kim Ark that our citizenship law comes directly from English Common Law, and they directly said in the decision that English Common Law said that anybody (with a few well-known exceptions) born in the realm was Natural Born. There is absolutely no debate as to whether this case is binding, and would be considered extremely persuasive as to what the definition of “Natural Born” comes from English Common Law.

  372. avatar
    Keith September 19, 2012 at 6:22 am #

    The Magic M: Second, giving birth abroad was quite unusual in a time when international travel was few and far between (except for people already living near the Canadian or Florida or Louisiana border).

    FIFY

  373. avatar
    Scientist September 19, 2012 at 6:50 am #

    Mike Godkin: As I know, there was no precedent on the Supreme Court level as far as consideration whether a person with an American mother and a father who was a British subject, when his child was born, is indeed qualified to become an be President.

    The Supreme Court has never actually ruled anyone eligible or ineligible to be President. Not a single President has had such a ruling. From Washington to Obama they have all sat in the White House without the Supreme Court having said they were eligible. However, Obama has actually had something none of his predecessors had-courts, not just Ankeny, by the way, but courts in several states as well as federal district courts and appeals courts- say that he was eligible. So actually, we can be more sure of Obama’s eligibility than any of his predecessors.

    Mike Godkin: To make the long story short, I’d like to conclude that had Barack Obama run for president of Indiana, the case would have been closed.
    But he is running again for President of the United States.

    Federal district and appeals courts have also ruled Obama is eligible. Their rulings stand as the law of the land, as the Supreme Court has denied cert. Obama has thus been ruled eligible. He is the most eligible of all the Presidents.

  374. avatar
    Squeeky Fromm, Girl Reporter September 19, 2012 at 6:54 am #

    To Mike and Others:

    For what it is worth, I was there on that long Jonathan Turley blog thread. On the dicta issue I think we made some points with the post author, David Drumm, aka “nal.”

    http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/#comment-290878

    ===================

    Nal
    1, November 16, 2011 at 3:37 pm
    I am still digesting Ballantine’s argument about the ratio decidendi of WKA being broader than the holding. My post starts off by equating ratio decidendi and holdings, I’m not so sure this is true anymore.

    The best papers on ratio decidendi (especially one by Goodhart) are not available to those of us who don’t have access. The first page, which can be viewed on JSTOR) looks like it’s just what I’m looking for.

    Also, ratio decidendi is binding, so I need to reread WKA focusing on the ratio decidendi aspects.

    I also need to determine the difference, if any, between native-born and natural-born citizens, WKA uses both terms.

    Thinking about an analysis of WKA post.
    =====================

    Squeeky Fromm
    Girl Reporter

  375. avatar
    Squeeky Fromm, Girl Reporter September 19, 2012 at 7:03 am #

    Plus this:

    “While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.”

    Which if you copy and paste into your search line, will take you back to the 1898ish ALR eight page analysis of the Wong Kim Ark decision. I would post the link but it is extremely long.

    Squeeky Fromm
    Girl Reporter

  376. avatar
    Northland10 September 19, 2012 at 9:03 am #

    Mr. Godkin,

    To understand jurisdiction, I recommend reading Yick Wo v Hopkins. I am on mobile right now so I cannot easily give a link. Do a search on the case and you will get many results.

  377. avatar
    Paper September 19, 2012 at 9:12 am #

    The parents did. The child didn’t. One key American cultural phenomenon, sometimes flawed in realization but also deeply ingrained in our psychology, is we do not blame the child for the parents.

    Are you telling us you do not understand the phrase “subject to jurisdiction”? And yet you feel free to proceed in publishing a paper on the subject of natural born citizenship?

    Mike Godkin:

    Quite a few commentators on this thread insist that a child, born on American soil to illegal aliens, is also eligible to become President. What attachment to what land are we talking about in this case? What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

  378. avatar
    Scientist September 19, 2012 at 9:23 am #

    With the election coming up, it might be a good idea to review the eligibility of the 2 candidates.

    Birth certificate verified by state officials: Obama, yes; Romney, no
    Ruled eligible by multiple courts: Obama, yes; Romney, no
    Found qualifiied by Congress: Obama, yes; Romney, no

    The choice, Mr Godkin, is very clear.

  379. avatar
    Scientist September 19, 2012 at 9:25 am #

    Mike Godkin: What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    Would Bonnie and Clyde’s child have been ineligible because the parents broke the law?

  380. avatar
    Dr. Conspiracy September 19, 2012 at 9:56 am #

    While the framers did not debate the “natural born citizenship” terminology, they debated the qualifications of the President at considerable length and you seem to be ignorant of that discussion.

    What people who argue your side seem to be saying is that the Constitution must unerringly decide a President’s attachment to the country. Of course that is impossible. There will always be scenarios where even someone born in the US of US citizen parents lacks an attachment to the country. This is why we have elections, so that individual choices can be made.

    In the debates over qualifications for the Presidency, all of the discussion was about the length of time one must be a citizen, and not a word about parentage. If this was a concern, given the length of the debate, it seems inconceivable to me that it wasn’t even mentioned.

    Mike Godkin: How, in your opinion, could that attachment be achieved back in 1787 and, for that matter, now? And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way. Isn’t it why the Founding Fathers approved the “natural born Citizen” clause without any discussion? Putting aside our political affiliations, do you think it is a plausible explanation without going into natural born subject vs. natural born citizen issue?

  381. avatar
    Paper September 19, 2012 at 9:56 am #

    Birth. Birth is easier and simpler.

    There is an eternal tradition of children going against or far afield of their parents. I myself am a case in point, coming as I do from a fairly large birther family.

    So, at least when it is applicable, when someone is born here, it is much easier and simpler to leave it at that, and not get into the parents’ allegiances.

    And relying upon birthplace is even more natural, in the basic sense of that word.

    Relying upon the parents’ allegiances is more cultural than natural, more about nurture rather than nature. Thus, Congress allows most but not all children born abroad of American parents to be born American. In that case, we allow Congress to base it’s decisions upon the culture of the day, which has changed dramatically in the last couple centuries. Parenthood as a determining factor has been subject to culture. Birth has not. And the 14th Amendment is a direct result of a segment of culture (think Dred Scott) trying to undo that natural presumption.

    Mike Godkin:
    And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way.

  382. avatar
    G September 19, 2012 at 10:02 am #

    That is a silly and nonsensical statement on its face. The various states are NOT separate countries. We are not just a mere federation of associated states. We are one nation, comprised of various jurisdictions.

    Our office of President ONLY applies at that federal level. While ballots and voting take place within the state, issues of citizenship and eligibility for the office of President are matters of federal jurisdiction.

    One cannot be ruled a citizen of a single state within the US and not be a US citizen. It just doesn’t work that way. If you have state citizeship, you have US citizenhip.

    Mike Godkin: To make the long story short, I’d like to conclude that had Barack Obama run for president of Indiana, the case would have been closed.

  383. avatar
    Dr Kenneth Noisewater September 19, 2012 at 10:10 am #

    Mike Godkin: The last argument was not made because people didn’t know about it:
    New evidence came to light on December 6, 2008 which revealed that the naturalization records for President Chester Arthur’s father, William Arthur, had been located in the “Chester A. Arthur Papers” at the Library of Congress. The New York State record proved William Arthur wasn’t naturalized as a United States citizen until August 1843, fourteen years after Chester Arthur was born in 1829. The fact of Chester Arthur’s having been born a British subject was published for the first time on Dec. 6, 2008 and is therefore an “intervening matter not available at the time of the party’s last filing.” The twenty-first President of the United States, Chester Arthur, was a British subject at the time of his birth, and it is respectfully submitted that he was therefore not a “natural born citizen” of the United States.”

    That’s a lie. It was known that his father was not naturalized at his birth and it did not matter as there has never been a two citizen parent requirement. New evidence for birthers not for people in the reality based community. His father’s naturalization papers have been in the Library of Congress for over a 100 years all one had to do was look. It was not published for the first time on Dec. 6 2008. Good lord are you dishonest. How can you publish a paper without even doing an ounce of real research?

  384. avatar
    The Magic M September 19, 2012 at 10:24 am #

    Mike Godkin: What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    So you are saying illegal aliens, or their children, are not subject to the jurisdiction of the US?
    So you are saying illegal aliens, or their children, may commit any crime in the US and cannot be held accountable?

    Do you have *any* idea what “subject to the jurisdiction thereof” actually means? Or are you just substituting your own wishful thinking for actual law, as almost every birther does?

  385. avatar
    ballantine September 19, 2012 at 11:15 am #

    Mike just doesn’t understand holding and dicta. He mentions ratio decidendi, but doesn’t seem to understand what that means. I also suspect you don’t understand the difference between judicial dicta and oriter dicta. If you read Turley’s blog, these things were discussed in great detail the seminal paper on holding form Abramowicz and Stearns. One problem is the inconsistent use of terms. Some people call the “holding” only the actual disposition of the case. Some include ratio decidendi as part of the holding. Really doesn’t matter as they both are considered precedent at least for any lower court. Abramowicz and Stearns count ratio decidendi as part of the holding and say it includes any proposition necessary for the dispositition of the case or another necessary proposition in the case. Hence, in their article they identified 10 different holdings in the famous Bakke case. Many people don’t do the ratio decidendi analysis and simply would say Bakke held what the disposition said but such is obviouisly only a partial analysis of what is considered precedent in the case.

    There is no way one could arrive at the disposition of Wong Kim Ark without looking at the court’s definition of “natural born citizen.” Any scholars that say the court didn’t address such definition need to re-read the case, as it clearly says the term must be defined by the common law rule and spent 21 pages defining such rule making as clear as can be that native born children of aliens were natural born subjects or citizens. It then said the 14th Amendment was simply declaratory of pre-existing law under the original Constittuion and hence governed by the same rule. Thus, obviously the 14th Amendment could not be defined without first defining pre-existing law. No court spends 21 pages defining the law under the original Constitution if such was unnecessary for the case. Sorry, those who say it is dicta never make any case that it is dicta because they have either not done the analysis or cannot make the case. Now Minor’s citizenship language you cite is dicta and simply stating that some unknown person had doubts without examining such doubts or saying they had merit.

    Are you at least honest enough to admit that Wong Kim Ark defined what a natural born citizen was and Minor didn’t, or do you fall into the category of birthers who simply refuse to read plain English?

    Since Wong Kim Ark said the first clause of the 14th Amendment and the NBC clause meant the same thing no subsequent court has every questioned such conclusion. Rather, it is pretty obvious that the 14th Amendment language is just another way of writing the English rule. We see scholars like Tribe, Olson and Maskell recognize this point. I suggest you read the debates of the 39th Congress where the persons who drafted the 14th Amendment made clear they were restating the common law rule most thought was in the original Constitution. For example, here are the heads of the respective judiciary committee:

    “This provision is simply declaratory of what the law now is… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1115-(1866).

    “in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

    Here is the person who introduced the final language of the 14th Amendment on what the law was under the original Constitution and what he was codifying with the 14th Amendment which he state re-stated existing law:

    “But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black. Nativity imparts citizenship in all countries and that is sufficient for my purpose.” Senator Howard, Gong. Globe, 41st Congress, 2nd Sess., pg. 1543 (1870).

    Uh, sounds like the common law. And:

    “A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…..They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).

    Gee, doesn’t “subject to the jurisdiction” literally mean being “subject to the legal authority and laws.” That couldn’t be what he meant, could it? Notice he not only thought the common law jus soli rule to be our law, but the universal rule.

  386. avatar
    ballantine September 19, 2012 at 11:38 am #

    What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    The Supreme Court has said in dicta that the “subject to the juridiction” language applies to children of illegal aliens. However, the ratio decidendi of Wong Kim Ark also makes this very clear. Since it found the 14th Amendment to be declaratory of the common law, it said the phrase must be understand as excluding persons who have the privilege of Extra-Territoriality, or immunity from the Civil Law of the Territory, as decribed by Justice Marshall in the famous case of the Schooner Exchange. Such case, and all 19th century treatises on public law, maintained that, as a matter of public law, anyone within the territory of a nation were under or subject to its absolute jurisdiction, a justisdiction that was subject no limitation not imposed by the nation itself. The except to this rule was the concept of Extra-Territoriality which provided immunity for a very limited group of people. Such concept was embedded in the English common law and indeed the laws of all nations and was undisputed by the writers on the law of nations or public international law at such time. No educated lawyer in 1866 would not understand this, though we did see some dishonest attempts to gut the amendment prior to 1898 by trying to re-write the language by cherry picking out-of-context quote from Congress that are contrary to the clear intent of such Congress. Fortunately, these dishonest attempts were dismissed by the Court.

    If the Court today wanted to distinquish between legal and illegal parents, it could not do so on the basis of text or original intent. However, that doesn’t mean it wouldn’t find some rationale as they often do when politics come into play.

  387. avatar
    Paul Pieniezny September 19, 2012 at 12:02 pm #

    Dr. Conspiracy: There will always be scenarios where even someone born in the US of US citizen parents lacks an attachment to the country. This is why we have elections, so that individual choices can be made.

    Hoover?

    But compare Hoover to an imaginary, but historically quite possible case of two German-American twins born in 1917. Both parents, who came from quite different parts of the German Empire, but met in the USA and married there, have acquired US citizenship long before their birth. Both parents die in a freak accident in 1918. An uncle decides to send the kids back to the old country, to be raised by the grandparents.

    Twin brother A goes to his father’s parents in Malmedy. One year later the town is annexed to Belgium. A grows up in a French-speaking but Germany-loving family (Vattel, anyone?). In 1939 he is drafted into the Belgain army, but when Eupen-Malmedy is again annexed to Germany after Hitler’s victory in the West, he happily joins the Waffen SS. Sees duty as a warden at various concentration camps. In 1945 he escapes to America via Argentina. In 1952, Franciscan monks (ask Mr Levy) manage to get him to the USA. Eligible for US president in 1968.

    Twin brother B goes to his maternal grandparents in Klein Lobenstein in Eastern Prussia. After the East Prussian plebiscite of 1920, during which a small majority of the village population voted for Poland, Klein Lobenstein becomes part of Poland as Lubstynek. B grows up as a Volksdeutscher in Poland. In 1939, he is drafted into the Polish army, but as his allegiance to Poland is dubious, he does not see service but is sent in reserve to the east of Poland, where he is taken prisoner by the Soviet Army. As the Russians notice he was born in the USA, they do not include him in the exchange of war prisoners (Germans for Ukrainians, Belarussians and Russians) with the nazis. After 1941. B ends up fighting in a Polish brigade of the Red Army (the story does not say whether he ever faced his twin brother). After the war, he “returns” to the USA. Eligible for US presidency in 1956.

    Point is: everybody knows A would never stand a chance of being elected US president. But what about B? While A lost Belgian citizenship due to joining the Waffen SS, and probably does not have potential German citizenship (Walloon family in Malmedy, so NOT ethnically German) – B, however, is a triune citizen: USA, Germany and Poland.

    In other words: whether someone really has an attachment to the USA, will always have to be determined by the voters. You will have to trust the electorate.

    (Of course, for the sake of the argument I forgot to say that one of the reasons why someone from Malmedy may easily marry someone from Klein Lobenstein while in America, would be religion, both being Roman Catholics. So, 1956 would have been four years too early for B anyway.)

  388. avatar
    Paul Pieniezny September 19, 2012 at 12:10 pm #

    Stupid me, Forgot to use German instead of naughty. And Schicklgrueber also makes an innocent appearance.

  389. avatar
    Reality Check September 19, 2012 at 12:26 pm #

    I maintain that it has not even been established that the Supreme Court has jurisdiction to make this determination. The Congress has the Constitutional duty and power to certify the results of the Electoral College and “qualify” the president. It is also the only body empowered to remove a president once in office. The Supreme Court might be able to determine if an individual candidate can be removed from a ballot in a specific state according to the laws of that state and federal election codes. This would happen only after a case had been appealed up from the lower state and/or federal courts. The Supreme Court has no power to remove a sitting president so I believe they would decline any case against a sitting president based upon lack of jurisdiction and lack of authority to grant relief. I think any notion that SCOTUS would buy into a two citizen parent theory that is so clearly unsupported by the facts, history, and case law is balderdash.

    Scientist: The Supreme Court has never actually ruled anyone eligible or ineligible to be President. Not a single President has had such a ruling.

  390. avatar
    Scientist September 19, 2012 at 12:39 pm #

    Reality Check: I maintain that it has not even been established that the Supreme Court has jurisdiction to make this determination. The Congress has the Constitutional duty and power to certify the results of the Electoral College and “qualify” the president.

    I agree. And, of course, Congress ruled Obama qualified. So, Mr Godkin, the question of whether someone with a non-ctiizen father is qualified to be President is of course completely settled now, by both Congess and the courts, which are in full agreement. You really owe it to yourself to update your paper to reflect the actions of the Congress and courts since 2008. They are what matter, not blog postings..

    For the record, Mitt Romney has not been found qualified by Congress, nor found eligible by any court, so we can’t be sure that he is eligible as we can with Obama. It’s a crap shoot with Mitt.

  391. avatar
    Northland10 September 19, 2012 at 2:05 pm #

    His research method must be, Leo said it, I believe it, that settles it.

    Dr Kenneth Noisewater: That’s a lie.It was known that his father was not naturalized at his birth and it did not matter as there has never been a two citizen parent requirement.New evidence for birthers not for people in the reality based community.His father’s naturalization papers have been in the Library of Congress for over a 100 years all one had to do was look.It was not published for the first time on Dec. 6 2008.Good lord are you dishonest.How can you publish a paper without even doing an ounce of real research?

  392. avatar
    Paul Pieniezny September 19, 2012 at 2:52 pm #

    Northland10: His research method must be, Leo said it, I believe it, that settles it.

    Leo Donofrio may never have said that Arthur burnt his papers to hide the fact that his father was not naturalized at the time of his birth, but he certainly insinuated it.

    Of course, Arthur’s father’s naturalization papers were never at Arthur’s disposal to burn in the first place.

    But I am sure there are a lot of birfers who actually think that Arthur, the son, was naturalized along with his father and that there were naturalization papers among the papers burnt.

    Of course, President Arthur was not naturalized. Because he was NBC.

    Because there are only two types of US citizens.

  393. avatar
    Slartibartfast September 19, 2012 at 3:08 pm #

    To Mikhail Godkin, birther (you deserve no other title nor honorific besides the label of contempt that you have so well and truly earned):

    I was once in an online debate with a lawyer who refused to accept that work transformed energy from one form (or location) to another. No matter how many explanations of the physics I gave, no matter how many basic texts I quoted and linked to he would not accept a simple fact which he must have learned to pass any physics course. I linked the seminal work in the field On the Mechanical Equivalent of Heat and described the straightforward experiment by which James Joule demonstrated this relationship in 1854, yet this person would not accept this simple fact without which much of physics would be rendered incomprehensible, even though his own field of expertise was completely unrelated. While I’m sure you find the idea of denying such a basic physical law to be ridiculous, you are doing exactly the same thing.

    You have written this despicable travesty of a scholarly paper on the meaning of a legal term of art even though you admittedly have no expertise in the law, while at the same time attempting to lend your words credibility and authority by referring to your PhD in Electrical Engineering. In your paper you show little to no understanding of the nuances of law while making liberal use of multiple logical fallacies including cherry picking, begging the question, and straw men (as has been thoroughly documented in this thread) in a failed attempt to throw a thin veneer of legitimacy over a thoroughly debunked and discredited argument. This, while speaking poorly of your intellect and integrity, is merely standard birther fare which doesn’t distinguish you from others supporting or participating in the many frivolous legal actions aimed at smearing President Obama with lies. However, you go a step further and turn your dishonest tactics and baseless smears to at least four people who have in no way invited your attacks without (as far as I can see) making any attempt to let them know about or respond to your hack piece.

    In scholarly scientific writing (as I assume you well know), it is certainly the case that people reference the published arguments of other authors, either to establish claims which they intend to rebut or to support their own argument. In academia, however, not only are there databases which let researchers know when their work is cited in published papers, but most are aware of the literature published in their field as well as having colleagues who would bring any such reference to their notice. In addition, the misrepresentation of another’s academic work would be unlikely to pass the peer review process and even if it did, it would quickly discredit the author and likely result in retraction and apology. In my own published works, I have been eager to inform those who’s work or ideas I have incorporated into my research, whether it be an acknowledgement (in which case I have informed them personally) or a citation (which I would assume they would become aware of in due course). I have never had the need to disagree with someone’s published argument, but if I did, I would first insure that my rebuttal met the highest standards and would invite criticism from not just said author, but from all sides (truly, any scientific publication is an implicit invitation to criticism—that’s how science works). You, on the other hand, in pursuit of nothing but a baseless political smear, seem completely unconcerned with regard to the people you are dishonestly misrepresenting.

    Following are four people who you have, in my opinion, libeled—although I’m sure this isn’t actionable since your pathetic little screed didn’t cause them quantifiable damage, I believe that you still owe all four a public apology (as well as a retraction of your work).

    Rebekka Bonner

    After establishing that Ms. Bonner turned down a promotion in order to volunteer for the Obama campaign for seven months in 2008, you wrote:

    If we assume that Ms. Bonner stopped working for the Obama campaign on November 4, this would bring us back to the beginning of April of that year when she started her unpaid job.

    What exactly she was doing during those seven months, I don’t know. What I do know, though, is that on May 15, 2008, as the Guest Blogger, J.Rebekka Bonner posted an article entitled “Why John McCain Needs The Living Constitution.” [2]

    One might wonder why a person working for the Obama campaign would be concerned about what John McCain does or doesn’t need.

    Your naive assumption notwithstanding (the Obama campaign didn’t suddenly cease to exist on Nov. 4, 2008), we don’t know whether or not Ms. Bonner was working for the campaign when the blog post in question was made, but it is clear that there is no reference to such nor any indication that said post was made under the color of the campaign. However, from the facts you have given, Ms. Bonner was clearly passionate about politics in general and President Obama’s campaign in particular. It seems to me to be painfully obvious why such a person—acting merely on their own behalf—might want to publish an article identifying hypocrisy in the position of President Obama’s opponent, which makes your snide speculation disingenuous at best.

    You go on to an extended attempt to take Ms. Bonner’s writing out of context in order to cast it in a sinister light and support your fallacious arguments—as has been well established in many of the responses seen above. Finally, after noting that Ms. Bonner had been given a political appointment in the defense department, you wrote:

    So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.

    I’d like to make my last comment. The paper by Professor Seymore, mentioned before a few times, had a disclaimer:

    “This article was not written to advance the political candidacy of anyone currently on the political scene.”

    Can Rebekka Bonner […] make the same disclaimer and sign under it?

    Ms. Bonner nowhere claimed or implied that she was a “Constitutional scholar” nor tried to hide the fact that she was pointing out John McCain’s hypocrisy (which is clearly an attempt to advance President Obama’s candidacy—something not just permitted, but encouraged and celebrated in a nation that values free speech), so your hypocritical disparagements—as we will see below—ring hollow. Even worse, you baselessly accuse Ms. Bonner of receiving her position as a reward for a short article on an unremarkable blog that dealt with a minor topic. Every successful presidential campaign has hundreds, if not thousands of jobs that must be filled to handle the business of running the nation and given her success on Wall Street and her dedication to President Obama’s campaign, the position to which she was appointed seems perfectly reasonable. Furthermore, given this letter to the editor of Time magazine from October 2008:

    Beinart refers to a poll indicating that many white voters who lack college degrees would not vote for Obama because he is too “globalized,” too “multicultural,” too “cosmopolitan.” I have news for Beinart. Many of the emigrants from the U.S.S.R. who came to the U.S. in the ’70s and ’80s support John McCain. A lot of us have undergraduate or graduate degrees. There is a simple reason for our choice: we already lived in a socialist country and left it. The U.S. surely would move in that direction should Obama win.
    Mikhail Godkin,
    San Diego, California

    Read more: http://www.time.com/time/magazine/article/0,9171,1853176,00.html#ixzz26qt47X6V

    we can see that your hypocrisy in this regard is obvious and blatant (not to mention your incorrect and baseless characterization of President Obama as “socialist”).

    Jack Maskell

    Mr. Maskell is first introduced in your diatribe in the following passage (my comments in bold:

    On November 14, 2011, the Legislative Attorney for the Congressional Research Service Jack Maskell published a memorandum entitled “Qualifications for President and the ‘Natural Born’
    Citizenship Eligibility Requirement.”

    On page 1 of his memorandum, Jack Maskell reiterates:

    “The standing qualifications to be president of the United States are set out in the Constitution, at Article II, Section 1, Clause 5, and state three specific requirements:
    One must be at least 35 years old, a resident ‘within the United States’ for 14 years, and a ‘natural born citizen.’”

    The title of his memorandum reads:

    “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement.”

    But Jack Maskell just reminded us “three specific requirements,” one of which is a “natural born citizen.”

    So even the title of his Memo doesn’t make much sense, does it?

    As Mr. Maskell is discussing the qualifications for the presidency and focusing on the specific eligibility requirement which was in question (at least I am unaware of any birthers accusing President Obama of being under 35 or not having lived in the US for 14 years), his title makes perfect sense—your objection, however, is silly and juvenile.

    Qualifications for President can’t be separated from “natural born” citizenship eligibility requirement because it is one of the above-mentioned qualifications.

    Mr. Maskell does not attempt to do so, however, since the Constitution allows for people who are not natural born citizens to be eligible for the presidency (provided they were citizens when the Constitution was ratified), your assertion is not just irrelevant, but wrong.

    What has he written on 53 pages? As many commentators before him, he equated two terms: natural born and native-born citizens.

    Not just commentators, but a myriad of courts, textbooks, and legal writings do this as well—because even though the terms are not completely synonymous, the vast majority of citizens fall into the intersection of these two groups.

    Then he argued that because Barack Obama was born on the U.S. soil, he is a natural born citizen qualified to become and be President of this country.

    Which is completely consistent with the consensus view of legal scholars and all valid legal precedent.

    Later, you write:

    I realize that Jack Maskell is not a mathematician, but it doesn’t take one to answer the following question:

    If the group of natural born citizens includes native-born ones, how can native-born citizens constitute “the largest group of U.S. citizens?”

    Well, I am a mathematician, and the answer seems perfectly obvious to me: In any division of citizens into disjoint subsets, “native-born citizens” will unquestionably be the largest group. Once again, your reasoning is seen to be petty and childish.

    You continue with your dishonest, naive and biased look at Mr. Maskell’s work before saying:

    Jack Maskell[‘s…] paper[… was ]apparently inspired by a desire to accomplish a desired result:[…] to convince the public that Barack Obama was and is eligible for presidency of the United States.

    and

    The paper by Professor Seymore, mentioned before a few times, had a disclaimer:

    “This article was not written to advance the political candidacy of anyone currently on the political scene.”

    Can […] Jack Maskell make the same disclaimer and sign under it?

    Mr. Maskell was doing his job: giving a complete and well-researched answer to a question that was presumably asked of his office by a member or members of the US Congress. It was his responsibility to provide an answer that was objective and through and that is exactly what he did—he produced a well researched and impeccably referenced document which describes and explains the relevant SCOTUS precedent (Wong Kim Ark) and its reasoning and is completely consistent with both the consensus of Constitutional scholars and several recent court rulings regarding President Obama’s eligibility. One could easily argue that, had he written what you imply he should have, he would have been egregiously failing in his duty to Congress. For you to say that his intent was an agenda to “cover” for President Obama and accuse him of being unable to sign a disclaimer regarding advocacy—one which you yourself could not truthfully sign—for merely doing his job is reprehensible. Mr. Maskell did not take this upon himself, nor did he in any way attempt to publicize the results of his research—two more points which cannot be truthfully argued in your case.

    David Drumm and Vince Treacy

    In your article, you referenced the article Holdings, Dicta, And Stare Decisis which Mr. Drumm wrote as a guest blogger on Professor Jonathan Turley’s website. In this thread, you have also referenced comments made by Mr. Treacy on that thread and others on the Turley blog. After briefly summarizing Mr. Drumm’s article, you show your complete lack of understanding (or dishonesty) by quoting the following from an article by John W. Dean:

    “In fact, there are conflicting holdings that only further compound the problem of understanding this clause. United States v. Wong Kim Ark (1898) indicates that foreign born children of Americans are not natural born. But in contrast, Weedin v. Chin Bow (1927) holds that ‘at common law the children of our citizen born abroad were always natural born citizen from the standpoint of this government.’”

    and writing: “What John W. Dean calls holdings are not indeed holdings at all. Instead, they are dicta.”

    If the holdings in the two cases were, in fact, in conflict, then the latter would have overturned the former (and almost certainly done so explicitly), however that is not the case here. US v. Wong was about the child of aliens born in the US, so any speculation regarding the children of citizens born abroad is not required and thus dicta—dicta, as it turns out, that is shown to be incorrect by the holding in Weedin v. Chin. Had you understood Mr. Drumm’s article, this would be clear to you. Lest you think that my untrained legal opinion is no better than yours, I would note that I sent my post upthread on the topic (which is consistent with the apparent understanding of ever single commenter on this thread besides yourself) to Mr. Drumm and he agreed that I was correct. Now misinterpreting something someone wrote on the internet happens all the time, but I was struck by something you didn’t do: post a comment to the article with a link to your article. If you honestly believed that Mr. Drumm’s article supported your argument, why wouldn’t you have tried to let him know with a comment on his article so that he might voice his support and the readers of his article might see the quality of your claims?

    Earlier on this thread I detailed how you referenced Mr. Treacy’s comments at the Turley blog and, through the liberal use of multiple logical fallacies, tried to show his positions to be contradictory or in agreement with you. I have been in email contact with Mr. Treacy as well, and he does not approve of your misunderstanding and distortion of his work, either. I find your actions with regard to Mr. Treacy particularly odious as he has a long history of debunking birther nonsense in a myriad of comments which are all impeccably reasoned and referenced, thorough, and polite.

    While some of your remarks could have been the result of ignorance (although your claim of researching this for 4 years suggests that you just aren’t capable of understanding), given all of the (valid) criticism directed your way by posters here, any remaining ignorance on your part is completely willful. Furthermore, ignorance does not excuse your dishonest misrepresentation and hypocritical slander of four people who did nothing to invite your lies. As a professional, an American, and a human being, you should be ashamed of yourself. It is my opinion that you owe all four of these people a sincere apology and a public retraction of your lies regarding each of them.

    As an immigrant yourself, you may not be aware of all of your rights in this country, but, in my opinion, the right that you should begin exercising is the right to remain silent. It is my fondest hope that, should you choose to continue to ignore this right, that all of your words will be held against you. If you wish to continue building a reputation for intellectual dishonesty and hypocrisy while continuing your baseless attacks against unsuspecting people who are undeserving of being the targets of your lies, that is your choice, but you should remember that anyone searching the web for your name will find it all over this thread—along with plenty of evidence as to your lack of character.

    I will be posting a link to this comment on the blog with Ms. Bonner’s article as well as Mr. Drumm’s article on Professor Turley’s blog. In addition, I have emailed a draft of this comment to Mr. Drumm and Mr. Treacy. It is my opinion that the penalty for uttering frivolous birther crap should be becoming known for uttering frivolous birther crap so I hope that you are comfortable lying in the bed you made.

    Lest you think that I am an anonymous poster making an attack that I am unwilling to stand behind, let me end this with…

    Sincerely,

    Kevin Kesseler

  394. avatar
    ballantine September 19, 2012 at 3:47 pm #

    Well put Kevin. Mike insinuating that scholars who disagree with birther nonsense are biased is pretty sad. It is also sad he misinterprets articles that clearly state there was no controversy about the native born being eligible to be President and pretends he is an expert on holding and dicta when he clearly has no clue. On bias, was Ted Olson biased as he made clear he and Tribe agreed with Maskell. What about all the republican senators who agree with him. Maskell’s work stands on its own as the most comprehensive paper on the subject citing a mountain of authority. I do not agree with everything he said but he cites more legal authority that all the other articles Mike mentions. It is simply a fact that native and natural born citizen have been equated by our courts and scholars for 200 years and one could cite hundreds of authorities to back such up including pretty much every significant scholar of the early republic.

    Why not compare Maskell to Morse. Morse’s article pretty much cites no authority at all. In fact, it doesn’t even make sense as he appears to acknowledge that “natural born citizen” comes from English law but somehow argues that such supports his jus sanguinis interpretation. It is hard to tell if he is totally ignorant or just dishonest. The argument that the framers would have said “native born” if they intended jus soli is an argument worther of a freeper. Obviously, one could just as easily say they could have said citizen parents if that is what they meant. The facts are the English conflated “native and natural born” as did a mountain of early authority in this countary. While “native” or “native born” were commonly used, “natural born” was the term of art because even in England not all natives were “natural born.” Look at the Convention. In discussions, they used the term “native” but the Constitution has the term “natural born” as that is the actual legal term of art. In the end, Morse is just repeating the argument already rejected in Wong Kim Ark and simply ignoring the fact he cannot cite any actual legal authority saying he was right and ignoring the mountain of legal authorities that said he was wrong.
    Now Mike, why not do some research and see how many legal authorities you can find that say “native and natural born” mean the same thing. If you can’t find 50, you arn’t trying.

  395. avatar
    gorefan September 19, 2012 at 3:48 pm #

    Mike Godkin: The last argument was not made because people didn’t know about it:

    You are saying no one brought it up therefore no one knew about it, when it is just as likely that no one brought it up because no one cared about it.

  396. avatar
    Sudoku September 19, 2012 at 4:23 pm #

    That deserves a standing ovation!

    Slartibartfast: To Mikhail Godkin,…

  397. avatar
    Thomas Brown September 19, 2012 at 4:54 pm #

    Kevin, you’re the man of the hour. Kudos.

  398. avatar
    sfjeff September 19, 2012 at 5:08 pm #

    Mike Godkin</ Did the 14th Amendment and the WKA case affect in any way the NBC presidential requirement and if it did, why?Thank you very much in advance.

    Before the 14th Amendment there was a question whether negro’s could be President. After the 14th Amendment there wasn’t.

    Before WKA, there was a question whether a Chinese could be President. After WKA there wasn’t.

    Neither changed the law- both just made it clear who were citizens, by extension that they were eligible as natural born citizens to be President.

  399. avatar
    G September 19, 2012 at 5:31 pm #

    Agreed. Kudos, Slarti.

    Thomas Brown:
    Kevin, you’re the man of the hour.Kudos.

  400. avatar
    G September 19, 2012 at 5:32 pm #

    Well said! Very succinct and to the point!

    sfjeff: Before the 14th Amendment there was a question whether negro’s could be President. After the 14th Amendment there wasn’t.

    Before WKA, there was a question whether a Chinese could be President. After WKA there wasn’t.

    Neither changed the law- both just made it clear who were citizens, by extension that they were eligible as natural born citizens to be President.

  401. avatar
    Keith September 19, 2012 at 8:36 pm #

    Mike Godkin: What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    Lets break that question down a little bit shall we? Just to see if it contains any interesting content or not.

    “jurisdiction” means “subject to the laws”. But you are begging the question of whether or not an illegal immigrant is “subject to the laws” when they have broken the law to enter the country.

    Well what law have they broken then? Mexican law? That is just nonsensical.

    So, we must be talking about American law that they have broken. So if they have broken American Law, then they must be subject to that law, right? But if they are not subject to the American Law because they have broken that law, then there is no law for them to have broken. If there is no law for them to have broken, then they are not illegal. But if they are not illegal then they haven’t broken any law so they are therefor subject to the law and they are therefore here illegally.

    Is your head spinning yet?

    You need to understand that every person physically present in America, whether they are here legally or illegally, are subject to American law – in formal language, they are subject to the “jurisdiction thereof”.

    That is Every person – with exactly two exceptions: members of an invading army (and there hasn’t been one of those on American soil since WWII) and officially accredited foreign diplomats (and even they are subject to some American laws according to international treaties).

    So, the answer to your question

    What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?

    Is that we can talk about “normal, everyday, stock standard, complete,” jurisdiction.

    Jurisdiction is jurisdiction, period.

    American law applies to people on American soil, that is what “jurisdiction” means. Illegal Immigrants are on American soil, and are therefor subject to the “jurisdiction thereof”. Children born to Illegal Immigrants on American soil are “Natural Born Citizens” of America. End of story.

  402. avatar
    Keith September 19, 2012 at 8:48 pm #

    nbc: Are you punishing the child for the follies of his parents? Quite foolish.

    Interesting topic that. For the crime of Treason, the Constitution specifies that Congress shall fix the punishment, but forbids “corruption of blood” or forfeiture beyond the lifetime of the attainted traitor.

    Does the restriction apply to other crimes. Where in the Constitution is “corruption of blood” penalty banned for, say, fraud? Could Madoff’s sons be barred from executive positions in financial institutions because of their father’s crimes? Is it implied from the Bill of Rights?

    I need to check that out. I’m sure the answer is ‘out there’.

  403. avatar
    Scientist September 19, 2012 at 9:04 pm #

    Keith: Does the restriction apply to other crimes. Where in the Constitution is “corruption of blood” penalty banned for, say, fraud? Could Madoff’s sons be barred from executive positions in financial institutions because of their father’s crimes? Is it implied from the Bill of Rights?

    Keith: In my view the Constitution is not the totality of rights that people have. It is a floor, not a ceiling. Judges must look at equity and legal precedent, including the common law. The law gives people all kinds of rights not directly specified in the Constiitution. For example, implicit in the laws against sexual assault is the right of any person to say no to non-consensual sexual contact. Such a right is not specified in the Constiitution, but is certainly as real and important as anything in the Bill of Rights. So, I can’t imagine any court approving sanctions against someone because of what their parents did.

  404. avatar
    Keith September 19, 2012 at 9:18 pm #

    Slartibartfast: To Mikhail Godkin, birther

    That is one heck of a helluva smack down.

    Good job, Slarti.

  405. avatar
    Keith September 19, 2012 at 9:28 pm #

    I agree fully. A lot of people talk about the 10th Amendment, but few talk about the 9th Amendment.

    Scientist: Keith: In my view the Constitution is not the totality of rights that people have.

    Sure, there are going to be ‘political’ and ‘social’ restrictions on “corruption of blood” punishments. Australia doesn’t have a “bill of rights” but people enjoy pretty much the same rights as Americans anyway – enforced almost totally by political reality.

    I suspect, however, that “corruption of blood” would be Constitutionally banned implicitly by a reading of the 5th amendment (due process) and the 8th Amendment (cruel and unusual punishment). But I could be wrong.

  406. avatar
    John Potter September 19, 2012 at 9:33 pm #

    The Bill of Rights isn’t granting rights, but rather limiting the federal government. The amendments since …. well, they’re all over the place.

  407. avatar
    Rickey September 19, 2012 at 9:42 pm #

    Keith:

    Jurisdiction is jurisdiction, period.

    American law applies to people on American soil, that is what “jurisdiction” means. Illegal Immigrants are on American soil, and are therefor subject to the “jurisdiction thereof”. Children born to Illegal Immigrants on American soil are “Natural Born Citizens” of America. End of story.

    Well said. Godkin seems to suffer the same affliction which other birthers have, namely the inability to comprehend what “jurisdiction” means. There was a birther here some time back who insisted that Americans traveling abroad are not subject to the jurisdiction of the countries they visit. He should try telling that to the estimated 1500-2000 American citizens who are imprisoned in foreign countries each year.

  408. avatar
    Keith September 19, 2012 at 9:45 pm #

    Keith: I suspect, however, that “corruption of blood” would be Constitutionally banned implicitly by a reading of the 5th amendment (due process) and the 8th Amendment (cruel and unusual punishment). But I could be wrong.

    Looks like it is the 14th Amendment (equal protection) that is used as the rationale in SCOTUS, but, in general, it is ‘a general, unstated principle’; (perhaps a 9th Amendment unspecified right?). I don’t have access to LexisNexis articles, but the introductory excerpt from ‘NOTE: Corruption of Blood and Equal Protection: Why the Sins of the Parents Should Not Matter.‘ by Max Stier in the Stanford Law Review reads, in part:

    In each of these stories, and many more like them, children are legally disadvantaged because of the actions of their parents. Although it is entirely a parent’s decision whether to have a child out of wedlock, to enter the United States illegally, or to have a nonmarital sexual relationship, children frequently bear the burden of legal sanctions for these actions. The stories told above are drawn from Supreme Court cases striking down decisions to deny benefits to children to which they otherwise would have been entitled. The Court adopted a variety of rationales in its opinions, relying primarily on the Fourteenth Amendment’s Equal Protection Clause. The Court has not, however, offered any general explanation for why these and other cases have been treated alike.

    In this note, I argue that these cases rest on a comprehensive and previously unstated general principle: Simply put, children should not be made to pay for the sins of their parents. This principle, which I will call the Corruption of Blood Principle, finds its clearest expression when courts apply heightened scrutiny under the Equal Protection Clause to state actions that disadvantage children for the activities of their parents. The Principle is most explicitly defined in illegitimacy cases. It also emerges in cases involving issues ranging from the rights of undocumented children to public education to the rights of children to receive Aid to Families with Dependent Children (AFDC) benefits irrespective of the moral behavior of their parents.

  409. avatar
    Thomas Brown September 19, 2012 at 9:49 pm #

    Jurisdiction is pretty easy to test:

    Have the person in question (hypothetically) walk up to a cop and slap him or her really, really hard.

    Is he or she going to jail? That’s the test.

    When arrested, he invading enemy shoots the cop and anyone else attempting to escape, and if apprehended would be a military prisoner. Or worse. But it would no longer be a matter for civilian courts, prosecutors or local law enforcement.

    The diplomat says “You can’t arrest me; I have immunity.” He or she might be escorted back to the embassy. A complaint might be lodged. But that’s all.

    Everyone else (like, say, Barack Obama Sr., or an illegal alien, or an exchange student– anybody else) is goin’ to the pokey, you betcha. They gonna be jurisdictified. Count on it.

    Am I wrong about this, actual lawyers? Or is it pretty much that easy?

  410. avatar
    Keith September 19, 2012 at 10:14 pm #

    John Potter:
    The Bill of Rights isn’t granting rights, but rather limiting the federal government. The amendments since …. well, they’re all over the place.

    Correct, it doesn’t grant rights, it protects rights from infringment by the Federal Government, and the 14th amendment extends that to include protection from infringement by State (and local) governments.

    The 9th Amendment explicitly states that there may be found to be other rights retained by the people, and nothing about the list of protected rights explicitly listed in the previous 8 Amendments or the body of the Constitution should be construed as exhaustive and therefore, by implication, a denial of these newly ‘found’ rights.

  411. avatar
    Keith September 19, 2012 at 10:23 pm #

    Thomas Brown: The diplomat says “You can’t arrest me; I have immunity.” He or she might be escorted back to the embassy. A complaint might be lodged. But that’s all.

    The diplomat might go to jail long enough for the Embassy to verify the claim.

    The follow up would be either the US kicks the diplomat out of the country, or the country order them home. In some cases, for some crimes, the foreign country may withdraw diplomatic protection, placing the accused back under the jurisdiction.

    Then depending on the crime and the prosecutor, there may be an attempt at extradition for a trial. Punching a cop? Probably not. Killing a cop? Almost certainly. Extradition will almost certainly be denied if a guilty verdict could result in a death penalty.

  412. avatar
    Sudoku September 19, 2012 at 11:42 pm #

    I guess you did not read the case I gave you. Diaz-Salazar v INS. The US Court of Appeals, 7th District, referred to the children of Diaz-Salazar, an illegal alien, as NBCs.

    http://scholar.google.ca/scholar_case?case=9500596911999938819&hl=en&as_sdt=2&as_vis=1&oi=scholarr&sa=X&ei=C5BaUI2-B4qorQGmlIHICA&sqi=2&ved=0CBsQgAMoADAA

    Mike Godkin: By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?

  413. avatar
    G September 19, 2012 at 11:44 pm #

    Bravo on your entire post! Well said, in particular, your excellent summary:

    Keith: Jurisdiction is jurisdiction, period.
    American law applies to people on American soil, that is what “jurisdiction” means. Illegal Immigrants are on American soil, and are therefor subject to the “jurisdiction thereof”. Children born to Illegal Immigrants on American soil are “Natural Born Citizens” of America. End of story.

  414. avatar
    Dr. Conspiracy September 20, 2012 at 1:22 am #

    There was a time when I didn’t know what a natural born citizen was. So I researched it, and among the things I did was to read every reference to “natural born citizen” on WestLaw. Of course Salazar was one of the cases I found and it’s been on the Great Mother of All Natural Born Citizen Quotation Pages probably since the beginning of that page.

    I don’t know how to make this stuff any more accessible. If people would just read this site, they could avoid lots of mistakes.

    Sudoku: I guess you did not read the case I gave you. Diaz-Salazar v INS. The US Court of Appeals, 7th District, referred to the children of Diaz-Salazar, an illegal alien, as NBCs.

  415. avatar
    Sudoku September 20, 2012 at 1:33 am #

    You have provided an excellent source of information here. Unfortunately, you can’t make people read it, understand it, or in the case of most birthers, believe it. Thankfully, word still gets out. You are to be commended.

    Dr. Conspiracy: I don’t know how to make this stuff any more accessible. If people would just read this site, they could avoid lots of mistakes.

  416. avatar
    John Potter September 20, 2012 at 1:34 am #

    Dr. Conspiracy: I don’t know how to make this stuff any more accessible.

    Convince Google to keep Great Mother of All Natural Born Citizen Quotation Pages as the #1 hit for all permutations (and misspellings! 😛 ) of “natural born citizen”

    Could add it to relevant Wiki pages …. but that would be of no assistance to those susceptible to birferism.

    Those disinclined to find never will. Even if you wallpaper their spectacles with it.

  417. avatar
    Mike Godkin September 20, 2012 at 3:09 am #

    About difference of opinions.

    Tonight, instead of expressing my opinion, I would like to present you with another one, which you may not agree with. However, his view of the WKA case may – just may – make you look at it at different angle.

    Here it is:
    http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

    For those of you who are not going to read the P.A. Madison’s article, its conclusion follows:

    “The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of ‘subject to the jurisdiction’ since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.”

  418. avatar
    gorefan September 20, 2012 at 3:32 am #

    Mike Godkin: P.A. Madison’s article

    Justice Gray made no attempt to hide this fact when he wrote: “Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.”

    Justice Antonin Scalia,
    “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended” (A Matter of Interpretation, Federal Courts and the Law, 1997)

    So he would approve of Justice Gray’s approach.

  419. avatar
    Mike Godkin September 20, 2012 at 3:58 am #

    Just a reminder.

    Here are two excerpts from U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs 7 FAM 1110:

    1) 7 FAM 1100 ACQUISITION AND RETENTION OF U.S. CITIZENSHIP AND NATIONALITY
    7 FAM 1110 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES
    (CT:CON-407; 06-29-2012) (Office of Origin: CA/OCS/L)

    http://www.state.gov/documents/organization/86755.pdf
    This section doesn’t even mention the “natural born Citizen” term.

    2) 7 FAM 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents
    7 FAM 1131.6-1 Status Generally
    (TL:CON-68; 04-01-1998)
    Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. One exception is that they may be subject to citizenship retention requirements.

    7 FAM 1131.6-2 Eligibility for Presidency
    (TL:CON-68; 04-01-1998)
    a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.

    b. Section 1, Article II, of the Constitution states, in relevant part that ―No Person except a natural born Citizen…shall be eligible for the Office of President.

    c. The Constitution does not define “natural born”. The ―Act to establish an Uniform Rule of Naturalization‖, enacted March 26, 1790, (1 Stat. 103,104) provided that, ―…the children of citizens of the United States, that may be born … out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

    d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
    http://www.state.gov/documents/organization/86757.pdf

    Please pay attention to paragraph “d.”
    If I may translate it into the plain English for housewives and me, it looks like this term (NBC) may be used by quite a few commentators, but when it comes to presidential eligibility, a more serious institution than a public opinion should resolve this issue.
    It also seems these days that the term “Natural born Citizen” makes only sense when it is used in conjunction with presidential eligibility.

  420. avatar
    Mike Godkin September 20, 2012 at 4:09 am #

    gorefan,
    “So he [Justice Scalia) would approve of Justice Gray’s approach.”
    Not really. Justice Gray did not want to admit debates in congress as evidence because they did not support his view at all.

  421. avatar
    Keith September 20, 2012 at 6:39 am #

    Mike Godkin: Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.

    WKA is silent on the birth of aliens. It addresses the birth of citizens.

    WKA said explicitly, in no uncertain terms, that a child born on American soil is a Citizen even if both parents are alien. Since that is so, such a Citizen is a Natural Born Citizen.

    The 14th amend says “ALL PERSONS BORN”, it doesn’t say “SOME PERSONS BORN”.

    This is not a difficult concept.

    You have a PhD. in an engineering discipline. You must have a good understanding of Boolean logic and at least a passing acquaintance with set theory.

    Why are you having such a hard time understanding this?

  422. avatar
    Keith September 20, 2012 at 6:46 am #

    Mike Godkin: Here are two excerpts from U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs 7 FAM 1110:

    That is a COMPLETE red herring.

    Which part of “BORN ABROAD” do you not understand?

    a) WKA was BORN IN AMERICA to alien parents.
    b) Obama was BORN IN AMERICA to 1 citizen and 1 alien.
    c) 7 FAM 1110 is discussing people BORN ABROAD to citizen parents.

    a and b are covered by the 14th amendment. They are “BORN IN AMERICA”.
    c is not covered by the 14th amendment. They are “BORN OVERSEAS”.

  423. avatar
    Paper September 20, 2012 at 7:11 am #

    Please pay attention to the words in the excerpts you yourself post, such as the heading of excerpt 2. Please pay attention to the fact that paragraph D is talking about the circumstances listed in that heading: “Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents.”

    Once you have attended to the words you yourself post, please note that the doubt expressed regarding eligibility is about citizens born abroad.. While it is likely that they would be considered eligible, and in my opinion should be, it is not certain. It is certain, however, that any one born here is eligible. That has been settled, by a “more serious instuition than a public opinion.” If you do not want to accept that fact, you will have to spend your life disappointed.

    Please pay attention as well to the other paragraph D, contained in the link given as your first excerpt, which even helpfully emphasizes that “Subject to the Jurisdiction of the United States” includes “All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth.

    You note that this referenced excerpt does not mention the term “natural born citizen.” So? (I typed out an explanation why that is irrelevant, but decided to cut it because if you can’t figure that out by yourself, you should give back your PhD. Bluntly speaking, it is that basic.)

    So, just a reminder, please pay attention to your own misrepresentations.

    Mike Godkin:
    Just a reminder.

    Please pay attention to paragraph “d.”
    If I may translate it into the plain English for housewives and me, it looks like this term (NBC) may be used by quite a few commentators, but when it comes to presidential eligibility, a more serious institution than a public opinion should resolve this issue.

  424. avatar
    Northland10 September 20, 2012 at 7:40 am #

    Mike Godkin: Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.”

    Earlier I suggested you read Yick Wo v. Hopkins (118 U.S. 356). By quoting the PA Madison as you have, It would appear you have not, which would also mean that you have likely not even read WKA. In the opinion from Yick Wo:

    The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:

    Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by 1977 of the Revised Statutes, that

    all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

    Justice Gray cites Yick wo in the US v WKA and discusses its application in detail, saying, among other things:

    It necessarily follows that persons born in China, subjects of the Emperor of China but domiciled in the United States, having been adjudged, in Yick Wo v. Hopkins to be within the jurisdiction of the State within the meaning of the concluding sentence, must be held to be subject to the jurisdiction of the United States within the meaning of the first sentence of this section of the Constitution, and their children “born in the United States” cannot be less “subject to the jurisdiction thereof.

    The ruling appears quite clear about whether aliens in this country can be subject to the jurisdiction and whether their children are born subject to its jurisdiction.

    BTW, did you say that Justice Gray did not want to admit the debates in congress? How does that square with:

    During the debates in the Senate in January and February, 1866, upon the Civil Rights Bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read,

    His discussion of the debates goes on for a while.

  425. avatar
    Scientist September 20, 2012 at 7:41 am #

    Mike Godkin: Not really. Justice Gray did not want to admit debates in congress as evidence because they did not support his view at all

    The problem with admitting debates in Congress is that generally only a few members speak on a particular bill or amendment. In the House, 220 votes are required to pass a law, but perhaps only 10 or so of the members, mainly those in leadership positions, might have spoken in favor of the bill during the debates. We cannot presume that everyone voting yea agreed with any particular point made by any of the speakers or even that they followed the debate at all. All we can presume is that the members consented to the actual language in the resolution. Which is why the actual language in the text is what matters.

  426. avatar
    Scientist September 20, 2012 at 7:46 am #

    Keith: You have a PhD. in an engineering discipline.

    I am seriously beginning to wonder if Mr. Godkin really does have a PhD. I would like to see his dissertation and the long-form original of his diploma, with a court-certified English translation. No pdf.

  427. avatar
    Scientist September 20, 2012 at 7:47 am #

    Mike Godkin: About difference of opinions.
    Tonight, instead of expressing my opinion, I would like to present you with another one, which you may not agree with. However, his view of the WKA case may – just may – make you look at it at different angle.

    What court does PA Madison sit on?

  428. avatar
    G September 20, 2012 at 8:48 am #

    Agreed. I am baffled by why Mr. Godkin keeps referencing situations of BORN ABROAD, when discussing the issue of BORN ON US SOIL…

    Is he really that dishonest or, as someone who was foreign born himself, have a difficulty with reading comprehension in the english language?

    Keith: That is a COMPLETE red herring.
    Which part of “BORN ABROAD” do you not understand?
    a) WKA was BORN IN AMERICA to alien parents.
    b) Obama was BORN IN AMERICA to 1 citizen and 1 alien.

    c) 7 FAM 1110 is discussing people BORN ABROAD to citizen parents.
    a and b are covered by the 14th amendment. They are “BORN IN AMERICA”.
    c is not covered by the 14th amendment. They are “BORN OVERSEAS”.

  429. avatar
    Paper September 20, 2012 at 9:02 am #

    His selection and presentation of quotes looks deliberate to me. Whether because he cannot see what he is doing, or because he is willfully misrepresenting. But as his misrepresentation has been pointed out multiple times throughout this very thread, it is clear that either way he doesn’t care. And thus his research and opinion on this matter is irrelevant. And always will be.

    G:
    Agreed.I am baffled by why Mr. Godkin keeps referencing situations of BORN ABROAD, when discussing the issue of BORN ON US SOIL…

    Is he really that dishonest or, as someone who was foreign born himself, have a difficulty with reading comprehension in the english language?

  430. avatar
    Reality Check September 20, 2012 at 9:04 am #

    That is the basic flaw in his article. He assumes that prior controversy about the eligibility of children born abroad to one or two parents implies that the question of eligibility of children born on US soil is not settled. There is no controversy about the latter unless you count that invented by the Birthers since 2008.

    G:
    Agreed.I am baffled by why Mr. Godkin keeps referencing situations of BORN ABROAD, when discussing the issue of BORN ON US SOIL…

    Is he really that dishonest or, as someone who was foreign born himself, have a difficulty with reading comprehension in the english language?

  431. avatar
    G September 20, 2012 at 9:59 am #

    I strongly suspect that a lot of these Birthers just do lazy search routine “quote-mining”, to merely find and cut/paste selections that have particular phrases they are looking for.

    I doubt that many of them ever bother to read the fuller and broader context of the court cases and other historical or referencial sources that they are quote-mining from.

    Then again, I could be too kind in merely viewing most of them as lazy and intellectually incurious folk, with nothing more driving them than a desperate need of confirmation bias for their preconceived emotional worldviews….

    …Because if they are actually reading those sources and STILL coming up with such contextually wrongheaded conclusions, then they are from the very start, either willfully intending to be dishonest or severely lacking in reading comprehension abilities…or both.

    Paper:
    His selection and presentation of quotes looks deliberate to me.Whether because he cannot see what he is doing, or because he is willfully misrepresenting.But as his misrepresentation has been pointed out multiple times throughout this very thread, it is clear that either way he doesn’t care.And thus his research and opinion on this matter is irrelevant.And always will be.

  432. avatar
    G September 20, 2012 at 10:00 am #

    Well said! I completely agree.

    Reality Check:
    That is the basic flaw in his article. He assumes that prior controversy about the eligibility of children born abroad to one or two parents implies that the question of eligibility of children born on US soil is not settled. There is no controversy about the latter unless you count that invented by the Birthers since 2008.

  433. avatar
    ballantine September 20, 2012 at 10:57 am #

    Mike Godkin:
    gorefan,“So he [Justice Scalia) would approve of Justice Gray’s approach.”
    Not really. Justice Gray did not want to admit debates in congress as evidence because they did not support his view at all.

    Simply wrong. He, and most classical jurists, didn’t think legislative history should be relevant. To say the debates did not support his view is simply wrong. By saying so you are making clear that you have never read the debates of the 39th Congress. Nearly every persos who participated in the citizenship debate said children of aliens were citizens or natural born citizens. I count 10 in all and one member of the judiciary committee, Sen. Edmunds send a noate to Gray saying he got the case right. Indeed, one reason President Johnson vetoed the Civil Rights Act is that it would make citizens of the children of Chinese aliens. No one such Congress disputed that was the case. At least 9 members of such Congress said the the English rule was the universal rule and no one disputed such notion. No one said citizen parents were necessary. Bingham came the closet early in the debates, but his later statement conform to the general jus soli view. You clearly are talking about something you know nothing about. Oh, and 9 members of such Congress said that the President must be a “native born citizen” while several others said native born children of aliens were eligible to be President. Sorry, Gray’s interpretation is overwelmingly supported by the debates and the people with an anti-anchor baby agenda are simply dishonest claiming otherwise.

  434. avatar
    ballantine September 20, 2012 at 11:03 am #

    Mike Godkin:
    About difference of opinions.

    Tonight, instead of expressing my opinion, I would like to present you with another one, which you may not agree with. However, his view of the WKA case may – just may – make you look at it at different angle.

    Here it is:
    http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

    For those of you who are not going to read the P.A. Madison’s article, its conclusion follows:

    “The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of ‘subject to the jurisdiction’ since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.”

    Why would you think PA Madison is an authority? Just another amatuer with an agenda on anchor babies. If he doesn’t think the definition of “subject to the jurisdiction” was before the court he is a complete idiot. It was and was thoroughly defined in a manner that clarified all who was covered under it. In Elk Gray only looked to its application to indians born in what was considered a quisi-foreign nation and said nothing about its application to aliens other than to compare children of indians born in an indian nation ato aliens born in a foreign country. Any inference one might try to draw from Elk on the application of the rule to aliens is superseded by Wong Kim Ark the entire case of which dealt with the application of such language to children of aliens. One could argue it didn’t address children of illegal aliens which is true. However, based upon its definition of “subject to the jurisdiction” it would be difficult or impossible to exclude them as the Court said in Pylor v. Doe. Sorry if you can’t accept the truth.

  435. avatar
    ballantine September 20, 2012 at 11:18 am #

    Mike Godkin:
    Just a reminder.

    Please pay attention to paragraph “d.”
    If I may translate it into the plain English for housewives and me, it looks like this term (NBC) may be used by quite a few commentators, but when it comes to presidential eligibility, a more serious institution than a public opinion should resolve this issue.
    It also seems these days that the term “Natural born Citizen” makes only sense when it is used in conjunction with presidential eligibility.

    Not sure what point you are trying to make. No statute has ever defined what persons born on our soil were natural born. The naturalization statutes only spoke to the foreign born and it application only relevant to the foreign born. In fact, the Court has ruled that naturalization could not apply at all to the native born at all. You really don’t seem to get this. Regardless, the term “natural born citizen” has often been used outside the context of Presidential eligiblity. Prior to 1866, there was no statute regarding citizenship for the native born. The native born were presumed to be citizens based upon the common law and were called native, natural born or sometimes citizenship by birth in the United States. “Native born” was probably the more popular term even when talking about Presidential eligiblity as you would see if you looked at Tucker, Kent, Story, Bouvier and most other early authorities. However, despite sometimes using different terminology, prior to 1866, there were always two kinds of citizens, one by birth under the common law and one by naturalization. The 14th Amendment restated these two types of citizens. Here is one of the most famous pre-Amendment papers on the common law adopted in this country prior to 1866:

    “the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.”

    This writer also told us that persons “born within the limits and under the jurisdiction of the United States” were natural born citizens but in this sentence he spells out what “natural born citizen” means in language almost identical to the 14th Amendment which would be adopted 11 years later.

  436. avatar
    Dr. Conspiracy September 20, 2012 at 11:35 am #

    Since you seem to be avoiding any response to the many and devastating criticisms of your article, I guess you might want to change the subject.

    P. A. Madison, like you is a hack writer who misrepresents his sources. I obliterated any credibility he might have had in my article three years ago, Madison v. Madison.

    Mike Godkin: Tonight, instead of expressing my opinion, I would like to present you with another one, which you may not agree with. However, his view of the WKA case may – just may – make you look at it at different angle.

    Here it is:
    http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

    For those of you who are not going to read the P.A. Madison’s article, its conclusion follows:

  437. avatar
    Dr. Conspiracy September 20, 2012 at 12:00 pm #

    Like most of what P. A. Madison says, it is nonsense. The question of jurisdiction is central to the understanding of the 14th Amendment, and the question of who is a citizen or not. The Court cited Chief Justice John Marshall in the case of The Exchange concluding:

    In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.

    And that is only a little bit of the treatment of the issue. Have you even read the decision in US v Wong? You’ve been asked that several times, but I have yet to year a reply.

    Mike Godkin: “The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of ‘subject to the jurisdiction’ since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.”

  438. avatar
    nbc September 20, 2012 at 12:22 pm #

    Mike Godkin: Justice Gray did not want to admit debates in congress as evidence because they did not support his view at all.

    It’s clear to me that you really have not read the congressional debates either.

    You are avoiding dealing with any of the significant criticisms, you continue on your confusion about logic and reason, you have yet to explain your quote mining and now you switch to another ‘expert’ whose contributions may explain your own confusion as they overlap in ignorance.

    I see that in the end ‘and nothing but the truth’ was meant as an ironic reference?

  439. avatar
    nbc September 20, 2012 at 12:31 pm #

    Dr. Conspiracy: Since you seem to be avoiding any response to the many and devastating criticisms of your article, I guess you might want to change the subject.

    Yes.. the ‘truth’ is too tough to accept for our dear friend. Fascinating Doc..

  440. avatar
    Rickey September 20, 2012 at 1:16 pm #

    Dr. Conspiracy:

    P. A. Madison, like you is a hack writer who misrepresents his sources. I obliterated any credibility he might have had in my article three years ago, Madison v. Madison.

    It’s worth noting that nowhere on his blog does P.A. Madison assert that he has any credentials (as you have noted, we do not even know if “P.A. Madison” is his real name).

    And of course P.A. Madison’s opinions on jurisdiction, even if they had any validity, would not apply to Barack Obama, whose father was in the United States legally and whose mother was a U.S. citizen.

    Here is an interesting question. Suppose that a U.S. citizen woman gives birth in the United States and the father is a foreign diplomat or a soldier in an invading Army. Is the child a natural-born citizen?

  441. avatar
    Majority Will September 20, 2012 at 2:07 pm #

    Rickey: It’s worth noting that nowhere on his blog does P.A. Madison assert that he has any credentials (as you have noted, we do not even know if “P.A. Madison” is his real name).

    And of course P.A. Madison’s opinions on jurisdiction, even if they had any validity, would not apply to Barack Obama, whose father was in the United States legally and whose mother was a U.S. citizen.

    Here is an interesting question. Suppose that a U.S. citizen woman gives birth in the United States and the father is a foreign diplomat or a soldier in an invading Army. Is the child a natural-born citizen?

    Next, Godkin will be quoting I. P. Freely.

  442. avatar
    dunstvangeet September 20, 2012 at 2:17 pm #

    I have a bit of a little logic problem that I can’t solve…

    Is he now arguing that U.S. v. Wong Kim Ark didn’t decide it based upon “subject to the jurisdiction thereof”? Well, if that’s true, then the court in Wong must have decided not based upon the 14th amendment, but based upon the law before the 14th Amendment.

    Doesn’t this completely destroy his entire argument that somehow the children of aliens are some super-secret class of citizens that were created by the 14th Amendment, and therefore not “Natural Born Citizens” which were those born to the citizen definition before the 14th amendment?

  443. avatar
    Dr Kenneth Noisewater September 20, 2012 at 2:37 pm #

    G: Agreed. I am baffled by why Mr. Godkin keeps referencing situations of BORN ABROAD, when discussing the issue of BORN ON US SOIL…Is he really that dishonest or, as someone who was foreign born himself, have a difficulty with reading comprehension in the english language?

    Maybe he’s reading that as “Born a Broad” as in the female persuasion.

  444. avatar
    nbc September 20, 2012 at 2:48 pm #

    dunstvangeet: Doesn’t this completely destroy his entire argument that somehow the children of aliens are some super-secret class of citizens that were created by the 14th Amendment, and therefore not “Natural Born Citizens” which were those born to the citizen definition before the 14th amendment?

    In addition to not having read the ruling in WKA, it also shows his lack of logic and reason here.

    “And nothing but the truth”… Whose ‘truth’ I wonder?..

  445. avatar
    MattR September 20, 2012 at 3:13 pm #

    Dr. Conspiracy:
    Since you seem to be avoiding any response to the many and devastating criticisms of your article, I guess you might want to change the subject.

    P. A. Madison, like you is a hack writer who misrepresents his sources. I obliterated any credibility he might have had in my article three years ago, Madison v. Madison.

    Wow. It was instructive and depressing to read that thread and see that the same exact arguments were being made three years ago (with the same claims of impending judicial victory) with only the names of the commenters having changed

  446. avatar
    chancery September 20, 2012 at 3:40 pm #

    Paper,

    Thanks for the references on René de Chambrun. Interesting guy. The law firm he founded has a web site; it doesn’t sound like a typical corporate firm.

    http://www.dechambrun.com/dechambrun.com/Welcome.html

    Paper:
    The sources referenced by Wikipedia are the Time magazine Letters section behind a pay wall and an obituary where the link fails. * * *

  447. avatar
    Mike Godkin September 20, 2012 at 4:00 pm #

    I have a suggestion

    On September 18, 2012 at 7:11 pm, predicto wrote this:

    “As someone who is actually a constitutional law attorney for a living, who has taught legal writing and research, and who has drafted judicial opinions, all I can say is:
    Mr. Godkin’s ‘reasoning’ is so convoluted and unpersuasive that it gives me a headache. There are at least 20 reasons why it would not pass muster in any court in the land (and of course, HASN’T passed muster in over 100 courts to date).”

    A few hours later, on September 19, 2012 at 1:50 am, I responded to predicto, who introduced himself as a constitutional law attorney, hoping to get some specific criticism from him. Using a rare opportunity to get a professional opinion, I also asked him a few questions.

    Unless I missed his response, it seems to me that I didn’t get it yet.

    So here is my suggestion to all of my critics:

    Why don’t you wait for a day or two until a real constitutional lawyer completely destroys my paper and proves my ignorance and stupidity? I can take any devastating criticisms of my article and my personality, although none of you have any idea what my personality is.
    If, on the other hand, predicto doesn’t respond at all, what would it tell you?
    Please don’t jump to any conclusion yet.

  448. avatar
    ballantine September 20, 2012 at 4:11 pm #

    Sorry, your paper has already been destroyed here. We don’t need to wait for someone who calls themselves a real Constitutional attorney. You have no idea what the qualifications of the people on this thread. Some of us let our arguments speak for themselves and you have done nothing to refute them from what I have seen. People who work for top law firms with connections to both parties understand such firms do not want to be associated with political controversy. That doesn’t mean you are not talking with people with real qualifications as you should be able to tell from the level of discourse here.

  449. avatar
    Paper September 20, 2012 at 4:21 pm #

    That is a question I have been wondering myself. Even tried to research it awhile back. Never found any discrete parsing of those scenarios.

    The invading soldier as father scenario would seem to be the more likely scenario as originally conceived, and I find the diplimatic scenario more intriguing, and perhaps more likely these days. And if the sexes ate reversed, re who is the American?

    Rickey:

    Here is an interesting question. Suppose that a U.S. citizen woman gives birth in the United States and the father is a foreign diplomat or a soldier in an invading Army. Is the child a natural-born citizen?

  450. avatar
    Paper September 20, 2012 at 4:25 pm #

    That certainly is true of my old firm, a very well-known, major firm.

    ballantine:
    People who work for top law firms with connections to both parties understand such firms do not want to be associated with political controversy.That doesn’t mean you are not talking with people with real qualifications as you should be able to tell from the level of discourse here.

  451. avatar
    Paper September 20, 2012 at 4:32 pm #

    I don’t think anyone cares about your personality. Some if us may wonder at times what causes, or is behind, such obtuseness as you demonstrate in your arguments, and lack thereof. Different question.

    Mike Godkin:
    I can take any devastating criticisms of my article and my personality, although none of you have any idea what my personality is.

  452. avatar
    Arthur September 20, 2012 at 4:34 pm #

    Mike,

    Insofar as your arguments contradict the actual decisions of state, federal, and Supreme Court judges, your paper has already been destroyed by constitutional authorities. Nevertheless, if you really want an acknowledged expert to review your thesis, why not send it out to constitutional scholars or law journals? I don’t know if they would respond, but you might get better results than waiting for an anonymous poster on an anti-birther blog to get back to you.

  453. avatar
    Paper September 20, 2012 at 4:40 pm #

    Your obtuseness here is undeniable. Doesn’t matter much why. Idle speculation, sure. But the bottom line is your arguments here, and as I say, lack thereof, will never amount to anything. There are few as certain situations as that. It is a busman’s holiday for lawyers or anyone interested in ambiguities, uncertainties, fine distinctions and real conundrums. So thanks for making it so easy.

  454. avatar
    Scientist September 20, 2012 at 4:49 pm #

    Mike Godkin: If, on the other hand, predicto doesn’t respond at all, what would it tell you?

    That he’s busy.

    Actually he has already given you the most important reason your paper is nonsense The arguments in it have been made in courts throughout the country and have been rejected. The fact that you refuse to acknowledge that speaks volumes about you.

    The opinions of well qualified lawyers are interesting and worth considering, but, in the final analysis, it is the rulings made by actual judges that decide the matter.

  455. avatar
    predicto September 20, 2012 at 5:23 pm #

    Thrifty: This may sound like a stupid question, but what is a “constitutional law attorney”?Isn’t all law in the United States derived from the Constitution, being the supreme law of the land?

    In this case, it means that I am an attorney who works for a state Supreme Court, where I am called upon to do in depth constitutional analysis much more often than the typical attorney. Yes, all American law is subject to the Constitution, but that does not mean that the average legal dispute is decided on constitutional issues. Most cases are decided on the words of a contract, or the application of lower level statutes or regulations to events. The cutting edge constitutional issues, however – those end up in the court where I work.

  456. avatar
    nbc September 20, 2012 at 5:23 pm #

    Mike Godkin: If, on the other hand, predicto doesn’t respond at all, what would it tell you?

    Since you refuse to respond to any criticism, what would it tell you? Poor Mike your arguments have been totally destroyed and you pretend that if Predicto does not respond, you can claim victory>

    Have you no shame? You behavior has become an affront to research, and honesty, I believe. And you inability and unwillingness to respond to much any criticism shows that you are not even interested in pursuing the truth, just your version thereof.

  457. avatar
    Slartibartfast September 20, 2012 at 5:31 pm #

    G (in reference to another poster): Well said! Very succinct and to the point!

    Are you saying that I’m not succinct? 🙁

    Seriously, thanks (and thank you ballanti