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Cranking natural born citizen

When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.

Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.

One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”

The U.S Supreme Court in the case of United States v. Wong Kim Ark cited approvingly Mr. Dicey in Digest of the Law of England with reference to the Conflict of Laws, where Dicey explains the difference between a British Subject, and a natural-born British Subject:

“British subject” means any person who owes permanent allegiance to the Crown. … “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

He did not say “a subject who was born on the soil of England,” but one who became a subject at birth. And of course as we all know, the Court asserted the convertibility of “subject” and “citizen.”

If you think about it, the lack of a definition in the Constitution makes sense because in 1789, citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.

Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman).  That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.

If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.

The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.

One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?

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500 Responses to Cranking natural born citizen

  1. avatar
    Scientist May 17, 2013 at 4:22 pm #

    This to me illustrates the absurdity of the entire “originalist” doctrine. This is not the world of 1789 and you can’t run a country in the 21st century by trying to parse what various people thought back then, especially since they differed amongst themselves on almost everything anyway. They wrote “freedom of the press” and undoubtedly meant ink on paper, since radio, TV, the internet, Twitter, etc. couldn’t even have been imagined even by the most far-sighted. They wrote “bear arms” without imagining 100 round assault rifles, let alone nuclear weapons. So, we folks alive today have to decide all by ourselves, like adults, what works for us, without summoning the dead to speak.

    On natural born citizen, there, too, the world has changed. Crossing the ocean takes hours not weeks now so people travel much more. People like Cruz’s father work for multi-national oil companies that send them to Canada and Saudi Arabia and Venezuela, or wherever else oil comes out of the ground, something which didn’t happen in 1789.

    So, I really don’t think what “the Founders” thought is the issue (since they didn’t agree on much anyway). As for Lord Coke, frankly I am even less thrilled to have him dictating to us than I am by “the Founders”. There is a plain English meaning, so that ought to be good enough. natural born = from birth. THE END

  2. avatar
    Robb May 17, 2013 at 4:40 pm #

    Two things:
    1) I believe that the definition is not provided as it is spelled out, quite clearly, in Calvin’s Case from British history (birth by soil). Obviously, we now have birth by both parents as well, but that is (for the most part) a rather modern concept as we use it (note, the father was a rather new concept even at the writing of the Constitution, so I’m not surprised they later added that as a law, assuming Soil still applied);
    2) This is why I adhere to a constitutional model based upon living originalism. Take the original intent and apply it to the modern concept (for example, the First amendment and media, it applies the internet as the idea is the same (and the founders likely would have included thus))

    (also, why does everybody forget the most enjoyable way to be a NBC – the Superman method; being found abandoned under certain conditions)

  3. avatar
    Robb May 17, 2013 at 4:43 pm #

    Scientist, the problem with using plain English is how to phrase NBC:
    A) Natural born citizen=naturally a citizen at birth
    or
    B) Natural born citizen= A citizen born via a natural birth (no C-sections, no artificial insemination, etc.)

    we must apply context, otherwise, statutory interpretation applies the most obvious, which, to me, is any citizen who was naturally born

  4. avatar
    nbc May 17, 2013 at 5:03 pm #

    The problem with this interpretation is multifold

    1. The reference natural-born was quickly removed in 1795
    2. The limited court rulings all suggest that such children would be naturalized

    Let’s explore

    Breyer v. Meissner, 23 F. Supp. 2d 521 – Dist. Court, ED Pennsylvania 1998

    In United States v. Wong Kim Ark, the Court defined the enactment of a statute conferring citizenship upon the foreign-born children of citizens as a form of naturalization:

    A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty … or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

    169 U.S. 649, 702-03, 18 S.Ct. 456, 477, 42 L.Ed. 890 (1898) (emphasis added). The Court thereby recognized that a statute conferring citizenship at birth is an exercise of the naturalization power of Congress. Id.; accord Wong Kam Wo v. Dulles, 236 F.2d 622, 625 (9th Cir.1956) (applying Wong Kim Ark to find that R.S. 1993 is “a naturalization law in the constitutional sense”); Zimmer v. Acheson, 191 F.2d 209, 211 (10th Cir.1951) (for German-born child of U.S. citizen father, status acquired under R.S. 1993 “was that of a naturalized citizen and not a native-born citizen”).

    This combined with the observation that there are two classes of citizens: natural born and naturalized certainly place reasonable doubt upon the interpretation that such children are natural born.

    Zimmer v. Acheson, 191 F. 2d 209 – Court of Appeals, 10th Circuit 1951

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

    [1] Elk v. Wilkins, 112 U.S. 94, 101, 102, 5 S.Ct. 41, 28 L.Ed. 643; United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S. Ct. 456, 42 L.Ed. 890; Johansen v. Staten Island Shipbuilding Co., 272 N.Y. 140, 5 N.E.2d 68, 70; Schaufus v. Attorney General of United States, D.C.Md., 45 F. Supp. 61, 67.

    [2] United States v. Wong Kim Ark, 169 U. S. 649, 702-703, 18 S.Ct. 456, 42 L.Ed. 890; Johansen v. Staten Island Shipbuilding Co., 272 N.Y. 140, 5 N.E.2d 68, 70; United States v. Kellar, C.C.Ill., 13 F. 82, 85; Schaufus v. Attorney General of United States, D.C.Md., 45 F.Supp. 61, 67.

    So let’s look at the history of the 1790 act

    *661 The Act of March 26, 1790, entitled “An Act to establish an uniform Rule of Naturalization,” 1 Stat. 103, c. 3, came under discussion in February, 1790, in the House, but the discussion was chiefly directed to naturalization and not to the status of children of American citizens born abroad. Annals of First Congress, 1109, 1110, et seq. The only reference is made by Mr. Burke (p. 1121), in which he says:

    “The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III. There are several other cases that ought to be likewise attended to.”

    The 1708: 7 Anne Cap VAD 1708 An Act for naturalizing foreign Protestants, and repeated in 1730 reads:

    …the Children of all natural-born Subjects, born out of the Ligeance of her said [late] Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever…

    the 1730 act however restricts this to “whose fathers were or shall be natural born subjects”

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

    Note how the act was almost verbatim copied but from the wrong act. In 1795 this was corrected and the reference to natural-born was dropped

    children of persons who now are, or have been citizens of the 663*663 United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.”

    The conclusion that such children are naturalized is further supported by Rogers v Bellei:

    The statutes culminating in 301 merit review:

    1. The very first Congress, at its Second Session, proceeded to implement its power, under the Constitution’s Art. I, 8, cl. 4, to “establish an uniform Rule of Naturalization” by producing the Act of March 26, 1790, 1 Stat. 103. That statute, among other things, stated,

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

    In its dissenting opinion it is observed that

    “Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish an uniform Rule of Naturalization,” Art. I, 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.”“1 Stat. 103, 104. This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a “Rule of Naturalization” shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization.”“All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization.”

    Others…

    Kiyokuro Okimura v. Acheson, 99 F. Supp. 587 – Dist. Court, D. Hawaii 1951

    It is the view of this Court that while the Constitution gives the Congress plenary power over citizenship by naturalization, it leaves the Congress no power whatsoever to interfere with American citizenship by birth.

    7 FAM 1131.6-2 Eligibility for Presidency

    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.”

    I am presently pursuing a more in-depth overview of the status of such children at my website.

  5. avatar
    Scientist May 17, 2013 at 5:15 pm #

    Robb: Take the original intent and apply it to the modern concept (for example, the First amendment and media, it applies the internet as the idea is the same (and the founders likely would have included thus))

    That’s a guess, probably correct, but nevertheless a guess. More important is that applying the 1st Amendment to only ink on paper would lead to absurd outcomes (the print edition of the NY TImes could not be censored but the identical web edition could be). The guess where it involves 100 round assault weapons vs muskets is far more murky, never mind the whole well-regulated militia.

    Robb: A) Natural born citizen=naturally a citizen at birth

    I’m not sure what that means.

    Frankly, I would say the following: Where it is absolutely clear that the person is not an NBC (say Schwarzenegger) then fine, they are ineligible. Where there is doubt and reasonable people and scholars disagree, the basic human right of the voters to pick their leader in a free election should be honored. Because it is that principle, not NBC, that US soldiers have been sent to other countries to fight and die for.

  6. avatar
    Scientist May 17, 2013 at 5:19 pm #

    nbc: In its dissenting opinion it is observed that

    If you quote dissenting opinions you can get yourself in trouble. Or so Mario has learned…

  7. avatar
    ballantine May 17, 2013 at 5:22 pm #

    Scientist:
    This to me illustrates the absurdity of the entire “originalist” doctrine.

    I am not a fan of originalism either. It is really an unworkable theory on so many levels as evidenced by the fact there is a law review making originalist arguments for pretty much every legal position imaginable. That being said, when the originalist arguments destroy a particular Conservative position, as they do with the Vattelist arguments, it is just easier to use the originalist arguments. It’s simply easier to beat them using their interpretavie method rather than arguing about interpretive method. I see liberal professors do this all the time, too often I think, as it often appears they have conceded the originalist point.

    With respect to Doc’s points. I don’t think any dictionary or other authority in 1787 defined “natural born citizen” as a “citizen at birth.”

    With respect to the 1790 Act, I would charactorize it as saying a class of persons not normally considered natural born would now be considered natural born. The plain language of the Act presupposes a known definition of “natural born citizen” for to say “shall be considered as natural born Citizens” means they shall be considered the same as this known term.

    As Doc said, the 1790 Act apparently meant to copy English statutes. According to its sole legislative history:

    “[t]he case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.”

    Wrong statute, but we get the point. Now, look at the language of the most recent of these statutes which provided that foreign born children with a father or grandfather who is a natural born subject:

    “shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom” 13 Geo. III, c. 21 (1772)

    Seems to me that this Act makes clear that “natural born subject” had a well understood meaning of being born in the Kingdom and this Act was saying certain people born out of the Kingdom were to be treated as if born in the Kingdom and hence treated as natural born subjects for all purposes (including eligiblity to sit in Parliament and Privy Counsel). The 1790 Act I think is saying the same thing: certain people born outside of America were to be considered as born in America and hence considered natural born for all purposes.

    Now, since all English subjects at birth were considered natural born, it seems plausible that people at that time considered anyone made a subject or citizen at birth to natural born. It is also plausible that only people designated as “natural born” by the legislature were thought to be included or that the they really didn’t mean to make such persons eligible for the presidency as evidence by the change in language 5 years later. There really isn’t much evidence either way but being plausible will probably carry the day in court as I doubt any court would rule someone like Cruz ineligible.

  8. avatar
    Scientist May 17, 2013 at 5:30 pm #

    ballantine: That being said, when the originalist arguments destroy a particular position, as they do with the Vattelist arguments, it is just easier to use the originalist arguments, it simply easier to beat them using their interpretavie method rather than arguing about interpretive method. I see liberal professors do this all the time, too often I think, as it often appears they have conceded the originalist point.

    I find it troubling that those who recognize the unworkability of originalism would then validate its premises by using it because it is convenient in a given situation. To me that is like an astronomer using astrology because it supports a conclusion he likes (using it in a bar to pick up women might be borderline OK, if cheesy).

  9. avatar
    nbc May 17, 2013 at 5:42 pm #

    Scientist: If you quote dissenting opinions you can get yourself in trouble. Or so Mario has learned…

    Let’s not forego the logic raised in the argument just because it is dissenting. It may not be binding legally speaking but helps understand the arguments by the majority.

    The dissent is not raising the issue in disagreement with the majority opinion but disagrees with how it distinguishes Rogers from Afroyim by arguing that ‘naturalized in the US’ does include those naturalized by statute but born outside the jurisdiction.

    The majority ruled

    Over 70 years ago the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects, United States v. Wong Kim Ark, 169 U.S. 649, 668-671, 18 S.Ct. 456, 464-465, 42 L.Ed. 890 (1898). The Court concluded that ‘naturalization by descent’ was not a common-law concept but was dependent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 (1350); 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this ‘very learned and useful opinion of Mr. Justice Gray’ and observed ‘that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute * * *.’ Weedin v. Chin Bow, 274 U.S., at 660, 47 S.Ct., at 773. He referred to the cited English statutes and stated, ‘These statutes applied to the colonies before the War of Independence.’

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

    and

    Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was ‘declaratory of existing rights, and affirmative of existing law,’ so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S., at 688, 18 S.Ct., at 472. Then follows a most significant sentence:

    ‘But it (the first sentence of the Fourteenth Amendment) has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the constitution to establish an uniform rule of naturalization.’

    Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.

  10. avatar
    Ballantine May 17, 2013 at 5:54 pm #

    Scientist: I find it troubling that those who recognize the unworkability of originalism would then validate its premises by using it because it is convenient in a given situation.To me that is like an astronomer using astrology because it supports a conclusion he likes (using it in a bar to pick up women might be borderline OK, if cheesy).

    It is how one wins legal arguments. An actual legal brief would first argue against originalism and second argue that even under originalism, you still win. This way, you persuade judges with different philosophies. The first argument will never persuade people like Scalia in a million years and you lose. likewise, the birthers will never accept non originalist arguments and you would be wasting you time trying to make them.

  11. avatar
    Dr. Conspiracy May 17, 2013 at 6:02 pm #

    The Oxford English Dictionary which supposedly presents all of the historical definitions of words says in its sole entry for “natural born”:

    “Having a specified position or character by birth; used esp. with subject.”

    I take that to say that a natural born subject is defined as subject by birth in the OED. It is not a subject born in the realm under the protection of the King. It is not a subject who is such because of a naturalization act that says the child of British subjects born outside of the real are natural born subjects. It is not a definition of all the ins and outs of who qualifies to be a natural born subject, but simply says that natural born subjects are those who qualify as subjects at birth.

    I have problems with folks trying to make a definition of natural born citizen that is in conflict with a comprehensive dictionary definition.

    You will not find “orange crayon” in the dictionary, but the way to define that term, I think, is not to scour the world looking for every reference to “orange crayon” and to try to create a definition based on the manufacturing characteristics of things sold as orange crayons. What you would get is a list of crayon colors containing the word “orange” somewhat smaller than the list of colors containing the word “orange” not restricted to crayons. Then some new variety of orange crayon would come out that is clearly orange, but not a shade of orange that existed when the crayon survey was done. Is it really an “orange crayon?” If one requires defining the words together by collecting every way a crayon was orange in the past, then no it is not–but that would be a silly result.

    I think that trying to look at the common law and state laws at the time of the signing of the Constitution to define “natural born citizen” is rather like looking at existing orange crayons, and ignoring what the words “orange” and “crayon” actually mean.

    ballantine: With respect to Doc’s points. I don’t think any dictionary or other authority in 1787 defined “natural born citizen” as a “citizen at birth.”

  12. avatar
    Scientist May 17, 2013 at 6:20 pm #

    Ballantine: the birthers will never accept non originalist arguments and you would be wasting you time trying to make them

    And, pray tell, which birthers have accepted originalist arguments? Or any arguments at all?

  13. avatar
    Scientist May 17, 2013 at 6:29 pm #

    Let’s be honest here-these arguments are mere mental masturbation, of zero real-world applicability, because in order for this to get decided by a court, a credible candidate would have to file an actual challenge. And, politically, that would be shooting oneself in the foot, because anyone who did so would look like a big, fat chicken and would kill their own chances. No one with standing challenged McCain (and barring Keyes, whose standing was questionable, no one challenged Obama) and no one would challenge Cruz.

    Teddy Boy will fall on the idiocy of his positions and the thorough unpleasantness of his demeanor. Eligibility will be a non factor. Remember, I predicted in 2009 that Obama would be re-elected if the unemployment in September 2012 was below 8%. It was and he was. So, I feel I have some credibility in predictions.

  14. avatar
    nbc May 17, 2013 at 6:40 pm #

    Scientist: Let’s be honest here-these arguments are mere mental masturbation, of zero real-world applicability, because in order for this to get decided by a court, a credible candidate would have to file an actual challenge.

    You are now confusing two different issues. One is justiciability of the question, the other one the legal interpretation of natural-born.

    From a pure academic perspective however, the meaning of ‘natural-born’ has not been totally resolved as it comes to children born abroad to US citizens.

  15. avatar
    Dr. Conspiracy May 17, 2013 at 6:51 pm #

    The way I read this, “to be” is not “like” or “treated the same.” It means that these foreign-born persons are natural born subjects, not “just as good as” natural born subjects. And I read the last bit is just saying that natural born subjects under this act have all the privileges of those who are natural born subjects because they were born in the country. Look at this version of the act substituting phrases using the dictionary definition of natural born subject:

    “shall and may be adjudged and taken to be, and are hereby declared and enacted to be, Subjects at birth of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom” 13 Geo. III, c. 21 (1772)

    I find no awkwardness or contradiction there. Do you? In fact, that substitution can be made in every instance that I am aware of with no awkwardness or contradiction.

    I’m not a lawyer; my training is in mathematics. In that discipline one tries to avoid unnecessary complicating factors.

    ballantine: Seems to me that this Act makes clear that “natural born subject” had a well understood meaning of being born in the Kingdom and this Act was saying certain people born out of the Kingdom were to be treated as if born in the Kingdom and hence treated as natural born subjects for all purposes (including eligiblity to sit in Parliament and Privy Counsel). The 1790 Act I think is saying the same thing: certain people born outside of America were to be considered as born in America and hence considered natural born for all purposes.

  16. avatar
    Robb May 17, 2013 at 7:03 pm #

    Scientist: y correct, but nevertheless a guess. More important is that applying the 1st Amendment to only ink on paper would lead to absurd outcomes (the print edition of the NY TImes could not be censored but the identical web edition could be). The guess where it involves 100 round assault weapons vs muskets is far more murky, never mind the whole well-regulated militia.

    I don’t really think that it is that confusing regarding the second, though I thought that Miller had it right

    “I’m not sure what that means.

    Frankly, I would say the following: Where it is absolutely clear that the person is not an NBC (say Schwarzenegger) then fine, they are ineligible. Where there is doubt and reasonable people and scholars disagree, the basic human right of the voters to pick their leader in a free election should be honored. Because it is that principle, not NBC, that US soldiers have been sent to other countries to fight and die for.”

    A citizen at birth basically, one that is naturally a citizen when born (so born a natural citizen via statute). There is no basic human right to pick your leaders, that is not how we work, and that is not how we were set up

  17. avatar
    nbc May 17, 2013 at 7:12 pm #

    </n Because it is that principle, not NBC, that US soldiers have been sent to other countries to fight and die for.

    So our Constitution is overruled by the concept of Human Rights?

  18. avatar
    ballantine May 17, 2013 at 7:19 pm #

    Dr. Conspiracy:
    The Oxford English Dictionary which supposedly presents all of the historical definitions of words says in its sole entry for “natural born”:

    “Having a specified position or character by birth; used esp. with subject.”

    I take that to say that a natural born subject is defined as subject by birth in the OED. It is not a subject born in the realm under the protection of the King. It is not a subject who is such because of a naturalization act that says the child of British subjects born outside of the real are natural born subjects. It is not a definition of all the ins and outs of who qualifies to be a natural born subject, but simply says that natural born subjects are those who qualify as subjects at birth.

    I have problems with folks trying to make a definition of natural born citizen that is in conflict with a comprehensive dictionary definition.

    You will not find “orange crayon” in the dictionary, but the way to define that term, I think, is not to scour the world looking for every reference to “orange crayon” and to try to create a definition based on the manufacturing characteristics of things sold as orange crayons. What you would get is a list of crayon colors containing the word “orange” somewhat smaller than the list of colors containing the word “orange” not restricted to crayons. Then some new variety of orange crayon would come out that is clearly orange, but not a shade of orange that existed when the crayon survey was done. Is it really an “orange crayon?” If one requires defining the words together by collecting every way a crayon was orange in the past, then no it is not–but that would be a silly result.

    I think that trying to look at the common law and state laws at the time of the signing of the Constitution to define “natural born citizen” is rather like looking at existing orange crayons, and ignoring what the words “orange” and “crayon” actually mean.

    Does the OED in 1787 say that? Honestly, I personally have not seen a single English legal authority in the 18th century with that definition. Not saying it doesn’t exist, but it must be rare and outnumbered by hundreds of contrary authorities.

    It is simply a fact that almost every authority of the time looked to Coke’s definition. I don’t understand the “dictionary” stuff. If you are an originalist, you look to what the term was understood to mean to the people at such time. A “dictionary” is one of many pieces of evidence as to what such term meant. I can tell you that in 1787, the vast, vast majority use of the term “natural born” was equated with native birth in both England and America.

    The “orange crayon” analogy is a false one. If those words taken together had an historical meaning understood by any educated person at the time, one would not try to re-construct its meaning by breaking down its componants. There is no founder who didn’t understand what “habeas corpus,” “due process,” “high crimes and misdemeanors” and many other constitutional provisions meant. They were not defined by breaking down their componants, but through history. And why would breaking down “natural born citizen” by its conponants result in “citizen at birth” anyway. Seems like speculation at bes as to what these three word might mean.

    The bottom line is either one is looking at history or one is not. The history overwelming looks to jus soli and provides a plausible argument that statutory citizens at birth should also be included. But let’s be honest. There is almost no actual evidence that any framer or early legal authority meant to include a person like Cruz.

  19. avatar
    ballantine May 17, 2013 at 7:28 pm #

    Scientist: And, pray tell, which birthers have accepted originalist arguments?Or anyarguments at all?

    Sure, but the reason they look so stupid is because they claim to look to history and are so clearly wrong on the history. Arguing interpretive theory that actual legal scholars can’t agree on doesn’t accomplish much in such debates and mean nothing in court. Birthers look stupid all around the web and in courts because their theory has been rejected even assuming their interpretive premise. They have been shown on this site that they lose, not because of the judge’s philosophy, but because they are wrong even with judges who agree with their philosophy.

  20. avatar
    Scientist May 17, 2013 at 7:51 pm #

    Robb: There is no basic human right to pick your leaders, t

    Of course there is.

    The Universal Declaration of Human Rights, to which the US is not only the signatory, but more or less the author (Eleanor Roosevelt played a large role) states in Article 21:

    (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
    (2) Everyone has the right of equal access to public service in his country.
    (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

    nbc: So our Constitution is overruled by the concept of Human Rights?

    A Constitution that suppressed basic human rights would be an illegal abomination that no one would be obligated to respect. Fortunately, the US Constitution incorporates many basic human rights and was written with them in mind.

    It’s frankly shocking to me that you seem to disrespect human rights. I wonder what your problem is…

  21. avatar
    Scientist May 17, 2013 at 7:58 pm #

    ballantine: There is almost no actual evidence that any framer or early legal authority meant to include a person like Cruz.

    What actual evidence is there that they didn’t? The matter was simply not discussed at all as far as we know. Certain questions were discussed in detail, so the original intent is fairly clear. This is not one of them.

    Anyway, what the term means TODAY is the only thing that matters when applying it to a situation that arises today. History is interesting, but I’m am a hip. modern, 21st century guy.

  22. avatar
    misha marinsky May 17, 2013 at 8:02 pm #

    Scientist: natural born = from birth. THE END

    Actually, Shakespeare has the final word on natural born:

    The power of man, for none of woman born
    Shall harm Macbeth.

    I bear a charmed life, which must not yield
    To one of woman born.

    Tell thee, Macduff was from his mother’s womb
    Untimely ripp’d.

    So there.

  23. avatar
    nbc May 17, 2013 at 8:03 pm #

    Scientist: A Constitution that suppressed basic human rights would be an illegal abomination that no one would be obligated to respect. Fortunately, the US Constitution incorporates many basic human rights and was written with them in mind.

    A Constitution that suppressed basic human rights would be an illegal abomination that no one would be obligated to respect. Fortunately, the US Constitution incorporates many basic human rights and was written with them in mind.

    It’s frankly shocking to me that you seem to disrespect human rights. I wonder what your problem is…

    That’s just nonsense. Come on scientist stop with these foolish ad hominems. And try some reason.. Surely as a scientist you are familiar with logic and reason.

    PS: The human rights declaration says nothing about limitations on who can be a leader. In fact, it understands that this and who are our citizens are best left to our internal laws, regulations and statutes.

    Sorry my friend but I guess that you do not like my rationale? I suggest that you find some arguments to raise against what I have said so far and not focus on silly accusations.

    Furthermore:

    A: Since the Declaration is not legally binding technically, there are no signatories to the Declaration. Instead, the Declaration was ratified through a proclamation by the General Assembly on December 10, 1948 with a count of 48 votes to none with only 8 abstentions. This was considered a triumph as the vote unified very diverse, even conflicting political regimes.

    Not legally binding. Well well… I guess our judiciary should just follow non legally binding precedents? ROTFL. But sufficient to say that Article 21 does not support your conclusion that a country cannot set limitations on eligibility.

  24. avatar
    misha marinsky May 17, 2013 at 8:05 pm #

    ballantine: There is almost no actual evidence that any framer or early legal authority meant to include a person like Cruz.

    This is the 21st century. Cruz is a citizen by birth. He’s also a nut by birth, but he’s still eligible.

  25. avatar
    nbc May 17, 2013 at 8:09 pm #

    Scientist: The Universal Declaration of Human Rights, to which the US is not only the signatory

    Uh nope…

    Q: Who are the signatories of the Declaration?

    A: Since the Declaration is not legally binding technically, there are no signatories to the Declaration. Instead, the Declaration was ratified through a proclamation by the General Assembly on December 10, 1948 with a count of 48 votes to none with only 8 abstentions. This was considered a triumph as the vote unified very diverse, even conflicting political regimes.

    See: http://www.unac.org/

    The US did vote in favor of the declaration however.

  26. avatar
    nbc May 17, 2013 at 8:11 pm #

    misha marinsky: This is the 21st century. Cruz is a citizen by birth. He’s also a nut by birth, but he’s still eligible.

    The question still remains: Is a citizen by birth through Naturalization a natural born citizen. Or explain how you disagree with the arguments raised?

  27. avatar
    Scientist May 17, 2013 at 8:14 pm #

    nbc: Sorry my friend but I guess that you do not like my rationale?

    I don’t.

    nbc: I suggest that you find some arguments to raise against what I have said so far and not focus on silly accusations.

    It’s nonsense and of no practical value. Courts will never get involved in this question. I’m sorry if that bothers you, but it’s simple fact. They will leave this to the voters and Congress-wisely, I might add. If you don’t like that, too bad, but it’s the plain reality.

    For someone who is (I believe) not a lawyer it astounds me that you want courts to decide everything. Next thing you will want them over-ruling the umpires on whether the runner was safe at the plate. Oh, all knowing judges, who are so much better than we mere mortals,…

  28. avatar
    Scientist May 17, 2013 at 8:18 pm #

    nbc: The US did vote in favor of the declaration however.

    Yes, because it neatly encapsulates what the US is supposed to believe in. Perhaps you think the key founding value of the US was “Only natural born citizens can be President,” rather than democracy and freedom and the rights of man. I must differ with you on that.

  29. avatar
    nbc May 17, 2013 at 8:20 pm #

    Or more to the point

    Sosa v. Alvarez-Machain, 542 US 692 – Supreme Court 2004

    First

    SOUTER, J., delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV of which was joined by STEVENS, O’CONNOR, KENNEDY, GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 739. GINSBURG, J., filed an opinion concurring in part and concurring 696*696 in the judgment, in which BREYER, J., joined, post, p. 751. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 760.

    To begin with, Alvarez cites two well-known international agreements that, despite their moral authority, have little utility under the standard set out in this opinion. He says that his abduction by Sosa was an “arbitrary arrest” within the meaning of the Universal Declaration of Human Rights (Declaration), G. A. Res. 217A (III), U. N. Doc. A/810 (1948). And he traces the rule against arbitrary arrest not only to the Declaration, but also to article nine of the International Covenant on Civil and Political Rights (Covenant), Dec. 16, 1966, 999 U. N. T. S. 171,[22] to which the United States is a party, and to various other conventions to which it is not. But the Declaration does not of its own force impose obligations as a matter of international law. See Humphrey, The UN Charter and the Universal Declaration of Human Rights, in The International Protection of Human Rights 39, 50 (E. Luard ed. 1967) (quoting Eleanor Roosevelt calling the Declaration “`a statement of principles . . . setting up a common standard of achievement for all peoples and all nations’” 735*735 and “`not a treaty or international agreement . . . impos[ing] legal obligations’”).[23] And, although the Covenant does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.

  30. avatar
    Scientist May 17, 2013 at 8:21 pm #

    nbc: The question still remains: Is a citizen by birth through Naturalization a natural born citizen.

    Yes they are. Several have run for President, all appeared on the ballot, and had they been elected, they would have served. I challenge you to disprove that statement. Go on…

  31. avatar
    misha marinsky May 17, 2013 at 8:22 pm #

    nbc: The question still remains: Is a citizen by birth through Naturalization a natural born citizen. Or explain how you disagree with the arguments raised?

    IANAL, but: Was Cruz naturalized, or was he a citizen by birth? AFAIK, he is a citizen by birth, not by naturalization.

    If I’m wrong, correct me. I doubt any Democratic candidate would challenge this. I don’t think a Republican would, unless it got nasty like McCain in 2000.

  32. avatar
    nbc May 17, 2013 at 8:23 pm #

    Scientist: Yes, because it neatly encapsulates what the US is supposed to believe in. Perhaps you think the key founding value of the US was “Only natural born citizens can be President,” rather than democracy and freedom and the rights of man. I must differ with you on that.

    Well, they clearly stated that this was part of the founding concept. Sorry my friend but that just does not make sense. I am sure that the founding fathers had some understanding of ‘human rights’ as it pertained to white males…

    Beyond that…

  33. avatar
    Scientist May 17, 2013 at 8:24 pm #

    So, nbc, you think that because the Supreme Court might go along with it, human rights are worthless and should be trampled upon?

  34. avatar
    nbc May 17, 2013 at 8:24 pm #

    Scientist: I challenge you to disprove that statement.

    Again ignoring the point and the arguments I made. I do understand my friend. But logic and reason tends to overcome emotional arguments any time.

  35. avatar
    nbc May 17, 2013 at 8:25 pm #

    Scientist: So, nbc, you think that because the Supreme Court might go along with it, human rights are worthless and should be trampled upon?

    Again, logic nor reason would lead to such a conclusion… Try not to create strawmen arguments.

  36. avatar
    Scientist May 17, 2013 at 8:26 pm #

    nbc: I am sure that the founding fathers had some understanding of ‘human rights’ as it pertained to white males…

    Beyond that…

    So it’s OK with you that only white males have rights? because we wouldn’t want to ever do anything different from the sainted founding fathers? We should remain permanently frozen in 1789?

  37. avatar
    misha marinsky May 17, 2013 at 8:26 pm #

    Scientist: Courts will never get involved in this question. I’m sorry if that bothers you, but it’s simple fact. They will leave this to the voters and Congress-wisely, I might add.

    I agree.

  38. avatar
    nbc May 17, 2013 at 8:27 pm #

    misha marinsky: AFAIK, he is a citizen by birth, not by naturalization.

    If I’m wrong, correct me. I doubt any Democratic candidate would challenge this. I don’t think a Republican would, unless it got nasty like McCain in 2000.

    Yes you may be wrong about who is natural born and right about noone would challenge Cruz. But that’s not the discussion we are having here.

    I have outlined above why the Courts have held that children born abroad to US citizens fall under the naturalization powers of congress.

  39. avatar
    Scientist May 17, 2013 at 8:27 pm #

    nbc: Again ignoring the point and the arguments I made

    I’m not ignoring your arguments. I’m saying they have been discarded by history. As you well know.

  40. avatar
    nbc May 17, 2013 at 8:28 pm #

    Scientist: So it’s OK with you that only white males have rights? because we wouldn’t want to ever do anything different from the sainted founding fathers? We should remain permanently frozen in 1789?

    Again you are making no sense here. You were making the claim about the founding fathers and universal human rights.

    Sorry my friend, I will throw you a shovel to help you dig yourself out of this one.

  41. avatar
    nbc May 17, 2013 at 8:29 pm #

    Scientist: I’m not ignoring your arguments. I’m saying they have been discarded by history. As you well know.

    History does not overcome legal precedent, as you very well know. When you get some legal traction for your ideas, let me know.

  42. avatar
    Scientist May 17, 2013 at 8:29 pm #

    nbc: Yes you may be wrong about who is natural born and right about noone would challenge Cruz. But that’s not the discussion we are having here.

    That’s not the discussion YOU want to have. But it’s the only one that really matters. It’s certainly what I am interested in discussing. You don’t own this discussion.

  43. avatar
    Scientist May 17, 2013 at 8:30 pm #

    nbc: Sorry my friend, I will throw you a shovel to help you dig yourself out of this one.

    You are the shovelling expert. At least when it come to excrement..

  44. avatar
    nbc May 17, 2013 at 8:32 pm #

    Scientist: Several have run for President, all appeared on the ballot, and had they been elected, they would have served.

    You are confusing two very different concepts. One is the legal argument and one is a historical argument.

    I would be interested to know if any President was born outside the United States? That would at least give us some more relevant data.

  45. avatar
    nbc May 17, 2013 at 8:33 pm #

    Scientist: You are the shovelling expert. At least when it come to excrement..

    Ah, the ad hominem argument. Very clever… I guess that means that you have won the argument… As someone who calls himself ‘scientist’ I am so far not too impressed by how you present your arguments.

    And no that is not an ad hominem

  46. avatar
    nbc May 17, 2013 at 8:36 pm #

    Scientist: That’s not the discussion YOU want to have. But it’s the only one that really matters. It’s certainly what I am interested in discussing. You don’t own this discussion.

    True but then you should be on another thread. The argument ‘I am right because I say so’ just adds little relevance to the discussion, especially when accompanied by ad hominems.

    But if you want to play these games, please tell me: what president was born outside the US? (Ignoring those who were grandfathered in, for simplicity)

  47. avatar
    misha marinsky May 17, 2013 at 8:39 pm #

    What about this:

    The Naturalization Act of 1790 stated that “the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens”. (Act to establish a uniform Rule of Naturalization, 1st Congress, 2nd session, March 26, 1790, 1 Stat.L. 103 at 104, 2 Laws of the U.S., ed. Bioren & Duane (1815) 82 at 83.) This act was superseded by the Naturalization Act of 1795, which did not mention the phrase natural born citizen.

  48. avatar
    Scientist May 17, 2013 at 8:42 pm #

    nbc: You are confusing two very different concepts. One is the legal argument and one is a historical argument.

    I’m not confusing anything. The legal argument is irrelevant, since who the President is a political (i.e., historical) question. Books that talk about Presidents are classified under history or political science, not law. Again, you do NOT get to dictate what we discuss here.

    nbc: I would be interested to know if any President was born outside the United States? That would at least give us some more relevant data.

    Not yet. But had McCain won he would have served. As certain as the sun rising in the east. Prove me wrong.

    I will point out that there is no basis to say that the Founders intended courts to be involved in electoral matters at all. Marbury v. Madison happened well after 1789.

  49. avatar
    Scientist May 17, 2013 at 8:43 pm #

    nbc: True but then you should be on another thread.

    No, YOU should argue on your site. Last I checked you don’t own this one

  50. avatar
    nbc May 17, 2013 at 8:46 pm #

    Scientist: Not yet. But had McCain won he would have served. As certain as the sun rising in the east. Prove me wrong.

    Well that is easy

    I can use the same kind of logic (sic)

    Had McCain won, he would not have served, prove me wrong.

    See how simple logic has become under your standards?

  51. avatar
    nbc May 17, 2013 at 8:47 pm #

    Scientist: No, YOU should argue on your site. Last I checked you don’t own this one

    Ah but the Doc set the topic my friend. Under your logic (sic) you should also not be discussing your arguments.

  52. avatar
    nbc May 17, 2013 at 8:47 pm #

    misha marinsky: The Naturalization Act of 1790

    Yes I addressed that above.

  53. avatar
    misha marinsky May 17, 2013 at 8:48 pm #

    Calm down everyone. Let the voters decide.

    Have a drink, or an Alice Toklas brownie.

  54. avatar
    nbc May 17, 2013 at 8:50 pm #

    Scientist: I’m not confusing anything. The legal argument is irrelevant, since who the President is a political (i.e., historical) question. Books that talk about Presidents are classified under history or political science, not law.

    Interesting. You are not confusing anything because the argument (legal) is irrelevant. Fascinating logic my friend. Even though the courts so far have observed that children born abroad to US citizens are naturalized :-)
    Even if the decision in the end is political, the logic and reason is well founded in legal principles.

    And while we can speculate as to what a future congress may do when faced with such a question, this should not undermine our intellectual curiosity.

  55. avatar
    Scientist May 17, 2013 at 8:52 pm #

    misha marinsky: Let the voters decide.

    They will, whether nbc likes it or not. However, his question will remain unanswered because the voters will not pick Cruz. It will be Hillary (or Klobuchar or Gillibrand) against Christie or Paul and alll of them were born in the US.

    Poor nbc will die wondering….

  56. avatar
    nbc May 17, 2013 at 8:52 pm #

    misha marinsky: Calm down everyone. Let the voters decide.

    Well, that’s one way of resolving the issue, but a pretty boring one. Intellectually speaking it is far more fun to apply logic and reason and try to determine what the status of children so born could be?

  57. avatar
    J.D. Sue May 17, 2013 at 8:53 pm #

    Scientist: I’m not ignoring your arguments. I’m saying they have been discarded by history. As you well know.

    —-
    Actually, they were discarded by constitutional amendment. And when that didn’t entirely work, they were “discarded” by civil rights statutes.

  58. avatar
    Scientist May 17, 2013 at 8:54 pm #

    nbc: Had McCain won, he would not have served, prove me wrong.

    The Senate resolution. McCain’s election would have been certified by Congress. Then what? Answer: Inauguration.

  59. avatar
    nbc May 17, 2013 at 8:54 pm #

    Scientist: Poor nbc will die wondering….

    And so will you, under your own logic… But at least I presented a logical and reasoned argument for my position while also accepting the likelihood that the issue will never be resolved by the Courts.

  60. avatar
    nbc May 17, 2013 at 8:55 pm #

    Scientist: The Senate resolution. McCain’s election would have been certified by Congress. Then what? Answer: Inauguration.

    The Senate resolution was non-binding and ignores half of Congress, would it not? Want to try again? You asked me to prove my position, so now prove yours… Certainly you do understand the concept of proof is not mere speculation?

  61. avatar
    Scientist May 17, 2013 at 8:56 pm #

    nbc: Well, that’s one way of resolving the issue, but a pretty boring one.

    Democracy is boring? OK… Try absolute dictatorship then, it’s a laugh riot, I hear. Ask the North Koreans. I’m sure Kim has convinced them he rules by logic and reason.

  62. avatar
    nbc May 17, 2013 at 8:56 pm #

    J.D. Sue: Actually, they were discarded by constitutional amendment. And when that didn’t entirely work, they were “discarded” by civil rights statutes.

    Which amendment and what statutes?

  63. avatar
    nbc May 17, 2013 at 8:57 pm #

    Scientist: Democracy is boring? OK… Try absolute dictatorship then, it’s a laugh riot, I hear. Ask the North Koreans. I’m sure Kim has convinced them he rules by logic and reason.

    Such a non sequitur Mr Scientist.

  64. avatar
    Scientist May 17, 2013 at 8:58 pm #

    nbc: The Senate resolution was non-binding and ignores half of Congress, would it not? Want to try again?

    Can you name a single House member who said they would challenge McCain if he won?

    That’s your best argument-that the House would have rejected him (which would have put Sarah in the White House under the 12th and 20th amendments)? You are hilarious..

  65. avatar
    Scientist May 17, 2013 at 8:59 pm #

    nbc: Such a non sequitur Mr Scientist.

    You are the one who said that the voters deciding was boring. And that’s DR Scientist.

  66. avatar
    nbc May 17, 2013 at 8:59 pm #

    Scientist: They will, whether nbc likes it or not.

    It’s not a matter what I like or not. I have already accepted that voters may decide the issue and neither courts nor congress would intervene.

    But this is not really about what the voters want but what the meaning of ‘natural born’ is all about. Just because it may never be resolved, does not mean that it is not a worthy question of academic investigations. As a scientist myself, I value the power of logic and reason over emotions.

  67. avatar
    misha marinsky May 17, 2013 at 8:59 pm #

    Scientist: It will be Hillary (or Klobuchar or Gillibrand) against Christie

    It will not be Christie. He’s a social liberal. Gillibrand’s spouse is a British national. Hoo, boy.

    This should be fun.

  68. avatar
    nbc May 17, 2013 at 9:01 pm #

    Scientist: Can you name a single House member who said they would challenge McCain if he won?

    Can you name a single house member that has come out saying that he would not challenge McCain?

    Proof my friend under your ‘rationale’ is quite a concept is it not?

    No Senator had said something either so the issue is not really the resolution then but your belief that noone would have challenged the eligibility. You may be right, you may be wrong.

  69. avatar
    misha marinsky May 17, 2013 at 9:02 pm #

    Scientist: And that’s DR Scientist.

    And I am a professor of comedy.

  70. avatar
    nbc May 17, 2013 at 9:03 pm #

    Scientist: That’s your best argument-that the House would have rejected him (which would have put Sarah in the White House under the 12th and 20th amendments)? You are hilarious..

    Nope, my best argument is that you cannot hold yourself to the standards of proof to which you seem to hold others.

    I find that far more hilarious. Now both you and I surely can agree that having Sarah as our President would have been hilarious, but again, it is a real though unquantified possibility.

    So what about proving me wrong? Not as easy as you had thought when you set up the standard for others :-)

  71. avatar
    nbc May 17, 2013 at 9:05 pm #

    Scientist: And that’s DR Scientist

    Why would I refer to you as ‘Dear’? ;-)

  72. avatar
    Scientist May 17, 2013 at 9:06 pm #

    nbc: No Senator had said something either so the issue is not really the resolution then but your belief that noone would have challenged the eligibility. You may be right, you may be wrong.

    In science we deal in probabilities, never certainties (as you would know if you were really a scientist). The confidence limits that no one would have challenged exceeds 99%. In clinical science we licence drugs that could kill or cure at 95%. So, my case is proven as well as most scientific postulates are.

  73. avatar
    nbc May 17, 2013 at 9:07 pm #

    Scientist: You are the one who said that the voters deciding was boring

    That is not really what I said. I said that letting the voters decide is a boring way to resolve a discussion like this.

    Facts are not established by majority voting :-)

  74. avatar
    Scientist May 17, 2013 at 9:10 pm #

    nbc: Facts are not established by majority voting

    Political facts are.

  75. avatar
    nbc May 17, 2013 at 9:12 pm #

    Scientist: In science we deal in probabilities, never certainties

    A so your use of the word ‘proof’ or ‘prove me wrong’ was merely based on possibilities and probabilities. But even there you have the problem that defining such probabilities after the fact for something that did not happen, is not trivial.

    Probabilities are determined by actual observation and so far we have no observations of a situation where Congress had to determine eligibility of a Presidential Candidate born abroad to US citizen parents. So we may speculate but the foundation for ‘proof’ becomes somewhat vague and subjective.

    In science you present a hypothesis and find ways to disprove the hypothesis. Of course, the fact that McCain never made it beyond nomination does not help you disproving your hypothesis so at best we are in a situation where we do not know.

    Of course, our speculations about Congress have really limited relevance to the discussion about the meaning of natural born using appeal to history, reason, logic rather than emotions.

    But I do thank you for open the door with a crack, but again, this is a two edged sword as well.

    Of course, as you insisted that I prove a negative, I would say that my challenge is infinitely more complicated than yours ;-)

  76. avatar
    J.D. Sue May 17, 2013 at 9:13 pm #

    nbc: Which amendment and what statutes?

    —-
    I was responding to the notion that it was history–as opposed to the law–that discarded the legal favoritism given to white males. It took amendments to the constitution. And even with the amendments, it took civil rights legislation a hundred years later….

    Actually, arguing history v. law doesn’t make a lot of sense to me; it is sort of a chicken/egg argument.

  77. avatar
    nbc May 17, 2013 at 9:16 pm #

    Scientist: Political facts are.

    Political facts can change over time. Not really helpful here. If the power of Congress to decide eligibility is absolute, then it will be up to the whims of congress as to who is eligible or not.

    Would someone have standing to object to Congress if injured?

  78. avatar
    nbc May 17, 2013 at 9:18 pm #

    J.D. Sue: I was responding to the notion that it was history–as opposed to the law–that discarded the legal favoritism given to white males.

    Sorry I misunderstood. Yes, constitutional amendments are to be preferred when it comes to right what is wrong. Congress tried statutes but realized that this would leave the decision up to the whims of congress and decided in favor of a Constitutional amendment.

    Arguing that the majority of the people or Congress get to decide is a dangerous one with self evident two edges. What Congress can give, it can also take away…

    While on the one hand it is tempting to argue about ‘plenary powers’ such as applied to immigration, the question becomes more interesting when plenary power relates to other concepts, things may become more fishy… Today’s congress may not be tomorrow’s…

  79. avatar
    misha marinsky May 17, 2013 at 9:26 pm #

    nbc: Why would I refer to you as ‘Dear’?

    Dear Officer Krupke:

    http://www.tcm.com/mediaroom/video/336665/West-Side-Story-Movie-Clip-Gee-Officer-Krupke-.html

  80. avatar
    Scientist May 17, 2013 at 9:30 pm #

    nbc: Political facts can change over time.

    A great many facts can change over time. So what? There is nothing magic about 1789 that everything from that moment is timeless and unchanging unto the ends of the Universe.

    nbc: Would someone have standing to object to Congress if injured?

    Anyone can object to anything. I doubt they would get anywhere.

    nbc: Probabilities are determined by actual observation and so far we have no observations of a situation where Congress had to determine eligibility of a Presidential Candidate born abroad to US citizen parents.

    The Senate vote on McCain was something like 98-0. So, the only data we have suggests a confidence level of at least 98%. Non-binding, but still, it’s a data point. As for the House, in the only cases I know of where there were actual objections by House members (2000 and 2004) they certainly made their opinions known before the formal vote. So, based on the data we have, I am comfortable assigning a probability that Congress would have rejected McCain at <1%. And, in my field anyway, that is about as certain as one ever gets.

    Anyway, I'm glad you acknowledge the critical role of probability in science. In fact, we don't actually "disprove a hypothesis". Rather we accept or reject the null hypothesis at some pre-set probability value.

  81. avatar
    Scientist May 17, 2013 at 9:32 pm #

    Now, I am going to bed. Remember, all is probability and certainty is an illusion…

  82. avatar
    nbc May 17, 2013 at 9:33 pm #

    So let’s look at the political question doctrine. First of all, the Supreme Court has yet to rule on the issue but it has established some precedent. When it was argued that … was a political question the court in Powell v. McCormack – 395 U.S. 486 (1969)

    6. The case does not involve a “political question,” which, under the separation of powers doctrine, would not be justiciable.

    (a) The Court’s examination of relevant historical materials shows at most that Congress’ power under Art. I, 5, to judge the “Qualifications of its Members” is a “textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government” (Baker v. Carr, 369 U. S. 186, 369 U. S. 217) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution’s membership requirements.

    (b) The case does not present a political question in the sense, also urged by respondents, that it would entail a “potentially embarrassing confrontation between coordinate branches” of the Government, since our system of government requires federal courts on occasion to interpret the Constitution differently from other branches. Pp. 395 U. S. 548-549.

    The court observes

    If examination of 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, [Footnote 41] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are “inextricable from the case at bar.”

    So the hopes that the case fails because of a political question doctrine, removing any justiciability is hardly self evident. But I invite comments as to why the ruling and arguments do not apply in this case.

    It’s time to re-read some of the rulings that concluded ‘political question doctrine’…

  83. avatar
    nbc May 17, 2013 at 9:38 pm #

    Scientist: A great many facts can change over time. So what? There is nothing magic about 1789 that everything from that moment is timeless and unchanging unto the ends of the Universe.

    That is an interesting statement of little relevance when it comes to interpretation of terms in our Constitution, left undefined. But I do understand your hesitance to look at legal aspects so I will not push this any further with you.

    The Senate vote on McCain was something like 98-0. So, the only data we have suggests a confidence level of at least 98%. Non-binding,

    Nope, you forget the House…

    Rather we accept or reject the null hypothesis at some pre-set probability value.

    That’s a very idealistic way of looking at the issue but it is but one way. And in many cases we do not have reliable ways to determine probabilities. Your example is what is called a statistical hypothesis. But not all hypotheses can be formulated as such. Certainly not in an area where we have no samples obtained and thus any numbers are highly speculative

  84. avatar
    Scientist May 17, 2013 at 10:00 pm #

    nbc: Facts are not established by majority voting

    I can’t resist pointing out that all the legal cases you cite as “facts” became so by a majority vote of Justices, guided by their prejudices and political agendas. And those decisions are not eternal and unchanging-Plessy v Ferguson was reversed by Brown v Board of Education without any intervening constitutional amendment. In fact, the Constitution was adopted, ratified and amended by majority votes. So scientific facts-the speed of light, the number of protons in a helium atom-may not be, but all the political and legal facts that are relevant here most definitely are.

  85. avatar
    Scientist May 17, 2013 at 10:10 pm #

    nbc: Nope, you forget the House…

    I talked about the House. In previous cases where House members objected they were vocal. Besides, even if every single House member objected, they need a Senator….

    Again, I am comfortable with the probabilities. It would be interesting if you could point out anyone besides yourself who thinks that McCain would not have served had he won the election. I think even Prof Chin who argued he was ineligible based on the specific laws pertaining to the Canal Zone (which would not pertain to Cruz) never said he thought Congress would actually reject McCain.

  86. avatar
    Robb May 17, 2013 at 10:12 pm #

    Scientist: Of course there is.

    The Universal Declaration of Human Rights, to which the US is not only the signatory, but more or less the author (Eleanor Roosevelt played a large role) states in Article 21:

    (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
    (2) Everyone has the right of equal access to public service in his country.
    (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

    A Constitution that suppressed basic human rights would be an illegal abomination that no one would be obligated to respect.Fortunately, the US Constitution incorporates many basic human rights and was written with them in mind.

    It’s frankly shocking to me that you seem to disrespect human rights.I wonder what your problem is…

    which has absolutely no legal weight and isn’t international law. I could make a nice statement too, and have some countries agree, but that means squat

  87. avatar
    Robb May 17, 2013 at 10:25 pm #

    Scientist: there is a big difference between saying “something isn’t the law (or is), isn’t constitutional (or is), isn’t international law (or is)” and saying “I don’t agree with XYZ” or “I think XYZ should be enacted.” There is no international law, international concept, or even domestic concept (see the Electors) which dictates these rights (let alone the specific right of a democratically elected leader).

    ” McCain’s election would have been certified by Congress. Then what? Answer: Inauguration.” This would have been very interesting. We already know that SCOTUS allows the senate/house to dictate their own members, even seating those under the age limit. However, that is due to the wording of the Articles, which is not identical or even nearly the same for the President. I believe that the court WOULD step in and state “while we can not dictate or stop any CONSTITUTIONAL election, said candidate/winner is not permitted to hold the office, period.” This applies to age as well as NBC and residency. Note, there is no separation concern, as the Court isn’t telling Congress what it can and can’t do, merely interpreting what the office of the Presidency entails, and if it can vest in somebody ineligible.

    “Can you name a single House member who said they would challenge McCain if he won?” I could argue a quo warrento to require my member to challenge. And it would likely be one of the few times this would win.

    J.D. Sue:
    “I was responding to the notion that it was history–as opposed to the law–that discarded the legal favoritism given to white males. It took amendments to the constitution. And even with the amendments, it took civil rights legislation a hundred years later…. ”
    This is actually one of my favorite arguments to make. Look, I might be opposed to the idea that the FFCC somehow doesn’t apply to marriage, but I’ll defend that position until the people change it (and I will work to change it)

    (I am a lawyer, Constitutional and International is my field, I am not YOUR lawyer, This is not legal advice)

  88. avatar
    Joe Acerbic May 17, 2013 at 11:14 pm #

    This is very amateurish crankery. Real cranks don’t need dictionaries, they just declare that their opinion is obviously divine or natural law.

  89. avatar
    nbc May 18, 2013 at 12:40 am #

    Scientist: Again, I am comfortable with the probabilities. It would be interesting if you could point out anyone besides yourself who thinks that McCain would not have served had he won the election.

    You are now using personal incredulity not solid science to explore these issues. You already went from ‘prove me wrong’ to well I believe that the probability is pretty good that… It does not matter what you and I think, it matters how well you can support your argument to the extent that you can call it ‘proof’.

    Look scientist, these ‘arguments’ about whatever congress and the people want only work well until they turn against you…
    Which is why we have a constitution, constitutional amendments and the Courts.

    As to political question, I have explained why you may find yourself wrong here as well based on Powell.

  90. avatar
    nbc May 18, 2013 at 1:07 am #

    Robb: We already know that SCOTUS allows the senate/house to dictate their own members, even seating those under the age limit.

    I’d love to get a citation for this one as I remember it but cannot find it.

  91. avatar
    misha marinsky May 18, 2013 at 1:54 am #

    Joe Acerbic: This is very amateurish crankery. Real cranks don’t need dictionaries, they just declare that their opinion is obviously divine or natural law.

    Real crankery is this: Ted Cruz was born in Canada. He is not NBC. He’s not ABC or CBS, either. Not even UBS.

    I’m mad as hell, and I’m not going to take this anymore. http://www.youtube.com/watch?v=rGIY5Vyj4YM

  92. avatar
    Robb May 18, 2013 at 2:20 am #

    nbc: I’d love to get a citation for this one as I remember it but cannot find it.

    William C. C. Claiborne, of Tennessee, said to have been born in
    1775, took his seat in the House on November 23, 1797, without
    question, although if the date of his birth is correct he was only 22
    years of age. (Second session Fifth Congress, Journal, p. 84; Vol. IV,
    New International Encyclopaedia.)

    Note, there is actually no case as far as I can tell, and it appears as though this was the wrong action then (and I’ve been wrong assuming it was correct):

    Powell v. McCormack
    “although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.” – “was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”
    and
    “In judging the qualifications of its members under Art. I, 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution”

    so, it appears as though Congress has no choice but to allow a duly elected representative to sit, then attempt to remove him as standard (exclusion=expulsion). However, that member MUST meet the qualifications, otherwise he is excluded
    (for their own membership, again, this is iffy on Presidency, as the wording is different. I assume the qualifications portion is precedential though)

    http://supreme.justia.com/cases/federal/us/395/486/case.html

  93. avatar
    nbc May 18, 2013 at 2:33 am #

    Exclusion is before he is seated, expulsion is after he is seated. There standard for the former is a simple majority, the latter a 2/3 majority.

    Also the reasons for expulsion are different from exclusion

    An “exclusion” is not a disciplinary matter against a current Member, but rather a decision not to seat a Member-elect, by a simple majority vote of the House or Senate, upon a finding that the Member-elect is not entitled to a seat either because of a failure to meet the constitutional qualifications for office (age, citizenship and inhabitancy in the State), or that the Member-elect was not “duly elected.”

    Exclusion is a punishment

    An expulsion is a process, considered inherent in parliamentary bodies, which is characterized as a self-disciplinary action necessary to protect the integrity of the institution and its proceedings. An expulsion from the Senate or the House of Representatives is the most severe form of congressional self-discipline. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States Government, or the conviction of a criminal statutory offense which involved abuse of one’s official position.

    Exclusion is easier but has stricter standards, expulsion is harder but is more open-ended. I discussed Powell above. While it involved the House excluding a member who had qualified, it could be extended to a House failing to properly exclude a member.

  94. avatar
    nbc May 18, 2013 at 2:41 am #

    Robb: so, it appears as though Congress has no choice but to allow a duly elected representative to sit, then attempt to remove him as standard (exclusion=expulsion).

    Nope they never allowed the house member to be seated and the court interpreted their actions as an exclusion and found that they had violated the constitutional qualification requirements as the congress man met them all.

  95. avatar
    brygenon May 18, 2013 at 3:29 am #

    nbc: Note how the act was almost verbatim copied but from the wrong act. In 1795 this was corrected and the reference to natural-born was dropped

    children of persons who now are, or have been citizens of the 663*663 United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

    ————
    NBC, There’s no evidence that the 1790 act was wrongly copied, nor that the 1795 act was a correction. If we read the sentences from the beginning, the reason for dropping “natural born” is obvious:

    1790:

    And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided…

    1795:

    And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided…

    When describing children born into citizenship, Congress used “natural born Citizens”. When describing children some of whom were born into citizenship and some naturalized later, Congress used “citizens”. There was no correction. It’s all consistent. The Natural-born citizens are the subset of citizens that received their citizenship upon birth.

  96. avatar
    The Magic M May 18, 2013 at 3:57 am #

    Joe Acerbic: This is very amateurish crankery. Real cranks don’t need dictionaries, they just declare that their opinion is obviously divine or natural law.

    And then they corroborate that with selective out-of-context quotes from obscure sources at least 150 years old.

  97. avatar
    nbc May 18, 2013 at 4:05 am #

    Ouch I misread the 1790 act. Regardless, it is clear that the natural born citizen was removed. Now one may argue that the 1790 act was correct and that Congress could use its naturalization powers to extend citizenship to whomever they chose, or that the 1795 act realized that congress could not extend a constitutional requirement.

    citizens is consistent with both interpretations.

    So the question remains: Can congress extend natural born citizen through statute? I’d argue that such does not make sense. I also do not understand your argument completely if natural born citizens are a subset of those who receive citizenship at birth (which is btw not the common law definition) then such a position is not at odds with the argument that natural born is limited to those who received citizenship at birth on soil.

    As I outlined, the various rulings all suggest that this is the case, namely that there are two kinds of citizens: natural-born and naturalized, the formed through birth the latter through statute and that those born outside the US can only become citizens through naturalization/statute.

  98. avatar
    Paper May 18, 2013 at 4:14 am #

    I will begin by repeating that I understand arguments for limiting natural born citizenship to only those born in America. I started my research with an open mind on this particular matter, and eventually came around to the perspective that anyone born a citizen (here or abroad) is a natural born citizen. In this regard, I find Maskell’s Congressional Report compelling.

    See: http://www.fas.org/sgp/crs/misc/R42097.pdf

    Before discussing or highlighting other points, one potent point Maskell highlights is that John Jay, who we all know wrote to Washington with the idea of limiting presidential eligibility, is unlikely to have intended to exclude his own children born in France and Spain.

  99. avatar
    Paper May 18, 2013 at 4:30 am #

    nbc:
    So the question remains: Can congress extend natural born citizen through statute? I’d argue that such does not make sense. I also do not understand your argument completely if natural born citizens are a subset of those who receive citizenship at birth (which is btw not the common law definition) then such a position is not at odds with the argument that natural born is limited to those who received citizenship at birth on soil.

    As I outlined, the various rulings all suggest that this is the case, namely that there are two kinds of citizens: natural-born and naturalized, the formed through birth the latter through statute and that those born outside the US can only become citizens through naturalization/statute.

    Okay, rather than trying to mangle this in my own words, see yet again, Maskell:

    http://www.fas.org/sgp/crs/misc/R42097.pdf

    Those who support a broader, more inclusive reading of the Constitution to include as “natural born” citizens those born abroad to U.S. citizen-parents, note that these earlier decisions were based on the more narrow language of the Fourteenth Amendment, but argue that the Fourteenth Amendment was adopted to rectify the wrongly reasoned and decided Supreme Court decision in the Dred Scott case, and was not intended to amend or necessarily even to address the issue of “natural born” citizenship under Article II, Section 1, cl. 5, relating to the eligibility for President. The term “natural born citizen” in Article II, it is argued, should be interpreted not only in light of the later Fourteenth Amendment, and the reasons for adopting the Fourteenth Amendment, but also in light of the common law and common understanding and usage of the term at the time of the adoption of the Constitution.

    It has been pointed out that more recent cases have held that the seemingly exclusive language of the Fourteenth Amendment of citizenship being limited only to those who are “born or naturalized in the United States,” is applicable only with regard to Fourteenth Amendment first- sentence-citizenship, and is not necessarily the exclusive means of acquiring citizenship “at birth,” since the category of “at birth” citizenship can clearly be expanded by law adopted by Congress. Such cases indicate that the Fourteenth Amendment establishes a “floor” for citizenship at birth, or for naturalization, which can be expanded by federal law. The Supreme Court in Rogers v. Bellei explained that under the Fourteenth Amendment’s citizenship clause the requirement that one would have to be either born in the United States or naturalized in the United States were designations for “Fourteenth-Amendment-first-sentence” citizenship only. The category or designation of citizen “at birth” or “by birth” could, however, as expressly noted by the Court, be expanded and “modified by statute” (as it had been in England with respect to natural born subjects for more than 600 years): “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”

    It is significant to note that in a more recent case, in 2001, the Supreme Court indicated that under current law and jurisprudence a child born to U.S. citizens while living or traveling abroad, and a child born in the geographic United States, had the same legal status. In Tuan Anh Nguyen v. INS, the Court explained that a woman who is a U.S. citizen living abroad and expecting a child could re-enter the United States and have the child born “in” the United States, or could stay abroad and not travel back to this country and have the child born abroad, and that the child in either case would have the same status as far as U.S. citizenship:

    [T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.

    Concerning the contention made in earlier cases that everyone who is made a citizen only by federal statute is a “naturalized” citizen (even those who are made citizens at birth by statute), it may be noted that the common understanding and usage of the terms “naturalized” and “naturalization,” as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is not considered to have been “naturalized.” Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that “this kind of citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to “involve[ ] ‘naturalization,’” citing current federal law at 8 U.S.C. Section 1101(a)(23). The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person after birth,” and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could not be considered to be “naturalized.”

    The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent case that one may be a “natural born” citizen of the United Sates in two ways: either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the propriety of an appeal based on requested jury instructions not given, the court stated:

    No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.

    Although the legal cases specifically concerning Senator McCain’s eligibility were generally dismissed for want of subject matter jurisdiction (that is, the lack of legal standing of the plaintiff), a federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth. The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. 1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to citizen parents, was merely the reverse or “converse of the phrase ‘in the United States, and subject to the jurisdiction thereof’” appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of two U.S. citizen parents, such as Senator McCain:

    Article II states that “No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.

    At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.

    The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrow “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).

  100. avatar
    nbc May 18, 2013 at 4:36 am #

    Before discussing or highlighting other points, one potent point Maskell highlights is that John Jay, who we all know wrote to Washington with the idea of limiting presidential eligibility, is unlikely to have intended to exclude his own children born in France and Spain.

    There are various problems with this argument. First of all, while John Ja y may have wanted to limited presidential eligibility, this does not necessarily mean that the natural born clause was something he would have supported. Furthermore, why would John Jay not have intended to exclude his own children? Of course, since he was an ambassador to spain and france, the common law exception, that he was not born subject to French jurisdiction would complicate the argument. It would be interesting to explore the foreign birth argument with respect to ambassadors since common law excludes such children from obtaining citizenship in the country of their birth.
    Some more research to do. However, while Maskel may have raised a good point, I find the arguments in US v Wong Kim Ark and subsequent cases quite compelling, all suggesting that a child born abroad becomes a citizen through naturalization. Which makes sense since naturalization requires a statute.

    Given that children born abroad to ambassadors are born subject to the jurisdiction of the United States we now have to wonder about the status of such an embassy. While nowadays we no longer recognize it as US soil, what were the original perspectives?

  101. avatar
    Robb May 18, 2013 at 4:38 am #

    nbc: Nope they never allowed the house member to be seated and the court interpreted their actions as an exclusion and found that they had violated the constitutional qualification requirements as the congress man met them all.

    …which was my point. You can impeach for literally anything (political question, so no oversight). If qualified, must be permitted to sit – if not, must not be

  102. avatar
    Paper May 18, 2013 at 4:43 am #

    Beyond Maskell’s points, I am not convinced of the notion that Congress *extends* natural born citizenship by statute. I find it much more sensible to say that the statute clarifies, fleshes out within the already existing frame, rather than extends that frame.

    nbc:
    So the question remains: Can congress extend natural born citizen through statute? I’d argue that such does not make sense.

  103. avatar
    nbc May 18, 2013 at 4:47 am #

    Robb: You can impeach for literally anything (political question, so no oversight). If qualified, must be permitted to sit – if not, must not be

    Ok, we agree… :-)

  104. avatar
    nbc May 18, 2013 at 4:51 am #

    Paper: Beyond Maskell’s points, I am not convinced of the notion that Congress *extends* natural born citizenship by statute.

    The first Congress found it necessary to extend citizenship to those children born abroad to US citizens. If they believed it to be declaratory of ‘common law’ then they would not have found it necessary to use naturalization laws. In fact, it is well known that congress for some time in early 1800′s removed citizenship for such children (through an oversight). Again, such would not have been an issue if it just described the common practices.

    Neither in the US nor in England did common law practices extend to children born abroad to US citizens and explicit statutes were necessary.

    Following the Wong Kim Ark holding, the conclusion seems quite logical.

    If congress can grant and take away then it is not really common law but rather reflects a statutory interpretation. And if it clarifies then why did they remove the mention of natural born but still felt it necessary to use their naturalization power to grant them citizenship?

  105. avatar
    h2ooflife.wordpress.com/ May 18, 2013 at 4:51 am #

    Dr. Conspiracy:
    The way I read this, “to be” is not “like” or “treated the same.” It means that these foreign-born persons are natural born subjects, not “just as good as” natural born subjects. And I read the last bit is just saying that natural born subjects under this act have all the privileges of those who are natural born subjects because they were born in the country. Look at this version of the act substituting phrases using the dictionary definition of natural born subject:

    I find no awkwardness or contradiction there. Do you? In fact, that substitution can be made in every instance that I am aware of with no awkwardness or contradiction.

    The truth about the 1790 Act is: Its language was repeated in the later re-writes minus “natural born” because presidential eligibility wasn’t a matter to be addressed in a naturalization statute.
    The 1795 Act’s language reveals that “shall be considered as” means the same in both versions (a United States citizen (+ or – natural born status consideration). In 1795 it did not mean such American children shall be treated as if they are “citizens of the United States”. It meant that they actually are citizens of the United States.

    That means that they were not *made* into citizens, not granted citizenship, but were born as citizens by nature, -by inherited political nature.
    Why say what should be obvious if all agreed? Because some port authorities lived in states that had “son of the soil” law and tradition, and those people thought incorrectly that citizenship, -all citizenship, was derived from the soil and not natural nationality inheritance as an unalienable right (including James Madison from Virginia, a son of the soil state).

    Such a view would make them think that birth outside of American soil would make one a foreigner. Few of the founders entertained such thinking. So they sought to correct what was missing in the Constitution regarding foreign birth, and make it plain to port boneheads that American children born abroad are Americans by birth, and not only that, -but for the enlightenment of all state officials with authority over state ballots and who was allowed on them, as well as the electoral college which was expected to vet those contesting for the two highest offices, they pointed the finger of its wording directly at them in regard to the eligibility of Americans born abroad.
    The words “natural born” added to citizen of the United States, served no other purpose in the world other than the issue of presidential eligibility. It thereby covered over the hole of doubt about the children of America’s top people serving their country abroad, -like Jefferson in Paris, and Adams in London.
    Who would have the stupidity and audacity to tell Thomas Jefferson that his Paris born son was an alien and could not be even considered to be an American without the permission of government? That would totally deny the reality of the word “natural” as in natural citizenship. That would deny the Natural Law of belonging and natural membership, as well as the Natural Right of inheritance.
    Natural political inheritance is by blood, not by artificial man-made borders. Natural citizenship is from outside of the legal realm, -it is “a priori” citizenship. It is the natural membership of those who found nations and then fashion the legal realm and its rules. The natural members produce new members by birth. They aren’t legal members as are the children of outsiders who require permission in order to be accepted as members.

  106. avatar
    nbc May 18, 2013 at 5:03 am #

    Maskel cites several cases which do not really support his position

    United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011)

    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.

    3.  See Miller v. Albright, 523 U.S. 420, 424, 118 S.Ct. 1428, 1432, 140 L.Ed.2d 575 (1998).

    Miller v Albright

    There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.

  107. avatar
    Paper May 18, 2013 at 5:18 am #

    I don’t find that the points in Wong Kim Ark are exactly as you set them out with regard the final question of *the full scope of natural born citizenship.* (emphasis important)

    Per my next post, Maskell directly answers your point about naturalization.

    While I have always agreed arguments can be made for limiting nbc to jus soli, I find the arguments for the broader view more compelling. Granted, opinions differ. But the point is that there *are* arguments, strong arguments. I think also there is a strong case that the broader view would win any test, especially as we progress forward.

    nbc: However, while Maskel may have raised a good point, I find the arguments in US v Wong Kim Ark and subsequent cases quite compelling, all suggesting that a child born abroad becomes a citizen through naturalization. Which makes sense since naturalization requires a statute.

  108. avatar
    Dr. Conspiracy May 18, 2013 at 6:26 am #

    Your so-called “truth” (giving a reason for the change in language) is not in the historical record. It is nothing more than your assertion based on your viewpoint.

    In fact, what is in the record says that the founders were not concerned with parentage or natural law (given that this consideration doesn’t appear in the debates) for eligibility but rather over LENGTH of time a citizen. “Natural born” is not the magic special qualify of a citizen according to the dictionary, but rather a somewhat archaic way of saying “from birth.”

    Without imposing a non-existent definition of “natural born citizen” there was no substantive change in the 1795 act. Both make these foreign-born citizens citizens from birth, only with different language.

    To buy your interpretation of the change in the 1795 act, you have to assume that the people who write the Constitution, and were in the Congress in 1790, didn’t know what the terms they used meant. That is an untenable position.

    h2ooflife.wordpress.com/: The truth about the 1790 Act is: Its language was repeated in the later re-writes minus “natural born” because presidential eligibility wasn’t a matter to be addressed in a naturalization statute.

  109. avatar
    Scientist May 18, 2013 at 6:55 am #

    nbc: You are now using personal incredulity not solid science to explore these issues.

    Science? OK, provide me a scientific justification for the natural born citizen clause. Was the clause discussed and debated at the constitutional convention or at any of the ratifications in the states? Were studies commissioned to examine the evidence as to whether naturalized citizens would be less, more or equally suited to hold office?

    I’m sorry, but the scientific content of this entire discussion is nil. The core subject is simply a letter from one man to another based on nothing but unscientific prejudice and personal opinion.

    Nor are court decisions “science”. They are simply majority votes, except by 9 folks in robes rather than 140 million folks in whatever they wear on election day. Let’s review the record of those 9 folks in robes:
    Dred Scott
    Plessy v Ferguson
    Allowing the internment of US-born people of Japanese (but not German or Italian) ancestry
    Bush v Gore
    Citizens United

    Now please use science to show me that the majority vote of the 9 robed ones has been overall wiser than that of the 140 million unrobed ones. I will await,,,,

  110. avatar
    Scientist May 18, 2013 at 7:03 am #

    Robb: illiam C. C. Claiborne, of Tennessee, said to have been born in
    1775, took his seat in the House on November 23, 1797, without
    question, although if the date of his birth is correct he was only 22
    years of age. (Second session Fifth Congress, Journal, p. 84; Vol. IV,
    New International Encyclopaedia.)

    Henry Clay was sworn in as a Senator 3 months prior to his 30th birthday. He is considered to be one of the greatest Senators in history. Interestingly, the other Senator elected prior to his 30th birthday is Joe Biden though he had his birthday before taking office.

  111. avatar
    ellen May 18, 2013 at 7:05 am #

    I believe that Cruz, though born in Canada and with only one US citizen parent, is a Natural Born Citizen.

    But it amuses me to consider what strict originalists hold—not because their thinking could influence a court but because it could influence conservative voters in primary elections.

    And the Naturalization Acts of the late 1700s do not seem to be sufficient for them to change their views—especially since they seem to think that the citizenship of a father is worth more than that of a mother.

  112. avatar
    Scientist May 18, 2013 at 7:16 am #

    Robb: We already know that SCOTUS allows the senate/house to dictate their own members, even seating those under the age limit. However, that is due to the wording of the Articles, which is not identical or even nearly the same for the President. I believe that the court WOULD step in and state “while we can not dictate or stop any CONSTITUTIONAL election, said candidate/winner is not permitted to hold the office, period.”

    I fail to see the difference:

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

    “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

    “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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

    All 3 state qualifications for office. Plain and simple.

    Both the House and Senate have sat members who were too young. They could also find a President qualified who some might believe is not. I’m not arguing whether they should do that. But they could.

    By the way, in the 2008 contested election of Al Franken, many scholars argued that the Senate could seat him even before the courts in Minnesota had decided the case and the Governor signed off on the election certificate. The Senate CHOSE not to do so (probably wisely), but they could have.

  113. avatar
    Paper May 18, 2013 at 7:23 am #

    Regarding the removal of the phrase in 1795, Maskell notes something I have regarded as probable (more on the rest of your point momentarily):

    The 1790 statute was repealed and superseded by a 1795 naturalization statute which omitted the phrase “natural born.” Act of January 29, 1795, ch. 20, 1 Stat. 414, 415. There is no legislative history indicating the reason for the deletion of that term; however, in that statute the phrase “shall be considered as citizens” referred to the status of minor children derivatively naturalized upon the naturalization of their parents, who are not “natural born,” as well as to the children born abroad to U.S. citizens, so it is possible that the deletion is merely a stylistic/grammatical decision.

    nbc:

    If congress can grant and take away then it is not really common law but rather reflects a statutory interpretation. And if it clarifies then why did they remove the mention of natural born but still felt it necessary to use their naturalization power to grant them citizenship?

  114. avatar
    Paper May 18, 2013 at 8:15 am #

    We have previously discussed how it is common law as modified by statute with which the founders were familiar. As such, wouldn’t it seem appropriate to similarly provide statues to secure modifications to common law? Especially at a time when Congress is establishing its newly minted *federal* powers?

    We have also discussed (with Keith) that the naturalizing power involves demarcating the boundary between who is naturalized and who is not. I would add that that seems a requisite for putting forward *uniform* rules. I would note that the power to establish uniform rules of naturalization is distinct from the contents of those rules. So, when Maskell highlights the arguments regarding naturalization as something that happens *after* birth, those arguments fit here quite nicely. Just because a statute gains its constitutional authority from the naturalization clause does not mean that everyone covered by the statute is naturalized.

    If the critical aspect of natural born citizenship is being a citizen at or by birth, then the existence of a statute, and its changeability, is neither here nor there. The requirement is to be a natural born citizen, not to be a natural born citizen distinct from any statute. I mean, the framers could have specified it, especially aware as they were of the same issue regarding English natural born subjects. They spelled out 35 and 14 years specifically enough.

    The issue then is not how but when a person becomes a citizen.

    nbc: The first Congress found it necessary to extend citizenship to those children born abroad to US citizens. If they believed it to be declaratory of ‘common law’ then they would not have found it necessary to use naturalization laws….

    Neither in the US nor in England did common law practices extend to children born abroad to US citizens and explicit statutes were necessary….

    If congress can grant and take away then it is not really common law but rather reflects a statutory interpretation. And if it clarifies then why did they remove the mention of natural born but still felt it necessary to use their naturalization power to grant them citizenship?

  115. avatar
    Scientist May 18, 2013 at 8:17 am #

    Robb: I could argue a quo warrento to require my member to challenge. And it would likely be one of the few times this would win.

    Oh, come on! As Donofrio and Taitz learned, a quo warranto requires a direct interest in the office. Which neither you nor your member has unless one of you were the Vice President. So, sorry, better not go there.

  116. avatar
    Scientist May 18, 2013 at 8:29 am #

    nbc: But if you want to play these games, please tell me: what president was born outside the US? (

    Let’s follow that originalist logic to its logical end. Prior to Obama, no half black person had ever been President. It seems unlikely that the Founders would have imagined that ever happening (even Jefferson who had half-black children). So can’t happen, right? Now, you can argue the 14th amendment changed that and that has some validity.

    But what about a woman President? I doubt the Founders imagined that either. And the 19th amendment only said women could vote; it did not say they had equal rights in all aspects (hence the perceived need for an Equal Right Amendment, which was not ratified). Common law (your unchanging guide to all things) is chock full of distinctions between males and females, after all.

    So, nbc, make the case that Hillary Clinton is eligible (now don’t get riled up, ladies, I know she’s eligible, I just want to see how Mr Original responds).

  117. avatar
    Keith May 18, 2013 at 8:43 am #

    Scientist: The Senate vote on McCain was something like 98-0.

    nbc: Nope, you forget the House…

    I’m curious. How many members in the House of Representatives voted in the Senate?

  118. avatar
    Keith May 18, 2013 at 9:08 am #

    Robb: We already know that SCOTUS allows the senate/house to dictate their own members

    That is an incorrect characterization. There is nothing for SCOTUS to ‘allow’.

    The Constitution assigns the Senate/House the task of judging the qualifications of its own membership. The one time that I am aware of when this was challenged, SCOTUS found that it has no authority to interfere with the way the Congress credentialed it members. It isn’t ‘allowing’ Congress to do anything, it is not interfering with, (that is ‘embarrassing’) the Constitutionally assigned duties of another branch of Government.

    You claim to be a lawyer specializing in Constitutional Law. I have to say I think I am glad you are not my lawyer.

    As a layman in Constitutional Law I can highly recommend a terrific study guide: The Constitution of the United States. If you were to read that document, you would find a chapter titled ‘Article 1′, and in ‘Article 1‘ you will find ‘Section 5‘, the first sentence of which reads:

    Each House shall be the judge of the elections, returns and qualifications of its own members…

  119. avatar
    Keith May 18, 2013 at 10:00 am #

    nbc: If congress can grant and take away then it is not really common law but rather reflects a statutory interpretation. And if it clarifies then why did they remove the mention of natural born but still felt it necessary to use their naturalization power to grant them citizenship?

    OK, here is another way to look at it.

    Suppose you have an document image encoded in a PDF with exactly two layers (I’m trying to make this a bit relevant to this site – and I know, they aren’t layers, they are objects, but anyway…). One layer is the background and the other layer is the foreground.

    So, if there is any ‘thing’ in the document image, then that thing is either in the foreground or the background, one or the other, it cannot be in both. OK so far? Now usually, the background of a document image is the part of the image with the most unchanging, repetitive part. Maybe all white or some other solid color, or some repetitive pattern. The foreground, on the other hand, is the part of the document that is not repetitive, that conveys information. The foreground is more complicated than the background.

    Now suppose the image is ‘The Set of All Citizens of the United States of America’.

    In this metaphor then, the background is ‘The Set of Naturalized Citizens’, because they are all people who gained their Citizenship in the same way: the naturalization statutes, very simple and repetitive.

    The foreground, on the other hand, ‘The Set of Citizens who are Natural Born Citizens’ because they gained their Citizenship in various ways, but never by naturalization. Some were born on American soil, others were born abroad to American citizens. Of those born abroad, some satisfied one set of circumstances while others meet a different set of circumstances. But none of them were naturalized, so they are all Natural Born Citizens.

    When the document image was encoded into the PDF, the computer software decides what is background and what is foreground. Is a watermark in the foreground? What about form boxes and ruled lines? Different scanners or different priority settings might produce different results on different attempts. If it decides that the ruled lines are not part of the background, then they must be part of the foreground. There is no other option (in my example; in the real world there can, of course, be many layers).

    Likewise, Congress gets to decide what goes into the background (who, if born abroad, must be naturalized to become a citizen). Any citizen who is not in the background, must necessarily be in the foreground (Natural Born). Congress may change the rules about who is in the background at any time, but if they declare that there is a set of Citizens who are not naturalized, then those citizens must necessarily be Natural Born.

  120. avatar
    Paper May 18, 2013 at 1:20 pm #

    nbc:
    Maskel cites several cases which do not really support his position

    UnitedStates v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011)

    —————————–

    Starting with United States v. Carlos Jesus Marguet-Pillado, your citation seems to me to be beside the point, as well as more pointedly being the incorrect case.

    Maskell does not refer to the appeal you cite, which I believe is actually the case referred to as Marguet I, from 2009. Maskell instead cites the later 2011 appeal. See: http://federalevidence.com/pdf/2011/08-Aug/US.v.Marguet-Pillado.pdf

    To reiterate, Maskell notes that the Court states:

    No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citi- zen parent who met certain residency requirements.

    This seems a rather clear statement, that is not in conflict with your citation, but rather clarifies the details in precisely a way that distinguishes how you seem to be misapplying your citation to the question at hand for us here. That the jus sanguinis form of citizenship at birth is “provided for by the enactments of Congress” does not bear on whether or not such citizenship may or may not be considered natural born citizenship. Your citation, however, does quite clearly call it one of “the traditional ways of transmitting and acquiring citizenship at birth.” So, Marguet I, for starters, does note it as “citizenship at birth.”

    But then two years later Marguet II (if I can sneak that nickname in here) makes it even more explicit by listing as “correctly stated” one of two circumstances in which an individual is a “natural-born United States citizen”–namely, being “born outside the United States to a biologically-related United States citizen parent who [meets] certain residency requirements.”

    The appeal you cite refers to citizenship at birth. That arguably at least is cooking with matches and sticks, by referring to it as citizenship at birth, but the appeal Maskell cites clearly is cooking with gas, as it explicitly refers to *natural-born citizenship* as including certain individuals born abroad who meet the requirements inevitably “provided for by the enactments of Congress.”

  121. avatar
    brygenon May 18, 2013 at 1:58 pm #

    nbc: I also do not understand your argument completely if natural born citizens are a subset of those who receive citizenship at birth [...]

    Ah, I think it’s my wording, not my argument, that you found hard to understand. Natural born citizens are a subset of citizens. What subset? The Natural-born citizens are the subset of citizens that received their citizenship upon birth. With that statement I was simply concluding with the thesis.

  122. avatar
    nbc May 18, 2013 at 2:18 pm #

    Dr. Conspiracy: To buy your interpretation of the change in the 1795 act, you have to assume that the people who write the Constitution, and were in the Congress in 1790, didn’t know what the terms they used meant. That is an untenable position.

    Well, there is the possibility that the term natural born snuck in as they copied from the English statute. If it was clear that such children were covered under the term ‘natural born citizens’ then why pass a statute.

    Look at the history of the Act which only mentions a quick remark that

    “[t]he case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.”

    So they felt that the case needed to be provided for, just as in England, through a naturalization statute. I am still looking for the paper that suggested that they dropped in the language and in 1795 when the revisited the act, revised it.

    Note that if natural born included children born abroad to US parents, then why were such children born in the early 1800′s not even citizens? In 1855 an act was passed to correct this

    The Act of February 10, 1855, 10 Stat. 604, passed presumably because of Mr. Binney’s suggestion, was entitled ‘An act to secure the right of citizenship to children of citizens of the United States born out of the limits thereof,’ and read as follows:

    Again an act was necessary to secure the rights of citizenship to such children.

  123. avatar
    nbc May 18, 2013 at 2:48 pm #

    Found it:

    McElwee

    In Osborn v. Bank, 22 US (9 Wheat) 738, 1.c. 827, Chief Justice Marshall said:

    “A naturalized citizen is indeed made a citizen under an Act of Congress, but the Act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not au-thorize Congress to enlarge or abridge those rights. The simple power of the national leg-islature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as regards the individual. The Constitution then takes him up, and, among other rights, extends to him the ca-pacity of suing in the Courts of the United States, precisely under the same circum-stance under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the Constitution makes the distinction. The law makes none.”

    Thus the Act of March 26, 1790 would be unconstitutional if it attempted to enlarge the rights of a naturalized citizen to be equal to those of natural-born citizens under the Constitution.

    Although it is not within the power of Congress to change or amend the Constitu-tion by means of definitions of languages used in the Constitution so as to mean some-thing different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Con-gress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution; and under this argument to attach importance to the Act of Congress of March 26, 1790 (1 stat 103).

    This argument fades away when it is found that this act used the term “natural-born” through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773) ) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United Skates to extend citizenship to for-eign-born children of American parents. In the discussion on the floor of the House of Representatives in respect to the proposed naturalization bill of a committee composed of Thomas Hartley of Pennsylvania, Thomas Tudor Tucker of South Carolina and Andrew Moore of Virginia, Mr. Edamus Burke of South Carolina stated, “The case of the chil-dren of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of Wil-liam III.” (See pp 1121, Vol 1 (Feb. 4, 1790) of Annals of Congress.) The proposed bill was then recommitted to the Committee of Hartley, Tucker and Moore, and a new bill containing the provision in respect to foreign-born children of American parentage was included, using the Anglican phrase “shall be considered as natural born citi-zens.” Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain “citizen” came from copying the English Naturalization Act.

    Mr. James Madison, who had been a mem-ber of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturaliza-tion act.

    Some research to be done…

  124. avatar
    Paper May 18, 2013 at 3:59 pm #

    First this is the infamous McElwee, and we have previously discussed this passage in the record. But also McElwee has an essay elsewhere, I’ve been meaning to review, contending that the fourteenth amendment is a terrible thing (I paraphrase), which I’ve been meaning to discuss here viz. the general birther allergy to the fourteenth and the reconstruction of our government after the Civil War. So, in short, anything with the name McElwee needs careful, detailed attention, in my view.

    That said, Marshall’s quote does not equate naturalized citizens with those born abroad to citizen parents. That is not stated there.

    Nor is it so readily ascertained that their status as citizens at birth is a result of naturalization. As just mentioned, United States v. Carlos Jesus Marguet-Pillado, for one, explicitly refers to them as natural-born citizens.

    Burke’s statement is perfectly in keeping with the view that the framers considered such a process to be a legitimate way of defining natural-born citizenship for those born abroad to citizen parents. Just as they knew and experienced with England, common law was modified, legitimately, by statute. And so it was here, in the first law passed by a *federal* government handling citizenship matters clearly falling under federal authority. Statute here has the same place as it did in England, to secure such natural-born citizenship (here citizenship, there subject-hood).

    So the argument doesn’t fade way; rather it is strengthened.

    And agin, McElwee requires fine-tuned skeptical, double-checking-everything reading, such as with his discussion re Madison.

    nbc:
    Found it:

    McElwee

    Some research to be done…

  125. avatar
    Paper May 18, 2013 at 4:09 pm #

    A mistake, an oversight, an inadvertent phrasing, to be corrected for just that reason.

    That a statute was required is not a fatal point. Again, the broader view depends upon when one becomes a citizen, not how. Especially given the founders’ experience with English statute in this matter, whereby such citizenship was secured by statute in England as they knew it. This is an argument in support of original intention being that natural born citizenship included such citizens born abroad.

    nbc:
    Note that if natural born included children born abroad to US parents, then why were such children born in the early 1800′s not even citizens? In 1855 an act was passed to correct this

    Again an act was necessary to secure the rights of citizenship to such children.

  126. avatar
    Dr. Conspiracy May 18, 2013 at 4:16 pm #

    McElwee was a partisan objecting to a particular opposition candidate for President. He provides no historical references to support his contention that the use of the phrase “natural born citizen” in the 1790 act was “inadvertent.” He says that Madison was on the committee that replaced the act in 1795, but conveniently omits the fact that he was also in the Congress that passed the act of 1790.

    I take McElwee as a person of equal authority to Mario Apuzzo.

    Paper: So, in short, anything with the name McElwee needs careful, detailed attention, in my view.

  127. avatar
    Dr. Conspiracy May 18, 2013 at 4:18 pm #

    They weren’t natural born citizens because they weren’t citizens at all.

    nbc: Well, there is the possibility that the term natural born snuck in as they copied from the English statute. If it was clear that such children were covered under the term ‘natural born citizens’ then why pass a statute.

  128. avatar
    Scientist May 18, 2013 at 4:33 pm #

    Paper: That a statute was required is not a fatal point. Again, the broader view depends upon when one becomes a citizen, not how.

    nbc is fixated on “Congress can change statutes”. Sure. But Congress + state legislatures can change the Constitution. The Supreme Court can change the meaning of the Constitution (separate, but equal is OK until it isn’t). Common law changes both by judicial actions and statutes. NOTHING is permanent. However, the changes don’t act retroactively, but only going forward.

    Let’s suppose Congress decided on Monday that Hawaii had been illegally annexed and granted the islands immediate independence (this was discussed a few days ago). The result is that anyone born subsequently in Hawaii to Hawaiian citizens would no longer be a natural born citizen of the US, or a citizen at all. Congress would have changed who is a natural born citizen by statute.

    Note, however, that such an action would not affect the President since he was born while Hawaii was part of the US.

  129. avatar
    Scientist May 18, 2013 at 5:05 pm #

    By the way, i am still eagerly awaiting the following:

    1. The scientific principles behind the natural born citizen clause, including the studies relied on by Mr Jay when he wrote his letter to Gen Washington. Surely, he didn’t just rely on prejudice and personal opinion. Or did he?

    2. The originalist perspective on the eligibility of women. Did the Founders consider that a woman could be President. If they didn’t, is Hillary eligible? If she is, why is Cruz not in the opinion of some?

    Thanks for a response…

  130. avatar
    Keith May 18, 2013 at 10:37 pm #

    nbc: Well, there is the possibility that the term natural born snuck in as they copied from the English statute.

    So you are saying that these guys, who had just spent two and a half years arguing about the wording in the Constitution, and debating its meaning, and writing endless essays on the meaning of the words, suddenly forgot all about how to do that?

  131. avatar
    Robb May 19, 2013 at 1:37 am #

    Scientist:
    “Science? OK, provide me a scientific justification for the natural born citizen clause. Was the clause discussed and debated at the constitutional convention or at any of the ratifications in the states? Were studies commissioned to examine the evidence as to whether naturalized citizens would be less, more or equally suited to hold office?

    I’m sorry, but the scientific content of this entire discussion is nil. The core subject is simply a letter from one man to another based on nothing but unscientific prejudice and personal opinion.”
    Here you go, enjoy http://www.worldandi.com/subscribers/feature_detail.asp?num=26823

    ” Let’s review the record of those 9 folks in robes:
    Dred Scott
    Plessy v Ferguson
    Allowing the internment of US-born people of Japanese (but not German or Italian) ancestry
    Bush v Gore
    Citizens United”
    -Right decision, this is why amendments exist
    -Right decision, this is why separation of powers exists (see heart of Atlanta)
    -Right decision, STILL considered a right decision. Note, only applies in war
    -Should have been no decision, and simply said “whatever the electors say and congress agrees is what goes.” That said, was right to stop the ballot counting as arbitrary, if that current count should be the decider is in the air.
    -And follows 500 years of case law. If I can’t make a law saying Jews have less speech than Christians, how can I pass one saying Corporations have less than Non-profits?

    “I fail to see the difference [in regards to house vs president]”
    That’s probably because I am not referring to the qualifications, rather, the process:
    “Each House shall be the judge of the elections, returns and qualifications of its own members”
    vs
    “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President”
    no judging, no discussion of qualification, simply they get to vote then. The same rules apply (note how there CAN be elected a president who can’t fulfill the office, so this is one way)

    “Oh, come on! As Donofrio and Taitz learned, a quo warranto requires a direct interest in the office. Which neither you nor your member has unless one of you were the Vice President. So, sorry, better not go there.”
    pretty bold statement. I have an interest, under the law, in my electors voting a certain way, and their voice being heard (assuming I haven’t lassoed one into being my client). The problem for the others is they are arguing and area they have no interest, I’d be arguing one I would. Again, long shot, but I could easily see senator/housemembers teaming up to stop this anyway

    “So, nbc, make the case that Hillary Clinton is eligible (now don’t get riled up, ladies, I know she’s eligible, I just want to see how Mr Original responds).”
    1) blacks and women could vote and hold office then, case solved if originalism is as easy as you think it is;
    2) The founders established rules for the office, which they explained. They never once thought to establish rules regarding gender, so there is no argument they meant to limit on this;
    3) (pet peeve), I hate people saying there is a right to vote or the constitution grants this to women, minorities, or those over 18. No, it simply means that there is no longer the ability to discriminate on that alone… Though, under modern 14th, these amendments aren’t even needed.

    Keith: I corrected that after looking up the concept, it was a mischaracterazation on my part at 3am, not something nearly legal. I was just pissed he was arguing constitutional and international with no clue…

  132. avatar
    Scientist May 19, 2013 at 7:04 am #

    Robb: Here you go, enjoy http://www.worldandi.com/subscribers/feature_detail.asp?num=26823

    Not even the slightest whiff of science there. Just prejudice and opinion. You certainly are NOT a scientist. And a long section written by the birther P. A. Madison-give me a break. But at least we know where YOU are coming from.

    Robb: Dred Scott

    Robb: -Right decision, this is why amendments exist

    OK. Whatever. Nice to know where you’re coming from that you agree with this-”beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” KKK, much?

    I note that the decision not only applied to slaves but to free blacks who had always been citizens from the earliest days and fought and died in the Revolution. Dred Scott was far worse than simply an acknowledgement of what was, but a large step backwards, stripping people of well-established rights.

    As for your “quo warranto” crap, you ought to read the cases Donofrio and others tried, which were summarily dismissed. No you do NOT have a direct interest in the office of President. Not even close. And you say you are a lawyer? You certainly would never be my lawyer, that’s for certain.

    As for the originalist argument, you say blacks and women could hold office in 1789-name one that did. There were none and no one could imagine there ever being one, so they didn’t see the need to say anything about it. Women did not have the vote anywhere then. A few free black males did until the Dred Scott decision which you like, stripped them of those well-established rights.

    And what is it with you birther types and the quote function-none of you seem to be able to use it…

  133. avatar
    ballantine May 19, 2013 at 7:28 am #

    Scientist:
    As for the originalist argument, you say blacks and women could hold office in 1789-name one that did.There were none and no one could imagine there ever being one, so they didn’t see the need to say anything about it.Women did not have the vote anywhere then.A few free black males did until the Dred Scott decision which you like, stripped them of those well-established rights.

    Why was the right to vote relevant? There is no authority at all in the early republic that suggested women were not natural born citizens. They were natural born subjects in England and natural born citizens here. Now, no one would have thought of voting for them, but since they were natural born citizens they were clearly eligible. The entire point of the citizenship discussion in Minor v. Happersett was that women were natural born citizens since the beginning of the republic. And the holding was that such citizenship never meant they had the right to vote.

    Before Dred Scott, their was disagreement about blacks. In the north, the prevailing view was as described in Kent’s Commentaries which said that slaves were natural born citizens under the disability of slavery and hence were natural born citizens when such disability was removed. This followed English law in which the common law was color blind but recognized the disability of slavery. If our founders really followed the English common law, this would have been their view.

    Most legal authorities in the north, of course, thought Dred Scott wrong and the entire purpose of the 14th Amendment was to make it null and void. The people who passed the 14th Amendment believed Kent and the common law was right and that blacks were always natural born citizens. Bingham even quoted Kent on this point. Nevertheless, they passed the amendment to make clear Dred Scott was dead. A couple members questioned whether they would really want to make blacks eligible for the presidency. The primary answer was that they already were. Others thought they were clarifying who could be President. Nine members of such Congress said that the President must be a native born citizen and here they were clearly defining who was a native born citizen. Not hard to see why they thought they were clarifying who could be President. Here was one interesting exchange:

    “Now if you pass this bill you will allow the negroes of this country to compete for the high office of President of the United States, because if they are citizens at all, they come within the meaning and letter of the constitution of the united states, which allows all natural born citizens to become candidates for the Persistency…” Rep. Rogers, Cong. Globe, 39th Cong. 1st Sess. 1122 (1866).

    “I want to make another extract from the speech from the gentleman from New Jersey. He said ‘If you pass this bill you will allow negroes to compete for the high office of President of the United States.’ As for the fear which haunts the gentleman from New Jersey, if there is a negro in the country who is so far above all the white men of the country that only four million of his own race can elect him president of the United states over twenty six million of white people, I think we ought to encourage such talent in the country.” Rep. Windham, Cong. Globe, 39th Cong. 1st Sess. 1158 (1866)

  134. avatar
    Robb May 19, 2013 at 9:37 am #

    “Not even the slightest whiff of science there. Just prejudice and opinion. You certainly are NOT a scientist. And a long section written by the birther P. A. Madison-give me a break. But at least we know where YOU are coming from.”

    You’re right, just a bunch of hot air and hot ink from the founders, nothing to do with OI at all

    Again, it was a bad decision but the right one. The court IS NOT to look at any non constitutional concerns, so if the constitution say blacks are inferior, then by god the court better say that as well.

    A direct interest in presidency ISNT required, rather a direct interest in the action you are challenging. Ohio law clearly gives me an interest in my electors, that’s enough

    Finally, WOMEN COULD VOTE THEN, it was based on each state, just like citizenship, and just like it is now. Of course, being able to vote means nothing, as illegal immigrants are allowed to vote in some areas.

    don’t you dare call me a birther, I’m a proud obot in this regard.

  135. avatar
    Paper May 19, 2013 at 9:51 am #

    Dred Scott is pilloried not just because it was overturned and made irrelevant by amendment, but because it was a specious argument and decision in its own right. I’m sure people will argue with that, but myself I am firmly in the very much existing camp that views Dred Scott as a huge failure in its own right.

    That’s just an aside here, not much to do with the topic at hand.

    Robb:

    ” Let’s review the record of those 9 folks in robes:
    Dred Scott

    -Right decision, this is why amendments exist

  136. avatar
    Paper May 19, 2013 at 10:00 am #

    There certainly is a history in this area, true. But the answer to your question is simple enough: because corporations are not people. They, after all, are creations of the state.

    I understand the intellectual skeleton and precedence that leads to this decision, but the seed of it all is arguably a mistake. I would call it a mistake. No need to wrangle about it here and now, though. It is currently the law of the land. Another area that provides the ground for a huge discussion, though at least with more pros and cons than with Dred Scott.

    Robb:

    ” Let’s review the record of those 9 folks in robes:

    Citizens United”

    -And follows 500 years of case law. If I can’t make a law saying Jews have less speech than Christians, how can I pass one saying Corporations have less than Non-profits?

  137. avatar
    Paper May 19, 2013 at 10:19 am #

    See Akhil Amar on this one. He argues strongly that the consistent return to each variation of voter in the amendments, while being negative injunctions against discrimination, as you note, add up together, along with the whole history of our country from start to now, to be compelling evidence of a positive right to vote by way of the ninth amendment, especially when you look carefully at the fourteenth’s penalty clause, which as a practical matter locks voting in, unless the states are going to accept that penalty.

    Now we can argue (let’s not, at least not off-topic here), but that is a compelling point beyond the accurate surface level that there is no stated right to vote as such.

    Robb:

    3) (pet peeve), I hate people saying there is a right to vote or the constitution grants this to women, minorities, or those over 18. No, it simply means that there is no longer the ability to discriminate on that alone… Though, under modern 14th, these amendments aren’t even needed.

  138. avatar
    Scientist May 19, 2013 at 10:23 am #

    Robb: You’re right, just a bunch of hot air and hot ink from the founders, nothing to do with OI at all

    PA Madison was not a founder. He is a birther. You chose the citation, not me. Nor do statements from actual founders constitute science. Do you get that???

    Robb: so if the constitution say blacks are inferior, then by god the court better say that as well.

    Where does the Constitution say blacks are inferior? Quote me the passage. It implicitly accepts slavery (in the 3/5th passage) but does not ever say that free blacks are inferior.

    Robb: A direct interest in presidency ISNT required, rather a direct interest in the action you are challenging. Ohio law clearly gives me an interest in my electors, that’s enough

    The courts disagree with you. They denied Leo Donofrio’s quo warranto (and others) on exactly those grounds. Your interest is no different from his. Since you wish to impress with your knowledge, how about quoting some actual case law.

    Robb: Finally, WOMEN COULD VOTE THEN, it was based on each state, just like citizenship, and just like it is now.

    No, one state, New Jersey, allowed women to vote from from 1776 to 1807, but excluded them thereafter. For the remainder of the 19th century women did not have the vote anywhere in the US http://en.wikipedia.org/wiki/Women's_suffrage_in_the_United_States
    You don’t get to pick your own facts.

    Robb: Of course, being able to vote means nothing, as illegal immigrants are allowed to vote in some areas.

    Really? Citation? Citizenship is required to vote everywhere in the US (of course a few people may have voted illegally in some place or other, but they were not ALLOWED to). There is a proposal in New York City to allow long-term legal residents who are not citizens to vote in local elections. It is not yet law and may never be.

    Robb: don’t you dare call me a birther, I’m a proud obot in this regard.

    You share much with the birthers, including:
    Lovin’ then some Dred Scott
    Quoting PA Madison as legitimate source
    Thinking quotes from the founders constitute science
    Thinking you can file a quo warranto over an electoral outcome you don’t like

    So I’ll call you a proto-birther

  139. avatar
    Scientist May 19, 2013 at 10:32 am #

    ballantine: Why was the right to vote relevant? There is no authority at all in the early republic that suggested women were not natural born citizens. They were natural born subjects in England and natural born citizens here. Now, no one would have thought of voting for them, but since they were natural born citizens they were clearly eligible. The entire point of the citizenship discussion in Minor v. Happersett was that women were natural born citizens since the beginning of the republic. And the holding was that such citizenship never meant they had the right to vote.

    I agree with you that women were always considered citizens and natural born if they were so born. The question is were women considered eligible to be President in 1789? And the answer to me is that it’s far from clear. And free blacks? Again, it’s not clear in 1789. Certainly slaves wouldn’t have been.

    Your quotes from 1866 make it clear that from the ratification of the 14th blacks were eligible. But in 1789, I don’t know.

  140. avatar
    Keith May 19, 2013 at 10:36 am #

    Robb: Finally, WOMEN COULD VOTE THEN, it was based on each state, just like citizenship, and just like it is now.

    I’ll grant that assertion a ‘half right’ stamp.

    From our old friend Wikipedia:

    Lydia Taft was an early forerunner in Colonial America who was allowed to vote in three New England town meetings, beginning in 1756, at Uxbridge, Massachusetts. Following the American Revolution, women were allowed to vote in New Jersey, but no other state, from 1790 until 1807, provided they met property requirements then in place. In 1807 all women were taken off the voters’ roll as universal male suffrage was instated

    Women’s suffrage activists pointed out that blacks had been granted the franchise and had not been included in the language of the United States Constitution’s Fourteenth and Fifteenth amendments (which gave people equal protection under the law and the right to vote regardless of their race, respectively). This, they contended, had been unjust. Early victories were won in the territories of Wyoming (1869)[87] and Utah (1870)…

    By the end of the 19th century, Idaho, Colorado, Utah, and Wyoming had enfranchised women after effort by the suffrage associations at the state level.

    The rest of the country had to wait for the 19th Amendment.

    Of course, being able to vote means nothing, as illegal immigrants are allowed to vote in some areas.

    No they aren’t.

    Be careful, your agenda is showing. Non-citizens are not allowed to vote, and illegal immigrants are obviously not citizens.

    I thought you said you were a lawyer specializing in Constitutional Law. So far on this site you have demonstrated a profound ignorance of the law in general and the Constitution in particular. I simply don’t believe you.

    In keeping with my previous comment reply to you recommending a study guide, may I suggest you try looking up the word ‘allow’ in a dictionary. I don’t think it means what you think it means.

  141. avatar
    Scientist May 19, 2013 at 10:41 am #

    Robb: Plessy v Ferguson

    Robb: -Right decision, this is why separation of powers exists (see heart of Atlanta)

    Let’s look at this in more detail. If Plessy is right, then Brown v Board of Education would have to be wrong, since it says the opposite. And there were no constitutional amendments relevant to segregation between 1896 and 1954. So both can’t be right.

    So, we have to accept that courts read the Constitution with reference to the social climate of their times and the personal beliefs and prejudices of the judges. They are not august repositories of wisdom and “right”, but bodies of fallible humans appointed and approved by politicians.

    And that of course means that the Constitution, even ignoring amendments, is not and cannot be read the same now as it was in 1789. Such is not possible because the world and the facts around us are not the same.

  142. avatar
    Scientist May 19, 2013 at 10:48 am #

    Keith: By the end of the 19th century, Idaho, Colorado, Utah, and Wyoming had enfranchised women after effort by the suffrage associations at the state level.

    I must correct my previous statement that women did not have the right to vote anywhere in the US in the 19th century. In the latter part of the century, they won the vote in those Western states you mentioned. Unlike Robb, I will strive to respect the facts.

    Keith: Be careful, your agenda is showing. Non-citizens are not allowed to vote, and illegal immigrants are obviously not citizens.

    I thought you said you were a lawyer specializing in Constitutional Law. So far on this site you have demonstrated a profound ignorance of the law in general and the Constitution in particular. I simply don’t believe you.

    Totally agree, Keith. As I pointed out above, illegal immigrants and even legal permanent residents are not allowed to vote anywhere in the US (though a few may have voted illegally somewhere on one occasion or another). There is a proposal for legal permanent residents to be able to vote in local elections in NYC, but it is not law.

  143. avatar
    Paper May 19, 2013 at 11:23 am #

    Actually, non-citizens can vote, not federally, but locally, if the local jurisdiction allows.

    See for example: http://touch.bossip.com/bossip/#!/entry/for-discussion-nyc-lawmakers-close-to-approving-legislation-that-would,518c163987443d6c8e51d15d/1

    Robb: Of course, being able to vote means nothing, as illegal immigrants are allowed to vote in some areas.

    Keith:

    No they aren’t.

    Be careful, your agenda is showing. Non-citizens are not allowed to vote, and illegal immigrants are obviously not citizens.

  144. avatar
    Dr Kenneth Noisewater May 19, 2013 at 12:44 pm #

    Paper for some reason that link didn’t work for me. However I assume this is for legal residents and not “illegal immigrants”

  145. avatar
    Paper May 19, 2013 at 1:33 pm #

    So yes that link seems to be a dud, the right site but not to the article. Don’t have much time now, so here is the relevant quote from the article:

    “Many U.S. states once let noncitizens vote, though policies changed by the 1930s. Some Maryland cities now allow it, and the idea has been floated in New York’s City Council for years.”

    The point for us here is that it is an acceptable practice, even if not much practiced at this moment in time. That is changeable, because of course it is up to the local people at any given time, but the principle remains in existence, and that is the point here.

  146. avatar
    Paper May 19, 2013 at 1:43 pm #

    Well, crime is a different story. Brings in other factors. The principle is that non-citizens can vote if a local jurisdiction allows. It could get intricate I suppose, for instance with school board elections, where the parents/residents are undocumented. And even for citizens crime can be an issue for voting, so at any rate crime (of citizens or noncitizens) is not the issue here.

  147. avatar
    nbc May 19, 2013 at 3:36 pm #

    Scientist:
    By the way, i am still eagerly awaiting the following:

    1. The scientific principles behind the natural born citizen clause, including the studies relied on by Mr Jay when he wrote his letter to Gen Washington.Surely, he didn’t just rely on prejudice and personal opinion.Or did he?

    See Wong Kim Ark :-) The principles applied were quite simple: 1) The Constitution mentions two kinds of citizens: natural born and naturalized. 2) Wong Kim Ark could not be naturalized under US statutes 3) could he still be a citizen by being natural born. 4) Natural born was left undefined in the constitution so its meaning had to be found in common law. 5) Common Law before during and after the revolution all consistently point to jus soli and the judges conclude based on a large volume of evidence that

    The Fourteenth Amendment of the Constitution, in the declaration that

    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,

    contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case [p703] of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

    So born within and subject to the jurisdiction of the US: Natural Born. All others: Naturalized.

    2. The originalist perspective on the eligibility of women.Did the Founders consider that awoman could be President.If they didn’t, is Hillary eligible?If she is, why is Cruz notin the opinion of some?

    Because he fails the eligibility requirement as outlined in our Constitution? Perhaps you can show me that a woman could not be our President in the mind of our Founders?

    Thanks for a response…

  148. avatar
    nbc May 19, 2013 at 3:42 pm #

    Scientist: Now please use science to show me that the majority vote of the 9 robed ones has been overall wiser than that of the 140 million unrobed ones. I will await,,,,

    It’s the nature of our political system that we protect the rights of all through a system that minimizes the chance that a majority will take away rights of a minority.

    While we may not like the rulings of our Supreme Court, they are the ultimate arbitrator when it comes to our laws and we have no choice but to respect their findings. If their ruling is so outrageous that it requires an amendment, we can follow in the footsteps of our ancestors and pass an amendment.

    The majority vote 9 may not always be wiser than that of 140 million but it depends less on the ever changing climate of public opinion. Its what protects the integrity of the laws of our nation through a separation of powers.

    Again, for those who do not like this reality, there is the process of constitutional amendment.

  149. avatar
    nbc May 19, 2013 at 3:47 pm #

    Robb:

    “Oh, come on! As Donofrio and Taitz learned, a quo warranto requires a direct interest in the office. Which neither you nor your member has unless one of you were the Vice President. So, sorry, better not go there.”

    pretty bold statement. I have an interest, under the law, in my electors voting a certain way, and their voice being heard (assuming I haven’t lassoed one into being my client). The problem for the others is they are arguing and area they have no interest, I’d be arguing one I would. Again, long shot, but I could easily see senator/housemembers teaming up to stop this anyway

    Nope, you do not have an interest that your electors vote in a certain way. Nor is quo warranto set up to deal with such concerns. In the Federal Court system, Quo Warranto only exists by statute in the DC Court. It requires the relator to have a direct and tangible interest in the office, and when it involves a public office only the AG can initiate such an action.

    It’s not just a long shot but it fails to understand what Quo Warranto can and cannot do.

    The idea that you have an interest in how your congress person votes is interesting but you have no standing as all voters have the same interest. Furthermore, an interest does not mean that you have a right to have them vote ‘your way’.

  150. avatar
    nbc May 19, 2013 at 3:53 pm #

    Scientist: nbc: But if you want to play these games, please tell me: what president was born outside the US? (

    Let’s follow that originalist logic to its logical end.

    I see that you cannot find an example of such a case. Excellent.

    Now you try to move the discussion to the eligibility of a female.

    May I ask you a simple question: Would Hillary be ineligible under the standards set by our Constitution?

    1. Age: Check
    2. Residence: Check
    3. Natural Born: Check

    So unless you can point to any requirement that would cause Hillary to be ineligible, you are facing quite an upward battle here.

    Note also that there is no constitutional right to vote and thus explicit laws were needed to guarantee such rights to certain groups of people. But eligibility does not require that one has the right to vote, although, lacking the support from women would make it much harder to have a woman elected to office.

    Now that was not a very tough question.

  151. avatar
    Dr. Conspiracy May 19, 2013 at 4:41 pm #

    If you bribe your congressman and he doesn’t vote the way you want, can you sue him?

    nbc: The idea that you have an interest in how your congress person votes is interesting but you have no standing as all voters have the same interest.

  152. avatar
    Sef May 19, 2013 at 4:44 pm #

    To reiterate the point I made in an earlier comment (somewhere on this site), natural born citizenship is defined by WHEN one acquires citizenship, not HOW. This is the point of the CRS report. Thus, if one is born in the U.S. under jurisdiction one acquires citizenship at birth. Also, if one is born out of the U.S. under certain jus sanguinis requirements, one is a citizen at birth. Both of these are NBC, but the HOW is different. The WHENs are the same.

    One could argue that the jus sanguinis definition is a “naturalization at birth” by a Congressional enactment, and Congress could change the law by one of its numerous whims. The only citizenship Congress cannot change without a Constitutional amendment is that acquired via the 14th Amendment.

    For the people who question Senator Cruz’ eligibility for the Presidency I would ask them to show us his naturalization record. (Note I am not addressing his electability or my advocacy of his candidacy.) Since he is serving in the Senate he must be a citizen. If he didn’t naturalize, he must be NBC.

  153. avatar
    nbc May 19, 2013 at 4:52 pm #

    Paper: Regarding the removal of the phrase in 1795, Maskell notes something I have regarded as probable (more on the rest of your point momentarily):

    It’s is probable but then again so is the suggestion that the term natural-born was inadvertently added because the Congress realized that it could not extend or narrow the interpretation of a Constitutional term.

    What is known is that Congress found it necessary to deal with the issue of children born abroad to US citizens. If they looked at English Common Law, they would have known that such children would have been born aliens and that their status could only be addressed through an act of naturalization. This is exactly what they did in 1790. The question now remains: what about the temporary appearance of the term ‘natural-born’ which some have suggested was caused by a careless copying from an English act. Remember that in England, Parliament was not constrained by a Constitution to expand or contract who are or are not its natural born subjects.

    So it is clear that there was no common law status for children so born which caused several children born outside the US to not be US citizens because of the way an act was written in the early 1800′s. Only much later did Congress take action to correct this.

    So the only question now remains: Can congress expand or contract a constitutional term. In other words is it a minimum requirement which would lead to the untenable conclusion that Congress can override the natural born requirement by declaring anyone naturalized to be natural born. So there clearly is a limitation on their powers, which is in fact described by: to provide for uniform laws of naturalization.

    And if there are two kinds of citizens: Natural born and natural-ized then would not the logical conclusion be that those who become citizens through an act of congress under the immigration powers, become naturalized citizens? And thus they are outside the class of natural-born?

    In Powell, I believe, the court stated that the eligibility requirements for members of Congress could not be expanded or narrowed as they were Constitutional requirements.

    Other than the 1790 act which contained terminology which was not repeated in a later act, we have no clear understanding of the position of our Founders. Which leads me to US v Wong Kim Ark where the court observed that the meaning of the term had to be established in common law, which clearly did not include children born abroad to US citizens.

    Check out Lynch v Clarke for example

    “[T]he words of the law, (Story’s Laws U. S. p. 851, &c.) are too plain to admit of doubt, they are “the children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States be considered as citizens of the United States.” Chancellor Kent says, “The clause is certainly not prospective in its operation.” (2 Kent’s Com. 45.) Again: The very enacting of this clause, and especially in this limited way, shows that without this legislation, the children of citizens born abroad would be aliens ; and it shows what Congress understood to be aliens, by contrasting them with citizens by the word, though ; “though born out of the limits and jurisdiction of the United States.“

    Even the first congress felt that an action by congress was necessary to deal with such children…

    English Common Law is quite interesting and a nightmare to read…

  154. avatar
    nbc May 19, 2013 at 5:39 pm #

    Sef: For the people who question Senator Cruz’ eligibility for the Presidency I would ask them to show us his naturalization record. (Note I am not addressing his electability or my advocacy of his candidacy.) Since he is serving in the Senate he must be a citizen. If he didn’t naturalize, he must be NBC.

    This is a bit circular in that it is based on the presumption that a certificate of naturalization is somehow necessary for one to still be naturalized.

    Under what Constitutional Power did Cruz receive his citizenship? The plenary powers of Congress to provide for uniform rules of naturalization. If Congress denies Cruz citizenship by repealing its acts, like it did in the early 1800′s by accident, would Cruz still be a citizen?

    But they may ask Cruz if he got his consular report of birth abroad?

  155. avatar
    nbc May 19, 2013 at 5:46 pm #

    Dr. Conspiracy: If you bribe your congressman and he doesn’t vote the way you want, can you sue him?

    Breach of contract breach of faith? … Interesting. But while there is injury, I am not sure you can enforce a bribe.

    Anyone? Both parties are in violation of statutes, of course, the plaintiff may call it a bribe but the recipient may deny that there was a quid pro quo. Perhaps if there is recorded information. Either way, the plaintiff would be in violation of the law and I doubt that therefor such a contract would be enforceable.

  156. avatar
    Scientist May 19, 2013 at 7:43 pm #

    nbc: See Wong Kim Ark

    COURT DECISIONS ARE NOT SCIENCE!

    You claimed to be a scientist somewhere, so this shouldn’t be news to you.

    You know every well what my question is: “What is the scientific rationale to have a natural born citizen requirement?” Not “Who is a natural born citizen?”, that is not the question I am posing at all. But since you are capable of reading you knew that. So, you went off on a meaningless tangent that didn’t address that. Now try to address it. Thanks.

    As for females, I of course believe they are eligible. My question (and again I will try to have you address it, rather than ducking) is “Were females considered eligible when the Constitution was written?” What evidence can you provide that a female President was ever contemplated? I know no specific language excludes them-my contention is this may be because the very idea was considered impossible. We don’t write language in the law to cover situations whose occurrence is considered impossible.

    Now please try to address this specific point. Thanks

  157. avatar
    Scientist May 19, 2013 at 7:47 pm #

    nbc: Breach of contract breach of faith? … Interesting. But while there is injury, I am not sure you can enforce a bribe.

    Anyone?

    Illegal contracts are unenforceable. For example, you may not sell yourself into slavery no matter how much you and the buyer both might want to. A contract to buy or sell illegal drugs is likewise unenforceable. That is why drug dealers turn to guns to enforce their deals.

  158. avatar
    Scientist May 19, 2013 at 7:52 pm #

    nbc: The majority vote 9 may not always be wiser than that of 140 million but it depends less on the ever changing climate of public opinion.

    Why is change bad? In fact, if the original decision is bad, changing it should be very desirable. I give the example of same-sex marriage. In a decade, the public opinion has changed 180 degrees and legislatures are following the public in many states. Suppose some court had enshrined a prohibition against same-sex marriage. It would take many decades to overturn that.

    You haven’t convinced me that entrusting public matters (as opposed to individual criminal and civil cases) to courts produces better results than entrusting them to the people. You might try citing some specific examples to better argue your case, as I have cited several examples of bad court decisions. Of course there are bad decisions by voters and legislators. My contention is that those are more likely to be fixed quickly when the policies turn out badly.

  159. avatar
    Scientist May 19, 2013 at 8:01 pm #

    nbc: If Congress denies Cruz citizenship by repealing its acts, like it did in the early 1800′s by accident, would Cruz still be a citizen?

    Yes. That would only affect those born in similar circumstances after the new law took effect.

    You are ignoring that courts could also change citizenship rules for those born in the US. For example, there is nothing to stop a future court from ruling that those born to 2 illegal immigrant parents are not citizens under the 14th amendment. Now, I’m sure you would disagree strongly with that decision, as would I, but they COULD so rule. They can in fact, rule as they wish. And unlike Congress, they cannot be held to account.

  160. avatar
    donna May 19, 2013 at 8:03 pm #

    Scientist: You might try citing some specific examples to better argue your case, as I have cited several examples of bad court decisions.

    example: 11/07/2012 Minnesota Amendment 1 Same-Sex Marriage Ballot Measure Fails – Minnesota voters voted against an amendment on Nov. 6 that would have defined marriage as being between a man and woman in the state’s constitution

    The question, along with the measure’s ballot title, was presented to voters as follows:

    Limiting the status of marriage to opposite sex couples.

    “Recognition of Marriage Solely Between One Man and One Woman.”

    52.56% said NO

    47.44% said YES

    and now, (since i guess that wasn’t enough) 05/15/2013 Minnesota Legalizes Gay Marriage: Gov. Mark Dayton Signs Bill Into Law

  161. avatar
    nbc May 19, 2013 at 8:09 pm #

    Scientist: COURT DECISIONS ARE NOT SCIENCE!

    You claimed to be a scientist somewhere, so this shouldn’t be news to you.

    So I guess the whole concept of the scientific method is worthless when it comes to establishing a judicial issue? I can appreciate your position here but when it comes to judicial decisions, they apply much of the same method to determine the validity of a specific argument, by relying on precedential information, or by overruling precedent if there is a foundation built that requires one to do so.

    <“Were females considered eligible when the Constitution was written?” What evidence can you provide that a female President was ever contemplated?

    The question is irrelevant as I have pointed out females are not prohibited by the Constitution from being elected to the office of the President.

    Why do you believe that I have to point to those writing the constitution when it comes to your question? Are you seriously suggesting that if it was not discussed, then therefor I would have to conclude that such is not constitutional?

    Seriously? By what standard of logic or reason

  162. avatar
    Scientist May 19, 2013 at 8:18 pm #

    nbc: So I guess the whole concept of the scientific method is worthless when it comes to establishing a judicial issue?

    With the possible exception of a patent case involving some scientific principle yes. I do not see court decisions as following the scientific method. Sorry. Mostly they follow the prejudices and opinions of the judges. Just look at the present Supreme Court. It is more or less party line voting; on most major cases, you could predict how 8 Justices will vote with 95% accuracy and then flip a coin on the swing Justice.

    nbc: Why do you believe that I have to point to those writing the constitution when it comes to your question?

    Is that not what originalism is? My point-go back to the first post in this thread- is that originalism is a travesty. That’s all I’m saying.

  163. avatar
    nbc May 19, 2013 at 8:23 pm #

    Scientist: Yes. That would only affect those born in similar circumstances after the new law took effect.

    So let’s rephrase this, would you accept that congress has to power to no longer provide for children born abroad to US citizens are thus they are no longer by statute made citizens? In other words, are you accepting that Congress can narrow the definition of who are natural born by mere statute?

    You are ignoring that courts could also change citizenship rules for those born in the US. For example, there is nothing to stop a future court from ruling that those born to 2 illegal immigrant parents are not citizens under the 14th amendment. Now, I’m sure you would disagree strongly with that decision, as would I, but they COULD so rule. They can in fact, rule as they wish. And unlike Congress, they cannot be held to account.

    Nope, there is no statutory power to make such a decision without a constitutional amendment. You are now making another logical fallacy:

    1. Under its plenary powers to provide for uniform laws of naturalization Congress has declared that children born to US citizens abroad are citizens. For some time, due to a flawed act, many such children did not even possess citizenship. In other words, the Congress clearly has the power to grant citizenship and take it away because such citizens are not even covered under the 14th Amendment nor provided for by the Constitution.
    2. Under the 14th Amendment, congress has no power to declare children born on soil to two alien parents to no longer be natural born.

    Surely you do understand that in 1) Congress has full plenary powers while in 2) the Congress can only change the Constitution through the process of amendment?

    Sure, Congress can ‘do what it want’ and be corrected by the courts but the power of congress to do 1) has been well established while the power to do 2) has been denied by the Courts.

    So if you allow for the simple fact that Congress has the Constitutional power to declare if children born outside the US to foreign parents are citizens, then you have to present a logical argument under what powers it has the right to declare them natural born or not even a citizen?

    Note that under WKA, the importance of common law is foundational to the argument which excludes children born abroad to US citizens whose status is declared by statute only and thus through naturalization where the statute removes the status of being alien by an explicit law. Under Common Law, such children were born aliens, and their status was removed by statute.

    Alien Generally speaking one born in a foreign country out of the allegiance of the king

    See: The Law-dictionary: Explaining the Rise, Progress, and Present State, of the English Law; Defining and Interpreting the Terms Or Words of Art; and Comprising Copious Information on the Subjects of Law, Trade, and Government, Volume 1

  164. avatar
    nbc May 19, 2013 at 8:35 pm #

    Scientist: Is that not what originalism is? My point-go back to the first post in this thread- is that originalism is a travesty. That’s all I’m saying.

    Perhaps your understanding of originalism is the real problem here? Furthermore you need to understand the difference between original intent and original meaning. I am providing a foundation based on the latter approach, which mirrors the approach chosen by the Court in US v Wong Kim Ark.

    Under our constitution it is clear that a woman is perfectly eligible for the office of the president as she meets all the eligibility requirements. So why would we have to determine what the founders believed when we already know that women are not disqualified by a simple reading of the constitution?

    I would say that you are creating a bit of a strawman here

    Even Scalia would not hold to your strawman

    Justice Scalia, one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category:
    The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

  165. avatar
    nbc May 19, 2013 at 8:42 pm #

    Scientist: nbc: The majority vote 9 may not always be wiser than that of 140 million but it depends less on the ever changing climate of public opinion.

    Why is change bad? In fact, if the original decision is bad, changing it should be very desirable.

    Change through pure popular opinion is bad as there are countless examples where the majority deprived a minority of its rights.

    The separation of powers in our Nation help prevent such from happening, and even though we all agree that the Courts can make poor rulings, in the end, the Supreme Court remains the final arbiter and if Congress and the people disagree they have the power to change our constitution.

    That’s the right way to decide on these issues, not just popular opinion.

    And change is not necessarily good or bad but it reflects the changing emotions of people rather than a resolution based on solid precedent and a proper understand of our Constitution.

    Or would you rather allow popular opinion to take away the Constitutional guarantee that children born on soil to foreign parents are natural born by just having congress pass a law? And then when the winds change, Congress can ‘correct’ this. The 39th Congress certainly did not believe that this was an acceptable solution to a bad SCOTUS decision.

    No, I do not necessarily trust that the majority of people will make the right decisions all the time and thus see the presence of a judiciary as a separate and equal power, who is the final arbiter on issues of constitutionality, as to be far preferable.

  166. avatar
    nbc May 19, 2013 at 8:46 pm #

    Scientist: You haven’t convinced me that entrusting public matters (as opposed to individual criminal and civil cases) to courts produces better results than entrusting them to the people.

    It’s a combination of the two. YOu have the somewhat simplistic view that popular opinion will do what is ‘right’. But that is of course not necessarily a given as there are countless examples where public opinion would have resulted in worse outcomes. Perhaps the process through the courts is slower than through public opinion but there is a good reason why justice moves slower than the whims of the public.

    And there are perfect guarantees that allow changes to our Constitution to override a rogue Supreme Court ruling. Not so much under your scenarios as you assume to prefer no judicial overview?

    I give the example of same-sex marriage. In a decade, the public opinion has changed 180 degrees and legislatures are following the public in many states. Suppose some court had enshrined a prohibition against same-sex marriage. It would take many decades to overturn that.

    Yes, of course, that is a two edged sword, is it not…

  167. avatar
    nbc May 19, 2013 at 8:53 pm #

    Scientist: I know no specific language excludes them-my contention is this may be because the very idea was considered impossible.

    Fine but that is just your contention… Not much of relevance here for a logical argument other than from personal incredulity? Would you not agree?

    Why should I take your contention seriously when I can point out that nothing in the Constitution objects to women taking on such positions? If there was, as you said, no discussion, then we will never know the original intent of the Founders but we can still, using original meaning, determine whether or not women are disqualified.
    It’s the same approach which ruled that WKA was natural born, even though it happened in the days where it was unthinkable that chinese would become citizens, let alone have the right to be treated as a natural born citizen.

    While under our constitution and interpretation, Congress has full plenary powers over immigration, they do not hold such powers over natural born citizenship as it is a constitutional concept. Now, the court in WKA needed to understand the meaning of the term as used and found it to simply mean “birth on soil, subject to our jurisdiction”, excluding in fact those born abroad to US citizen parents, much to the dismay of the dissenting judge.

    Yet, the ruling was well established in legal precedent, and logic and reason.

  168. avatar
    Scientist May 19, 2013 at 9:00 pm #

    nbc: Under the 14th Amendment, congress has no power to declare children born on soil to two alien parents to no longer be natural born.

    If Congress passed such a law and the courts did not strike it down, then they would not be citizens. You can say otherwise, but that is simple fact.

    This discussion has become tireless and repetitive. I won’t try to disabuse you of your love affair with the robed ones. Enjoy it. They don’t love you back. Nor will they get involved in Ted Cruz’s presidential campaign, which will not succeed anyway for reasons unrelated to where he was born.

    For the love of God, please DO NOT RESPOND. Thank you…Now stop…..

  169. avatar
    nbc May 19, 2013 at 9:06 pm #

    If Congress passed such a law and the courts did not strike it down, then they would not be citizens. You can say otherwise, but that is simple fact.

    Still missing the point that the Court has spoken approvingly of the powers of Congress to determine who become our citizens through naturalization while it has clearly established that Congress cannot undermine the clear meaning of our Constitution when it comes to who are natural born citizens.

    Now you can argue that this could happen, I prefer arguments based on more logic and reason. I call it intellectual curiosity ;-)

    Now I can appreciate why the discussion has become tiresome to you :-) But as to your suggestion that I stop… I politely decline your invitation as I find the topic of fascinating interest.

    How do we determine the status of children born abroad to US citizens? is a very interesting topic to me, especially since it has become even more relevant recently with Cruz and others.

    Of course, the Courts may never get to hear the argument, which of course still does not settle the legal argument, it merely allows for the fact that a constitutional requirement was not properly enforced, or not.

    Will the courts never become involved? Is this truly a political question? Under Powell, I am not so sure as the court was clear that Congress does not get to add or subtract from the eligibility requirements even though they have the full Constitutional power to determine the eligibility. As such, the Court found that the issue was not constrained by a political question.

    Standing will be the most problematic one.

  170. avatar
    Keith May 19, 2013 at 9:10 pm #

    nbc: If Congress denies Cruz citizenship by repealing its acts, like it did in the early 1800′s by accident, would Cruz still be a citizen?

    Yes.

    Congress can change the laws going forward, so that someone else in Cruz’ situation and born after the change, would not be a citizen, but it cannot take away Cruz’ citizenship this way.

    Otherwise, the effect would make it an ‘ex post facto’ law which is prohibited by Article 1 Section 9 of the United States Constitution.

  171. avatar
    Scientist May 19, 2013 at 9:14 pm #

    nbc-Do you EVER stop? I begged you, for the love of God, but you just go on and on and on…

    Let’s try this-How much would I have to pay you to stop? Name a price..

    By the way, smiley faces are juvenile….

    I am hereby joining the Cruz 2016 exploratory committee. I can’t stand him or his politics, but the idea of you having to live under a President born outside the US, is too good to pass up.

  172. avatar
    nbc May 19, 2013 at 9:17 pm #

    Keith: Congress can change the laws going forward, so that someone else in Cruz’ situation and born after the change, would not be a citizen, but it cannot take away Cruz’ citizenship this way.

    Yes, the question was badly stated. If Congress had taken away the statutes conferring citizenship to Cruz, would he still be a citizen?

    I do not believe that under the analysis of WKA, you can argue that such a child is natural born. I find little support for the ‘at birth’ claim. Under Common law definition it is all about location and jurisdiction and neither one applies to Cruz. Born on US soil subject to our jurisdiction captures it nicely.

  173. avatar
    nbc May 19, 2013 at 9:19 pm #

    Scientist: By the way, smiley faces are juvenile….

    I am hereby joining the Cruz 2016 exploratory committee. I can’t stand him or his politics, but the idea of you having to live under a President born outside the US, is too good to pass up.

    Speaking of juvenile :-)

    But I do not mind at all my friend, the issue is purely academic to me and I am more than happy to accept that the courts nor congress will really address the issue.

    And may I suggest that rather than paying me to stop, you may consider skipping my contributions. Deal ;-)

  174. avatar
    Keith May 19, 2013 at 9:21 pm #

    Scientist: I know no specific language excludes them-my contention is this may be because the very idea was considered impossible.

    I know what you are saying, but don’t forget that British law allowed women to be Monarch.

    Of course the pool of persons of either gender eligible for the English throne is tiny compared to pool of persons eligible for the American Presidency. And since British Queens are (were) the last resort after the failure of the King to produce a male heir, I suspect it safe to say that the founders did not anticipate running out of male candidates.

  175. avatar
    Keith May 19, 2013 at 9:35 pm #

    nbc: So I guess the whole concept of the scientific method is worthless when it comes to establishing a judicial issue?

    Yes, unless the specific ‘judicial issue’ is hinges on some scientific process or method. Was a drug test performed correctly, or was research carried out properly, or whatever.

    I suppose you may be confusing ‘logic’ with the ‘scientific method’. You wouldn’t confuse a ‘shovel’ with ‘gardening’ would you? Just as a shovel is a tool that is used both by gardeners and construction workers, logic is a tool that is used in both Science and the Law.

  176. avatar
    nbc May 19, 2013 at 9:38 pm #

    Keith: I suppose you may be confusing ‘logic’ with the ‘scientific method’. You wouldn’t confuse a ‘shovel’ with ‘gardening’ would you? Just as a shovel is a tool that is used both by gardeners and construction workers, logic is a tool that is used in both Science and the Law.

    Fair enough, that’s an excellent point.

  177. avatar
    Keith May 19, 2013 at 9:40 pm #

    nbc: So let’s rephrase this, would you accept that congress has to power to no longer provide for children born abroad to US citizens are thus they are no longer by statute made citizens? In other words, are you accepting that Congress can narrow the definition of who are natural born by mere statute?

    Scientist can speak for himself, but yes, that is exactly what he said. Of course he also said that such a narrowing only applies to children born AFTER Congress makes that change.

    Once again, I refer you to the Constitution of the United States, Article 1 Section 9.

  178. avatar
    brygenon May 19, 2013 at 9:42 pm #

    nbc: It’s is probable but then again so is the suggestion that the term natural-born was inadvertently added because the Congress realized that it could not extend or narrow the interpretation of a Constitutional term.

    Congress is not and never was of one mind. For Congress to realize it made a mistake, a majority of the members of the House and Sent ate have to arrive at the position. How did they do that without leaving any record?

    What is known is that Congress found it necessary to deal with the issue of children born abroad to US citizens. If they looked at English Common Law, they would have known that such children would have been born aliens and that their status could only be addressed through an act of naturalization.

    Is there any evidence that the issue of presidential eligibility came up?

    So the only question now remains: Can congress expand or contract a constitutional term. In other words is it a minimum requirement which would lead to the untenable conclusion that Congress can override the natural born requirement by declaring anyone naturalized to be natural born. So there clearly is a limitation on their powers, which is in fact described by: to provide for uniform laws of naturalization.

    Dr. C’s theory, which agrees with most scholars, does not require Congress to expand or contract the meaning of a constitutional term. “Natural-born citizen” means citizen from birth. Congress cannot change that. Congress can, within the limits of the 14′th Amendment, change the law on who is granted citizenship upon birth.

    English Common Law is quite interesting and a nightmare to read…

    Is your goal is to write a critique of historical American jurisprudence with respect to English Common Law? Or do you want to know who can be president?

  179. avatar
    Keith May 19, 2013 at 9:50 pm #

    nbc: Yes, the question was badly stated. If Congress had taken away the statutes conferring citizenship to Cruz, would he still be a citizen?

    You ask exactly the same question. Once again, I refer you to the Constitution of the United States, Article 1 Section 9.

    Congress can change the law so that some one in Cruz’ situation, BORN AFTER THE CHANGE, is not a citizen at birth. It cannot change the law that was in effect at the time of Cruz’ birth. Article 1 Section 9, again. It is simply un-American to imagine otherwise.

    If you are a citizen, you are either a born citizen or a made citizen. There is no other possibility. Cruz was born a citizen, he was not made a citizen. End of story.

  180. avatar
    nbc May 19, 2013 at 10:00 pm #

    Was Cruz born a citizen?

    Keith: You ask exactly the same question. Once again, I refer you to the Constitution of the United States, Article 1 Section 9.

    Congress can change the law so that some one in Cruz’ situation, BORN AFTER THE CHANGE, is not a citizen at birth. It cannot change the law that was in effect at the time of Cruz’ birth. Article 1 Section 9, again. It is simply un-American to imagine otherwise.

    I agree and you answered my question, however poorly I phrased it

    If you are a citizen, you are either a born citizen or a made citizen. There is no other possibility. Cruz was born a citizen, he was not made a citizen. End of story.

    Nope he was made a citizen under an act of Congress. Under common law ‘natus’ means born on soil subject to the jurisdiction.

    The confusion is with the definition of natural born which is not ‘by birth or at birth’ but rather “by birth on soil, subject to the jurisdiction”

    Since Congress can take away the citizenship statute granting citizenship to children born abroad to US citizen parents, this would mean that Congress by simple statute can broaden the meaning of the term natural born and then narrow it by simple statute. Without statute such a child would not be a citizen at all, so it is not natus but datus, as it requires the statute.

  181. avatar
    brygenon May 19, 2013 at 10:06 pm #

    nbc: I do not believe that under the analysis of WKA, you can argue that such a child is natural born. I find little support for the ‘at birth’ claim.

    Yet real scholars do argue it, and do find such support. I know of just one respectable scholar that argued John S. McCain was not eligible to be president: Gabriel J. Chin. Chin’s argument was not yours, NBC. Chin accepted that if McCain was a citizen from birth, then McCain would had a strong case for being a natural-born citizen, and Chin cited WKA in part:

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

    http://www.michiganlawreview.org/articles/why-senator-john-mccain-cannot-be-president-eleven-months-and-a-hundred-yards-short-of-citizenship

  182. avatar
    nbc May 19, 2013 at 10:06 pm #

    Since you appear to like Sir Coke

    3 There be regularly (unless it be in special cases) three incidents to a subject born

    1) That the parents be under the actual obedience of the King
    2) That the place of his birth be within the King’s dominion
    And 3) The time of his birth is chiefly to be considered for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom

  183. avatar
    Joey May 19, 2013 at 10:56 pm #

    Acquisition of U.S. Citizenship by a Child Born Abroad

    Birth Abroad to One Citizen and One Alien Parent in Wedlock

    A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.
    http://travel.state.gov/law/citizenship/citizenship_5199.html

  184. avatar
    Keith May 19, 2013 at 11:16 pm #

    nbc: Nope he was made a citizen under an act of Congress.

    Nope. Congress didn’t make Cruz anything. Congress passed a law that acknowledged that those persons, born abroad, and tied to the United States by defined circumstances of birth not under their control, are Citizens at birth and do not require naturalization under Congress’ Constitutional Authority.

    This is exactly the opposite of what you are saying. Congress is acknowledging that those folks do not require naturalization to be Citizens.

    Naturalization occurs AFTER birth. If you are not naturalized, and yet you are a Citizen, then the only other possibility is Natural Born.

    Under common law ‘natus’ means born on soil subject to the jurisdiction.

    ‘natus’ means ‘born’. Period.

    The confusion is with the definition of natural born which is not ‘by birth or at birth’ but rather “by birth on soil, subject to the jurisdiction”

    Your confusion is with your mistaking the definition of ‘jus soli’ for the definition of ‘natural born’. What you describe is “jus soli” not “natural born”.

    “jus soli” is “by birth on soil, subject to the jurisdiction” and is the simplest and most common source for ‘natural born’ citizens’. It is not the ONLY source for ‘natural born’ citizens. “jus sanguinis” is also a source for natural born citizens. Both operate in the United States. “jus soli” is defined in the Constitution. “jus sanguinis” is provided for by Congress. “jus sanguinis” citizens are not naturalized citizens, they are birth right citizens – natural born.

    “Natural Born” and “jus soli” are not synonyms, they are different concepts, related only by the topic domain to which they refer.

  185. avatar
    nbc May 19, 2013 at 11:44 pm #

    Keith: Nope. Congress didn’t make Cruz anything. Congress passed a law that acknowledged that those persons, born abroad, and tied to the United States by defined circumstances of birth not under their control, are Citizens at birth and do not require naturalization under Congress’ Constitutional Authority.

    Interesting, but that fails because such children where found not to be even citizens during the early part of the 1800s/ There is clear evidence that Congress felt it necessary to deal with children born abroad to US citizens so if this was merely declaratory of what was already the case, Congress need not have passed such laws. And yet they did, under their constitutional power to define uniform rules of naturalization.

    The claim that naturalization occurs after birth is tentative. A better understanding is that naturalization requires an act or statute. We see the same in England where statutes had to be passed since under common law such children were not citizens.

    So far I have seen little evidence suggesting that such children were automatically born citizens under some interpretation of what exactly? I understand that we want such children to be natural born but we have to look at the reality of the situation. Even the 14th does not recognize such children when it states that:

    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.

    These children are neither born in the United States nor subject to our jurisdiction. In fact, children so born are not even covered by the 14th Amendment under Rogers v Bellei, which also recognizes the statutory nature as well as its changing nature.

    The statutory pattern, therefore, developed and expanded from (a) one, established in 1790 and enduring through the Revised Statutes and until 1934, where citizenship was specifically denied to the child born abroad of a father who never resided in the United States, to (b), in 1907, a governmental protection condition for the child born of an American citizen father and residing abroad, dependent upon a declaration of intent and the oath of allegiance at majority, to (c), in 1934, a condition, for the child born abroad of one United States citizen parent and one alien parent, of five years’ continuous residence in the United States before age 18 and the oath of allegiance within six months after majority, to (d), in 1940, a condition, for that child, of five years’ residence here, not necessarily continuous, between ages 13 and 21, to (e), in 1952, a condition, for that child, of five years’ continuous residence here, with allowance, between ages 14 and 28.

    Looking at Rogers the court also looked at whether or not he had been naturalized in the United States. Nothing about some jus sanguinis rule of citizenship…

    The central fact in our weighing of the plaintiff’s claim to continuing and therefore current United States citizenship is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a “Fourteenth Amendment first sentence” citizen. His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States, and with that of Mrs. Schneider, whose citizenship was derivative by her presence here and by her mother’s naturalization here.

    Citing from US v WKA

    1. Over 70 years ago, the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment.

    So perhaps it is possible to explain why we should take your claims that jus sanguinis is also a source for natural born citizenship.

    So under common law, your argument fails, and it seems clear to me that the courts have found that such children become citizens through statutory enactments.

    Which makes them naturalized citizens.

    More from Rogers

    Then follows a most significant sentence:
    “But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
    Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.

    Finally observing

    The Court has recognized the existence of this power. It has observed, “No alien has the slightest right to naturalization unless all statutory requirements are complied with. . . .” United States v. Ginsberg, 243 U. S. 472, 243 U. S. 475 (1917). See United States v. Ness, 245 U. S. 319 (1917); Maney v. United States, 278 U. S. 17 (1928). And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent. As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens. Congress responded to that situation only by enacting the 1855 statute. Montana v. Kennedy, 366 U.S. at 366 U. S. 311. But more than 50 years had expired during which, because of the withholding of that benefit by Congress, citizenship by such descent was not bestowed. United States v. Wong Kim Ark, 169 U.S. at 169 U. S. 673-674. Then, too, the Court has recognized that, until the 1934 Act, the transmission of citizenship to one born abroad was restricted to the child of a qualifying American father, and withheld completely from the child of a United States citizen mother and an alien father. Montana v. Kennedy, supra.

  186. avatar
    nbc May 20, 2013 at 12:02 am #

    brygenon: However, natural born citizenship can be acquired only at the moment of birth. As stated by the leading Supreme Court case, United States v. Wong Kim Ark, ” ‘British subject’ means any person who owes permanent allegiance to the crown. . . . ‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    Anyone can quote WKA but the question is: Does it support the conclusion. First of all children born abroad to US citizens do not owe permanent allegiance to the US. The quote is quickly put in its right perpective by looking at Dicey argument, which argues the opposite.

    The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.

    Within the jurisdiction and allegiance… Of course WKA continues

    This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed — “born in the United States,” “naturalized in the United States,” and “subject to the jurisdiction thereof” — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.

    Real scholars do real research using relevant quotes :-)

    And for good measures, Dicey himself admits that the acquisition of citizenship by descent is foreign to the principles of common law and is based on statutory enactment.

    Just as I have been saying all the time.

    Albert Venn Dice, A Digest of the Law of England with Reference to the Conflict of Laws, p 782

  187. avatar
    nbc May 20, 2013 at 12:06 am #

    brygenon: Dr. C’s theory, which agrees with most scholars, does not require Congress to expand or contract the meaning of a constitutional term. “Natural-born citizen” means citizen from birth. Congress cannot change that. Congress can, within the limits of the 14′th Amendment, change the law on who is granted citizenship upon birth.

    English Common Law is quite interesting and a nightmare to read…

    Is your goal is to write a critique of historical American jurisprudence with respect to English Common Law? Or do you want to know who can be president?

    As we all know, the Court in US v Wong Kim Ark looked at common law practices to determine the meaning of natural born and showed that it did not mean citizenship from birth but rather citizen by birth on soil and subject to jurisdiction. It’s important to be careful with these definitions or one can simply slip into a grey zone without recognizing it.

    So far the conclusion that it merely meant ‘from birth’ requires a bit more effort as it is so strongly contradicted by some of the more influential rulings on this issue.

  188. avatar
    JPotter May 20, 2013 at 12:16 am #

    Scientist: I can’t stand him or his politics, but the idea of you having to live under a President born outside the US, is too good to pass up.

    Definitely not worth it in Cruz’s case. Fetch Ah-nuld and you got a deal.

  189. avatar
    Keith May 20, 2013 at 1:02 am #

    nbc: Interesting, but that fails because such children where found not to be even citizens during the early part of the 1800s/ There is clear evidence that Congress felt it necessary to deal with children born abroad to US citizens so if this was merely declaratory of what was already the case, Congress need not have passed such laws. And yet they did, under their constitutional power to define uniform rules of naturalization.
    Yes, presumably because there was confusion whether foreign born children of U.S. Citizens were themselves children. The power to make uniform rules of naturalization implies the ability to define the boundaries of who is a Citizen with out resort to naturalization, and Congress did that.
    We can all agree that Tom’s biological son is a ‘blood relative’ can’t we? And his biological brother? What about his brother’s son? His wife is a ‘made relative’ of course, but what about her brother or her brother’s son?. What about his adopted son?
    Different societies define those limits differently, and they evolve over time for different purposes. We have seen in other discussions that Hawai’i defines ‘close relative’ fairly loosely for the purposes of obtaining a relatives birth certificate, but not so loosely to include everyone descended from Adam and Eve.

    The claim that naturalization occurs after birth is tentative.

    There is nothing tentative about it. It is the specific definition of naturalization. In fact the first sentence of the Wikipedia article on naturalization reads exactly that:

    Naturalization (or naturalisation) is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth.

    The suffix ‘ized’ means made; so naturalized = natural made. The opposite is natural born.

    A better understanding is that naturalization requires an act or statute. We see the same in England where statutes had to be passed since under common law such children were not citizens.

    That is an insufficient definition, because while naturalization does indeed require an act or statute, so do other things. Common law only applies when there is no explicit act or statute covering the topic. Common law can be overridden by statute when it is no longer sufficient. Before the 14th amendment, the common law definition of jus soli was sufficient, until the Dred Scott decision perverted to something unrecognizable. So the 14th reasserted the original ‘correct’ meaning, and placed it beyond the ability of Congress or the Supreme Court to meddle with. The 14th amendment did not affect the definition or Congress’ or the Supreme Court to deal with of ‘jus sanguinis’.

    So far I have seen little evidence suggesting that such children were automatically born citizens under some interpretation of what exactly?…

    Which is why Congress felt it necessary to act. The 14th Amendment does not address children born overseas. Congress has the power to define ‘jus sanguinis’ citizenship.

    Looking at Rogers the court also looked at whether or not he had been naturalized in the United States. Nothing about some jus sanguinis rule of citizenship…

    Yes, in order to demonstrate that he was not a 14th Amendment Citizen, therefore his citizenship or non-citizenship is governed by Congressional act. Congress has the authority to make Citizenship/Naturalization law, just not affecting ‘jus soli’ citizenship.

    Citing from US v WKA
    So perhaps it is possible to explain why we should take your claims that jus sanguinis is also a source for natural born citizenship.

    I have not disputed that ‘jus sanguinis’ is defined by Congressional statute. You are arguing something not in dispute.

    So under common law, your argument fails, and it seems clear to me that the courts have found that such children become citizens through statutory enactments.
    Which makes them naturalized citizens.

    No it doesn’t. The definition of naturalization – that is made a citizen after birth, makes it clear that the key is WHEN the child becomes a citizen, not HOW.
    By focusing on the how, you ensure that you completely miss the relevant idea.

  190. avatar
    Dr. Conspiracy May 20, 2013 at 1:14 am #

    I note that Vattel describes English subjects by birth in the country under the common law as “naturalized” at birth.

    This goes against two ways we might look at naturalization that it a) doesn’t happen at birth and b) it doesn’t apply to people who are citizens under common law.

    For Vattel, naturalization is something that makes someone a citizen that isn’t a citizen under natural law. Natural law really isn’t a judicial principle in the United States, but I bring up the example to show that naturalization means different things in different contexts, and it depends on who is talking.

    The confusion comes under the Constitution where the Congress has the authority to create a uniform system of naturalization, but not to make citizens other ways. Nevertheless, Congress has made citizens at birth since 1790. Whether one calls them naturalized or not just depends on a preference in how the term is use. I have no problem calling Ted Cruz a naturalized citizen AND a natural born citizen under one definition.

    Keith: That is an insufficient definition, because while naturalization does indeed require an act or statute, so do other things. Common law only applies when there is no explicit act or statute covering the topic

  191. avatar
    Paper May 20, 2013 at 1:24 am #

    NBC

    Not sure if or how much I will be able to get to before Tuesday, but in the meantime, as background, please see:

    USCIS – A Guide to Naturalization

    http://www.uscis.gov/files/article/M-476.pdf

    1. How can I become a U.S. citizen?

    You may become a U.S. citizen (1) by birth or (2) through naturalization.

    2. Who is born a U.S. citizen?

    Generally, people are born U.S. citizens if they are born in the United States or if they
    are born to U.S. citizens:

    (1) If you were born in the United States:
    Normally you were a U.S. citizen at birth. *1 (Including, in most cases, the
    Commonwealth of Puerto Rico, the territories of Guam and the U.S. Virgin Islands,
    and after November 4, 1986, the Commonwealth of the Northern Mariana Islands),

    (2) If you were born abroad to TWO U.S. citizens:
    And at least one of your parents lived in the United States at some point in his or
    her life, then in most cases you are a U.S. citizen.

    (3) If you were born abroad to ONE U.S. citizen:
    In most cases, you are a U.S. citizen if all of the following are true:

    • One of your parents was a U.S. citizen when you were born;
    • Your citizen parent lived at least 5 years in the United States before you
    were born; and
    • At least 2 of those 5 years in the United States were after your citizen
    parent’s 14th birthday. *2

    ———-

    *1 The exception is persons who were born not subject to the jurisdiction of the United States, such as children of foreign diplomats.
    *2 If you were born before November 14, 1986, you are a citizen if your U.S. citizen parent lived in the United States for at least 10 years and 5 of those years in the United States were after your citizen parent’s 14th birthday.

    ———–

    3. How do I become a naturalized citizen?

    If you are not a U.S. citizen by birth or did not acquire/derive U.S. citizenship
    automatically after birth, you may still be eligible to become a citizen through the
    naturalization process. Eligible persons use the “Application for Naturalization”
    (Form N-400) to apply for naturalization.

    Persons who acquired citizenship from parent(s) while under 18 years of age
    use the “Application for Certificate of Citizenship” (Form N-600) to document
    their citizenship. Qualified children who reside abroad use the “Application for
    Citizenship and Issuance of Certificate under Section 322” (Form N-600K) to
    document their naturalization.

  192. avatar
    nbc May 20, 2013 at 1:25 am #

    Keith: Yes, presumably because there was confusion whether foreign born children of U.S. Citizens were themselves children. The power to make uniform rules of naturalization implies the ability to define the boundaries of who is a Citizen with out resort to naturalization, and Congress did that.

    Nope, Congress cannot narrow or expand who is a citizen without need of naturalization.

    But your argument fails because such children were for a period of about 50 years not even considered citizens. So the idea that the 1790 law was declarative does not make sense. Nor does the 1790 law even hint at it being declarative, in fact, Congress found it necessary to deal with the issue of children born abroad to US citizens, just like England had done through naturalization statutes.

    So you have significant issues to overcome:

    1. You accept that jus sanguinis is defined by statute but fail to see the logical conclusion that without such statute, the children would not be citizens, in spite of your suggestion that the statute is merely declaratory. Which of course makes little sense given the history of these statutes which have narrowed and expanded.

    2. There is limited support that natural born means citizen at birth. In fact, as I have shown common law defines natural born to be “born on soil and subject to the jurisdiction” with extensions made by statute only. But statute means naturalization as without such statutes they would have been aliens.

    3. Worse, the ruling in WKA denies your interpretation. And no congress has no power to define who or what are birthright citizens and can only pass laws defining uniform laws of naturalization. Your argument is that somehow it can change through statute the meaning of a constitutional term “natural born” which clearly under common law practices never included children born abroad to US citizens, as they needed naturalization by statute.

    Let me refresh your memory

    This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed — “born in the United States,” “naturalized in the United States,” and “subject to the jurisdiction thereof” — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.

    In other words, the status of acquisition of citizenship by descent is determined by the naturalization powers of Congress. Your argument that by declaring them to be born citizens, that such children are thus natural born finds little support in these cases.

    Also

    1. Over 70 years ago, the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment.

    Since the term natural born was to be defined by common law and since naturalization by descent was not a common law concept, but depended on statutory enactment, such children would not fall under the definition of natural born which under common law simply means:

    Born on soil and subject to jurisdiction

    See also Calvin’s Case. It is location of birth and being subject to the jurisdiction. Children born abroad to US citizens are neither born on soil nor are they even subject to the jurisdiction of the US.

    Hope this clarifies.

  193. avatar
    nbc May 20, 2013 at 1:29 am #

    Paper: Not sure if or how much I will be able to get to before Tuesday, but in the meantime, as background, please see:

    Yes, I know that the UCIS has separated the concept of naturalization and birth by descent but that does not override the viewpoints of the courts on this.

    The concept ‘born a citizen’ is of little relevance as the term is ‘natural born’ and the meaning of this concept was to be found in common law where it meant simply “birth on soil, subject to jurisdiction”.

    I refer to Rogers v Bellei’s reference to US v Wong Kim Ark

    The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment.

  194. avatar
    nbc May 20, 2013 at 1:52 am #

    Dr. Conspiracy: The confusion comes under the Constitution where the Congress has the authority to create a uniform system of naturalization, but not to make citizens other ways. Nevertheless, Congress has made citizens at birth since 1790. Whether one calls them naturalized or not just depends on a preference in how the term is use. I have no problem calling Ted Cruz a naturalized citizen AND a natural born citizen under one definition.

    That does raise a bit of a problem since there are two kinds of citizens: natural born and naturalized. They used to be separate and distinct. But now they overlap? And how do you reconcile this with the finding in US v WKA that natural born means ‘birth on soil and subject to the jurisdiction” and that children born abroad to US citizens are neither?

    Now we can go with Vattel’s definition with all the problems that one generates :-)

    And yes, naturalization means different things as one can observe when looking at the UCIS manual.

    Historically naturalization meant removing alienage through a statute. Under common law, a child born abroad is born an alien and through statute, such a child is considered to be a citizen under certain (varying) circumstances. Historically, both in the US and England Naturalization requires an act of Congress/Parliament which removes a disability.

    The popular idea that naturalization necessarily involves swearing an oath and receiving naturalization papers is probably not helping here.

    I am not unsympathetic to your interpretation, however based on US v WKA, I cannot conclude that it is merely ‘citizen at birth’ which guides the meaning of the term, especially given the court’s distinction between natural born and naturalized and then states that citizenship by descent is enacted through congressional statute under their naturalization powers.

  195. avatar
    Paper May 20, 2013 at 2:17 am #

    Waiting to fall asleep, so:

    On this point below, when considering the view of natural born citizenship for those born abroad, there is no expansion or contraction of a constitutional term by way of the statutes, even as those statutes indeed change.

    The term is natural born citizen, undefined in the constitution. It is not a definite, distinct number such as 35 or 14. It is a category of people. What are the characteristics of that category, that is the question. If the defining characteristic is being born a citizen, then statutes can change every day if they want, and the constitutional term does not fluctuate an iota.

    Whether or not such a citizen’s citizenship can later be revoked is also irrelevant within this scope of the term. What matters for the eligibility question given this view is the status at birth.

    If nbc means born a citizen, then children born abroad as citizens are clearly not naturalized, and you don’t need to worry about Congress overriding a requirement by declaring naturalized citizens to be natural born.

    Arguments against this definition fall flat on their face when relying upon instances that only have relevance if the definition is wrong.

    Congress would only be messing with the constitutional term if that term means just jus soli. If the term means that, then yes, Congress can’t legitimately mess with it.

    But the argument here is that nbc doesn’t mean that. And if it doesn’t, there is no problem. So no need to harp about problems that would not exist. We just can focus on what is the definition.

    nbc:

    So the only question now remains: Can congress expand or contract a constitutional term. In other words is it a minimum requirement which would lead to the untenable conclusion that Congress can override the natural born requirement by declaring anyone naturalized to be natural born. So there clearly is a limitation on their powers, which is in fact described by: to provide for uniform laws of naturalization.

  196. avatar
    nbc May 20, 2013 at 2:39 am #

    Paper: The term is natural born citizen, undefined in the constitution. It is not a definite, distinct number such as 35 or 14. It is a category of people. What are the characteristics of that category, that is the question. If the defining characteristic is being born a citizen, then statutes can change every day if they want, and the constitutional term does not fluctuate an iota.

    I refer you to US v Wong Kim Ark.

  197. avatar
    Paper May 20, 2013 at 2:43 am #

    Except I quoted you a court that follows this distinction.

    I’ll get to Wong Kim Ark in a bit. I’ve already discussed how I don’t think R v B adds anything.

    In short, the statutory enactment issue is not a brick wall. You can argue for it, but it is not as cut and dry as you make it seem. Again, see Maskell. I’ll get around to covering it, but it is in his report in the meantime.

    But again, the framers were familiar with the definition of natural born citizen/subject through English common law as modified by statute. That they then used statute in exactly the same way is not surprising nor fatal. I would argue rather that it supports the contention that nbc includes jus sanguinis for those applicable citizens born abroad.

    If you are going to talk about what it meant to the framers, they were aware of the legitimate incorporation of statute into the scope of the term. As just evident from Burke.

    nbc: Yes, I know that the UCIS has separated the concept of naturalization and birth by descent but that does not override the viewpoints of the courts on this.

    The concept ‘born a citizen’ is of little relevance as the term is ‘natural born’ and the meaning of this concept was to be found in common law where it meant simply “birth on soil, subject to jurisdiction”.

    I refer to Rogers v Bellei’s reference to US v Wong Kim Ark

  198. avatar
    Paper May 20, 2013 at 2:43 am #

    I refer you to Maskell.

    nbc: I refer you to US v Wong Kim Ark.

  199. avatar
    nbc May 20, 2013 at 2:46 am #

    The Law of Aliens and Naturalization,
    H.S.Q. Henriques, M.A. B.C.I., Of the Northern Circuit,Barrister-at-Law; Formerly Scholar of Worcester College, ad Vinerian Scholar in the Universityof Oxford, London, Butterworth & Co, 11 & 12, Bell Yard, Temple Bar, Law Publishers, 1906

    Persons Born Abroad who are by Statute Natural-born British Subjects. Some persons born out of the dominions of the King, though aliens by the common law, have been made natural-born subjects by statute.

    By common law they are considered aliens. See also US v Wong Kim Ark.

  200. avatar
    nbc May 20, 2013 at 3:13 am #

    Paper:
    I refer you to Maskell.

    So you prefer Maskel over the ruling by the Supreme Court and confirmed by recent SCOTUS rulings?

    Interesting. Remember that Maskel’s ‘arguments’ are only as good as the evidence he cites. So far I am running into some issues when he tries to make the argument that natural born means “at birth”. I will address them at my personal site.

    Maskell claims

    The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms” the common law rule of “citizenship by birth within the territory,” even if one is born of alien parents in this country, and approved of the characterization of the children of such resident aliens as “natural born” citizens of the United States.6

    That appears to be at variance with the findings of the court, in my opinion.

    He also misses the point here

    That the United States was not confined to only the narrow common law of England in our usages
    and applications, was noted by the Supreme Court in an opinion authored by Justice Story in 1829:

    The common law of England is not to be taken, in all respects, to be that of America. Our
    ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation.75

    Which states just the opposite.

    He concludes

    It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.

    Which says nothing about having those statutory laws becoming part of common law as far as I can tell.

    So far I am not too impressed with the arguments and I have just started to scratch the surface here.

    He quotes Miller v Albright for example…

  201. avatar
    nbc May 20, 2013 at 3:22 am #

    He mentions Scalia who in his concurring opinion observes

    The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Id., at 702—703; see also Rogers v. Bellei, 401 U.S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed to–its power under Art. I, 8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.

    Sigh…

  202. avatar
    nbc May 20, 2013 at 3:32 am #

    Similarly Elk v Wilkins

    This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

  203. avatar
    Keith May 20, 2013 at 3:55 am #

    nbc: But your argument fails because such children were for a period of about 50 years not even considered citizens. So the idea that the 1790 law was declarative does not make sense. Nor does the 1790 law even hint at it being declarative, in fact, Congress found it necessary to deal with the issue of children born abroad to US citizens, just like England had done through naturalization statutes.

    I didn’t say the 1790 law was declarative. I agreed that it filled a void. There was no common understanding about the citizenship status of foreign born children of U.S. Citizens, and Congress saw the need to do so. That is why the Constitution provided for the Congress – to make just such laws.

  204. avatar
    Keith May 20, 2013 at 4:01 am #

    nbc: But your argument fails because such children were for a period of about 50 years not even considered citizens. So the idea that the 1790 law was declarative does not make sense. Nor does the 1790 law even hint at it being declarative, in fact, Congress found it necessary to deal with the issue of children born abroad to US citizens, just like England had done through naturalization statutes.

    What failure? I didn’t make any assertions about those persons.

  205. avatar
    nbc May 20, 2013 at 4:18 am #

    Keith: What failure? I didn’t make any assertions about those persons.

    Let me try to explain

    I didn’t say the 1790 law was declarative. I agreed that it filled a void. There was no common understanding about the citizenship status of foreign born children of U.S. Citizens, and Congress saw the need to do so. That is why the Constitution provided for the Congress – to make just such laws.

    So they added a statute that declared them to be citizens using the naturalization powers of Congress. Are we still in agreement here? And your argument is that these powers allow Congress to expand and thus narrow who is covered under ‘natural born’, even though this is a constitutional standard.

    Under Powell, Congress was not allowed to narrow or expand on the eligibility requirements for Congress. So under what authority did Congress proceed? Are you saying that Congress merely clarified that children so born were already natural born under the US constitution? Or are you saying that Congress can use the naturalization powers to grant children born abroad natural born citizenship status?

  206. avatar
    nbc May 20, 2013 at 4:21 am #

    Keith: That is why the Constitution provided for the Congress – to make just such laws.

    The Constitution merely allows Congress to define uniform laws of naturalization. So are you saying that children born abroad to US citizens are naturalized?

  207. avatar
    Keith May 20, 2013 at 4:39 am #

    nbc: So you have significant issues to overcome:

    1. You accept that jus sanguinis is defined by statute but fail to see the logical conclusion that without such statute, the children would not be citizens, in spite of your suggestion that the statute is merely declaratory. Which of course makes little sense given the history of these statutes which have narrowed and expanded.

    I have no difficulty with this, and neither does my argument. My argument discusses the situation about WHEN someone becomes a citizen. If they never become a citizen they are not involved in the discussion in anyway (other than the impetus for the first citizenship law, of course).

    2. There is limited support that natural born means citizen at birth. In fact, as I have shown common law defines natural born to be “born on soil and subject to the jurisdiction” with extensions made by statute only. But statute means naturalization as without such statutes they would have been aliens.

    Yes, but a limit that approaches total agreement is not really much of a limit is it?

    From the Congressional Research Service report: Qualifications for President and the “NaturalBorn” Citizenship Eligibility Requirement

    The overwhelming evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation of “natural born” citizens would include those who are considered U.S. citizens “at birth” or “by birth,” either by the operation of the strict “common law” of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent, including those born abroad of U.S.citizen-parents. This general historical understanding and interpretation is supported, as well, by specific federal case law in the United States, and in official legal opinions of U.S. officers.

    So the ‘overwhelming evidence’ is that ‘natural born’ is defined by WHEN, not HOW one achieves citizenship.

    3. Worse, the ruling in WKA denies your interpretation. And no congress has no power to define who or what are birthright citizens and can only pass laws defining uniform laws of naturalization. Your argument is that somehow it can change through statute the meaning of a constitutional term “natural born” which clearly under common law practices never included children born abroad to US citizens, as they needed naturalization by statute.

    Since we are disputing the status of citizens born abroad, WKA has no influence on the discussion.

    I am not arguing that Congress can alter the meaning of Natural Born. I am arguing that they can change the rules about which foreign born people can become citizens and how that citizenship has been achieved. If Congress says some foreign born people are Citizens from (or at) birth, they are not changing the definition of natural born, they are changing the number of people that fit the existing definition. The definition remains the same: citizen at birth = natural born citizen.

  208. avatar
    Keith May 20, 2013 at 4:47 am #

    nbc: Let me refresh your memory

    This sentence of the Fourteenth Amendment

    Let me refresh your memory. The Fourteenth Amendment addresses ‘jus soli’ not ‘jus sanguinis’.

    It removed the interpretation of Common law regarding ‘jus soli’ beyond the meddling of the Supreme Court, repairing the damage done by the Dred Scott decision. It also removed the temptation to meddle from Congress.

    It had nothing to do with jus sanguinis. That is still in Congress purview.

    You are arguing something about which there is no argument. You are still arguing HOW, and there is no argument about it. But the definition of ‘Natural Born’ cannot be found in the HOW. It is found in the ‘WHEN’.

    Hope this clarifies.

  209. avatar
    nbc May 20, 2013 at 5:27 am #

    Keith: So the ‘overwhelming evidence’ is that ‘natural born’ is defined by WHEN, not HOW one achieves citizenship.

    Yes, I understand that you can claim but I find it fascinating how you ignore my contrary evidence in favor of the arguments by Maskel.

    Under US v WKA it is not about when but rather natural born requires

    1. Birth on soil
    2. Birth subject to jurisdiction

    The when is only relevant in the sense that at the time of birth the two factors have to happen.

    Since we are disputing the status of citizens born abroad, WKA has no influence on the discussion.

    On the contrary, WKA determines the meaning of natural born and observes that under common law it had a very specific meaning. You are the one trying to claim that natural born has everything to do with WHEN, even though the case nor the citations I have provided support your position.

    But if you accept that these children were naturalized, then you have to deal with the issue that case law clearly distinguishes between natural-born and natural-ized.

    I suggest that you present some real authority to strengthen your argument. I have looked at some of Maskell’s ‘arguments’ and references and I found them quite wanting.

    Check out

    Nationality: or, The law relating to subjects and aliens, considered with a view to future legislation by Sir Alexander James Edmund Cockburn where on page 7 he explains how under Common Law children born within the dominion of the King were natural-born subjects, with some minor exceptions (ambassadors). stating that “no effect appears to have been given to descent as a source of nationality’

    In other words, since we are told that we should look at Common Law to understand the meaning of natural born, we have no choice but to reject descent as a source of nationality under common law.

    Of course we do know that statutes can extend citizenship to children so born, which makes them naturalized citizens. Cockburn the addresses the claim that such statutes were just declarative of common law, and if this were the case, you would have a valid point. But he observes how the statutes do not support such an interpretation because it mentions ‘from henceforth shall be born” which makes is prospective.

    So clearly under the standard used by US v Wong Kim Ark, which focused solely on common law, children born outside the US to citizen parents were not natural-born and derived their status purely from statutory law.

    Of course, the court in WKA also does not support that it is the timing which matters to who is natural born. It outlines the clear standard, reflected in our own 14th Amendment that it is birth on soil, subject to jurisdiction which defines birthright natural born citizenship.

    Even by calling children born abroad citizens at birth, they required a statute to remove their alienage and are thus naturalized as their status of alienage was removed by explicit statute.

    So unless you can provide some supporting materials, beyond the Maskell review, I will continue to have to point you to cases rejecting your position.

    Let me remind you of Wong Kim Ark where your arguments have been rejected

    Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case [p703] of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

    It’s going to be hard to argue against Wong Kim Ark.

  210. avatar
    nbc May 20, 2013 at 5:32 am #

    Keith: Let me refresh your memory. The Fourteenth Amendment addresses ‘jus soli’ not ‘jus sanguinis’.

    Exactly, it does not even mention jus sanguinis as this is the only way to be a citizen by birth, the others are all naturalization. Jus sanguinis follows from statute. Natural born status follows from location and jurisdiction.

    Of course we all know that the 14th is merely declarative of what was already the case before the 14th was passed, where birth on soil established (natural born) citizenship status and where congress could extend citizenship by acts of naturalization.

    Natus v Datus… Natus – Birth on soil, subject to jurisdiction

    As Dicey explained

    The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.

  211. avatar
    Keith May 20, 2013 at 5:34 am #

    nbc: And your argument is that these powers allow Congress to expand and thus narrow who is covered under ‘natural born’, even though this is a constitutional standard.

    That is an incorrect characterization of my argument.

    I am saying that Congress has the authority to define what foreign persons are citizens or are eligible to become Citizens. They may choose to declare that some people are citizens at birth. If they do so, those persons meet the accepted definition of Natural Born Citizen.

    It is not in Congress authority to change the definition of Natural Born Citizen. It is in Congress authority to define HOW and IF foreign born people can become citizens. That authority is granted by the ‘uniform rule of naturalization’ clause in the Constitution.

    The 14th Amendment doesn’t say that people born in the United States are ‘Natural Born Citizens’, it just says HOW they are ‘Citizens’. It is the HOW (born on soil) that makes them a citizen, it is the WHEN (at birth) that makes them natural born.

  212. avatar
    Keith May 20, 2013 at 5:40 am #

    nbc: The Constitution merely allows Congress to define uniform laws of naturalization. So are you saying that children born abroad to US citizens are naturalized?

    No.

    I am saying that naturalization is for making citizens out of foreigners.

    In order to establish a uniform law of naturalization so that foreigners can be made into citizens, it is trivially obvious that you need to know exactly who is a foreigner and who is not.

  213. avatar
    Keith May 20, 2013 at 6:13 am #

    nbc: Under US v WKA it is not about when but rather natural born requires

    1. Birth on soil
    2. Birth subject to jurisdiction

    The when is only relevant in the sense that at the time of birth the two factors have to happen.

    Birth on soil and subject to jurisdiction is HOW one becomes a citizen. But it doesn’t specify the WHEN. A person born on soil and subject to jurisdiction might still not become a citizen until their 18th birthday, or only after serving a term in the military, or whatever. The 14th Amendment is silent on the WHEN.

    The common understanding is that we mean that Citizenship applies from birth in this case (and in jus sanguinis). That is the WHEN and that is when the definition of Natural Born applies. There is no statute or Constitutional Clause that dictates this, it is, if I may borrow a term from mathematics, an AXIOM.

    WKA does not define Natural Born; the fact that WKA was a Natural Born Citizen is derived from the logic of the argument, which even the Government understood, used as an “appeal to emotion”. However, that argument is applied to a native born person not foreign born, and it is misleading to attempt to apply it to foreign born citizens.

    In WKA, the Government disputed that Wong was a citizen because his parents were not and could not be U.S. citizens. The holding was that the government was wrong, that Wong gained his citizenship via jus soli (the HOW) and the citizenship status of his parents had nothing to do with it.

    The argument derived from WKA is that since the HOW was jus soli, it was not and could not have been naturalization. Since there are only two classes of citizen, naturalized and natural born, a citizen who is not naturalized must be a natural born citizen.

    That is a fine argument, but it is not necessary to determine that Wong is a natural born citizen. All that is necessary is to recognize that jus soli citizenship applies from birth and that citizen from birth = natural born citizen.

    That is a much simpler and more universal derivation. The definition applies under either jus soli or jus sanguinis in exactly the same way. It is the Occam’s Razor of derivations.

    If you concentrate on the HOW, you have to pile exception upon exception, and argue endlessly about how many angels can dance on the head of a pin while trying to decide whether or not a foreign born citizen at birth is automatically naturalized with out formalities at birth or not.

    WHEN not HOW is the defining point.

  214. avatar
    Keith May 20, 2013 at 7:18 am #

    nbc: Let me remind you of Wong Kim Ark where your arguments have been rejected…
    It’s going to be hard to argue against Wong Kim Ark.

    Agreed, and I would never attempt to do such a thing (and WKA does not ‘reject’ my arguments).

    Of course the remarks you quote from Justice Gray with respect to naturalization indicate that he considered the foreign born children of US citizens as having been naturalized. However, I would remind you that the case was not about foreign born, but about native born, and those remarks are ‘dicta’, not holding. His remarks simply demonstrate that naturalization does not apply to the persons born on US soil, so Congressional naturalization powers are not controlling. Had the case been about whether or not a foreign born citizen was naturalized, he may or may not have placed more nuance on his remarks. But it wasn’t and for the sake of the argument he was making he had no need to.

    My argument is that in the end, it doesn’t matter HOW one gains citizenship, it is WHEN. If you consider such foreign born citizens naturalized or not, it doesn’t matter to my argument. If they are a citizen from birth, they are natural born citizens.

    As for coming up with arguments different than Mr. Maskell, I hope you are joking. He has the resources of a staff and the entire Library of Congress and his own legal training to draw on. He has an extensive bibliograpy within the footnotes, and extensively covers all sides of the argument.

    I am only a retired Computer Programmer who can read and think. Do you think that I am going to magically find a Supreme Court case that Maskell couldn’t find? Get real.

    You are welcome to have different opinions to Mr. Maskell about the facts of course. Inventing different facts is, of course, out of the question. I suspect that Maskell’s opinion will continue to carry more weight than yours or mine, no matter how many bazillions of words either of us write.

  215. avatar
    Greenfinches May 20, 2013 at 7:36 am #

    This thread seems fairly unpleasant in tone at times.

    Is this the way to respond to the decline in new birther arguments? Do we want to see hostility somewhere, anywhere?

    Count me out of that, thanks.

  216. avatar
    Keith May 20, 2013 at 8:19 am #

    Greenfinches: This thread seems fairly unpleasant in tone at times.

    I don’t see that, but maybe I’m too close. I guess my last post had a bit of snark in the last couple of paragraphs, but I don’t see hostility.

    Anyway, I’ll relieve the situation by retiring for the night. I have to get some work done anyway (why doesn’t the bottle statistics show up on my detail screen?).

  217. avatar
    Northland10 May 20, 2013 at 9:16 am #

    Greenfinches:
    This thread seems fairly unpleasant in tone at times.

    Is this the way to respond to the decline in new birther arguments?Do we want to see hostility somewhere, anywhere?

    Count me out of that, thanks.

    This topic tends to do that.

  218. avatar
    Paper May 20, 2013 at 9:51 am #

    nbc, you yourself have stated to scientist that what we are doing here is laying out the arguments (I paraphrase). We all agree, I think, that the matter is not settled. As such, your reliance upon Wong Kim Ark is just one piece if the argument. Were it definitive, this matter would be settled, but it is not. There are compelling reasons, to me and others, why Wong Kim Ark does not settle the matter.

    Above I extensively quoted from Maskell’s Congressional report the section that deals with your argument. The section of his report immediately before what I quoted distinctly lays out your argument. What I quoted is the counter argument.

    I have read Wong Kim Ark many times. I know your point. From your comments here, I am not certain you have read or at least grappled with that report’s arguments. At the very least, I’m not certain how you can take such an active role in the issue, as you do, not just here, without dealing with that report. Just referring to WKA as if that settles everything is not an argument, nor when you do lay out the argument is it enough to do so without further countering the counter. It’s not just me making that case. Nor is it a spurious case; otherwise, this matter would be considered settled.

    Have very little time, but I just wanted to lay out that top level point before I probably vanish for a day or two.

  219. avatar
    ballantine May 20, 2013 at 10:19 am #

    Keith: Agreed, and I would never attempt to do such a thing (and WKA does not ‘reject’ my arguments).

    Of course the remarks you quote from Justice Gray with respect to naturalization indicate that he considered the foreign born children of US citizens as having been naturalized. However, I would remind you that the case was not about foreign born, but about native born, and those remarks are ‘dicta’, not holding. His remarks simply demonstrate that naturalization does not apply to the persons born on US soil, so Congressional naturalization powers are not controlling. Had the case been about whether or not a foreign born citizen was naturalized, he may or may not have placed more nuance on his remarks. But it wasn’t and for the sake of the argument he was making he had no need to.

    My argument is that in the end, it doesn’t matter HOW one gains citizenship, it is WHEN. If you consider such foreign born citizens naturalized or not, it doesn’t matter to my argument. If they are a citizen from birth, they are natural born citizens.

    As for coming up with arguments different than Mr. Maskell, I hope you are joking. He has the resources of a staff and the entire Library of Congress and his own legal training to draw on.He has an extensive bibliograpy within the footnotes, and extensively covers all sides of the argument.

    I am only a retired Computer Programmer who can read and think. Do you think that I am going to magically find a Supreme Court case that Maskell couldn’t find? Get real.

    You are welcome to have different opinions to Mr. Maskell about the facts of course. Inventing different facts is, of course, out of the question. I suspect that Maskell’s opinion will continue to carry more weight than yours or mine, no matter how many bazillions of words either of us write.

    Justice Gray, in dicta, rejected the argument that the common law was jus sanguinis as well as jus soli. Such position was rejected by pretty much every significant authority in England and the United State despite the claim that their was some “dormant and doubtful” dicta to the contrary. The court didn’t address the other arguments made by Maskell and other modern scholars. NBC is right that WKA’s reliance on the common law represents a hurdle for the jus sanguinis argument. But the argument that the framers were familiar with how terms were defined in English statutory law as well as the common law and might have had such statutory meaning in mind is a plausible arugment.

    The “HOW” versus “WHEN” argument has some appeal, I understand. However, there is almost no historical evidence to support it other than the analogy to English law. There is almost no legal authority in the 100 years prior to Wong Kim Ark suggesting a foreign born person could be natural born or that natural born meant a “citizen at birth.” It is simply not how anyone of significance in the early republic defined the term. Perhaps such is because the issue rarely came up. Nevertheless, the historical evidence is simply not there.

    To me however, since Parliament had the power to make natural born subjects of the foreign born through naturalization acts, I would presume that the framers would have thought Congress had the same power through naturalization acts unless there is some evidence to the contrary. And, there doesn’t appear to be any clear evidence either way.

  220. avatar
    ballantine May 20, 2013 at 10:28 am #

    Keith:

    WKA does not define Natural Born; the fact that WKA was a Natural Born Citizen is derived from the logic of the argument, which even the Government understood, used as an “appeal to emotion”. However, that argument is applied to a native born person not foreign born, and it is misleading to attempt to apply it to foreign born citizens.

    In WKA, the Government disputed that Wong was a citizen because his parents were not and could not be U.S. citizens. The holding was that the government was wrong, that Wong gained his citizenship via jus soli (the HOW) and the citizenship status of his parents had nothing to do with it.

    The argument derived from WKA is that since the HOW was jus soli, it was not and could not have been naturalization. Since there are only two classes of citizen, naturalized and natural born, a citizen who is not naturalized must be a natural born citizen.

    WHEN not HOW is the defining point.

    That is not what the court said at all. The court said “natural born citizen” was not defined and hance we had to look to the common law. It then spend 20 pages telling us persons of WKA’s status were covered under the English common law, that the common law was the same here as in England and that natural born citizen and natural born subject meant the same thing. Hence, the court concludes the first have of the opinion stating that persons of WKA’s status were native born citizens since we had adopted the definition of natural born subject in the original constitution. The second half of the opinion say the 14th Amendment was defined by the same definition of natural born subject. The court concludes that WKA is a citizen. Doesn’t say a citizen under the 14th Amendment or a natural born citizen. Of course, the first half of the opinion says he was a citizen because he was a natural born citizen and the second part says he was a citizen by birth under the 14th Amendment. There is nothing in the case about HOW versus WHEN. Jus soli obviously combines HOW and WHEN at birth.

  221. avatar
    Robb May 20, 2013 at 10:37 am #

    Paper: While Dred is based on heinous and disgusting concepts, I believe the Simms case pretty clearly shows that that is how the laws were intended (as the judge, Melville’s father-in-law (which inspired Billy Budd), was quite pissed he had to rule as he did).
    While Citizens United did give speech to legal persons, these legal persons are no different than the ACLU, and most wouldn’t support removing their right. Slippery slope to relate to humans, but would we stand for one person not getting the rights of another?
    Akhil Amar might be right about an argument for the 9th, but there really isn’t one otherwise. Consider Minor, which found no right to vote. Consider felonies, immigrants, age, location, etc. All of these are factors that don’t have a narrowly tied interest yet we allow them. There is no right, but, if you don’t agree, I do have a short writeup on this specific point

    Scientist:
    “No, one state, New Jersey, allowed women to vote from from 1776 to 1807, but excluded them thereafter. For the remainder of the 19th century women did not have the vote anywhere in the US http://en.wikipedia.org/wiki/Women's_suffrage_in_the_United_States
    You don’t get to pick your own facts.”
    Very true, but not relevant. There was nothing but STATUTE preventing the right to vote, and so the founders knew it to be changeable. Arguing that they intended the standards of the current statutes to apply is asinine, as they would have stated as such.

    “If Plessey was right, then brown was wrong”
    Yes and no, Plessey was not wrong to say separate but equal is kosher, they were wrong to say it was possible to be separate but equal. THere’s a reason the slow return to same-sex schools is permitted, as they truly are equal now

    “The majority vote 9 may not always be wiser than that of 140 million but it depends less on the ever changing climate of public opinion.
    Why is change bad? In fact, if the original decision is bad, changing it should be very desirable.”
    That’s why we have the amendment process, but not just statute overturning the court. After all, the court says segregation is illegal, the people don’t like it, you’re proposing it is right to keep on segregating
    Or, for that matter, 10 years ago it would be unconstitutional for gays to marry, today it would be constitutional, what would happen if in 20 years we change our mind?

    Scientist and Kieth:
    “no they aren’t, immigrants are not allowed to vote”
    Several MD towns allow it (one regardless of status), CA planned on allowing ANY immigrant (regardless of status) to vote, DC tried, NY is likely to, etc. Further, prior to the early 1900s, most states allowed immigrants to vote, which is more on point – the right to vote and the right to hold the office are not one and the same

    NBC:
    I was only arguing the Quo Warranto as a thought experiment, but it could be an interesting one. I’d agree there is no general interest, but there might be an interest to represent your electors properly, depending on very specific state statutes (for example, Florida’s which requires all to go to the winner). Of course it is likely a political question, but fun to play with

    “Interesting, but that fails because such children where found not to be even citizens during the early part of the 1800s/ There is clear evidence that Congress felt it necessary to deal with children born abroad to US citizens so if this was merely declaratory of what was already the case, Congress need not have passed such laws. And yet they did, under their constitutional power to define uniform rules of naturalization.”
    That is because under the then-current statute they were not citizens at birth (nbcs). Basically, NBC means anybody who is by law a citizen at birth, that law can change at any point, but only applies to new births.

    “Nope, Congress cannot narrow or expand who is a citizen without need of naturalization. ”
    YEs they can, with the sole limit of not changing the rule about those born here (due to the 14th)

    “Under Powell, Congress was not allowed to narrow or expand on the eligibility requirements for Congress. So under what authority did Congress proceed? Are you saying that Congress merely clarified that children so born were already natural born under the US constitution? Or are you saying that Congress can use the naturalization powers to grant children born abroad natural born citizenship status?”
    Congress has the power to declare the rules for naturalization. Being a natural citizen at birth is a natural born citizen (see Calvin’s). Thus, the constitution is defined to work with the naturalization powers (they are both in the same document, after all) allowing congress to define these terms as they see fit. Congress could define every human born on earth an American at birth, which makes them all eligible. Or it could only define those born on American soil, limiting the pool.

  222. avatar
    ballantine May 20, 2013 at 10:50 am #

    Dred Scott was pretty much purely a political decision that most scholars, at least in the north, thought was wrong from the start. A member of the 14th Amendment Congress called it a “political speech” rather than a court decition. You had the in-coming President improperly working with the southern justices trying to get some northern justices on board in what they thought would provide a political solution to the problem of slavery in the territories. The whole thing stunk. Most scholars then and now agree that Taney’s view of history was not quite right and that his logic was unsupported by precedent. One of the problems with those who argued against black citizenship prior to Dred Scott is that they never came up with a coherant argument to exclude blacks in light of the overwhelming reliance on the common law definition in all other circumstances. Such make it very hard for Taney to make his argument.

  223. avatar
    Scientist May 20, 2013 at 1:22 pm #

    JPotter: Definitely not worth it in Cruz’s case. Fetch Ah-nuld and you got a deal.

    My dream is to see Schwarzenegger and Granholm run on a bipartisan ticket, get elected in a landslide, be approved by Congress while the courts refuse to get involved and turn out to be the best administration in history. I want to see all the defenders of the asinine, unscientific, founded in prejudice and xenophobia with no data to support it nbc clause crying buckets of tears and apologizing for taking up valuable time on such a stupid discussion….

  224. avatar
    Scientist May 20, 2013 at 1:33 pm #

    ballantine: Dred Scott was pretty much purely a political decision that most scholars, at least in the north, thought was wrong from the start. A member of the 14th Amendment Congress called it a “political speech” rather than a court decition. You had the in-coming President improperly working with the southern justices trying to get some northern justices on board in what they thought would provide a political solution to the problem of slavery in the territories. The whole thing stunk. Most scholars then and now agree that Taney’s view of history was not quite right and that his logic was unsupported by precedent. One of the problems with those who argued against black citizenship prior to Dred Scott is that they never came up with a coherant argument to exclude blacks in light of the overwhelming reliance on the common law definition in all other circumstances. Such make it very hard for Taney to make his argument.

    And this case and other bad ones from the Supreme Court belies the doctrine stated by some here that “Congress cannot do X or Y”. Congress CAN do any damn thing they want, provided the Supreme Court of the day goes along with it. And the Scott case shows that idiotic Supreme Courts can potentially go along with all kinds of nefarious nonsense.

    So here is how Congress can make anyone they choose a natural born citizen or take it away from someone born in the US:
    1. Pass a law to that effect.
    2. When someone challenges the law, the Supreme Court rejects the challenge.
    3. The law stands, despite somebody on a blog crying, “They can’t do that.” To quote the President, “Yes, they can.”

  225. avatar
    brygenon May 20, 2013 at 1:46 pm #

    nbc: Anyone can quote WKA but the question is: Does it support the conclusion. First of all children born abroad to US citizens do not owe permanent allegiance to the US. The quote is quickly put in its right perpective by looking at Dicey argument, which argues the opposite.

    You are still missing the position. No one is saying that “British subject” is equivalent to “U.S. citizen”. We’re saying that “natural born” means the same when modifying “British subject” as when modifying “U.S. citizen”.

    The British criteria for being a subject from birth is not the issue. Whatever it was, the natural-born British subjects are exactly the children that met the criteria.

  226. avatar
    brygenon May 20, 2013 at 1:58 pm #

    nbc: Real scholars do real research using relevant quotes :-)

    This is where you turn toward Cranksville. Professor Chin is a real scholar. He’s the *only* real scholar I know of that argued Panamanian-born John S. McCain III was ineligible to be president. Chin’s argument was *not* that being born a citizen was insufficient.

    So where are these real scholars of which you speak? I mean, the ones arguing that a child born abroad to American citizens is not eligible, even if a citizen from birth? I can find many calling the case historically doubted, but who actually takes the position?

  227. avatar
    ballantine May 20, 2013 at 1:59 pm #

    Scientist: My dream is to see Schwarzenegger and Granholm run on a bipartisan ticket, get elected in a landslide, be approved by Congress while the courts refuse to get involved and turn out to be the best administration in history.I want to see all the defenders of the asinine, unscientific, founded in prejudice and xenophobia with nodatato support it nbc clause crying buckets of tears and apologizing for taking up valuable time on such a stupid discussion….

    Why is this your dream? I have said I am not an originalist. Even non-originalists recognize there has to be some limiting principle to Constitutional interpretation or we don’t have a written Constitution, only the latest flavor popular with Congress. I, and other liberals, think that the language should be read with respect to its general principles in light of modern facts, not the facts 200 years ago. That being said, we believe that one needs to stick within a plausible reading of the text or we simply do no have a written document. To let Congress do anything it wants that is contrary to the text and history is simply not our system. Of course, sometimes they have. And, sometimes, our courts have not stopped them. In 1866, Congress and the state legislatures did not let the supreme court get away with redefining the Constitution. Hopefully, we will not let anyone do the same in the future. On topics in which there is real differences of opinion, we will continue to debate them until a consensus is reached. All sides will argue that their opinion conforms to an arguable interpretation of the language of the Constitution. Only the fringe will argue that Congress can do anything it wants.

  228. avatar
    Scientist May 20, 2013 at 2:15 pm #

    ballantine: Why is this your dream?

    Are you humor challenged by any chance? I can’t say I can recall your ever having told a joke here. Maybe misha can give you lessons.

  229. avatar
    ballantine May 20, 2013 at 2:17 pm #

    Scientist: Are you humor challenged by any chance? I can’t say I can recall your ever having told a joke here.Maybe misha can give you lessons.

    Joke or note, I really am having a hard time understanding what exactly your position is.

  230. avatar
    Scientist May 20, 2013 at 2:30 pm #

    Robb: “If Plessey was right, then brown was wrong”
    Yes and no, Plessey was not wrong to say separate but equal is kosher, they were wrong to say it was possible to be separate but equal. THere’s a reason the slow return to same-sex schools is permitted, as they truly are equal now

    I think the Brown court rejected the entire logic of Plessy.

    Sex segregation is perhaps different to a limited extent. We all accept sex-segregated bathrooms. locker rooms, prisons. The military is wrestling with this as we speak. As for classrooms, I have not heard of a court challenge to single-sex classrooms or schools in the public system (they are common in the private system), so I don’t know what the verdict would be or if there ever will be one. But society still accepts some sex distinctions.

    In the end, courts change as public attitudes change. The Plessy court were not evil fools and the Brown court wise Solomons. The national social climate changed between 1896 and 1954 (though less so in the South). I just saw “42′ yesterday, and the effect of integrating a beloved institution like baseball cannot be over-estimated. The same with gay rights. Stonewall and Gay Pride led the way. Courts were dismissive of gay rights until public attitudes changed.

    This is why I am sceptical that courts really defend the rights of unpopular minorities. They didn’t defend the rights of blacks until the public attitudes changed. Same with women, gays, religious minorities. And believe me, if public opinion were to swing back (highly unlikely) I guarantee the courts would swing back too and invent perfectly fine legal reasons why.

  231. avatar
    ballantine May 20, 2013 at 2:33 pm #

    brygenon: This is where you turn toward Cranksville. Professor Chin is a real scholar. He’s the *only* real scholar I know of that argued Panamanian-born John S. McCain III was ineligible to be president. Chin’s argument was *not* that being born a citizen was insufficient.

    So where are these real scholars of which you speak? I mean, the ones arguing that a child born abroad to American citizens is not eligible, even if a citizen from birth? I can find many calling the case historically doubted, but who actually takes the position?

    I’m not sure such is a very good argument. The conventional view of “natural born citizenship” has always been jus soli. Accordingly, there are numerous law reviews arguing a broader defintiion, or a contrary view. People rarely write law reviews arguing the conventional wisdom as no one really cares. The facts are that there are literally hundreds of treatises, dicitionaries and court cases defining “natural born” solely by jus soli. I know you are aware all these authorities exist. The facts are that these modern law reviews cannot cite much historical evidence at all to support their thesis. I know the argument is plausible. However, there is almost no historical evidence to support the notion that foreign born persons could be natural born which is what makes such law review articles challenging and worthy of interest.

  232. avatar
    Scientist May 20, 2013 at 2:36 pm #

    ballantine: Joke or note, I really am having a hard time understanding what exactly your position is.

    I think restricting who can hold office by place of birth and/or parentage fails the test that laws should have a well-justified public purpose (not just in the past, but in the present). I realize that there are other laws that likely fail that test also, but I don’t support those either.

  233. avatar
    Scientist May 20, 2013 at 2:43 pm #

    ballantine: I know you are aware all these authorities exist.

    Can you cite any modern legal scholar that said McCain was ineligible, other than Chin, and that was based on an oddity peculiar to the Canal Zone? In the law review issue devoted to that question, all the others said he was. Which scholars have stepped up to say Cruz is ineligible? Nor were there any when George Romney or Lowell Weicker ran. Surely, a paper concluding a well-known candidate, a Senator or Governor, is ineligible would be publishable. Yet, there are none in our time. So, I must conclude that legal opinion has evolved (natural selection perhaps?)

  234. avatar
    ballantine May 20, 2013 at 2:51 pm #

    Scientist: I think restricting who can hold office by place of birth and/or parentage fails the test that laws should have a well-justified public purpose (not just in the past, but in the present).I realize that there are other laws that likely fail that test also, but I don’t support those either.

    So, you think we should only have Constitutional provisions that you think make sense? Kind of means we have no written Constitution. That is a fine theory, but not our system. Either we have a written Constitution that means something, or we don’t.

  235. avatar
    ballantine May 20, 2013 at 2:59 pm #

    Scientist: Can you cite any modern legal scholar that said McCain was ineligible, other than Chin, and that was based on an oddity peculiar to the Canal Zone?In the law review issue devoted to that question, all the others said he was.Which scholars have stepped up to say Cruz is ineligible? Nor were there any when George Romney or Lowell Weicker ran.Surely, a paper concluding a well-known candidate, a Senator or Governor, is ineligiblewould be publishable.Yet, there are none in our time.So, I must conclude that legalopinion has evolved (natural selection perhaps?)

    You insist on citing authority from an extremely limited point of view. Law professors came to McCain’s defense exactly because 99% of the legal authority in our history says one must be native born. There is no court case that even remotely says a foreign born person can be “natural born” other than one state case the our Supreme Court expressly rejected. Pretty much every significant treatise and law dictionary in the past 200 years focuses solely on jus soli. The fact that people don’t want to write a law reviews confirming the conventional point of view does not mean the conventional point of view is not right. Again, I believe the jus sanguinis argument is plausible. However, there is very little evidence to support the framers, or anyone in their era, believed it.

  236. avatar
    Scientist May 20, 2013 at 5:03 pm #

    ballantine: So, you think we should only have Constitutional provisions that you think make sense? Kind of means we have no written Constitution.

    Why? Surely written things can make sense. I often read written articles that make sense.

    ballantine: Again, I believe the jus sanguinis argument is plausible. However, there is very little evidence to support the framers, or anyone in their era, believed it.

    Again, I don’t really care what the law was in 1789. I live in 2013. Only what the law is in 2013 matters to me. You are more than welcome to live in 1789, but you will have to hand over your computer, cell phone, car, house with flush toilets, central heating and AC, your medications and medical devices and all the other accouterments before you go.

  237. avatar
    Dr. Conspiracy May 20, 2013 at 5:04 pm #

    Let me refer you to US v. Wong:

    Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:

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

    Mr. Dicey seems to think that the difference between a “British Subject” and a “natural-born British subject” is not WHERE they were born, but WHEN they became a subject.

    Prof. Gordon, writing in 1968 argues that the 14-year residency requirement is consistent with the idea that the Framers intended persons not born in the US to be eligible (and hence natural born citizens).

    I don’t think that there is any disagreement that persons born outside the protection of the British Monarch were subjects at birth both in 1789 and when US v. Wong was decided.

    Gordon goes on to say:

    It is possible that a person was regarded in 1790 as a naturalized citizen, but could also be deemed natural-born, if he acquired this Unites States citizenship.

    In his conclusion, Gordon says:

    Although the evidence of intent is slender, it seems likely that the natural-born qualification was intended only to exclude those who were not born American citizens…

    Nor is such a construction foreclosed by questionable dicta in United States v. Wong Kim Ark and other Supreme Court decisions. These dicta are not addressed to the presidential qualification clause and cannot control its construction.

    The Constitution uses the word “felony” but doesn’t define it. One must refer to the English Common law to understand the concept. I suppose that there are specific crimes considered felonies under the common law, but no one would argue that the Congress lacks the power to create new felonies.

    Most commentators suggest that the framers intended their contemporaries to know what a “natural born citizen” was, and given the single dictionary definition of “natural born” I think they would have understood it as “a quality at birth.”

    I know of many sources that say that just soli implies natural born, but I couldn’t give you one off hand that says that natural born implies jus soli.

    Can anyone think of another term, undefined in the Constitution, understood in the light of English Common Law where the detailed criteria of who meets the definition also comes from ECL?

    ballantine: I’m not sure such is a very good argument. The conventional view of “natural born citizenship” has always been jus soli. Accordingly, there are numerous law reviews arguing a broader definition, or a contrary view. People rarely write law reviews arguing the conventional wisdom as no one really cares. The facts are that there are literally hundreds of treatises, dictionaries and court cases defining “natural born” solely by jus soli. I know you are aware all these authorities exist. The facts are that these modern law reviews cannot cite much historical evidence at all to support their thesis. I know the argument is plausible. However, there is almost no historical evidence to support the notion that foreign born persons could be natural born which is what makes such law review articles challenging and worthy of interest.

  238. avatar
    ballantine May 20, 2013 at 5:10 pm #

    Scientist: Why?Surely written things can make sense.I often read written articles that make sense.

    Again, I don’t really care what the law was in 1789.I live in 2013.Only what the law is in 2013 matters to me.You are more than welcome to live in 1789, but you will have to hand over your computer, cell phone, car, house with flush toilets, central heating and AC, your medications and medical devices and all the other accouterments before you go.

    Fair enough. But if we our to have a written Constitution we need some standard other than what makes sense to you in 2013 or we have no Constitution at all. Again I am not a big fan of originalism. However, I realize most judges look first to text and history and hence one must be prepared to deal with such arguments. In addition, if you don’t want to look to 1789, you need to have some interpretative method other than what makes sense to you if you want to convince anyone.

  239. avatar
    ballantine May 20, 2013 at 5:39 pm #

    Dr. Conspiracy:
    Let me refer you to US v. Wong:

    Mr. Dicey seems to think that the difference between a “British Subject” and a “natural-born British subject” is not WHERE they were born, but WHEN they became a subject.

    Prof. Gordon, writing in 1968 argues that the 14-year residency requirement is consistent with the idea that the Framers intended persons not born in the US to be eligible (and hence natural born citizens).

    I don’t think that there is any disagreement that persons born outside the protection of the British Monarch were subjects at birth both in 1789 and when US v. Wong was decided.

    Gordon goes on to say:

    In his conclusion, Gordon says:

    The Constitution uses the word “felony” but doesn’t define it. One must refer to the English Common law to understand the concept. I suppose that there are specific crimes considered felonies under the common law, but no one would argue that the Congress lacks the power to create new felonies.

    Most commentators suggest that the framers intended their contemporaries to know that a “natural born citizen” was, and given the single dictionary definition of “natural born” I think they would have understood it as “citizen at birth.”

    I know of many sources that say that just soli implies natural born, but I couldn’t give you one off hand that says that natural born implies jus soli.

    Can anyone think of another term, undefined in the Constitution, understood in the light of English Common Law where the detailed criteria of who meets the definition also comes from ECL?

    You have to look to 1896 to find someone saying it meant “subject at the moment of birth.” No one in England used such terminology in the founding period though it was obviosuly true in a sense. There were two types of natural born subjects in 1787. Those under the common law and those made natural born subject at birth by Parliament under 18th century statutes. These statutes clearly stated that such persons were declared to be “natural born subjects.” As I have said, it is certainly plausible that the similar statutory citizens at birth in the United States would have been understood to also be natural born citizens, but there is almost no evidence other than the 1790 Act that anyone in the United States thought so. Such class of persons were almost never mentioned as being natural born except in one early treatise by Bayard.

    Gordon is entitled to his opinion. However, it seems to be generally based on the belief that the common law could include jus sanguinis and the statutes were declaratory. This was very much a minority view rejected by almost every significanat authority in England and the United States including our Supreme Court. The notion that the 1790 Act was only to “remove any doubt” as to jus sanguinis is unsupported by any evidence and contrary to almost all relevant authority at such time. Finally, the notion that the residency requirement somehow indicates a jus sanguinis rule is pure speculation unsupported by any auathority at the time. Our legal authorities make clear that anyone born outside of the United States has always been deemed an alien unless Congress provided otherwise. The 1790 Act might indicate an intent to follow English law to declare such persons to be natural born citizens. However, the failure to use such language in later statutes and the lack of any other authority of significance supporting it makes the issue unclear.

  240. avatar
    Scientist May 20, 2013 at 5:44 pm #

    ballantine: In addition, if you don’t want to look to 1789, you need to have some interpretative method other than what makes sense to you if you want to convince anyone.

    I will go with Doc’s plain English meaning of the words as “from birth”.

    Quite honestly, I will say that every other nation I know of with a written Constitution revises it periodically (not an amendment here and there but a complete overhaul), because they realize that the world changes and everything becomes outdated. If the US is here in 2513 or 3013, I would hope those future Americans are not still pretending it’s 1789. That would be like modern French people pretending that Charlemagne was the final word on everything.

    By the way, Jefferson wrote that the Constitution should be redone after 20 years, because one generation cannot bind another. I am less radical than he-I think 50-100 years is more reasonable.

    Now, just for fun (you do know what that is?) how would you rank having a President born outside the US to a US citizen parent on a disaster scale of 1-10, where 1 is hearing a Justin Bieber song on the radio and 10 is the end of all life on Earth. Personally, I go with 0.5. And you sir?

  241. avatar
    ballantine May 20, 2013 at 6:04 pm #

    Scientist: I will go with Doc’s plain English meaning of the words as “from birth”.

    Quite honestly, I will say that every other nation I know of with a written Constitution revises it periodically (not an amendment here and there but a complete overhaul), because they realize that the world changes and everything becomes outdated.If the US is here in 2513 or 3013, I would hope those future Americans are not still pretending it’s 1789.That would be like modern French people pretending that Charlemagne was the final word on everything.

    By the way, Jefferson wrote that the Constitution should be redone after 20 years, because one generation cannot bind another.I am less radical than he-I think 50-100 years is more reasonable.

    Now, just for fun (you doknow what that is?) how would you rank having a President born outside the US to a US citizen parent on a disaster scale of 1-10, where 1 is hearing a Justin Bieber song on the radio and 10 is the end of all life on Earth.Personally, I go with 0.5.And yousir?

    Ok. But why is the plain meaning “from birth”? Clearly the majority of dictionaries in history define it as born in the United States. Are you cherry picking dictionaires or trying to construct what the term might mean by dissecting its parts? And how does dissecting its parts lead to such definition?

    BTW, here is Rebekka Bonner on a non-originalist interpretation of the NBC clause.

    http://balkin.blogspot.com/2008/05/why-john-mccain-needs-living.html?m=1

  242. avatar
    Keith May 20, 2013 at 7:31 pm #

    Robb: Scientist and Kieth:
    “no they aren’t, immigrants are not allowed to vote”
    Several MD towns allow it (one regardless of status), CA planned on allowing ANY immigrant (regardless of status) to vote, DC tried, NY is likely to, etc. Further, prior to the early 1900s, most states allowed immigrants to vote, which is more on point – the right to vote and the right to hold the office are not one and the same

    The assertion was about illegal immigrants.

    Illegal immigrants are not allowed to vote. Anywhere.

  243. avatar
    Keith May 20, 2013 at 7:40 pm #

    ballantine: That is not what the court said at all.

    Yeah, mumble. grumble. I was mostly asleep when I wrote that and got carried perhaps and didn’t say it very well. My point was supposed to be pretty much what you said.

    The WKA court didn’t discuss the WHEN argument. They derived their conclusion from the HOW argument even though it wasn’t couched in those terms. The WKA HOW argument works for jus soli. It doesn’t work for jus sanguinis.

    It has to be made much more complex for jus sanguinis. The WHEN argument works simply in all cases.

    Similarly, the Earth-centric model idea that the Sun orbits the Earth works just fine as long as there are only those two objects in the discussion. As soon as you add another planet, the Earth centric model breaks down into untenable complexity. The Helio-centric model simplifies the entire picture.

  244. avatar
    Scientist May 20, 2013 at 7:44 pm #

    ballantine: Ok. But why is the plain meaning “from birth”? Clearly the majority of dictionaries in history define it as born in the United States. Are you cherry picking dictionaires or trying to construct what the term might mean by dissecting its parts? And how does dissecting its parts lead to such definition?

    At the risk of repeating myself, I DON’T CARE ABOUT OLD, OUTDATED DICTIONARIES. I ONLY CARE WHAT THE WORD MEANS IN 2013.

    Natural born killer- killer at or by birth
    natural born ballplayer- ballplayer at or by birth
    natural born citizen- citizen at or by birth

    And if we follow the ordinary rules of English grammar, a given adjective modifies all nouns the same way: a red ball, a red hat and a red car are all red. If you want to tell me a red car is blue, I don’t buy it.

    ballantine: BTW, here is Rebekka Bonner on a non-originalist interpretation of the NBC clause.

    http://balkin.blogspot.com/2008/05/why-john-mccain-needs-living.html?m=1

    Of course I’m not an originalist. Nor are McCain, or Scalia or anyone else. Like everybody else, they simply spin things in order to reach their pre-determined conclusion in any given case. Let’s not kid ourselves. Tell me Bush v Gore would have been decided the same way if 5 Justices had been Democrats. Then I’ll sell you my bridge to Brooklyn.

    And what McCain needed to be President was really very simple-about 10,000,000 more votes.

    Now, ballantine, are you always this serious? You must be a riot at parties. This isn’t life and death stuff. Worst that happens is the voters pick someone George Washington wouldn’t have liked. But, I’ll bet there’s already been a bunch of Presidents he wouldn’t have liked. So what? Lighten up, my friend.

  245. avatar
    Scientist May 20, 2013 at 7:48 pm #

    Keith: Similarly, the Earth-centric model idea that the Sun orbits the Earth works just fine as long as there are only those two objects in the discussion. As soon as you add another planet, the Earth centric model breaks down into untenable complexity. The Helio-centric model simplifies the entire picture.

    The Earth-centric model couldn’t work even with only those 2 objects, because a more massive object can’t orbit a less massive one.

  246. avatar
    ballantine May 20, 2013 at 8:45 pm #

    Scientist: At the risk of repeating myself, I DON’T CARE ABOUT OLD, OUTDATED DICTIONARIES.I ONLY CARE WHAT THE WORD MEANS IN 2013.

    Natural born killer- killer at or by birth
    natural born ballplayer- ballplayer at or by birth
    natural born citizen- citizen at or by birth

    And if we follow the ordinary rules of English grammar, a given adjective modifies all nouns the same way:a red ball, a red hatand a red car are all red.If you want to tell me a red car is blue, I don’t buy it.

    Of course I’m not an originalist.Nor are McCain, or Scalia or anyone else.Like everybody else, they simply spin things in order to reach their pre-determined conclusion in any given case.Let’s not kid ourselves.Tell me Bush v Gore would have been decided the same way if 5 Justices had been Democrats.Then I’ll sell you my bridge to Brooklyn.

    And what McCain needed to be President was really very simple-about 10,000,000 more votes.

    Now, ballantine, are you always this serious?You mustbe a riot at parties.This isn’t life and death stuff.Worst that happens is the voters pick someone George Washington wouldn’t have liked.But, I’ll bet there’s already been a bunch of Presidents he wouldn’t have liked.So what?Lighten up, my friend.

    Well, you have made clear you are not interested in serious discussion. So why post here? What the term means in 2013 is defined in a 1000 places as jus soli. Claiming it has some other plain meaning is not honest. I suggest you actually read any modern legal dictionary. I guess you can invent your own definition if that pleases you.

  247. avatar
    ballantine May 20, 2013 at 8:59 pm #

    Keith: Yeah, mumble. grumble. I was mostly asleep when I wrote that and got carried perhaps and didn’t say it very well. My point was supposed to be pretty much what you said.

    The WKA court didn’t discuss the WHEN argument. They derived their conclusion from the HOW argument even though it wasn’t couched in those terms. The WKA HOW argument works for jus soli. It doesn’t work for jus sanguinis.

    It has to be made much more complex for jus sanguinis. The WHEN argument works simply in all cases.

    Similarly, the Earth-centric model idea that the Sun orbits the Earth works just fine as long as there are only those two objects in the discussion. As soon as you add another planet, the Earth centric model breaks down into untenable complexity. The Helio-centric model simplifies the entire picture.

    You have simply made up this HOW versus WHEN argument. Wong Kim Ark said we adopted the common law which united HOW and WHEN at birth. There is nothing in such decision, or any other decision, supporting a WHEN argument. What is the point of simply making things up that has no support in history?

  248. avatar
    Keith May 20, 2013 at 10:53 pm #

    Scientist: The Earth-centric model couldn’t work even with only those 2 objects, because a more massive object can’t orbit a less massive one.

    Its all relative.

  249. avatar
    Keith May 20, 2013 at 11:08 pm #

    ballantine: You have simply made up this HOW versus WHEN argument.Wong Kim Ark said we adopted the common law which united HOW and WHEN at birth. There is nothing in such decision, or any other decision, supporting a WHEN argument.What is the point of simply making things upthat has no support in history?

    Not quite. I’m not the first one to propose it. If you read the Doc’s post that introduces this thread, you’ll see that that is basically what he is saying too: a natural born citizen is a citizen from birth.

    Citizen from birth = Natural born citizen. That is what Maskell report says is the most common opinion. How is it that I have made it up? There is no question of HOW in the equation. Just WHEN.

    And the reason is that it unites the ‘jus soli‘ and the ‘jus sanguinis‘ in a simple, elegant manner by concentrating on the one single thing that is actually common between the two and the one single thing that is, according to common definition, the difference between naturalized and natural born.

    There is no need to argue about how many parents you need to magically transform from some imaginary ‘plain’ citizen to a ‘natural born citizen’, or whether or not or whether or not the jus sanguinis is actually naturalization at birth (contrary to common definition).

    In the end it doesn’t really matter to me. If it works for you to list all the different ways someone can become a citizen and then tick them off one by one to distinguish natural born from not natural born, fine.

    But that way means you need to argue every time a viable candidate comes up with another set of circumstances.

    Concentrating on the WHEN, means that anyone can immediately know, without question, whether Cruz or McCain is eligible or not. Citizen from birth? Done. End of story. I don’t care whether they got it via jus soli, or USC1403 or USC1401 or whatever.

    And it is accurate to identify natural born citizens whether native born or foreign born.

    The worst that could happen to cause a question, is that you might have to look up the law as it stood at the birth. But that is a fact that can be checked, and doesn’t lend itself to argument.

  250. avatar
    brygenon May 20, 2013 at 11:24 pm #

    ballantine: I’m not sure such is a very good argument. The conventional view of “natural born citizenship” has always been jus soli. Accordingly, there are numerous law reviews arguing a broader defintiion, or a contrary view. People rarely write law reviews arguing the conventional wisdom as no one really cares.

    That strikes me as ludicrous. George Romney was a viable candidate for president in 1968, and at one point a front-runner for the Republican nomination. John S. McCain III got even farther in 2000 and 2008. Are you suggesting that this happened while the prevailing view among legal scholars was that only those born in the U.S. are eligible?

  251. avatar
    brygenon May 20, 2013 at 11:48 pm #

    ballantine: You have simply made up this HOW versus WHEN argument.

    If Keith made up the HOW versus WHEN argument, then we should all be impressed with Keith. Eminent constitutional scholar Akhil Reed Amar explained the issue to a lay audience in February of 2008:

    The Constitution’s rule that the president be “a natural born citizen” focuses not on where a person became a citizen, but when. To be eligible, one must be born a citizen rather than naturalized at some later date.

    //www.slate.com/articles/news_and_politics/jurisprudence/2008/02/the_constitution_and_the_candidates.html

  252. avatar
    brygenon May 21, 2013 at 12:09 am #

    ballantine: There were two types of natural born subjects in 1787. Those under the common law and those made natural born subject at birth by Parliament under 18th century statutes. These statutes clearly stated that such persons were declared to be “natural born subjects.”

    What was the effect of these statutes making a child board abroad to citizen parents a natural-born subject? Was he or she simply made a subject from birth, as Dr. C. and I would have it, or was the child cast into some bifurcated reality so as to have two different locations of birth, the on-the-soil theory requires?

  253. avatar
    brygenon May 21, 2013 at 12:33 am #

    nbc: As we all know, the Court in US v Wong Kim Ark looked at common law practices to determine the meaning of natural born and showed that it did not mean citizenship from birth but rather citizen by birth on soil and subject to jurisdiction. It’s important to be careful with these definitions or one can simply slip into a grey zone without recognizing it.

    You’ve slipped beyond the gray zone. There’s one clear sentence US v Wong Kim Ark what “natural born” *means*, and agrees with Dr. C.

    nbc:
    So far the conclusion that it merely meant ‘from birth’ requires a bit more effort as it is so strongly contradicted by some of the more influential rulings on this issue.

    What rulings I know of on this issue do not support you.

    Markham Robinson petitioned the the United States District Court for the Northern District of California for a preliminary injunction to remove John McCain from the ballot [Robinson v. Bowen]. To rule on the motion, the Court assessed the likelihood of Robinson winning on the merits:

    At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.

    http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03836/206145/39/

  254. avatar
    Paper May 21, 2013 at 1:27 am #

    Hey Keith, I’m glad someone else has been picking up this end of the argument while I’ve been hard at work!

    Waiting for the train, reading comments…

  255. avatar
    G May 21, 2013 at 2:26 am #

    To try to narrow down the scope of where this wild thread is flailing about, I think the following point helps put the reality-based portion back into context on how such an event is likely to play out: “Viable candidate”.

    That really sums it up. Yes, some of the jus sanguinis situations offer some legal grey areas on whether these folks who are born as “statutory” citizens fall under the context of our USA’s Constitutional NBC clause or not. But simply put, such cases are NOT explicitly excluded from being able to fall within the scope of that NBC clause and so very valid, applicable to current-day America arguments, such as those made by Keith and Brygenon are most likely to dominate the entire context of whether such a candidate would ever see a legal challenge in the first place, let alone lose such a case and not have it overturned by appeal or if necessary, legislative action – because such folks as Cruz and McCain are viewed predominantly as “viable” right off the bat.

    This isn’t the same fantasy scenario as what Scientist brought up, in terms of Schwarzenegger and Granholm, who are NOT “viable” right off the bat, as their are merely straightforward “naturalized” US citizens, who were never viewed as US citizens from the moment of their birth. Whereas, per statutes, folks like Cruz and McCain *are*.

    It really comes down to this – any contentious fight to exclude someone’s rights, where they are not explicitly excluded, is going to be a much tougher uphill battle than an inclusive interpretation.

    These clearly “not viable” folks like Schwarzenegger and Granholm would never get on a major party ticket or be taken seriously as an “independent” candidate for the Presidency as it stands, because they are clearly “not viable” on the face of it and explicitly ruled out within the NBC clause. There simply is no realistic support for such a fantasy scenario, as it simply is not realistically plausible that they would receive actual support if they tried. Not without a Constitutional Amendment being ratified first to strike the NBC clause.

    Could passionate advocates, such as Scientist, of striking the NBC clause ever get such an Amendment to be seriously considered? Perhaps someday. But that is the path they would have to take first – no ifs, ands, or butts about it. Just because one disagrees with the usefulness of the NBC clause or “dislikes” it, that simply doesn’t get around the fact that it is there, so yeah, in reality, no non-citizen nor straightforward “naturalized” citizen is going to be seen as “viable” and thus, will never achieve a serious “run” at challenging the system through the electoral and ballot processes in the first place.

    That whole concept is almost the flip-side ludicrousness of all the “2 citizen parent” cranks, who wish to carve out new exclusions from within jus soli NBC situations. Not going to happen. Jus soli NBC is the simplest and clearest cases of both perception and documented support as being “viable” – period. The folks on that side who simply don’t like that would also need to pull-off a Constitutional Amendment if they want to be restrictive and make any “viable” jus soli contender legally become “non viable”. Beyond that, they are simply left with the right to not cast a vote for someone they “don’t personally like” and that is it. They won’t win any “nov-viable” argument challenge to such candidates. They simply won’t. Not in the real world.

    Which brings us to what remains – a whole host of candidates born under various jus sanguinis ONLY situations…in which statues already exist (applicable to the time of their birth), which declared them US citizens AT birth. The Romney and McCain examples already show that folks like them are generally viewed as “viable” right off the bat, and thus are capable of being taken seriously as credible candidates that potentially could receive financial and ballot support. Cruz fits that too.

    So whether there is some legal “gray area” in these cases or not, I think that is missing the reality-based point, which is that you truly would need more than just a mere possible argument for getting the courts to not just have a valid, jurisdictional, merit-based reason to consider the argument in the first place, but to then come out with a ruling that would fall on the restrictive interpretation “gray” side of things and be upheld in order to be considered a “definitive” answer in the negative for those class of folks. The probability of meeting all those conditions and steps is fairly implausible, regardless of NBC’s and Ballentine’s points on the matter. Such a narrow ruling would be too controversial, even if somehow, a conservative Supreme Court tried to uphold it. As mentioned by others, there would also be the Constitutional Article 1, Section 9 hurdle argument against legislatively codifying such a restriction into law. In other words, such a ruling would be viewed as a purely political stunt, directed against a particular candidate or party, regardless of any potential legal merits towards making such an argument, as you would have to say that the ruling would only bar future candidates in that situation from being “viable” and not be able to strip that “viability” from the actual challenged nominee that lost the battle in the first place. So yeah, simply not realistic to posit that any such outcome would happen…and much more likely that in the improbable event of such a challenge that the opposite effect would occur, resulting in simply building new case law in support of an inclusive interpretation for these statutory at birth citizens being NBC.

    Candidates such as Cruz are viewed as “viable” in these modern times. If someone in his situation runs and achieves an electoral college victory, there is going to be very little tolerance or support for court challenges to then arise, weigh in and come away with an exclusionary ruling that would try to strip away their precedent of achieving the presidency or even bar future candidates in the same boat from having the same opportunity. The most likely outcome is that, should such a “viable” candidate achieve victory, they will simply become President and then the “viability” of future such candidates being NBC will merely be assumed by precedent, without courts ever having to definitively weigh in on the matter at all, in order to consider the “gray area” resolved.

    brygenon: That strikes me as ludicrous. George Romney was a viable candidate for president in 1968, and at one point a front-runner for the Republican nomination. John S. McCain III got even farther in 2000 and 2008. Are you suggesting that this happened while the prevailing view among legal scholars was that only those born in the U.S. are eligible?

  256. avatar
    Scientist May 21, 2013 at 6:34 am #

    ballantine: So why post here?

    That is an excellent question. I don’t want to offend anyone’s religious sensibilities, but this is to my mind very analogous to a religious argument. You have a text (Constitution/Bible) that says something that can be interpreted many ways. You have different sects that each believe their interpretation is the one true one and all others are heresy. As an agnostic, I say let the believers decide on which reading of the Bible they prefer and let the voters decide which reading/candidate they prefer. Any other solution involving courts/Grand Inquisitions can only lead down a road that no one should want to follow.

  257. avatar
    Scientist May 21, 2013 at 6:45 am #

    G: Your post is eminently sensible and is not at all out of line with my own views. My Schwarzenegger/Granholm ticket is only meant to provoke the easily provoked, who take themselves far, far too seriously. You are entirely correct that candidates like Cruz, if they run, will be judged on their ideas and character and not their birthplace (in his case I think the majority of voters will judge him sorely lacking). In the very unlikely event that he would win, if nbc and ballantine want to become Latter Day Birthers and clog the courts with their doomed lawsuits, I, and the majority of folks, will laugh at them just as gleefully as we laugh at present day birthers.

  258. avatar
    ballantine May 21, 2013 at 7:19 am #

    Keith: Not quite. I’m not the first one to propose it. If you read the Doc’s post that introduces this thread, you’ll see that that is basically what he is saying too: a natural born citizen is a citizen from birth.

    Citizen from birth = Natural born citizen. That is what Maskell report says is the most common opinion. How is it that I have made it up? There is no question of HOW in the equation. Just WHEN.

    I understand the argument. However, there is nothing in Wong Kim Ark that supports such interpretation and very little support in history. Maskell does come to that conclusion, but as with Gordon, he doesn’t have much evidence to support such view.It is plausible the framers had such definition in mind based upon the state of English law at the time and that will probably carry the day. The notion that the common law was jus sanguinis is simply an argument that was never accepted in the United States by any significant authority. Therefore, one is left with a Congress making persons citizens at birth through its naturalization powers. There is no other legitimate argument. It is simply a fact that Cruz would be an alien if he wasn’t covered by such a statute. Such has always been our law. The question then I can Congress make natural born citizens through statute. If you don’t think so, then you are going to have a difficult time making an argument.

  259. avatar
    ballantine May 21, 2013 at 7:22 am #

    brygenon: That strikes me as ludicrous. George Romney was a viable candidate for president in 1968, and at one point a front-runner for the Republican nomination. John S. McCain III got even farther in 2000 and 2008. Are you suggesting that this happened while the prevailing view among legal scholars was that only those born in the U.S. are eligible?

    Yea, before Gordon and the slew of articles that followed, there is almost no authority that a foreign born person could be eligible. That doesn’t mean they are wrong. It means the conventional view was jus soli and almost no one made the jus sanguinis argument.

  260. avatar
    ballantine May 21, 2013 at 7:25 am #

    brygenon: You’ve slipped beyond the gray zone. There’s one clear sentence US v Wong Kim Ark what “natural born” *means*, and agrees with Dr. C.

    There is nothing in Wong Kim Ark that remotely suggests a foreign born person can be natural born. It looks to the common law and says the common law did not cover foreign born persons. It said foreign born can only become citizens by Congressional statute via its naturalization or treaty power. It in no way suggest such could be natural born though it didn’t address such specific question. Thus, Wong Kim Ark didn’t decide this issue, but it doesn’t help Cruz very much.

  261. avatar
    ballantine May 21, 2013 at 7:57 am #

    brygenon: What was the effect of these statutes making a child board abroad to citizen parents a natural-born subject? Was he or she simply made a subject from birth, as Dr. C. and I would have it, or was the child cast into some bifurcated reality so as to have two different locations of birth, the on-the-soil theory requires?

    They were treated as natural born subjects in England. Since such persons were also generally subjects of the nation of their birth, England didn’t treat them such persons as subjects unless they left their native land and came back to England. However, in England they were generally treated as natural born subjects though such status was never quite clear.

    Again, it is plausible that the framers thought anyone made a citizen at birth to be natural born based upon this English analogy. However, these English statutes expressly made such persons “natural born subjects,” not just “subjects” like our post-1790 statutes do. Does one think that if England amended such statutes to only make such persons “subjects,” rather than “natural born subjects,” that they still would have been treated as natural born. Obviously not clear.

    I agree the courts will never rule Cruz ineligible for a number of reasons and that modern scholarship has seized upon the “at birth” definition. I am just pointing out that that the historical case for such argument is far from clear.

  262. avatar
    Scientist May 21, 2013 at 8:00 am #

    ballantine: Yea, before Gordon and the slew of articles that followed, there is almost no authority that a foreign born person could be eligible. That doesn’t mean they are wrong. It means the conventional view was jus soli and almost no one made the jus sanguinis argument.

    Whether or not something was the view in the past, we in 2013 are not obligated come to the same conclusion. Here is a sitting Supreme Court justice speaking in 2009:

    Justice Ginsburg: …My grandson was born in Paris of U.S. citizen parents. I had never considered him a naturalized citizen of the United States….

    Justice Ginsburg: There is a debate over whether my grandson is a natural born citizen. I think he is.

    And i got this from the best of sources http://www.obamaconspiracy.org/2009/09/supreme-court-justice-ginsburg-rejects-de-vattel-formulation/

  263. avatar
    Scientist May 21, 2013 at 8:46 am #

    ballantine: Does one think that if England amended such statutes to only make such persons “subjects,” rather than “natural born subjects,” that they still would have been treated as natural born. Obviously not clear.

    British law gives Parliament the authority to modify common law practices, which they have done. Under current British citizenship law, the common law doctrine of jus soli has been modified and the child is only a citizen if one parent is a citizen or legal resident.
    http://www.ukba.homeoffice.gov.uk/britishcitizenship/othernationality/Britishcitizenship/borninukorqualifyingterritory/

  264. avatar
    Hermitian May 21, 2013 at 9:20 am #

    If the Obot’s version of NBC were correct, then Article II Section 1 Clause 5 would have included the following provision rather than the stated requirement that the candidate be a NBC.

    “No citizen naturalized after the adoption of this Constitution shall be eligible to the office of the President,…” Bingo

  265. avatar
    Paper May 21, 2013 at 10:36 am #

    I don’t think most of us here need to be told to remember the obvious. Particularly as I also pointed out that the purpose of these comments here is to lay out the arguments. That would suppose the theoretical instance of the arguments being made in the Supreme Court itself, and/or in Congress.

    So it is not about “preferring” someone over the Court. It is about argument that could be made, for instance, to the Court, and the opinion from the Court needed is not that onerous even with WKA. It has not been unheard of for the Court to overturn itself, and they’ve overturned or simply adjusted a lot tougher nuggets than this. So if you are discussing potential arguments, you can’t just wave WKA as a magic wand, particularly as it would seem to have weaknesses as applied to our case as distinguished from that one. I also think you overdo your references to other recent confirmations. Some of your arguments re those rulings are not to the point, it seems to me. I’ve tried to respond in situ above to specific instances, but can’t just readily sum up at the moment.

    We all know this issue is unsettled. It is not settled. Not tested and put to bed. If it were, we wouldn’t be having this conversation, and I wouldn’t have learned as a kid that if one wanted to be president being born in the country was safe but being born outside was uncertain. I got back in my time machine right then at that moment and had my parents resolve that uncertainty, and I had a great time being president. But that is just me, not everyone has such advantages.

    More into the details later…

    nbc: So you prefer Maskel over the ruling by the Supreme Court and confirmed by recent SCOTUS rulings?

    Interesting. Remember that Maskel’s ‘arguments’ are only as good as the evidence he cites.

  266. avatar
    G May 21, 2013 at 11:46 am #

    I’m glad to see more measured and quantified language being used in today’s posts. I see what you’ve stated, as you’ve just stated it as a reality that just about all of us should be able to understand and accept.

    There is a very limited “ripeness” timing of such a valid, jurisdictional case ever being heard on these points, as it requires not only such a “viable” candidate to run for POTUS, but to most likely only be able to receive such a court challenge in the event of their probable election by the voters.

    So it is hard to conceive of a plausible scenario in which such a court case would come forth that would be both perceived and also likely intended as anything other than “sore loser” politicking, set to “ursurp” the will of the majority voting electorate.

    The backlash risks really outweigh the rewards for anyone to target their “enemies” in such a fashion. So that will weed out all but the crazies and blind zealots from even trying.

    Plus, any serious person that actually merely passionately supports some narrower “viability” definition-based clarification as their intent would likely have a sense that the winds are against them and not wish to risk seeing the broader viability scenario become firmly entrenched by establishing modern case history in such a “hot button” way.

    Even if they were merely a serious, passionate person that just hates “gray areas” as desires “once and for all” clarification for scenarios through the courts, they are not likely to chime in to push these cases…as the whole jurisdictional “ripeness” of being able to use the courts to address such an issue again realistically limits this to bringing challenges that merely disrupt an otherwise functioning electoral process in a very “ugly” way.

    So it is simply not worth it and only delusional crazies too blind to see the backlash ramifications and pitfalls will ever attempt to do so… and along with crazy there tends to be a correlating lack of competence and ability to effectively understand the oppositions argument well enough to win a debate against it…etc. etc. etc.

    Crazy will simply not win the day and courts will be very reluctant to side with crazy in very controversial situations that clearly have more pitfalls of actually weakening and disrespecting our very form of government, instead of providing any small “benefit” of “additional clarity” on very limited case scenarios.

    So the whole issue of this even being a “gray” area anymore is merely academic wistful fantasy fretting as I see it. The issue of it not being settled law or wondering whether the founders would approve is really a moot issue in 2013 reality. Enough perceived “credible contenders” (George Romney, John McCain and now Ted Cruz) have been seen as sufficiently “viable” for several cycles now. It has become an established pattern and only serves to further entrench the mindset. The genie is really out of the bottle and it is nothing more than delusional fantasy to pretend otherwise.

    The NBC clause only serves a single, specific political purpose towards selecting the top elected position of executive office in the land. Conditions to get a court to weigh in on the matter are only “ripe” in scenarios that are unavoidably controversial “targeting” of a successful candidate with a strong following and an otherwise legitimately earned right and path to leading our nation.

    So I hate to really overstate the point, but in a reality-based context, the “gray” is already gone. It only appears “gray” because the event of electing a President from that birth circumstance has yet to occur. So its merely a temporal issue now of WHEN, not IF. For those that see it as “gray” and are uncomfortable with “gray”, simply be patient…but if you seriously are looking to needing the courts to weigh in, you’re missing the point, as such is completely unnecessary and actually fraught with causing more potential harm than good.

    The “academic” matter will simply be “officially settled” by precedent, eventually. Purely through the mechanics of our existing electoral process and its existing mechanisms, checks and balances. Nothing more is required and there is no actual need to further question the perceived “gray” in order for that electoral process to accomplish this in a fairly straightforward manner, either. As always, anyone “uncomfortable” with voting for a certain candidate, for whatever personal reasons they have, simply doesn’t have to cast their vote for that person – period.

    ballantine: Yea, before Gordon and the slew of articles that followed, there is almost no authority that a foreign born person could be eligible. That doesn’t mean they are wrong.It means the conventional view was jus soli and almost no one made the jus sanguinis argument.

    ballantine: I agree the courts will never rule Cruz ineligible for a number of reasons and that modern scholarship has seized upon the “at birth” definition. I am just pointing out that that the historical case for such argument is far from clear.

  267. avatar
    brygenon May 21, 2013 at 12:13 pm #

    ballantine: There is nothing in Wong Kim Ark that remotely suggests a foreign born person can be natural born.

    Can you even keep your head around the argument? I’m saying that the modifier “natural born” means the same thing when applied to “U.S. citizen” as when applied to “British subject, and it’s meaning is given in Wong, quoting Dicey: “‘‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    Wong says nothing to imply that foreign-born children of U.S. citizens are U.S. citizens of any kind. No one is saying it does.

  268. avatar
    G May 21, 2013 at 12:24 pm #

    Agreed.

    It seems that somehow, too much “talking past each other” and assuming arguments in one’s own mind, as opposed to actually listening to hear what the other person is trying to convey keeps causing these types of STRAWMEN to crop up and merely derail movement away from points and logical consensus of understanding.

    It is unnecessary, and good folks need to just pause and focus within the scope of the arguments, instead of inventing perceived points of absurd incorrectness to argue against, which nobody ever truly suggested in the first place…

    brygenon: Wong says nothing to imply that foreign-born children of U.S. citizens are U.S. citizens of any kind. No one is saying it does.

  269. avatar
    ballantine May 21, 2013 at 1:07 pm #

    brygenon: Can you even keep your head around the argument? I’m saying that the modifier “natural born” means the same thing when applied to “U.S. citizen” as when applied to “British subject, and it’s meaning is given in Wong, quoting Dicey: “‘‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

    Wong says nothing to imply that foreign-born children of U.S. citizens are U.S. citizens of any kind. No one is saying it does.

    You are quoting very selectively. The rest of the quote of Dicey focuses solely on description of the jus soli common law rule making no mention of jus sanguinis. You said such quote is the only clear quote of “natural born,” which is just silly. Gray said the term was defined by the common law and plainly rejected Maskill’s primary argument that the common law included jus sanguinis. Gray never suggests that natural born can include anyone but jus soli and his statements that the foreign born can only be made citizens by statute leaves only the possibility that Congress can make natural born citizens by statute, an argument he did not address. The notion that the foreign born can only be made by statute has been repeated by the court over and over again in the past century. In fact, there is a whole body of case law dealing with challenges by children of citizens to such provisions based mainly on equal protection grounds.

    Now of course you can say that the modern court may disagree with Gray and there are arguments the court didn’t hear. However, it is silly to suggest the case in anyway helps Cruz. And, I think the question goes just beyond presidential eligiblity. If in fact the court wuld agree with Maskell that the common law included jus sanguinis, it would overrule centuries of case law to the contrary and would mean that some untold number of people who have always been aliens were really natural born citizens. That is unlikely to happen. Thus, I would expect a very narrow decision making an analogy to English statutory natural born subjects.

  270. avatar
    Dr. Conspiracy May 21, 2013 at 1:28 pm #

    1) WKA cites Dicey approvingly
    2) Dicey says natural born subject means subject at birth

    WKA doesn’t cite this particular passage from Dicey from A Digest of the Law of England with Reference to the Conflict of Laws, but I think it is helpful:

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

    1, A is born in England. B, his son, is born at Naples. S, the son of B and grandson of A (S’s paternal grandfather), is also born at Naples. S is a natural-born British subject. …

    “We think the sense of these words [i.e., 'natural-born British subject,' in the statute 4 Geo. II. c. 21] is very plain. Natural-born subjects are mentioned as distinguished from subjects by donation or any other mode. A child born out of the allegiance of the Crown of England is not entitled to be deemed a natural-born subject, unless the father be, at the time of the birth of the child, not a subject only, but a subject by birth. The two characters of subject and subject by birth must unite in the father.” [Footnote to Doe d. Thomas v. Acklam (1842), 2 St. Tr. N. S. 105, 120 per curiam.]

    At the beginning, Dicey does NOT say that foreign born persons are not natural born subjects because natural born is defined by the common law to be those born in the King’s dominions, BUT because they do not have allegiance at birth.

    ballantine: There is nothing in Wong Kim Ark that remotely suggests a foreign born person can be natural born.

  271. avatar
    ballantine May 21, 2013 at 1:52 pm #

    Dr. Conspiracy:
    1) WKA cites Dicey approvingly
    2) Dicey says natural born subject means subject at birth

    WKA doesn’t cite this particular passage from Dicey from A Digest of the Law of England with Reference to the Conflict of Laws, but I think it is helpful:

    Dr. Conspiracy:
    1) WKA cites Dicey approvingly
    2) Dicey says natural born subject means subject at birth

    WKA doesn’t cite this particular passage from Dicey from A Digest of the Law of England with Reference to the Conflict of Laws, but I think it is helpful:

    Yes, but you are cherry-picking one quote in a 20-plus page discussion that was focused solely on the common law. Including such quote does not mean that such is Gray’s definition of “natural born” as he quotes numerous authorities defining the term solely by jus soli.

    The quote of Dicey, which obviously is meant to include both common law and statutory natural born subjects in England, is followed by quotations from Dicey solely talking about the common law jus soli rule, obviously all that Gray was interested as he skipped over all Dicey’s discussion of statutory subjects. Accordingly, whether Gray or anyone else in America thought that because the English passed statutes that expressly made certain persons “natural born subjects” at birth meant that American statutes that only expressly made people citizens at birth also meant they were natural born for purposes of the Constitution is not answered by Gray including such quote of Dicey.

  272. avatar
    Jim May 21, 2013 at 1:53 pm #

    Hermitian:
    If the Obot’s version of NBC were correct, then Article II Section 1 Clause 5 would have included the following provision rather than the stated requirement that the candidate be a NBC.

    “No citizen naturalized after the adoption of this Constitution shall be eligible to the office of the President,…”Bingo

    BWAHAHAHAHA!!! If we ever need a re-write of the Constitution…don’t call us, we’ll call you. I recommend you get your copy of “The Constitution for Dummies” first and read up, you might even be able to pass a 5th grade test on it!

  273. avatar
    ballantine May 21, 2013 at 2:02 pm #

    Hermitian:
    If the Obot’s version of NBC were correct, then Article II Section 1 Clause 5 would have included the following provision rather than the stated requirement that the candidate be a NBC.

    “No citizen naturalized after the adoption of this Constitution shall be eligible to the office of the President,…”Bingo

    I think people would still be arguing what “naturalization” means. Lork Coke said Calvin was “naturalized by procreation and birthright” to describe what became the common law rule. Vattel also described the English common law rule as naturalizing children of aliens.
    In the United States, the early authority focused on removing the disability of alienage from a foreign birth. Now, with Cruz, we are essentially arguing that Congress can make natural born citizen through its naturalization powers. Congress has no other power to make a citizen other than naturalization or treaty. Thus, I think the language you suggest should rather be that no one naturalized after birth can be a natural born citizen. Too bad our framers were not as smart as you.

  274. avatar
    Dr. Conspiracy May 21, 2013 at 2:38 pm #

    I can, however, look to 1896 and a noted authority to find someone say it meant “subject at the moment of birth.” Can you find someone prior to that that said it meant born in the realm (with the usual exceptions), both as a necessary and sufficient condition?

    I will agree that the English common law said that those persons born in the realm and under the allegiance of the King were natural-born English subjects, and that the English common law does not say that persons born outside the realm were English subjects of any kind. So let’s put that aside.

    Look at Dicey’s argument:

    The principle of the common law is that a person born beyond the limits of the British dominions does not at his birth owe allegiance to the Crown, and cannot, therefore, be a natural-born British subject.

    He then qualifies that by saying that such persons are deemed natural born subjects by statute. The point I want to make, though, is that the REASON, according to Dicey that such persons are not natural-born British subjects is because they do not owe allegiance to the Crown at birth, not because they are born out of the realm.

    Now where this becomes important is when we look at Lord Coke (as cited in Thomas v. Acklam (1824)), way back in the 17th century:

    The very definition of alien given in Litt. 198, “born out of the legiance of our sovereign Lord the King,” shows that the place of birth is not conclusive as to alienage. Lord Coke, in his commentary on that passage, co. Lit. 129, a, says, “Note here, Littleton saith not hors del realme [outside the realm], but hors de legiance [outside the allegiance], for he may be born out of the realm of England yet within the legiance.”

    And I might add that one may be born in the realm yet without the legiance.

    Once we discover that being a subject rests on allegiance, and not place of birth (and this from Littleton in the 14th century), the idea that natural born subject status is defined by place of birth seems hardly supportable.

    ballantine: You have to look to 1896 to find someone saying it meant “subject at the moment of birth.”

  275. avatar
    Scientist May 21, 2013 at 3:11 pm #

    ballantine: Too bad our framers were not as smart as you.

    The framers were smart (at least smarter than Hermitian), but let’s not pretend they were perfect and all-knowing. If they saw the discussion here and the birthers they would admit they screwed up by not writing a clear definition of who and is who is not eligible that would be understandable by the layman without recourse to legal mumbo-jumbo.

    And please don’t give me, “A Constitution is not the place to be specific”. It, more than anywhere else, is the place for plain, clear language. After all, the Constitution says “35 years old”, not “mature and seasoned” and “14 years a resident”, not “loved here a goodly while”, so why not be specific about birth circumstances if you are so convinced they matter?

  276. avatar
    ballantine May 21, 2013 at 3:22 pm #

    You have to look at how Coke defined such terms. People born in the allegiance included anyone born in the dominions, as they were under the protection of the King. It also included the small class of persons born overseas that still were under the protection of the King though born overseas. Blackstone:

    “When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.”

    The English statutes we have been talking about expressly stated they applied to persons born “out of the allegiance” or “ligeance” of the Crown and hence were outside of the provisions of Calvin’s Case. Again, there were a few early English authorities that argued such statutes to be declaratory. Blackstone and pretty other significant authority that followed him in England and the United States, including Justice Gary, rejected such argument.

    So, you found one source from 1896 from a nation that had adopted statutes expressly stating a second class of persons to be natural born in that country. I note that you can’t find a single American authority with that same definition prior to 1896. There are a few fairly obsure authorities including jus sanguinis as being natural born, mostly from the notion that the common law included jus sanguinis that was rejected by most scholars, but I believe none who simply claimed the “citizen at birth” defintion. You are trying to turn the tables and find authority stating no one else can be natural born but jus soli. You know there are probably a hundred authorities only mentioning native birth or birth on the soil as being natural born and, yes, many that say the President must be a “native-born” citizen such as Kent, a term that has never been applied to anyone born outside the United States. You know such authority exists, so I won’t repeat it here. I have repeatedly said the “at birth” theory was plausible based upon English law at the time. However, it is simply a fact that there is almost no American authority for more than a century supporting it. It is also not that easy to square with prior case law such as Wong Kim Ark which says the foreign born must be naturalized. Hence, it is not as simple a question as you make it out to be. That being said, I have said over and over that no court will rule Cruz ineligible. I just wonder how they will get there.

  277. avatar
    Paper May 21, 2013 at 3:26 pm #

    I was reviewing that list of references made by Gray in WKA, and I thought there was more than one quote that opened the door, but I set it aside to examine more closely later, so I am not sure if Dicey is the only reference. I think what this, or these, quotes do is offset the later dicta about congressional enactments of statute being a form of naturalization that would make a presidential candidate ineligible. So that WKA itself is not as decisive as is made out to be *when it comes to the meaning of natural born citizen as applied to the presidency.

    ballantine:
    Yes, but you are cherry-picking one quote in a 20-plus page discussion that was focused solely on the common law. Including such quote does not mean that such is Gray’s definition of “natural born” as he quotes numerous authorities defining the term solely by jus soli.

    The quote of Dicey, which obviously is meant to include both common law and statutory natural born subjects in England, is followed by quotations from Dicey solely talking about the common law jus soli rule, obviously all that Gray was interested as he skipped over all Dicey’s discussion of statutory subjects.Accordingly, whether Gray or anyone else in America thought that because the English passed statutes that expressly made certain persons “natural born subjects” at birth meant that American statutes that only expressly made people citizens at birth also meant they were natural born for purposes of the Constitution is not answered by Gray including such quote of Dicey.

  278. avatar
    ballantine May 21, 2013 at 3:27 pm #

    Scientist: The framers were smart (at least smarter than Hermitian), but let’s not pretend they were perfect and all-knowing.If they saw the discussion here and the birthers they would admit they screwed up by not writing a clear definition of who and is who is not eligible that wouldbe understandable by the layman without recourse to legal mumbo-jumbo.

    And please don’tgive me, “A Constitution is not the place to be specific”.It, more than anywhere else, is the place for plain, clear language.After all, the Constitution says “35 years old”, not “mature and seasoned” and “14 years a resident”, not “loved here a goodly while”, so why notbe specific about birth circumstances if you are so convinced they matter?

    The point of my post was that his definition was unclear as well as “naturalization” didn’t have a clear definition either at that time as the term was sometimes applied to citizens at birth as well as persons made citizens after birth. We could all wish for the framers to be clearer but it is what it is.

  279. avatar
    ballantine May 21, 2013 at 3:41 pm #

    Paper:
    I was reviewing that list of references made by Gray in WKA, and I thought there was more than one quote that opened the door, but I set it aside to examine more closely later, so I am not sure if Dicey is the only reference.I think what this, or these, quotes do is offset the later dicta about congressional enactments of statute being a form of naturalization that would make a presidential candidate ineligible.So that WKA itself is not as decisive as is made out to be *when it comes to the meaning of natural born citizen as applied to the presidency.

    I don’t understand your point. Wong Kim Ark said the Art.II definition should be defined by the common law which he tells is is jus soli, not jus sanguinis. Thus, we know it includes at least jus soli. The court doesn’t expressly state that such is the sole class of persons though if there was another class one would think he would have said natural born was defined by the common law and statutory law of England. The Court makes as clear as can be that the foreign born can only become citizens by being naturalized by Congress as he rejected the argument that the common law was jus sanguinis. He did not say that such naturalized citizens could not be considered natural born if naturalized at birth. Trying to argue he agreed with the “at birth” rule from the Dicey quote is putting words in Gray’s mouth as, again, the context of the Dicey citation was the definition of the common law rule that Gray said defined the term. Thus, one can argue that Gray left open the question of whether someone naturalized at birth can be natural born, but I don’t think one can say Gray in any way suggested such was true.

  280. avatar
    Scientist May 21, 2013 at 3:47 pm #

    ballantine: We could all wish for the framers to be clearer but it is what it is.

    If they couldn’t be bothered to be clear, then don’t try to guess what they meant. And that’s all you and Hermitian and any “experts” are doing . You have already admitted the courts will not get involved. So the voters will decide when such candidates present themselves, as they did with Romney and McCain. Since those 2 lost (as will Cruz if he runs), the issue is moot anyway. Maybe the voters instinctively resist voting for those not born in the US. Who knows? And really what does it matter? On the list of important issues facing the country, this doesn’t crack the Top 100. Surely, you can see that.

  281. avatar
    Scientist May 21, 2013 at 3:52 pm #

    ballantine: That being said, I have said over and over that no court will rule Cruz ineligible. I just wonder how they will get there.

    They won’t have to “get there” because if he ran (still uncertain) no one with standing will challenge him, as no one challenged McCain. It’s interesting to speculate what the Ankeny court would have done had McCain won the state in 2008, but I suspect they would have found a way not to overturn the will of the voters.

  282. avatar
    ballantine May 21, 2013 at 3:55 pm #

    Scientist: If they couldn’t be bothered to be clear, then don’t try to guess what they meant.And that’s all you and Hermitian and any “experts” are doing . You have already admitted the courts will not get involved.So the voters will decide when such candidates present themselves, as they did with Romney and McCain.Since those 2 lost (as will Cruz if he runs), the issue is moot anyway.Maybe the voters instinctively resist voting for those not born in the US.Whoknows?And really what does it matter?On the list of important issues facing the country, this doesn’t crack the Top 100.Surely, you can see that.

    Then why do you spend so much time talking about? I am at least trying to finish a comprehensive paper on citizenship generally, focusin mostly on the 14th Amendment. But it is hard to separate the 14th Amendment from the NBC clause as one must explain their relation to each other and the law prior to 1866 to understand the intent of the amendment.

  283. avatar
    Scientist May 21, 2013 at 4:15 pm #

    ballantine: Then why do you spend so much time talking about?I am at least trying to finish a comprehensive paper on citizenship generally, focusin mostly on the 14th Amendment. But it is hard to separate the 14th Amendment from the NBC clause as one must explain their relation to each other and the law prior to 1866 to understand the intent of the amendment.

    That sounds interesting. I could ask why you spend time here rather than on your writing, which should speak for itself.

    Citizenship has a real impact on the lives of a large number of people and is certainly important, particularly with immigration reform on the table. Frankly, whether Ted Cruz is a strict NBC or not has a real impact only on him.

    Quite honestly, I don’t think the issue of those born to US citizens abroad affects those born in the US, The former could be NBCs or not, without changing the fact that the latter are.

  284. avatar
    Keith May 21, 2013 at 5:13 pm #

    ballantine: I understand the argument. However, there is nothing in Wong Kim Ark that supports such interpretation and very little support in history.

    ballantine: There is nothing in Wong Kim Ark that remotely suggests a foreign born person can be natural born.

    Correct.

    WKA was about a native born man, Wong Kim Ark. It was not about a foreign born person. Discussion of foreign born persons was in passing, part of explaining that the Congressional power to act with regards to foreign born persons was not applicable to the case.

  285. avatar
    Keith May 21, 2013 at 5:16 pm #

    ballantine: Therefore, one is left with a Congress making persons citizens at birth through its naturalization powers. There is no other legitimate argument. It is simply a fact that Cruz would be an alien if he wasn’t covered by such a statute. Such has always been our law. The question then I can Congress make natural born citizens through statute. If you don’t think so, then you are going to have a difficult time making an argument.

    The argument is very simple.

    If the HOW a person becomes a citizen is via Congressional act, WHEN does that person become a citizen?

    If it is AT birth, then the person is a natural born citizen.
    If it is sometime AFTER birth, the the person is not a natural born citizen.

    ‘natural born’ is a quality inherent in the circumstances, not something added, or ‘made’, or legislated, or defined in.

  286. avatar
    ballantine May 21, 2013 at 5:35 pm #

    Keith: The argument is very simple.

    If the HOW a person becomes a citizen is via Congressional act, WHEN does that person become a citizen?

    If it is AT birth, then the person is a natural born citizen.
    If it is sometime AFTER birth, the the person is not a natural born citizen.

    ‘natural born’ is a quality inherent in the circumstances, not something added, or ‘made’, or legislated, or defined in.

    Yes, I understand the argument. My point is pretty much no one prior to the 20th century cited such a definition. There is zero evidence that such was actually the definition of the framers. Again, I find it a plausible argument based upon English law at the time but find your certainty in absense of evidence a little curious.

  287. avatar
    ballantine May 21, 2013 at 5:46 pm #

    Keith:
    Correct.

    WKA was about a native born man, Wong Kim Ark. It was not about a foreign born person. Discussion of foreign born persons was in passing, part of explaining that the Congressional power to act with regards to foreign born persons was not applicable to the case.

    Except the dicta with respect the foreign born in Wong Kim Ark has been repeated by the court ever since in cases trying to determine the status of the foreign born and clearly is the law today. Thus, there is no dispute that Cruz would be an alien unless made a citizen pursuant to Congress’ power of naturalization. I never said the power of naturalization didn’t include the power to make natural born citizens, though the argument would be stronger if the statute actually declared them natural born like the English statutes or the 1790 act. I said there little early american authority to support such argument.

  288. avatar
    Paper May 21, 2013 at 6:04 pm #

    This point is a non-starter. We are discussing what the constitutional term itself means. If it means born a citizen, whether here or there, this way or that way, then statute does not expand or contract that term, no matter how many times the statutes change. If, on the other hand, it means only those born here, then sure, Congress cannot just play fast and loose with that. So raising this point adds nothing to your case because it only matters if you’ve already won the argument.

    nbc: Since Congress can take away the citizenship statute granting citizenship to children born abroad to US citizen parents, this would mean that Congress by simple statute can broaden the meaning of the term natural born and then narrow it by simple statute.

  289. avatar
    Dr. Conspiracy May 21, 2013 at 6:10 pm #

    It appears I should read Calvin’s case again.

    Let me be clear that I am not saying that Dicey makes me right. What I am saying is that Dicey should be explained. If you say that Dicey is “too modern” (even though he cites Lord Coke in the work), then that is an explanation. My purpose is not to put forward a position, but to understand everything.

    I hope we can agree, however, that anything WKA says as applied to the citizenship of Cruz is dicta. It was not necessary in determining Wong’s status to distinguish between him and the status of persons born abroad. When I say “dicta” I do so to indicate that the decision of Justice Gray is not necessarily as precise or considered in an application to Cruz, as it was to Wong (or to Obama). Wong has to be a natural born citizen for the argument in the Wong Decision, but Cruz could go either way without changing the result in Wong.

    ballantine: The English statutes we have been talking about expressly stated they applied to persons born “out of the allegiance” or “ligeance” of the Crown and hence were outside of the provisions of Calvin’s Case. Again, there were a few early English authorities that argued such statutes to be declaratory. Blackstone and pretty other significant authority that followed him in England and the United States, including Justice Gary, rejected such argument.

  290. avatar
    Dr. Conspiracy May 21, 2013 at 6:23 pm #

    One can infer such a definition from the Naturalization Act of 1790.

    We agree that those born IN the country were natural born citizens. The 1790 Act made certain persons born overseas natural born citizens. Where there ANY persons born citizens in 1790 that were not natural born citizens either by common law, state law or statute?

    ballantine: So, you found one source from 1896 from a nation that had adopted statutes expressly stating a second class of persons to be natural born in that country. I note that you can’t find a single American authority with that same definition prior to 1896.

  291. avatar
    Dr. Conspiracy May 21, 2013 at 6:28 pm #

    I am going to do that. I would just remind you of all the argument on this blog saying that Minor did NOT define natural born citizen, and wondering of the same points would apply to Calvin’s Case (and to WKA).

    ballantine: You have to look at how Coke defined such terms

  292. avatar
    ballantine May 21, 2013 at 6:40 pm #

    Dr. Conspiracy:
    It appears I should read Calvin’s case again.

    Let me be clear that I am not saying that Dicey makes me right. What I am saying is that Dicey should be explained. If you say that Dicey is “too modern” (even though he cites Lord Coke in the work), then that is an explanation. My purpose is not to put forward a position, but to understand everything.

    I hope we can agree, however, that anything WKA says as applied to the citizenship of Cruz is dicta. It was not necessary in determining Wong’s status to distinguish between him and the status of persons born abroad. When I say “dicta” I do so to indicate that the decision of Justice Gray is not necessarily as precise or considered in an application to Cruz, as it was to Wong (or to Obama). Wong has to be a natural born citizen for the argument in the Wong Decision, but Cruz could go either way without changing the result in Wong.

    Yes, the discussion of the foreign born in WKA was dicta, but it has been repeated ever since even in cases dealing with foreign born children of citizens. It clearly is the law. However, none of these cases say that Cruz can’t be natural born. They say he must be naturalized by Congress which does’nt mean such person can’t also be natural born.

    I have to admit, I’ve never noticed that Dicey quote before, so I give you credit. But remember he is talking about a nation that expressly declared foreign-born jus sanguinis persons to be natural born subjects. Would americans a century earlier feel the same way about persons not declared to be natural born by statute? Maybe yes, maybe no. That is why I have said over and over that the argument is plausible. However, it is simply a fact that no significant early American authority spoke of such people in discussing who was natural born. I would hate to try to argue to a court that everyone who talked about natural born citizenship for a century or so forgot to state the actual rule. I didn’t say you were wrong, I said your argument has little historical support in the United States. If I represented Cruz, I would try to play-up the Dicey quote as well. However, the argument that Dicey represented the american view in 1787 is a difficult argument. The courts will find Cruz eligible. My question is how they get there without over-turning 200 years of precedent.

  293. avatar
    Scientist May 21, 2013 at 6:49 pm #

    ballantine: Again, I find it a plausible argument based upon English law at the time but find your certainty in absense of evidence a little curious.

    I think it’s fair to say that neither side can be certain in this debate. My point is that given the lack of certainty, there has to be a default position. Where there is doubt in a criminal matter we acquit. In an electoral question, the default ought to be to trust the voters. Where a candidate is undoubtedly ineligible-a 22 year old born outside the country to foreign parents-then fine, deny them the ballot. Where there is doubt, shouldn’t the final word be with the voters?

    In answer to your question, ballantine, that is how the courts get there. Though the matter will likely never get to court.

  294. avatar
    Paper May 21, 2013 at 7:42 pm #

    I love the way you prove that the Earth is actually more massive than the sun. ;-}

    Scientist: The Earth-centric model couldn’t work even with only those 2 objects, because a more massive object can’t orbit a less massive one.

  295. avatar
    Paper May 21, 2013 at 7:45 pm #

    Except in 1790 you mean?

    ballantine: However, it is simply a fact that no significant early American authority spoke of such people in discussing who was natural born.

  296. avatar
    Dr. Conspiracy May 21, 2013 at 8:00 pm #

    Ponder this:

    Those people who ratified our US Constitution had been up until just a few years prior, subjects of a nation who extended “natural born” status by statute to persons born outside the realm of King George. They had themselves been natural-born subjects of Britain (under the common law), and their children, born anywhere, were natural-born subjects of Britain by statute (see, for example the British Nationality Act of 1730.) So these concepts are not at all foreign to the Framers (some of whom studied law in England).

    ballantine: But remember he is talking about a nation that expressly declared foreign-born jus sanguinis persons to be natural born subjects. Would americans a century earlier feel the same way about persons not declared to be natural born by statute?

  297. avatar
    ballantine May 21, 2013 at 8:50 pm #

    Dr. Conspiracy:
    Ponder this:

    Those people who ratified our US Constitution had been up until just a few years prior, subjects of a nation who extended “natural born” status by statute to persons born outside the realm of King George. They had themselves been natural-born subjects of Britain (under the common law), and their children, born anywhere, were natural-born subjects of Britain by statute (see, for example the British Nationality Act of 1730.) So these concepts are not at all foreign to the Framers (some of whom studied law in England).

    Yes, that is why I said your argument is plausible. When Congress decided to stop declaring such persons “natural born” it obviously called such continued application of such doctrine into question. The fact that pretty much no legal authority after 1790 called foreign born statutory citizens natural born is simply a historical fact. I keep saying your theory is plausible. You seem to keep insisting it was the law even though no legal authority in America of any significance agreed with such theory.

  298. avatar
    nbc May 21, 2013 at 8:56 pm #

    I have been updating my website to discuss the various suggestions people have provided as to why a child born abroad to a US citizen should be natural born

    1. Common Law included such citizenship
    2. Natural Born means “citizen at birth” (in contradiction to the Common Law) and thus anyone who is a citizen at birth is natural born

    I will start with the first one which was laid to rest by the Court in US v Wong Kim Ark, which as a matter of fact also lays to rest 2) but I appreciate why some would like additional rationales.

    So why are children born abroad to US citizens not natural born under common law? The Court explains how jus sanguini has consistently been implemented by English statute and similarly by statute in the United States (1790, 1795, 1802, 1855 etc)

    Even the 1790 act appears to be prospective and not declarative

    And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:

    Unlike the 14th which shows clearly that it reflects the status under our Constitution when it declares:

    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

    are citizens, not shall be citizens.

    It will be hard to argue therefor that the common law, at the time of the Founders, included such children as natural born. Which is why the Congress felt it necessary to deal with their status.

  299. avatar
    nbc May 21, 2013 at 9:00 pm #

    As to the idea that Natural Born means ‘at birth’, the conclusion is contradicted by the well known fact that

    Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency

    Citing

    See also Schneider v. Rusk, 377 U.S. 163, 165 (1964) (“The rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”); Macintosh v. United States, 42 F.2d 845, 849 (2d Cir. 1930). (“No more is demanded of an alien who becomes a citizen than a natural-born citizen, and, when an alien becomes a citizen, he is accorded all the rights and privileges afforded to a natural-born citizen except eligibility to the presidency.”).

    So, one could of course argue that such children are not naturalized but that would be an even worse uphill battle under US v Wong Kim Ark.

  300. avatar
    nbc May 21, 2013 at 9:03 pm #

    Dr. Conspiracy: Those people who ratified our US Constitution had been up until just a few years prior, subjects of a nation who extended “natural born” status by statute to persons born outside the realm of King George.

    Only by statute. Which is why they realized that a similar statute was necessary. The idea that the founders did not understand the meaning of natural born under Common Law is to be rejected given their familiarity with Blackstone.

    It may be hard for us to understand what the Founders were really thinking but since we have to rely in these matters on the common law, US v Wong Kim Ark seems to have resolved this matter.

  301. avatar
    nbc May 21, 2013 at 9:06 pm #

    Paper:
    Except in 1790 you mean?

    A law which declares children born abroad to some US parents to be natural born under naturalization powers…

    It did not even try to be declarative but rather it used the term ‘shall be’ to indicate a clear prospective statute to deal with the status of such children. The thought that our Founders believed that statute could define who are natural born needs so additional evidence, especially when in 1795, led by Madison I believe, the law was repealed and children born such were declared to be citizens.

    Under Common Law, the status of child so born was well understood. See Blackstone for example.

  302. avatar
    nbc May 21, 2013 at 9:12 pm #

    Keith: If it is AT birth, then the person is a natural born citizen.

    There is no suggestion that natural born means ‘at birth’. We already know that under common law it meant birth on soil, subject to jurisdiction. Natural reflected the fact that it did not need any statute, or even that the constitution needed to spell it out. It accepted the age old rule that those born on soil are natural citizens.

    I understand that you may be misled by Maskell whose claims appear to be to broad when he discusses the meaning of the term, discussing Pryor and Gordon’s attempts to include such citizen as natural born.

    We know that common law never included children so born, nor that it defined natural born as ‘at birth’. And at birth, those born abroad would have been aliens were it not for a statute which naturalized them. At birth they certainly were not “natural” as it required a specific act.

    It may be tempting to accept Maskell’s interpretation but I have so far seen little support in legal precedent or even the writings at the time of the Constitution or thereafter.

    It was suggested that John Jay would never have wanted his children born while he was an ambassador abroad to not be natural born citizens. But I am sure he was aware that under common law such children would indeed be US natural born citizens.

  303. avatar
    Dr. Conspiracy May 21, 2013 at 9:42 pm #

    I think it is fair to say that I am staking out an originalist position.

    The argument that I would like to make (but cannot make either because of my ignorance of British cases or the lack of them) would go like:

    “Natural born citizen” is either a term of common language, in which the dictionary definition prevails, and it means citizen from birth OR it is a term of art to be understood by consulting English Common Law.

    In the English Common law, natural born subjects are defined as subjects at birth (hole in argument here), and that in particular ECL says that those born in the realm (with exceptions) qualify as subjects at birth, and as natural born citizens.

    ballantine: You seem to keep insisting it was the law even though no legal authority in America of any significance agreed with such theory.

  304. avatar
    nbc May 21, 2013 at 9:57 pm #

    Now, I admit this is a dangerous argument but I will still explore and expand on it

    Among the powers expressly granted to Congress is “the power to establish a uniform rule of naturalization.” It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this would do violence to the meaning of the term naturalization, fixed in the common law, Co.Lit. 8a, 129a; 2 Ves. sen. 286; 2 Bl.Com. 293, and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen that it was employed in the Declaration of Independence. It was in this sense it was expounded in the Federalist No. 42; has been understood by Congress, by the Judiciary, 15 U. S. 2 Wheat. 259, 15 U. S. 269, 3 Wash.R. 313, 322, 25 U. S. 12 Wheat. 277, and by commentators on the Constitution. 3 Story’s Com. on Con., 1-3; 1 Rawle on Con. 84-88; 1 Tucker’s Bl.Com. App. 255-259.

    and

    “And this power granted to Congress to establish an uniform rule of naturalization is, by the well understood meaning of the word, confined to persons born in a foreign country, under a foreign Government.

    Source: Scott v. Sandford – 60 U.S. 393 (1856) (Dred Scott)

    Blackstone

    Naturalization cannot be performed but by act of parliament for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance

    Source: Commentaries on the laws of England: in four books, Volume 1

    So does naturalization of a child born abroad to US citizens means that she would have been an alien where it not for the fact of naturalization?

  305. avatar
    nbc May 21, 2013 at 10:23 pm #

    Thank goodness Ballantine has done some better research here

    “But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.” Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)

    “Mr. Madison did not think that Congress, by the constitution, had any authority to readmit American citizens at all. It was only granted to them to admit aliens.” Abridgment of the Debates of Congress, from 1789 to 1856: From Gales and Seatons’ Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives, pg. 556 (1860)

    ” I maintain that a negro can not be made a citizen by Congress ; he can not be made a citizen by any naturalization laws, because the naturalization laws apply to foreigners alone. No man can shake the legal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the United States, not being a foreigner, can not be naturalized; therefore they can not be made citizens by the uniform rule established by Congress under the Constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. They could not be made citizens by treaty. If they arc made so at all, it is by their birth, and the locality of their birth, and the general operation and effect of our Constitution.” Sen. Davis, quoted in History of the thirty-ninth Congress of the United States, William Horatio Barnes, pg. 208, (1868)

    NATURALIZATION. The act by which an alien is made a citizen of the United States of America. Bouvier Law Dictionary pg. 189 (1843)

    ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts. See Citizen, Inhabitant. Bouvier Law Dictionary (1856)

    Naturalization. That process by which an alien becomes a citizen. Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)

    An alien is one who is born in a foreign country. Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)

    NATURALIZATION. [Lat. naturalizatio.] The act of investing an alien with the rights and privileges of a native or natural-born subject or citizen.* Co. Litt. 129 a. 1 Bl. Com. 374. 2 Kent’s Com. 64—67. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737 (1851)

    Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 81 (1871)

  306. avatar
    ballantine May 21, 2013 at 10:24 pm #

    Dr. Conspiracy:
    I think it is fair to say that I am staking out an originalist position.

    The argument that I would like to make (but cannot make either because of my ignorance of British cases or the lack of them) would go like:

    “Natural born citizen” is either a term of common language, in which the dictionary definition prevails, and it means citizen from birth OR it is a term of art to be understood by consulting English Common Law.

    In the English Common law, natural born subjects are defined as subjects at birth (hole in argument here), and that in particular ECL says that those born in the realm (with exceptions) qualify as subjects at birth, and as natural born citizens.

    I don’t understand why you say the dictionary definition is a citizen at birth. What dictionary are you referring to? Certainly none in the founding period. And no one of any significance, not even Dicey, said the common law was defined by being a subject at birth. The English had statutes giving natural born status to people who were aliens at common law. Again, the notion that the common law included jus sanguinis was rejected by pretty much everyone in England and America including Blackstone, Chitty, Cochburn, Jefferson, Kent, Binney and Justice Gray and the supreme court. Being a “subject at birth” is simply not the common law.

  307. avatar
    nbc May 21, 2013 at 10:24 pm #

    Oh oh and US v Rhodes

    US v Rhodes…

    The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power. There is a universal agreement of opinion upon this subject. [**26] Scott v. Sanford, 19 How. [60 U.S.] 578; 2 Story, Const. 44.

  308. avatar
    nbc May 21, 2013 at 10:35 pm #

    Zimmer v Acheson, 191 F.2d 209, United States Court of Appeals Tenth Circuit, 1951

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

    and

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

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

    Black’s Law Dictionary

    “naturalization. The granting of citizenship to a foreign-born person under statutory authority.”

  309. avatar
    ballantine May 21, 2013 at 10:38 pm #

    nbc: There is no suggestion that natural born means ‘at birth’. We already know that under common law it meant birth on soil, subject to jurisdiction. Natural reflected the fact that it did not need any statute, or even that the constitution needed to spell it out. It accepted the age old rule that those born on soil are natural citizens.

    I understand that you may be misled by Maskell whose claims appear to be to broad when he discusses the meaning of the term, discussing Pryor and Gordon’s attempts to include such citizen as natural born.

    We know that common law never included children so born, nor that it defined natural born as ‘at birth’. And at birth, those born abroad would have been aliens were it not for a statute which naturalized them. At birth they certainly were not “natural” as it required a specific act.

    It may be tempting to accept Maskell’s interpretation but I have so far seen little support in legal precedent or even the writings at the time of the Constitution or thereafter.

    It was suggested that John Jay would never have wanted his children born while he was an ambassador abroad to not be natural born citizens. But I am sure he was aware that under common law such children would indeed be US natural born citizens.

    Funny, just recenty read Gordon and Maskell’s arguments and they are both really weak. Neither makes the strongest argument available to them that has been discussed here, I.e., that someone made a citizen at birth by statute was natural born. Their primamry argument appears to be that the common law included jus sanguinis or, at least, such was unclear. History clearly refutes such argument.

  310. avatar
    Paper May 21, 2013 at 11:56 pm #

    One path would be for a president-elect to take it “there,” if he or she were rejected by Congress as being ineligible?

    Scientist: They won’t have to “get there” because if he ran(still uncertain) no one with standing will challenge him, as no one challenged McCain.

  311. avatar
    nbc May 21, 2013 at 11:58 pm #

    ballantine: Funny, just recenty read Gordon and Maskell’s arguments and they are both really weak. Neither makes the strongest argument available to them that has been discussed here, I.e., that someone made a citizen at birth by statute was natural born. Their primamry argument appears to be that the common law included jus sanguinis or, at least, such was unclear. History clearly refutes such argument.

    Maskell is overselling the strength of his arguments I believe.

  312. avatar
    nbc May 22, 2013 at 12:07 am #

    Paper: One path would be for a president-elect to take it “there,” if he or she were rejected by Congress as being ineligible?

    Or the runner up? While the argument of political question has been raised, I doubt that under Powell, the courts could reject hearing the case.

  313. avatar
    John Reilly May 22, 2013 at 1:22 am #

    Simple.

    People born here, unless they are the children of diplomats or invaders, are natural born citizens.

    People born elsewhere are not natural born citizens, unless Congress passes a law defining them as natural born citzens, like children of one or two American parents, children of soldiers or diplomats serving abroad, etc. There is a limit, but we have not reached it. I don’t think Congress could define Gov. Schwarzenegger as natural born, and the consensus seemed to be we had to amend the Constitution to let him run.

    I see nothing in the Constitution that says Congress can’t define who is a natural born citizen. Congress has, for example, defined folks like Sen. McCain as natural born, and in case there was doubt, when he ran, the Senate voted he was natural born.

    I presume that if folks challenge Giv. Jindahl, Sen. Rubio, or Sen. Cruz, the Senate will affirm their natural born status and the courts will not intervene.

    Folks who think otherwise, like John or Hermitian, simply do not understand what this country is about. They also seem to have a difficulty in understanding logic, or basic concepts.

    Dr. Taitz, given what is currently on her web site, appears about ready to explode. I’d stay away from Orange County.

    And, in any event, Hawaii says Pres. Obama was born here. At this point in this story, people who believe otherwise ought to be kept away from sharp implements.

  314. avatar
    Keith May 22, 2013 at 1:31 am #

    Paper: I love the way you prove that the Earth is actually more massive than the sun. ;-}

    Scientist: The Earth-centric model couldn’t work even with only those 2 objects, because a more massive object can’t orbit a less massive one.

    Like I said, it’s all relative. Ignoring all other celestial bodies, an observer on Earth cannot tell, and it does not make any difference, whether the Earth orbits the Sun or the Sun orbits the Earth.

    Physics makes an arbitrary (but extremely useful) choice to consider that the lesser mass orbits the greater mass. Therefore if we know the relative masses, we can choose to move our frame of reference to the larger mass. But there is no absolute rule that this is required, it is just simpler to think about, and the math is much, much easier.

    Now of course, since one of the orbital foci of the Earth/Sun system is within the heliosphere, it makes even more sense to consider the Sun as the center of the system, but not all two body systems are necessarily the same as the Earth/Sun system.

  315. avatar
    Paper May 22, 2013 at 1:55 am #

    No, that is not Maskell’s argument. The issue is not about what only common law says, but what else existed at the time modifying that common law, in other words statutes, and that the framers were clearly aware of that state of affairs.

    As Maskell notes: “Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely ‘declare’ already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. ”

    Maskell talks about a “floor” rather than what you may call a ceiling.

    When I read through the instances where WKA discusses common law and our important reliance upon it where appropriate, I do not find it saying that *only* common law may be used. Particularly in matters not covered by common law but which were “patched” by statute, I find it a weak argument to say we must ignore that precedent, of which the framers were aware. We already apply many other aids beyond common law in interpreting/applying the Constitution.

    Where common law is clear with regards citizens born here, it makes tons of sense to “resort” to common law, and WKA does so. But when we discuss matters beyond the scope of common law, such as those born abroad to citizen parents, we would need to rely upon those other standards in place for such circumstances.

    The framers knew that English natural born subjects could be born abroad in foreign countries beyond the standards of the common law. The one comment we have from Burke speaks of dealing with such children in the manner by which the English dealt with them.

    The point is about the framers being aware of how the English dealt with similar matters.

    ballantine: Funny, just recenty read Gordon and Maskell’s arguments and they are both really weak.Neither makes the strongest argument available to them that has been discussed here, I.e., that someone made a citizen at birth by statute was natural born. Their primamry argument appears to be that the common law included jus sanguinis or, at least, such was unclear.History clearly refutes such argument.

  316. avatar
    nbc May 22, 2013 at 2:38 am #

    John Reilly: People born here, unless they are the children of diplomats or invaders, are natural born citizens.

    People born elsewhere are not natural born citizens, unless Congress passes a law defining them as natural born citzens, like children of one or two American parents, children of soldiers or diplomats serving abroad, etc.

    Interesting so you are saying that using a simple statute, Congress can define the meaning of a constitutional term…

    Ain’t that wonderful. Next we will have all naturalized citizens be natural born :-)

    The hard part of course is finding constitutional validation of such a position…

  317. avatar
    nbc May 22, 2013 at 2:42 am #

    Paper: When I read through the instances where WKA discusses common law and our important reliance upon it where appropriate, I do not find it saying that *only* common law may be used. Particularly in matters not covered by common law but which were “patched” by statute,

    Patched by statute is not relevant to the meaning of the term natural born. In fact nothing was patched by statute as much as extended by statute.

    WKA was clear that the meaning of undefined terms need to be found in common law, not patching statutes. Common law and statutes are quite different and the Court in WKA rejected that such statutes changed the common law interpretation. Read about Edward III for example.

  318. avatar
    nbc May 22, 2013 at 2:45 am #

    Paper: The framers knew that English natural born subjects could be born abroad in foreign countries beyond the standards of the common law. The one comment we have from Burke speaks of dealing with such children in the manner by which the English dealt with them.

    And they knew that it required statutes and therefor it was not really ‘natural born’ as the term suggests that it does not need statutes. In fact, the constitution does not define who are its natural citizens as it could not do so. It was clear that natural referred to the fact that those born on soil would be its citizens.

    The Founders were quite well versed in Blackstone and would have known the common law meaning of natural born. In fact, they found it necessary to take care of children born to citizens abroad by statute, not even pretending that it was declarative.

  319. avatar
    Paper May 22, 2013 at 2:47 am #

    ballantine: Yes, I understand the argument. My point is pretty much no one prior to the 20th century cited such a definition. There is zero evidence that such was actually the definition of the framers. Again, I find it a plausible argument based upon English law at the time but find your certainty in absense of evidence a little curious.

    Burke’s recorded comment re 1790 Act of needing to deal with children born abroad in the way the English had is evidence that they indeed knew of, and even applied it.

    So “zero” is incorrect.

    And here is more of Maskell on this point:

    From examination of historical documents, it appears that the term “natural born” as it related to citizenship under English law and jurisprudence was a term widely known and used in the American colonies in the 1700’s, and was employed in the context and understanding of British common law as well as British statutory law. For example, more than a decade before John Jay had employed the term in his “hint” to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered “natural-born subjects within the realms of England.” As noted in Elliot’s compilation and analysis of documents related to independence,

    On the same day [14th of October, 1774], Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.”81

    It is thus clear that the delegates to the First Continental Congress in 1774, among whom were several framers of the Constitution at the Federal Convention of 1787, as well as other notable “founding fathers” (including John Jay),82 were already familiar with and employed the term “natural born” in the context of and within the understanding of British common law and statutory law concepts of the rights and privileges of citizenship….

    …Concerning specifically the issue of children born abroad of English subjects, Blackstone explains clearly that such children are then (in 1765) considered under the law of England as “natural born” subjects, and have been considered as such for most purposes since at least the time of Edward III (1350), because of the development of statutory law in England to “encourage also foreign commerce.” As stated by Blackstone in his 1765 treatise,

    [A]ll children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.86

    The “commonly understood” meaning of the term “natural born” in the United States at the time of the drafting of the Constitution might thus be broader than the early, strict English “common law” meaning of that term.87 As noted by Charles Gordon, former Chief Counsel of the Immigration and Naturalization Service, whether the body of English law in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions “were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers.”88 This common usage and popular understanding to the framers of the term “natural born” subject (as employed in England), and the term’s apparent evolution and broadening of meaning through statutory law, has thus led several other legal commentators and historians to conclude: “The constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreign- born children of American citizen parents eligible for the Office of the Presidency”89; or, as stated by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause.”90

  320. avatar
    nbc May 22, 2013 at 2:48 am #

    John Reilly: I see nothing in the Constitution that says Congress can’t define who is a natural born citizen.

    Other than the fact that the Constitution uses the term to define eligibility and the mere thought that congress can thus change its meaning would be unheard of.

    Ask yourself how congress did in Powell…. When they tried to define eligibility for congress men.

    Are you really saying that congress could define anyone to be natural born? Just to push the argument to its extreme to show its follies…

    Especially in light of US v WKA which determined that the meaning of the term was to be found in Common Law, not statutory enactments by Congress….

  321. avatar
    Keith May 22, 2013 at 2:50 am #

    ballantine: I don’t understand why you say the dictionary definition is a citizen at birth. What dictionary are you referring to? Certainly none in the founding period.

    Would Noah Webster’s magnum opus from 1828 suffice?

    FYI, Noah Webster, was born in 1758, was 31 years old when the Constitution was ratified, and was 70 years old when he published his dictionary of AMERICAN English. He was a friend of Alexander Hamilton, who lent him an enormous amount of money, $1500, to move to New York and work with the Federalist Party. There is no doubt that he is of the generation of Americans that fought in the Revolutionary War and wrote the Constitution. He was there. He lived it. He was educated before and during, just as the Framers were. He is also the foremost authority on American English of his time. Will you dispute with him?

    Here’s a sample of his definitions:

    NATURAL, a. [to be born or produced]
    1. Pertaining to nature; produced or effected by nature, or by the laws of growth, formation or motion impressed on bodies or beings by divine power. Thus we speak of the natural growth of animals or plants; the natural motion of a gravitating body; natural strength or disposition; the natural heat of the body; natural color; natural beauty. In this sense, natural is opposed to artificial or acquired.

    NATURALIZATION, n. [See Naturalize] The act of investing an alien with the rights and privileges of a native subject or citizen. Naturalization in Great Britain is only by act of parliament. In the United States, it is by act of Congress, vesting certain tribunals with the power.

    NATURALIZE, v.t. [from natural, nature.]
    1. To confer on an alien the rights and privileges of a native subject or citizen; to adopt foreigners into a nation or state, and place them in the condition of natural born subjects.

    Lets read that last phrase again…
    to adopt foreigners into a nation or state, and place them in the condition of natural born subjects.

    Noah Webster understood that the word NATURALIZE meant to place foreigners “in the condition of natural born subjects”.

    This indicates that the word, as used by the generation of Americans that wrote the Constitution, meant EXACTLY what you say it does NOT mean.

    The Constitution Article 1 Section 8 reads (extracted):

    The Congress shall have power…To establish a uniform rule of naturalization

    Just for fun, lets do some word definition substitution from Webster’s 1828 dictionary to the Constitutional phrase. First I’ll just change the one word by substituting Webster’s exact definition.

    The Congress shall have power…To establish a uniform rule of investing an alien with the rights and privileges of a native subject or citizen

    Now lets use the words from the definition of naturalize (to which Webster points us) instead of naturalization:

    The Congress shall have power…To establish a uniform rule of confer[ing] on an alien the rights and privileges of [an American] native subject or citizen; to adopt foreigners into [the American nation], and place them in the condition of natural born subjects [or citizen]

    So, I have found a dictionary filled with the meaning of words as known and used by the generation of the Framers of the Constitution, that directly and specifically dispute your interpretation of those words.

    How can you possibly dispute that Natural Born Citizen = Citizen at Birth. Take away the word ‘Natural’ and you get ‘Born Citizen’ = ‘Citizen at Birth’ by any reasonable definition of those words. Can you dispute that?

    What then does ‘Natural’ add? Look to Webster… Natural = ‘Pertaining to nature; produced or effected by nature’.

    So a “Natural Born Citizen” is a person whose citizenship was ‘produced or effected by nature’, because they were born that way. In other words, “Natural Born Citizen” = “Citizen at Birth, naturally (i.e. of course)”.

  322. avatar
    Paper May 22, 2013 at 2:54 am #

    Plus more Maskell on early American understanding:

    “The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.95 The Supreme Court has expressly noted the weight of authority of early actions of the first Congress in explicating portions of the Constitution because of the make-up of that Congress, and its proximity in time to the Convention. As noted by the Court, an act “passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, … is contemporaneous and weighty evidence of its true meaning.”96″

  323. avatar
    nbc May 22, 2013 at 2:58 am #

    Paper: On the same day [14th of October, 1774], Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.”81

    It is thus clear that the delegates to the First Continental Congress in 1774, among whom were several framers of the Constitution at the Federal Convention of 1787, as well as other notable “founding fathers” (including John Jay),82 were already familiar with and employed the term “natural born” in the context of and within the understanding of British common law and statutory law concepts of the rights and privileges of citizenship….

    A bit of a problem here.

    1) This was at a state level not the Federal level where it could not rely on how different states had accepted statutory law from English statutes

    2) Even if it accepted such statutes, it would not make it part of the common law. And in general, statutes so accepted where general statutes not specific ones.

    Yes, they might have understood its meaning within English statute, which is why they felt it necessary to deal with the status of children so born under US law as well as they may have realized that the constitution did not provide for such when it used ‘natural born’.

    Surely one would not want to argue that the Founders were not familiar with Blackstone as it pertained to Common Law.

    The idea that the US accepted statutory law from England as common law needs a bit more work.

    The State Constitutions do show that some statutory laws were accepted but not as common law.

    Maskell is a bit sloppy when it comes to these issues, confusing common and statutory law and the observations that terms left undefined in the Constitution should be found in common law, not the various statutory examples.

    We may want to believe that the Founders knew about these statutes and had them incorporated in the Constitution but their actions in 1790 suggest otherwise. Why else would they not have made the law declarative rather than prospective….

    As Ballentine has pointed out, the claim that natural born should include statutory law fails at too many levels.

  324. avatar
    nbc May 22, 2013 at 3:02 am #

    Paper: “The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption.

    And the fact that the act was repealed and replaced by something much weaker, merely 5 years later should could for nothing?

    If the Founders had believed that the Constitution provided for children so born, why the need for an act which does not even pretend to be declarative: Children born abroad to US citizen parents are natural born….

    The mere fact that they felt they had to deal with the issue shows that they too realized that jus sanguinis required a statute.

  325. avatar
    nbc May 22, 2013 at 3:04 am #

    Keith: Lets read that last phrase again…
    to adopt foreigners into a nation or state, and place them in the condition of natural born subjects.

    Noah Webster understood that the word NATURALIZE meant to place foreigners “in the condition of natural born subjects”.

    Yes but in the US, there was one difference pointed out by many courts: Eligibility for the office of the president.

    Under your ‘argument’ Congress could declare anyone naturalized to be natural born, in clear conflict with the Constitution.

    Is that what you want to argue?

  326. avatar
    nbc May 22, 2013 at 3:09 am #

    Keith: So a “Natural Born Citizen” is a person whose citizenship was ‘produced or effected by nature’, because they were born that way. In other words, “Natural Born Citizen” = “Citizen at Birth, naturally (i.e. of course)”.

    Yes, naturally means that it does not need a statute or even a Constitution. You do realize that birthright citizenship in the US is not through statute, even though the 14th Amendment had to explain the meaning of natural born?

    A child born outside the limits of the US could not ever be a citizen without a statute… No citizen by birth/at birth, but rather a citizen by statute.

    The founders, familiar with Common Law, would have understood the difference and realized that they too had to take care of children born abroad to US citizens, by statute.

    Not very natural…

  327. avatar
    Paper May 22, 2013 at 3:11 am #

    Well, first, there is the argument that Congress as a the legislative body of a sovereign nation is entitled to decide who belongs to the body politic, of course barring specific limits, imposed for instance by the 14th amendment.

    Moving on from that consideration, Congress would *not* be changing the definition. You need to let that argument go. It is meaningless unless you have already won the argument over what the definition actually is. If the definition is at or by birth, then the case of Congressional eligibility also does not apply.

    And it is not at all clear that one can say that WKA determined it was defined by common law alone. I’ve just reviewed every mention of common law in WKA. I don’t really see it, particularly given the focus of WKA on those born here, where common law was indeed relevant. WKA naturally would not apply common law to an area where it doesn’t apply, such as citizens born abroad. It does not seem convincing to say such persons are not covered by common law but we will use common law to determine their status, and catch 22, common law doesn’t give them that status. Other factors would seem to be legitimately brought to bear and I do not see WKA ruling out such other factors, nor saying only common law applies.

    So please provide the exact citation that makes your case, so I can better consider your point without getting lost in mere repetitive assertion.

    nbc: Other than the fact that the Constitution uses the term to define eligibility and the mere thought that congress can thus change its meaning would be unheard of.

    Ask yourself how congress did in Powell…. When they tried to define eligibility for congress men.

    Are you really saying that congress could define anyone to be natural born? Just to push the argument to its extreme to show its follies…

    Especially in light of US v WKA which determined that the meaning of the term was to be found in Common Law, not statutory enactments by Congress….

  328. avatar
    Paper May 22, 2013 at 3:20 am #

    By statute at birth!

    It does not matter if that status at birth is dependent upon statute.

    That is an irrelevant point unless you have already won the case. It doesn’t by itself win you anything.

    I don’t know how you get to “natural” meaning “without statute,” which seems an arbitrary exposition.

    nbc: Yes, naturally means that it does not need a statute or even a Constitution….

    A child born outside the limits of the US could not ever be a citizen without a statute… No citizen by birth/at birth, but rather a citizen by statute.

  329. avatar
    Keith May 22, 2013 at 3:23 am #

    Consider the following table:

    Citizen Citizen Is How When Is
    Name Parents Citizen? Citizen? Citizen? NBC?

    Minor 2 Y 14th Birth Yes
    McCain 2 Y statute Birth Yes
    Obama 1 Y 14th Birth Yes
    Cruz 1 Y statute Birth Yes
    Jindal 0 Y 14th Birth Yes
    Wong 0 Y 14th Birth Yes
    Schwarzenegger 0 Y statute Adult No

    (in column 4, ’14th’ means ‘jus soli’, born in the USA under jurisdiction. ‘Statute’ means any of USC1401, USC1403, or the various naturalization acts as passed by Congress).

    Q. What is the single common attribute between any of the last column and columns 2, 3, 4, and 5.

    A. Column 5 (when citizenship was achieved) is the only definitive attribute that matches the ‘natural born citizenship’ attribute. It is a simple and exhaustive definition for the phrase ‘natural born citizen’: citizen from birth.

    (edit: I was hoping the formatting would be easier to read, but apparently multiple spaces are trimmed. Sorry.)

  330. avatar
    Paper May 22, 2013 at 3:25 am #

    Also, if we go back to common law then we would be born citizens by common law, or by the 14th amendment. We are never born citizens by nature as nature does not recognize such things.

    So we would never be natural born citizens. No one would be.

    But in this case, I think it is complete error here to separate out the word natural from natural-born.

  331. avatar
    nbc May 22, 2013 at 3:28 am #

    Paper: Also, if we go back to common law then we would be born citizens by common law, or by the 14th amendment. We are never born citizens by nature as nature does not recognize such things.

    So we would never be natural born citizens. No one would be.

    It’s not ‘nature’ as much as ‘natural’. Which means that no explicit statutes were needed. In the US, such citizenship was jus soli, while jus sanguinis had to be dealt with through statute.

    Pretty straightforward. Remember that the Constitution does not define who are our natural born citizens and the 14th merely explains.

  332. avatar
    nbc May 22, 2013 at 3:30 am #

    Paper: It does not matter if that status at birth is dependent upon statute.

    Because of the need of statute it is not ‘natural’ which, as the Supreme Court in WKA observed was limited to birth on soil.

    It clearly rejected the concept that jus sanguinis was part of common law and thus ‘natural’.

  333. avatar
    nbc May 22, 2013 at 3:31 am #

    Paper: Well, first, there is the argument that Congress as a the legislative body of a sovereign nation is entitled to decide who belongs to the body politic, of course barring specific limits, imposed for instance by the 14th amendment

    Well, yes… Congress is allowed to provide for uniform laws of naturalization under our statute but does not get to define who are born citizens without the need of a statute.

    Our constitution limits the powers of congress. Of course it does provide the possibility of a constitutional amendment.

    If jus sanguinis were really ‘natural’ it would not have needed a statute.

  334. avatar
    Paper May 22, 2013 at 3:34 am #

    It is not in clear conflict. You are pre-defining (within the debate) the term natural-born citizen and then arguing that the limitations of your definition likewise limit our definition, but your definition’s limitations are not shared by ours.

    If the defining characteristic of what the Constitution means by natural-born citizen is when (by or at birth), then Congress is not in conflict. They are only in conflict if the term means only those born here.

    You can’t just decide that’s what it means, and thus it can’t mean what we suggest because your meaning won’t allow it!

    nbc:

    Under your ‘argument’ Congress could declare anyone naturalized to be natural born, in clear conflict with the Constitution.

    Is that what you want to argue?

  335. avatar
    nbc May 22, 2013 at 3:42 am #

    Paper: It is not in clear conflict. You are pre-defining (within the debate) the term natural-born citizen and then arguing that the limitations of your definition likewise limit our definition, but your definition’s limitations are not shared by ours.

    I am not really too worried about sharing my definitions with yours but rather with the authorities on this topic which reject your proposal

    It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin’ Case, 2 Howell’s State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke,1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J.,
    “that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,”
    – which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 184a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born beyond the sea in the service of the King were inheritable — which has been shown, by a search of the roll in the King’s Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake’s Private International Law (3d ed.) 324.
    The statute of 5 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet, as to all others, it is, in terms, merely prospective, applying to those only “who shall be born henceforth.” Mr. Binney, in his paper above cited, after a critical examination of the statute and of the early English cases, concluded:

  336. avatar
    nbc May 22, 2013 at 3:43 am #

    Paper: It is not in clear conflict.

    So are you saying that Congress can define natural born to include anyone naturalized?

  337. avatar
    nbc May 22, 2013 at 3:45 am #

    Paper: You can’t just decide that’s what it means, and thus it can’t mean what we suggest because your meaning won’t allow it!

    You would have a valid point if that were the case but my definitions are not based on what I want it to be but rather what the courts have interpreted it to be.

  338. avatar
    Paper May 22, 2013 at 3:51 am #

    Well, this argument goes beyond just the naturalization power. It goes to the existence of the country as a sovereign political body. I am of two minds about it. I don’t think it is necessary to the argument here. But I will note the prior to the 14th, there was nothing in the Constitution giving power over the citizenship of those born here. We have been talking of common law, but in reference to the 14th. There is no constitutional reference before the 14th upon which to hang common law about people born here. Citizenship was not defined in the Constitution until the 14th. And yet we had citizens.

    I am not arguing that jus sanguinis is natural. I don’t think Keith or others here are either. I find that to be a strawman. We are talking about natural-born citizens. Not “natural” citizens like whatshisname was arguing. It strikes me as completely irrelevant.

    nbc: Well, yes… Congress is allowed to provide for uniform laws of naturalization under our statute but does not get to define who are born citizens without the need of a statute.

    Our constitution limits the powers of congress. Of course it does provide the possibility of a constitutional amendment.

    If jus sanguinis were really ‘natural’ it would not have needed a statute.

  339. avatar
    nbc May 22, 2013 at 3:53 am #

    Paper: It is not in clear conflict.

    Well it is clear that the natural born clause was passed to disallow those naturalized from becoming our President so under your argument, Congress has the right to declare anyone to be natural born.

    Remember that the Constitution spells out clearly the powers of congres with respect to naturalization powers.

    Perhaps you want to argue that Congress has the limited powers to assert that those who are naturalized at birth are ‘natural born’ ? But that would be through statute, declaring those who would otherwise be foreign born to be citizens. But if the courts have distinguished between those citizens by birth and naturalization, how would that reconcile?

  340. avatar
    nbc May 22, 2013 at 3:57 am #

    Paper: Well, this argument goes beyond just the naturalization power. It goes to the existence of the country as a sovereign political body.

    I see, even though our Constitution spells out that Congress has the power to provide for uniform rules of naturalization, you want to argue that they still get to define who are our natural born citizens?

    Remember that the 14th is merely declarative of what the Constitution had outlined? It even uses the declarative phrasing when explaining who are our citizens.

    The Constitution does not spell out who are ‘natural born’ and courts have consistently observed that thus its meaning is to be found in common law.

    Nothing to do with the 14th, which merely reiterated the Constitution

  341. avatar
    Paper May 22, 2013 at 3:59 am #

    That is the very point in contention!

    Are we laying out arguments, or are you just saying you are right?

    There is disagreement about what those courts actually said, and regardless what the actual implications are, and how they relate to the question at hand vs. other questions of citizenship.

    Moreover, whether you agree or not, have better arguments in the end or not, many of these arguments opposed to your view are not specious fly-by-night arguments made by random strangers.

    So if this actually came to a consequential venue, you (your position) would have to deal with these arguments in a much more robust way than you do, in my view.

    You certainly wouldn’t get away with this comment below.

    nbc: You would have a valid point if that were the case but my definitions are not based on what I want it to be but rather what the courts have interpreted it to be.

  342. avatar
    nbc May 22, 2013 at 4:01 am #

    Paper: We are talking about natural-born citizens. Not “natural” citizens like whatshisname was arguing. It strikes me as completely irrelevant.

    Well we have to understand what the meaning of natural born is and what is ‘natural’ about them. If you look at the history, it is clear that natural born refers to the fact that such citizens need not statutes.

    Birth on soil has been considered to be a unifying rule amongst many nations, especially the United States where the mere fact of birth on soil was regarded as sufficient to be considered a citizen.

    When it came to jus sanguinis, explicit statutes were needed, which were never considered to be part of common law.

    Arguing that common law includes jus sanguinis is a losing battle when looking at both historical scholars as well as precedential rulings.

  343. avatar
    nbc May 22, 2013 at 4:06 am #

    Paper: Are we laying out arguments, or are you just saying you are right?

    Nope, I am saying that my arguments follow from judicial rulings. Check out US v WKA in more depth. I provided you with the relevant quotes that show how it rejects that jus sanguinis was part of the common law definition of natural born.

    While you may believe that your arguments have legal or logical merits, I am interested in comparing your arguments to scholarly and judicial rulings, and I have no choice but to conclude that they are lacking.

    Explain to me: Can Congress declare anyone to be natural born? Even a naturalized Foreign Prince? Just to drive the point home…

    The term natural born was clearly used to limit the eligibility and the naturalization clause clearly limited the power of congress to defining uniform rules of naturalization.

    I do understand your argument that sovereign nations have the right to define who are its citizens, but within the US, such powers are regulated by our Constitution.

    To argue that Congress, without constitutional amendments, is free to extend natural born citizenship to anyone they want, needs a little more foundation.

  344. avatar
    nbc May 22, 2013 at 4:09 am #

    Paper: So if this actually came to a consequential venue, you (your position) would have to deal with these arguments in a much more robust way than you do, in my view.

    You certainly wouldn’t get away with this comment below.

    That would be true if I had not backed up my arguments with actual references.

  345. avatar
    Paper May 22, 2013 at 4:21 am #

    As I have as well.

    There remain points of contention.

    nbc: That would be true if I had not backed up my arguments with actual references.

  346. avatar
    nbc May 22, 2013 at 4:32 am #

    Paper: As I have as well.

    There remain points of contention.

    So let’s see:

    US v WKA explains that when a term in the Constitution remains undefined, its meaning is to be found in Common Law.

    It then explains what the Common Law practices were, before, during and after the revolution and clearly rejected the idea that the concept that children born abroad to subject/citizen parents were (natural born) subject/citizens was part of our common law.

    So far with me?

    So you appear to be arguing that under the sovereignty powers, congress can define who are its natural born citizens, even though our own constitution not only limits eligibility to natural born citizens, clearly excluding naturalized citizens at large, and even though our Constitution provides congress with the plenary powers to define uniform rules of naturalization?

    Under your arguments, congress could declare anyone to be natural born, including those naturalized aliens with no tie to the United States at all… In other words, congress could undo the eligibility requirements set out by the Constitution. In fact, it could even restrict it, under its so called sovereign powers, to those children whose parents are residing in our nation legally, or to those children whose parents are of a particular race…
    I know, quite extreme, but it is meant to make a point to show how your position does not reconcile well with our Constitution and the powers it grants to our Congress.

    I have seen few references to legal precedents on your part but I may have missed them.

    I suggested you read US v Wong Kim Ark and provided you with some relevant passages.

    I am not sure what points of contention remain. Perhaps you can explain and we can compare notes.

  347. avatar
    nbc May 22, 2013 at 4:34 am #

    Keith: A. Column 5 (when citizenship was achieved) is the only definitive attribute that matches the ‘natural born citizenship’ attribute. It is a simple and exhaustive definition for the phrase ‘natural born citizen’: citizen from birth.

    A bit circular. Why not look at how the Courts have define the term natural born citizen, rather than on trying to second guess?

    Natural Born Citizen: Born on soil, subject to our jurisdiction, explicitly rejecting that children born abroad to citizen parents were natural born.

    What now?

  348. avatar
    nbc May 22, 2013 at 4:37 am #

    Paper: But I will note the prior to the 14th, there was nothing in the Constitution giving power over the citizenship of those born here.

    Well, the Constitution described the term natural born and provided for Congress to define uniform rules of naturalization.

    Since natural born by definition means citizenship without the need of explicit statutes, the Constitution remained silent on who were its natural born citizens. The courts therefor had to rely on common law to figure out who are ‘natural born’ and found that jus soli ruled the day, while jus sanguinis required statutory enactment.

    It’s all in US v WKA.

  349. avatar
    nbc May 22, 2013 at 4:47 am #

    Paper: As I have as well.

    Could you refresh my memory as to the authorities you have been citing here? I understand you like Maskell but his arguments depend on primary arguments and are only as good as their foundations.

    I have read Maskell and while he has done an excellent job at outlining the various issues, I also believe he has been overselling the case at it pertains to children born abroad to US citizen. Which is why it is important to go back to primary source, not the musings of Maskell or Pryor or Gordon. In the end, their arguments are only as good as their primary materials.

    So what about it? I have shown how WKA runs counter to your claims. What do you have to offer other than Maskell? After all, if you believe Maskell has a valid point, then we should look at his primary source, as I have done. And so far, I am not very impressed. Perhaps you can set me straight here? I have not problem admitting being wrong.

  350. avatar
    G May 22, 2013 at 6:15 am #

    In theory, that would certainly give the president-elect a legitimate reason to go to court and to have meritorious reason to have their case heard, yes.

    However, I’m trying to contemplate any reality-based scenario where such a preemptive Congressional declaration of ineligibility of a president-elect would occur… that sure would take a heck of a lot of votes to pass muster…and to even contemplate that even some fantasy super-majority corrupt Congress intent on keeping power for their own party would so publicly and boldly go that particular “political” route in order to overthrow the will of the majority of the voting electorate…

    It comes across as such an absurd scenario. So would that allow a case to have standing and go forward – YES. Is such a scenario extremely implausible – YES. In the end, this is simply not a realistic event.

    Paper:
    One path would be for a president-elect to take it “there,” if he or she were rejected by Congress as being ineligible?

    The runner-up always seems to be the best and most likely candidate to try to pursue such a case through the courts.

    But saying they could and suggesting they would are two completely different things. So yeah, I’d say this is the best route for such a challenge… but the political consequences and perception that would follow such an action would so weaken that runner-up’s “mandate to lead” (as well as their party’s) and cause such a contentious outrage among the electoral college majority, which had chosen the original “winner”…

    Again, a highly unlikely scenario to ever unfold…and really, this is the best shot that there is. So I argue again that this whole discussion is fanciful to the point of being farcical and merely a mental masturbation exercise. This really is a discussion about the legal “gray area” of a particular set of eligibility scenarios, which are simply unlikely to ever be addressed via a process of litigation at all. Just because one “can” potentially bring a case before a court room doesn’t mean that they would or should.

    Even with the bitterly partisan divided politics of the recent years, the current environment still does not lend support that there would be the political will to attempt such an extreme and desperate “sore loser tactic” in order for a runner-up to to “steal” away an election. Because that is how such an event would be perceived. This is way beyond the controversial Bush/Gore issue, which was a dispute of who had sufficient numbers. Here we are talking about the sore loser audacity to challenge the eligibility of a clear winner, who obviously was perceived as sufficiently “viable” to their backers and electorate at large to get that far and achieve the majority electoral college victory required…

    …It would be a political and national disaster to make that attempted move with a high risk of having it backfire and not winning the case. I argue again that this is a highly unrealistic fantasy scenario.

    nbc: Or the runner up? While the argument of political question has been raised, I doubt that under Powell, the courts could reject hearing the case.

  351. avatar
    Scientist May 22, 2013 at 7:09 am #

    Paper: One path would be for a president-elect to take it “there,” if he or she were rejected by Congress as being ineligible?

    First, Congress would never reject someone born abroad to US citizen parent(s). The Senate is on record unanimously in the case of McCain that they are eligible and at least one Senator would have to join any objection. It would create a political-sh!t storm that would tarnish every member of that already much tarnished body. And the thing about Congress (and why they not judges were given this job) is that they can be held accountable. So they have to care about how their constituents would feel about having their votes nullified. Even on a partisan basis, there is nothing to be gained, since the 12th and 20th amendments are very clear that the VP-elect would become Prez, and they are of the same party. So, even if the opposite party controlled both chambers they gain nothing and lose a lot (in many cases their seats).

    Second, there are a limited number of congressional actions that are not subject to judicial review. One example is impeachment-I think most scholars felt the Clinton impeachment was unjustified. Yet, had he been convicted, could he have appealed to the courts that Congress did not follow the constitutional meaning of “high crimes and misdemeanors” (a common law term that never included lying about sex in a private lawsuit)? Absolutely not. Like impeachment, judgement of presidential qualifications is specifically delegated to Congress alone in the Constitution (and re-stated in amendments).

  352. avatar
    Scientist May 22, 2013 at 7:18 am #

    nbc: Or the runner up? While the argument of political question has been raised, I doubt that under Powell, the courts could reject hearing the case.

    The 12th and 20th are crystal clear that if the President-elect fails to qualify, the office goes to the VP-elect, not the runner-up. Had McCain won and somehow been found unqualified by Congress (the Senate was already on record otherwise), the job would not have gone to Obama, but to Palin. And, in case you are hoping that Cruz would pick a less-loony VP, the pattern in the GOP lately has been that the VP is even loonier than the top of the ticket.

  353. avatar
    Paper May 22, 2013 at 7:40 am #

    I did not say Congress can extend natural born citizenship to anyone they want. Neither has Keith. We’ve both explained it multiple times. I urge you to stop already. It’s not that hard a point to understand. It may be wrong, but it’s not wrong by way of a strawman argument.

    There also is plenty enough here without throwing in irrelevancies and an unresponsive comment about a naturalized foreign prince.

    What do you even mean by naturalized foreign prince?

    Naturalized citizens are required by Congress to renounce such titles and offices when they become citizens. The Constitution prevents the government from issuing titles. There was an attempt to pass an amendment to strip citizens of their citizenship if they accepted titles and the like, even gifts, but it failed to be ratified.

    I would suggest you take up this question with Grace Kelly’s son, but she had to renounce her American citizenship when she got married.

    I understand regulated by the Constitution, but natural-born citizen is not defined in the Constitution, and it seems a weak argument to say common law caps the totality of what the term means. WKA does not say that. It applies common law to those born here. As Minor didn’t cap the term at citizen parents, I would argue WKA didn’t cap the term at common law.

    nbc:

    Explain to me: Can Congress declare anyone to be natural born? Even a naturalized Foreign Prince? Just to drive the point home…

    The term natural born was clearly used to limit the eligibility and the naturalization clause clearly limited the power of congress to defining uniform rules of naturalization.

    I do understand your argument that sovereign nations have the right to define who are its citizens, but within the US, such powers are regulated by our Constitution.

    To argue that Congress, without constitutional amendments, is free to extend natural born citizenship to anyone they want, needs a little more foundation.

  354. avatar
    Paper May 22, 2013 at 8:01 am #

    First, I disagree that you have shown such about WKA. I also disagree that some of your more recent citations suggest exactly what you purport, as well.

    I did cite the District Court “Marguet II.” That opinion is very direct in my favor. Even Marguet I, which you mistakenly referenced, is in my camp, edspecially when linked with Marguet II. They explicitly say it is “correct” to call such citizens natural-born. You can say that this is not the Supreme Court, but this discussion is about the arguments that can be made, in general, but also theoretically to the Supreme Court. And the opinion of the district court counts for that.

    I point out Burke in 1790, who demonstrates that they were aware of how the English modified common law by statute. And used it. There is no contesting of the term being used in statute, even though 8 of the 11 people involved in adding it to the Constitution were in that First Congress. I find it extremely difficult to agree that such a scenario involves adding the term to statute by mistake. To me this is one of the most compelling points.

    In pursuing this here, I am relying more on Maskell than I previously did, because I find his points answer your arguments but that you do not actually counter those he raises. He brings up points beyond common law, for instance, and you say he is just relying upon common law, which is inaccurate.

    I think it is quite compelling that common law is not the end, but the beginning.

    I do not see WKA imposing a *ceiling* of common law upon the question of citizens born abroad. There are forty references in the opinion. They do not make or declare common law the totality of natural born citizenship.

    I may resort at common law to a fork to eat my spaghetti, but my wife makes the laws stipulating we use chopsticks for ramen.

    The pause button in WKA has to do with the description it gives in dicta of naturalization by three different avenues, one being by Congressional enactments relating to those born of citizens abroad. Even that is not decisive.

    nbc: Could you refresh my memory as to the authorities you have been citing here? I understand you like Maskell but his arguments depend on primary arguments and are only as good as their foundations.

    I have read Maskell and while he has done an excellent job at outlining the various issues, I also believe he has been overselling the case at it pertains to children born abroad to US citizen. Which is why it is important to go back to primary source, not the musings of Maskell or Pryor or Gordon. In the end, their arguments are only as good as their primary materials.

    So what about it? I have shown how WKA runs counter to your claims. What do you have to offer other than Maskell? After all, if you believe Maskell has a valid point, then we should look at his primary source, as I have done. And so far, I am not very impressed. Perhaps you can set me straight here? I have not problem admitting being wrong.

  355. avatar
    Dr. Conspiracy May 22, 2013 at 8:14 am #

    No. That is exactly where my agreement breaks down.

    I will agree that one properly looks to the English Common Law to understand the meaning of terms that are otherwise undefined. However, you aren’t looking to the common law to define the term, but rather looking to the common law to see who qualified for the term in England.

    It would be like saying that “electors” being a term in the Constitution is limited to those who were qualified to vote in England, or who were qualified to vote in America at the time of adoption rather than its definition “those who can vote.”

    There is a distinction between what a term means and the rules that would bring something under that definition or exclude it.

    nbc: US v WKA explains that when a term in the Constitution remains undefined, its meaning is to be found in Common Law.

    It then explains what the Common Law practices were, before, during and after the revolution and clearly rejected the idea that the concept that children born abroad to subject/citizen parents were (natural born) subject/citizens was part of our common law.

    So far with me?

  356. avatar
    Paper May 22, 2013 at 8:33 am #

    I agree. I am probably interested in this particular topic because it is an inbetween zone. I like such zones between land and sea so to speak, and I suspect given the changes in our society we are more likely to see such candidates. I think it will never go to court, but I was referring the discussion to a stage. I think however practical the process would go, that it is good for us generally to have the conversation, because I don’t think we should play fast and loose just because it is convenient. I think the discussion helps the lon run, and brings legitimacy to the future.

    G:

    It comes across as such an absurd scenario.So would that allow a case to have standing and go forward – YES.Is such a scenario extremely implausible – YES.In the end, this is simply not a realistic event.

  357. avatar
    Scientist May 22, 2013 at 8:33 am #

    Paper: I think it is quite compelling that common law is not the end, but the beginning. I do not see WKA imposing a *ceiling* of common law upon the question of citizens born abroad.

    There is a huge difference between Congress granting rights beyond those specified in Common Law or the Constitution and taking away rights. Congress is perfectly free to pass a press protection law that exceeds the First Amendment, but they cannot pass one that gives less freedom. In the same vein, they can grant rights to citizenship that exceed those in the 14th Amendment, but cannot take away rights protected under the 14th Amendment.

    The Constitution is a floor on rights, not a ceiling.

  358. avatar
    John Reilly May 22, 2013 at 8:36 am #

    nbc: Other than the fact that the Constitution uses the term to define eligibility and the mere thought that congress can thus change its meaning would be unheard of.

    Ask yourself how congress did in Powell…. When they tried to define eligibility for congress men.

    Are you really saying that congress could define anyone to be natural born? Just to push the argument to its extreme to show its follies…

    Especially in light of US v WKA which determined that the meaning of the term was to be found in Common Law, not statutory enactments by Congress….

    Congress has defined natural born citizen by statute. It passed a statute which said the children born abroad to Americans are citizens. And I observed that there are limits; Congress can’t simply make someone a citizen. But there is a range, and Congress has acted. Even in the absence of any statute, had Sen. McCain won the election he would be President. No one would have thought his birth abroad was disabling.

  359. avatar
    Paper May 22, 2013 at 9:23 am #

    No, natural born citizen does not mean citizenship without the need of statutes. Certainly not obviously so. Where is that expressed in your primary sources? The very source for the term, by way of the English natural born subject, relied upon statutes to flesh out the definition.

    ————-

    Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Volume I, “Of the Rights of Persons,” 354-358, 361 (1765): “ … by several more modern statutes … all children, born out of the king’s ligeance, whose fathers were natural- born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”

    ————-

    Where does the Constitution describe natural born citizen? You are contradicting yourself in the same post. You start by saying it is in the Constitution, then say the Constitution remained silent.

    The courts even say as the definition is not found in the constitution resort must be had elsewhere. That “elsewhere” certainly started off with common law, but I haven’t seen something that says common law ended the extent of that “elsewhere.” There are forty references in the WKA opinion to common law and they don’t say that.

    It is irrelevant that jus sanguinis involves statutory enactment. That has no bearing on a definition that is: by or at birth.

    ———–

    Supreme Court in Weedin v. Chin Bow, 274 U.S. 657, 660 (1926): “These statutes applied to the colonies before the War of Independence.”

    ————

    nbc: Well, the Constitution described the term natural born and provided for Congress to define uniform rules of naturalization.

    Since natural born by definition means citizenship without the need of explicit statutes, the Constitution remained silent on who were its natural born citizens. The courts therefor had to rely on common law to figure out who are ‘natural born’ and found that jus soli ruled the day, while jus sanguinis required statutory enactment.

    It’s all in US v WKA.

  360. avatar
    Keith May 22, 2013 at 10:12 am #

    nbc: You do realize that birthright citizenship in the US is not through statute, even though the 14th Amendment had to explain the meaning of natural born?

    The 14th amendment does no such thing. The 14th amendment explains ‘jus soli’ because the Supreme Court screwed it up in the Dred Scott decision. The Dred Scott decision was about a person born on American soil. The 14th amendment is silent on ‘jus sanguinis’, it does to rule it either in or out.

    Both jus soli and jus sanguinis are ‘birth right’ paths to citizenship in the US. See: Wikipedia: Birthright citizenship in the United States

    jus soli means right of the soil – birthright citizenship because of WHERE you were born

    jus sanguinis means right of blood – birthright citizenship because of WHO your parent are

  361. avatar
    Paper May 22, 2013 at 10:15 am #

    Primary sources relating to the founders (many involved in their state constitutions) state of mind re common law/statute:

    Constitution of Delaware 1776

    “The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.”

    Constitution of New York 1777

    “And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.”

    Etc.

  362. avatar
    ballantine May 22, 2013 at 10:47 am #

    Paper:

    In pursuing this here, I am relying more on Maskell than I previously did, because I find his points answer your arguments but that you do not actually counter those he raises.He brings up points beyond common law, for instance,and you say he is just relying upon common law, which is inaccurate.

    It is a bit funny how you place Maskell of pretty much everything else. So what is Maskell’s arguments?

    He implies that the 1790 Act supports the “at birth” argument. Such is nothing but speculation as without significant legislative history one can think of numerous implications of the 1790 and 1795 Acts. I think the best argument is that it hurts such argument. The obvious implication of the 1790 Act is that they thought they could make people natural born citizens through naturalization like Parliament did. The second implication is that, like in England, without such statute such persons were aliens or they wouldn’t had bothered to pass it. Thus, the statute distinguished between persons who were made natural born citizens and the other persons covered by the act that were just made citizens. The obvious implication of removing such distiction between persons covered under the ACct in 1795 was that the children of citizens would be treated as the other persons just made citizens under the statute. If they were both made just citizens why would there be a difference between them? I know one can argue either the 1790 or 1795 Acts were a mistake or inadverdant, but Maskell’s conclusions are not warrented by the facts we have. Indeed, if any “citizen at birth” was natural born then the English statutes and the 1790 Act would not have felt it necessary to use the term “natural born.” The 1790 Act at best stands for the proposition that Congress can make natural born citizens. There is no such act today that says that.

    Maskell suggests that because there was some disagreement over whether the common law included jus sanguinis, the framers might have thought that as well. Again, he doesn’t say that such was very much a minority theory rejected by pretty much all significant authority in England and the United States and rejected by the suprem,e court, first in dicta, but dicta that has been relied upon for an entire body of case law over the past century and is clearly settled law. This is a losing argument.

    Maskell says some scholars, meaning people liek Gordon, suggest that people in 1787 thought the English statutes modified the common law. Unfortunately, there is pretty much no early authority to support this. The notion put forth was that the statutes were declaratory, not that they modified the common law. After 1776, we adopted the common law. We didn’t adopt the English nationality statutes. I am not aware of a single early authority discussing the common law that argued it was modified by sutch statutes. Just doesn’t exist. A few argued the statutes were declaratory, but was pretty much it. Wong Kim Ark and all subsequent case law has implicitely rejected such theory by proclaiming people born outside the US can only become citizens by naturalization, something that would not be true if covered under the common law definition.

    Maskell argues that the term “natural born subject” might have been understood to include children of citizens born overseas based upon English statutes. That is possible, but again, there is little or no evidence of that. If that was the case, the 1790 Act not have been necessary and there would be legal authorities at the time defining such term as including such foreign born. Almost all early legal authority defined the term in terms of native birth. It is interesting that the English statutes didn’t re-define the term “natural born subject.” They declared that foreign born persons would be treated as if born in the Kingdom, i.e., being a “natural born subject.” For example:

    “shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom” 13 Deo III ch. 21 (1772).

    Clearly indicates that the term “natural born subject” meant born in the kingdom and these people were to be treated as if they were native born.

    I am sorry but these arguments are not very strong from an academic point of view. The notion that a foreign born person can be natural born without statute has little historical support and there is little chance the court is going to re-write the last century of nationality law. The notion that a statute simply making one a citizen at birth was understand to mean that such persons were natural born is plausible, but not really supported by historical authority. The 1790 Act doesn’t support such theory. It hurts it.

  363. avatar
    ballantine May 22, 2013 at 10:49 am #

    Paper:
    Primary sources relating to the founders (many involved in their state constitutions) state of mind re common law/statute:

    Constitution of Delaware 1776

    “The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.”

    Constitution of New York 1777

    “And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.”

    Etc.

    Yes, but they didn’t adopt the jus sanguinis nationality statutes.

  364. avatar
    Scientist May 22, 2013 at 10:56 am #

    John Reilly: And I observed that there are limits; Congress can’t simply make someone a citizen.

    Actually, they can and have done so

    http://en.wikipedia.org/wiki/List_of_beneficiaries_of_immigration/nationality-related_United_States_Private_Bills/Laws

    John Reilly: had Sen. McCain won the election he would be President. No one would have thought his birth abroad was disabling.

    I think nbc owes us a response as whether he would have birfed through the 4 or 8 years of a McCain administration.

    The other thing nbc ignores is that anyone born outside of the original 13 colonies owes their citizenship to the various statutes and treaties that annexed those territories and then admitted them as states. And even the original 13 were made a nation recognized by other nations by a treaty. Otherwise, Britain would still have a de jure claim.

    The astounding thing is that, in effect, nbc is arguing the “natural law” argument of the birthers, except he believes natural law works through soil and they believe it works through some, as yet unidentified, “citizenship” gene. The truth is that nations, the US included, exist as human constructs and through human laws. No one is a citizen of any country without statutes and treaties establishing that country as an actual entity. Without that, they are simply inhabitants of a particular piece of the Earth’s crust.

  365. avatar
    Paper May 22, 2013 at 11:08 am #

    First Continental Congress 1774

    On the same day [14th of October, 1774], Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.”

    ballantine: Yes, but they didn’t adopt the jus sanguinis nationality statutes.

  366. avatar
    Keith May 22, 2013 at 11:13 am #

    nbc: A bit circular. Why not look at how the Courts have define the term natural born citizen, rather than on trying to second guess?

    There is nothing circular about it. It is binary.

    Natural Born Citizen: Born on soil, subject to our jurisdiction, explicitly rejecting that children born abroad to citizen parents were natural born.

    What now?

    The 14th does not say ‘Natural Born Citizen’. It says that those born on the soil under jurisdiction are citizens.

    It does not contain the adjective natural in relationship to the word ‘citizen’.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”. It says that a person born on American soil is a citizen and puts such persons out of the reach of Congressional or Judicial whim (WKA). It says such a person is a born citizen and contrasts it with a naturalized citizen; there are two kinds of citizens, born citizens, and naturalized citizens (Minor v Happersett).

    End of statement from the 14th. It is silent on foreign born children of US parents, except to say that if they are citizens they are either born citizens or naturalized citizens. It makes no assertions what-so-ever about whether they can be citizens or not, but the Constitution clearly gives the Congress the power to provide for them in the naturalization powers.

    So any such definition of ‘natural born citizen’ must be found outside of the method whereby they achieved citizenship. Webster’s 1828 dictionary clearly shows that American English used by the generations of Americans that framed the Constitution understood that the word naturalization meant ‘to place them in the condition of natural born subjects’.

    Clearly, someone born on U.S. soil under jurisdiction achieves citizenship at birth via the birthright principle of ‘jus soli’.

    Also clearly, someone born abroad to 1 or 2 citizen parents meeting the criteria defined by Congress achieves citizenship at birth via the birthright principle of ‘jus sanguinis’.

    Just as clearly, someone born abroad to 0 citizen parents does not achieve citizenship at birth because they have no birthright to American citizenship. They can be naturalized at some time after birth.

    Your assertion that Congress is changing the definition of NBC or declaring someone NBC is an incorrect characterization of what is happening. What is happening is that Congress is specifying the criteria that qualifies for birthright citizenship. Whether or not that is technically ‘naturalization’ is immaterial, what is material is that citizenship is acquired at birth; are they ‘born citizens’ or not. If they are ‘born citizens’ they are not ‘naturalized citizens’. It makes no sense to say that someone who, from the moment of birth, is a citizen, and yet not a ‘born citizen’, they are therefore not Naturalized. By the argument in WKA, then they must be Natural Born Citizens. There is no other choice.

    That WKA argument is just a long winded way of saying that WHEN citizenship is achieved is the defining criteria. Citizen at birth = natural born citizen.

    The definition of ‘Natural Born Citizen’ is exactly the same as it has always been: citizenship achieved due to birthright entitlement, either jus soli or jus sanguinis. Citizenship from (or at) birth. What Congress can change is the set of criteria that someone must meet to qualify for jus sanguinis birthright citizenship. The criteria for jus soli citizenship cannot be changed by Congress because of the 14th Amendment, but that doesn’t leave any restriction on jus sanguinis.

    It makes no difference whether you call this process ‘by statute’, or ‘automatic naturalization’, the one defining defining characteristic is that citizenship is achieved at birth.

  367. avatar
    Keith May 22, 2013 at 11:15 am #

    nbc: Well, the Constitution described the term natural born

    No it didn’t. That’s why the WKA court had to look at ECL.

  368. avatar
    ballantine May 22, 2013 at 11:16 am #

    Paper:
    First Continental Congress 1774

    On the same day [14th of October, 1774], Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.”

    That doesn’t say any of the British naturalization statutes were in place after we declared Independance in 1776. Such was not the case as the states gnerally adopted their own naturalization statutes and obviously would not adopt a statute making someone a natural born subject of England which is what those statutes stated. The application of British naturalization statutes in the colonies is a complicated subject. Such British statutes excluded the colonies and some were drafted just for the colonies. There was also colonies who essentitally naturalized persons on their own, though such status would not extend beyond the colonies. You will find no one in the early republic suggesting any English naturalization statute to be in place in America after 1776.

  369. avatar
    ballantine May 22, 2013 at 11:23 am #

    Keith:
    The definition of ‘Natural Born Citizen’ is exactly the same as it has always been: citizenship achieved due to birthright entitlement, either jus soli or jus sanguinis. Citizenship from (or at) birth. What Congress can change is the set of criteria that someone must meet to qualify for jus sanguinis birthright citizenship. The criteria for jus soli citizenship cannot be changed by Congress because of the 14th Amendment, but that doesn’t leave any restriction on jus sanguinis.

    It makes no difference whether you call this process ‘by statute’, or ‘automatic naturalization’, the one defining defining characteristic is that citizenship is achieved at birth.

    You keep repeating that, but still present no evidence that anyone in the founding era defined the term as a “citizen at birth.” No one did. We had Congress declare certain persons “natural bortn citizens” in 1790. They did not say making someone a citizen at birth made them natural born.

    Wong Kim Ark in no way supports such argument. It says the term is defined by the jus soli rule of the common law and that the 14th Amendment restates the same rule. So yes, after Wong Kim Ark, a citizen at birth under the 14th Amendment is a natural born citizen. Wong Kim Ark does not expressly state there cannot be other classes of natural born citizens. It doesn’t say that children of citizens born outside the US can’t be natural born citizens but makes clear such status must come from statute. Thus, WKA is not dispositive on the status of Cruz, but there is little in the opinion to help Cruz.

  370. avatar
    Dr. Conspiracy May 22, 2013 at 11:25 am #

    My view is that in 1790, it was broadly understood that “natural born” meant “a quality from birth” and that the repeal of the 1790 Act and its replacement with the 1795 act was not intended to change anything when

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

    was replaced by:

    the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States

    There is nothing in the historical record that supports any claim as to why the language changed. As I keep saying, James Madison was in the 1790 Congress and George Washington has been President of the 1787 Convention. It is hard for me to accept a claim of incompetence in the drafting of the 1790 Act. The replacement of a phrase as archaic seems the most plausible explanation.

    ballantine: He implies that the 1790 Act supports the “at birth” argument. Such is nothing but speculation as without significant legislative history one can think of numerous implications of the 1790 and 1795 Acts. I think the best argument is that it hurts such argument. The obvious implication of the 1790 Act is that they thought they could make people natural born citizens through naturalization like Parliament did. The second implication is that, like in England, without such statute such persons were aliens or they wouldn’t had bothered to pass it. Thus, the statute distinguished between persons who were made natural born citizens and the other persons covered by the act that were just made citizens. The obvious implication of removing such distinction between persons covered under the Act in 1795 was that the children of citizens would be treated as the other persons just made citizens under the statute. If they were both made just citizens why would there be a difference between them? I know one can argue either the 1790 or 1795 Acts were a mistake or inadvertent,

  371. avatar
    Scientist May 22, 2013 at 11:36 am #

    ballantine: You keep repeating that, but still present no evidence that anyone in the founding era defined the term as a “citizen at birth.” No one did.

    You claim to not be an originalist, but I don’t think I have ever seen anything from you here BUT originalism. For the purposes of the 2016 election, terms mean what they mean in 2016.

    You managed to duck my citation of Justice Ginsburg’s comments, but, last I checked, she is on the Supreme Court and i think you are not, so I will listen to her as regards modern law.

    I will note that in science, the argument, “No one in 1789 believed that” carries absolutely no weight. So the law is certainly NOT science.

  372. avatar
    ballantine May 22, 2013 at 11:44 am #

    Dr. Conspiracy:
    My view is that in 1790, it was broadly understood that “natural born” meant “a quality from birth” and that the repeal of the 1790 Act and its replacement with the 1795 act was not intended to change anything when

    was replaced by:

    There is nothing in the historical record that supports any claim as to why the language changed. As I keep saying, James Madison was in the 1790 Congress and George Washington has been President of the 1787 Convention. It is hard for me to accept a claim of incompetence in the drafting of the 1790 Act. The replacement of a phrase as archaic seems the most plausible explanation.

    Madison was in the 1795 Congress as well and Washington signed the document. One can speculate all one wants, but it is just speculation. The 1790 provision passed without debate and it wouldn’t be unusual to clarify such an undebated provision in a subsequent act. Unfortunately, the 1795 was drafted in committee and we have no idea what the committee debated.

    Language matters in statutes and the first rule is that the plain meaning of text controls. The 1790 Act distinguished between people made natural bron citizens and people just made citizens. The 1795 Act did not and unless we presume the 1795 to be incompetant we have to presume they did it for a purpose. Of course, there doesn’t have to be a mistake. The 1790 Act indicates that Congress had the ability to make people either natural born citizens or just citizens. Perhaps in 1790, they thought making people “natural born” was a good idea. Perhaps, in 1795, not so much. If Congress has the discretion to make persons natural born, there isn’t any reason why they couldn’t change their minds in the exercise of such discretion. To claim this act supports the “citizen at birth” argument doesn’t really hold water.

  373. avatar
    ballantine May 22, 2013 at 11:50 am #

    Scientist: You claim to not be an originalist, but I don’t think I have ever seen anything from you here BUT originalism.For the purposes of the 2016 election, terms mean what they mean in 2016.

    You managed to duck my citation of Justice Ginsburg’s comments, but, last I checked, she is on the Supreme Court and i think you are not, so I will listen to her as regards modern law.

    I will note that in science, the argument, “No one in 1789 believed that” carries absolutely no weight.So the law is certainly NOT science.

    I have not seen anyone try to make a coherent non-originalist argument here. Simply saying it should mean what makes sense to you is not an argument. Even non-originalists have to use text and history to some extent as no one simply argues we can make up the law that we like. Rather, non-originalists tend to look to general principles originally enacted and realize they evolve over time. One can try to make such arguments here. Unforetunately, our courts generally focus on originalist arguments and I have been simply pointing out that such arguments are not very strong with respect to Cruz. The courts will find him eligible, but it is not clear how they will do it in light of our history and legal precedents.

  374. avatar
    Keith May 22, 2013 at 12:07 pm #

    ballantine: You keep repeating that, but still present no evidence that anyone in the founding era defined the term as a “citizen at birth.” No one did.

    Yes I have and yes they did.

    Noah Webster did. He was 31 years old when the Constitution was ratified. Does that not qualify as someone ‘in the founding era’? He published his dictionary in 1828.

    Do you dispute that the words ‘born citizen’ mean ‘citizen from birth’? How could it mean anything else, even in the founding era?

    So we need to examine how exactly the word ‘natural’ modifies ‘born citizen’.

    Webster defined ‘natural’ thusly:

    adjective. [to be born or produced]

    1. Pertaining to nature; produced or effected by nature,… In this sense, natural is opposed to artificial or acquired.

    So Webster is defining the first meaning of ‘natural’ to mean ‘not artificial’.

    Therefore ‘natural born citizen’ means ‘not an artificial citizen; a born citizen’.

    Oddly enough that is exactly what it means today.

  375. avatar
    Keith May 22, 2013 at 12:11 pm #

    ballantine: Wong Kim Ark in no way supports such argument.

    WKA is silent on jus sanguinis except to say that it doesn’t apply to Wong’s birth circumstances.

    You keep trying to make WKA controlling of jus sanguinis yet make no justification for your stance. Why?

  376. avatar
    Scientist May 22, 2013 at 12:22 pm #

    ballantine: I have not seen anyone try to make a coherent non-originalist argument here. Simply saying it should mean what makes sense to you is not an argument. Even non-originalists have to use text and history to some extent as no one simply argues we can make up the law that we like. Rather, non-originalists tend to look to general principles originally enacted and realize they evolve over time. One can try to make such arguments here. Unforetunately, our courts generally focus on originalist arguments and I have been simply pointing out that such arguments are not very strong with respect to Cruz. The courts will find him eligible, but it is not clear how they will do it in light of our history and legal precedents.

    OK, let’s try this.

    While there are no statements from the founders that they intended to include Cruz (I will use him as shorthand), there are also NONE that they intended to EXCLUDE him either. The status of such persons was not discussed at all (the only mention of them at all is in the 1790 law). The founders clearly made the office of President an elected one-though some wanted an appointed, but non-hereditary monarch-like executive. This was discussed. So, the general principle enacted in 1789 and preserved up to today is to let the voters speak unless there is a clear and convincing reason to over-ride or limit their choices. Given the lack of explicit statements excluding Cruz, he should be presented to the voters for them to say yea or nay.

  377. avatar
    ballantine May 22, 2013 at 12:35 pm #

    Keith: Yes I have and yes they did.

    Noah Webster did. He was 31 years old when the Constitution was ratified. Does that not qualify as someone ‘in the founding era’? He published his dictionary in 1828.

    Do you dispute that the words ‘born citizen’ mean ‘citizen from birth’? How could it mean anything else, even in the founding era?

    So we need to examine how exactly the word ‘natural’ modifies ‘born citizen’.

    Webster defined ‘natural’ thusly:

    So Webster is defining the first meaning of ‘natural’ to mean ‘not artificial’.

    Therefore ‘natural born citizen’ means ‘not an artificial citizen; a born citizen’.

    Oddly enough that is exactly what it means today.

    Uh, no Webster does not define “natural born” as a “citizen at birth.” You are trying to read that into it with convoluted logic. Why is a “born citizen” not an artificial citizen? Again, it is settle law that someone born outside the US can only be a citizen by statute. If anything, such would indicate someone who is a citizen without statute. There is no reason to think that someone being a citizen by nature means anyone who is a citizen at birth. Again, it is clear you can’t find anyone that actually states your definition.

  378. avatar
    ballantine May 22, 2013 at 12:40 pm #

    Keith: WKA is silent on jus sanguinis except to say that it doesn’t apply to Wong’s birth circumstances.

    You keep trying to make WKA controlling of jus sanguinis yet make no justification for your stance. Why?

    Wong Kim Ark clearly states that there is only jus sanguinis for persons born outside the united by naturtalization statute. Such was dicta but has be followed by all cases since including in contexts that was not dicta. What Wong Kim Ark and subsequent cases don’t definatively answer is whether someone naturalized at birth by Congress can be a natural born citizen.

    “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” US v. Wong Kim Ark, 169 U.S. 656, 703 (1898)

    “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” Miller v. Allbright 523 U.S. 420 (1998)

    “Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Miller v. Allbright 523 U.S. 420 (1998)(Scalia, J., concurring)

    “Mr. Binney demonstrates that, under the law then existing, the children of citizens of the United States born abroad, and whose parents were not citizens of the United States on or before the 14th of April, 1802, were aliens because the Act of 1802 only applied to such parents, and because, under the common law, which applied in this country, the children of citizens born abroad were not citizens, but were aliens.” Weedin v. Chin Bow, 274 U.S. 657 (1927)

    “And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent. As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens. Congress responded to that situation only by enacting the 1855 statute.” Rogers .v Bellie 401 U.S. 815 (1971)

    “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” Rogers .v Bellie 401 U.S. 815 (1971)(Black, J., dissenting)

    “Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens, Mr. Binney argued… The view of Mr. Blinney and the 1855 Congress that the Act of 1802 had no application to the children of persons who were not citizens in 1802 has found acceptance in the decisions of this Court.” Montana v. Kennedy, 366 U.S. 308 (1961)

  379. avatar
    ballantine May 22, 2013 at 12:42 pm #

    Scientist: OK, let’s try this.

    While there are no statements from the founders that they intended to include Cruz (I will use him as shorthand), there are also NONE that they intended to EXCLUDE him either.The status of such persons was not discussed at all (the only mention of them at all is in the 1790 law). The founders clearly made the office of President an elected one-though some wanted an appointed, but non-hereditary monarch-like executive.This was discussed.So, the general principle enacted in 1789and preserved up to today is to let the voters speak unless there is a clear and convincing reason to over-ride or limit their choices.Given the lack of explicit statements excluding Cruz, he should be presented to the voters for them to say yea or nay.

    I think it is a pretty good argument.

  380. avatar
    Scientist May 22, 2013 at 12:49 pm #

    ballantine: I think it is a pretty good argument.

    OK-So can we end this interminable discussion by saying we all agree that since there is no clear and convincing evidence that he is ineligible, putting Cruz before the voters for their verdict would be consistent with the democratic principles of the US expressed at its founding and carried on down to the present?

    This should satisfy originalists and non-originalists alike. Can we please, pretty please with a cherry on top, end it there?

  381. avatar
    ballantine May 22, 2013 at 1:11 pm #

    Scientist: OK-So can we end this interminable discussion by saying we all agree that since there is no clear and convincing evidence that he is ineligible, putting Cruz before the voters for their verdict would be consistent with the democratic principles of the US expressed at its founding and carried on down to the present?

    This should satisfy originalists and non-originalists alike.Can we please, pretty please with a cherry on top, end it there?

    Wait, some of us are having slow days and like to argue. I’m not sure Scalia and his ilk will be sold on your argument. I think if I represented Cruz I would argue the text and history are indeterminate and then argue for a broad interpretation of the clause based upon modern scholarship, the broad purpose of the clause, modern circumatance in light of the purpose, etc. Of course Scalia and his ilk will only want to argue history so I suspect I would need to argue that there is a plausible historical argument regardless.

  382. avatar
    ballantine May 22, 2013 at 1:15 pm #

    Scientist: OK-So can we end this interminable discussion by saying we all agree that since there is no clear and convincing evidence that he is ineligible, putting Cruz before the voters for their verdict would be consistent with the democratic principles of the US expressed at its founding and carried on down to the present?

    This should satisfy originalists and non-originalists alike.Can we please, pretty please with a cherry on top, end it there?

    Wait, some of us are having slow days and like to argue. I’m not sure Scalia and his ilk will be sold on your argument. I think if I represented Cruz, I would argue the text and history are indeterminate and then argue for a broad interpretation of the clause based upon modern scholarship, the broad purpose of the clause, modern circumatance in light of the purpose, etc. Of course Scalia and his ilk will only want to argue history so I suspect I would need to argue that there is a plausible historical argument regardless.

  383. avatar
    Paper May 22, 2013 at 1:27 pm #

    Alexander Hamilton. See below.

    The point is not that there is an explicit sentence saying from now on in America natural born citizen equals x, y or z. We know that is not there. Hamilton’s suggestion probably went nowhere because it was part of a sketch of government suggesting terms on good behavior, or as we say in the vernacular, life.

    The point is we do have some evidence of how they thought. We are not totally in the dark.

    In this case, we have one of the founders contemplating a very straightforward proposition.

    In addition, it is pretty clear the term actually used, natural-born citizen, derives from natural-born subject. They knew the term, they had their perspective of it, even if in some bits perhaps not correct.

    It’s all over the place. Not defined in an equation for the Constitution. But it is all throughout our earliest days.

    I don’t think it makes sense to discount that evidence of our founding perspectives, and just declare it a black box. This is about taking notice of the society at the time and knowing their is no one über answer as the document is full of compromise and leveraged attitudes pushing in and out here and there.

    This is about getting a clear sense of the room, of the direction, and as this is one of a number of matters not completely spelled out in triplicate, and bringing that to bear on how we apply the Constitution.

    This issue has remained unsettled because it hasn’t come up. In part because our culture has long been divided between some version of insularity/xenophobia (or worse) and progress toward a “more perfect *union.*” As such, we are only now in the second term of a black president. It seems perfectly timely that we are seeing more cases of candidates who don’t fit the cookie cutter mold. We’ve done a lot of groundwork, even in my lifetime, to get just this far.

    As terrible as the Civil War was, it provided the ground for reconstructing our government in a much better tenor.

    Our antebellum days were remarkably supportive of immigrants for the time, but even limiting the presidency to natural-born citizens was bit of a backward step. Understandable perhaps, and compared to the sin of slavery perhaps not much, but still based in a representative fear at one pole of our politics. Given the whole revolution against a king thing, and European politics, and the shenanigans of royalty, there is some sense to it for the time. Would I personally have just stood for a lengthy residency requirement for any citizen, or would I have gone with citizen by or at birth, including born abroad? I am fairly certain, for myself, that the best spirits of the time would have embraced the born citizen meaning of natural-born citizenship.

    It is part of the meaning of the word, we see evidence of some thinking just that, and we have the example of natural-born subjects, which we see was discussed, and arise in our first Continental Congress, many of those same people going on to write the next version, our Constitution. We see Burke making mention of needing to deal with such children in the manner of the English, and then doing just that in 1790. The fact that his comment led to a statute is perfectly in keeping with the structure of the English example. Common law/statute. However you want to slice it, it is evident they saw that model as part of their background. The 1790 act was a statute implementing in part the English model of using statutes for that purpose.

    What was understood, I opine, was that such citizens became citizens through statute, and that that was and is a feature not a problem, supplying the arguably necessary flexibility to deal with ongoing changes in society. Just as it has worked over these centuries. Just as it originally arose in English society to provide flexibility. If you must limit it to “as if” natural-born, so? They could run for president “as if” they were just like me.

    There are other issues to grapple with in this debate but I don’t see common law vs. statute as one of them. Not even in WKA. There’s one issue there, and even that has not been embraced as religiously since WKA as you contend. Again, US v Marguet-Pillado (“Marguet II” and even Marguet I, especially followed up by II) comes right out and says it is correct to call such children natural-born citizens.

    Anyway, I am burning too many candles at too many ends, work and life beckon. I say this, but I keep finding myself back here. :-).

    So…here is Alexander Hamilton:

    ——–

    “At the close of the Convention, Hamilton conveyed a paper to James Madison he said delineated the Constitution that he wished had been proposed by the Convention; he had stated its principles during the deliberations. Max Farrand wrote that it “…was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”[12] Article IX, section 1 of Hamilton’s draft constitution provided:

    “No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

    ballantine: You keep repeating that, but still present no evidence that anyone in the founding era defined the term as a “citizen at birth.”No one did.We had Congress declare certain persons “natural bortn citizens” in 1790.They did not say making someone a citizen at birth made them natural born.

  384. avatar
    Scientist May 22, 2013 at 1:32 pm #

    ballantine: Wait, some of us are having slow days and like to argue.

    i thought you were trying to finish a paper.

    ballantine: Of course Scalia and his ilk will only want to argue history so I suspect I would need to argue that there is a plausible historical argument regardless.

    History includes everything up to the present, not just 1788. George Romney and Lowell Weicker and John McCain were on a bunch of primary ballots and McCain was on the general election ballot. Not one of the 50 Secretaries of State raised a peep. That’s history.

    And let me ask you this-who do you think Scalia and the other 4 Republican judges voted for in 2008? Do you think they went to the poll and thought, “You know, I am unsure if McCain is eligible, so I’m voting for Obama”?

  385. avatar
    nbc May 22, 2013 at 2:37 pm #

    Keith: WKA is silent on jus sanguinis except to say that it doesn’t apply to Wong’s birth circumstances.

    You keep trying to make WKA controlling of jus sanguinis yet make no justification for your stance. Why?

    You may have missed the parts that I quoted to that extent?

    I realiize that the WKA is quite extensive so here we go:

    Talking about jus sanguinis

    Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.

    As the court continues to examine the history of English statutes, which some argued were included in English Common Law, it observes how the Edward 3 statute was prospective wrt children born abroad to subject parents and observed how statutes continue to deal with just sanguinis and was never accepted as common law.

    Remember that the Court was establishing the meaning of the term natural born and that therefor it was important to understand if jus sanguinis had been formally accepted into Common Law.

    The Court rejected such an argument.

    In fact, it concluded that the status of such children had to be dealt with by naturalization statutes.

    ‘But it (the first sentence of the Fourteenth Amendment) has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the constitution to establish an uniform rule of naturalization.’

    Hope this clarifies. United States v Wong Kim Ark has been more than once cited to support these contentions and while some have confused ‘by birth or by naturalization’ to leave open the possibility that “by birth” includes somehow statutory citizenship by descent, but US v Wong Kim Ark, makes such a conclusion hard to support.

    So I believe that the court in US v WKA has 1) rejected that jus sanguinis was part of Common Law and therefor Natural Born, whose meaning had to be found in common law, did not include it 2) that “by birth” refers to the jus soli birth only.

  386. avatar
    nbc May 22, 2013 at 2:44 pm #

    Paper: However you want to slice it, it is evident they saw that model as part of their background. The 1790 act was a statute implementing in part the English model of using statutes for that purpose.

    Yes, they realized that like England, they needed a statute. The question remains thus, did they believe that their statutory powers were sufficient to make someone a natural born citizen (and thus take it away).

    In light of US v Wong Kim Ark, it seems clear that the term was not considered to be part of Common Law, as the Founders very well understood the differences. And since the US had not adopted the statutes, it was necessary to explicitly provide for such citizens.

  387. avatar
    ballantine May 22, 2013 at 3:01 pm #

    Paper:
    Alexander Hamilton. See below.

    The point is not that there is an explicit sentence saying from now on in America natural born citizen equals x, y or z.We know that is not there. Hamilton’s suggestion probably went nowhere because it was part of a sketch of government suggesting terms on good behavior, or as we say in the vernacular, life.

    The point is we do have some evidence of how they thought.We are not totally in the dark.

    In this case, we have one of the founders contemplating a very straightforward proposition.

    In addition, it is pretty clear the term actually used, natural-born citizen, derives from natural-born subject.They knew the term, they had their perspective of it, even if in some bits perhaps not correct.

    It’s all over the place.Not defined in an equation for the Constitution.But it is all throughout our earliest days.

    I don’t think it makes sense to discount that evidence of our founding perspectives, and just declare it a black box.This is about taking notice of the society at the time and knowing their is no one über answer as the document is full of compromise and leveraged attitudes pushing in and out here and there.

    This is about getting a clear sense of the room, of the direction, and as this is one of a number of matters not completely spelled out in triplicate, and bringing that to bear on how we apply the Constitution.

    This issue has remained unsettled because it hasn’t come up.In part because our culture has long been divided between some version of insularity/xenophobia (or worse) and progress toward a “more perfect *union.*” As such, we are only now in the second term of a black president. It seems perfectly timely that we are seeing more cases of candidates who don’t fit the cookie cutter mold.We’ve done a lot of groundwork, even in my lifetime, to get just this far.

    As terrible as the Civil War was, it provided the ground for reconstructing our government in a much better tenor.

    Our antebellum days were remarkably supportive of immigrants for the time, but even limiting the presidency to natural-born citizens was bit of a backward step.Understandable perhaps, and compared to the sin of slavery perhaps not much, but still based in a representative fear at one pole of our politics.Given the whole revolution against a king thing, and European politics, and the shenanigans of royalty, there is some sense to it for the time.Would I personally have just stood for a lengthy residency requirement for any citizen, or would I have gone with citizen by or at birth, including born abroad?I am fairly certain, for myself, that the best spirits of the time would have embraced the born citizen meaning of natural-born citizenship.

    It is part of the meaning of the word, we see evidence of some thinking just that, and we have the example of natural-born subjects, which we see was discussed, and arise in our first Continental Congress, many of those same people going on to write the next version, our Constitution. We see Burke making mention of needing to deal with such children in the manner of the English, and then doing just that in 1790.The fact that his comment led to a statute is perfectly in keeping with the structure of the English example.Common law/statute.However you want to slice it, it is evident they saw that model as part of their background. The 1790 act was a statute implementing in part the English model of using statutes for that purpose.

    What was understood, I opine, was that such citizens became citizens through statute, and that that was and is a feature not a problem, supplying the arguably necessary flexibility to deal with ongoing changes in society.Just as it has worked over these centuries.Just as it originally arose in English society to provide flexibility.If you must limit it to “as if” natural-born, so?They could run for president “as if” they were just like me.

    There are other issues to grapple with in this debate but I don’t see common law vs. statute as one of them.Not even in WKA.There’s one issue there, and even that has not been embraced as religiously since WKA as you contend.Again, US v Marguet-Pillado (“Marguet II” and even Marguet I, especially followed up by II) comes right out and says it is correct to call such children natural-born citizens.

    Anyway, I am burning too many candles at too many ends, work and life beckon.I say this, but I keep finding myself back here. .

    So…here is Alexander Hamilton:

    ——–

    “At the close of the Convention, Hamilton conveyed a paper to James Madison he said delineated the Constitution that he wished had been proposed by the Convention; he had stated its principles during the deliberations. Max Farrand wrote that it “…was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”[12] Article IX, section 1 of Hamilton’s draft constitution provided:

    “No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

    The Hamilton quote is from his paper that he wrote before the convention and that he showed to no one until after the convention. He didn’t say anthing during the debates other than he didn’t think there should be any limitations on office holding at all, a position that Madison agreed with. He never said that “born a citizen” means the same thing as a “natural born citizen.”

    Look, I have repeatedly said on this thread that your arguments are plausible. I have merely pointed out that there is little historical evidence to support them. A year or two back, one of the most heated debates on this site, I think it was this site, was between me and NBC where I was basically arguing your position. Or rather, arguing that your position was plausible. Accordingly, I have never taken a firm position on this subject either wat, but find people making statements with certainty on either side to be overstating their case. Personally, I believe the better historical argument as an academic question supports NBC and the jus soli argument. However, I doubt such will ever prevail in court. If we truly were following the defination of “natural born subject” in 1787, such really meant a person born in the Kingdom or one given such status by Parliament. What are the implications of that? If Parliament could make anyone a natural born subject, then presumably, Congress could as well. Why would such authority be limited to children of citizens? Either Congress has the power to make natural born citizens or it does not. And, if Congress has the power to make persons either natural born citizens or just citizens, as evidenced by the 1790 statute that distinguished between those made citizens and those made natural born citizens, why would one presume one declared to be only a citizen is a natural born citizen? Any lawyer detached from this issue would find such an argument to be very troubling. At the end of the day this is simply academic as the politics will never allow a narrow defintion excluding someone like Cruz. Again, it is not simple to determine how they will get there in light of the history.

  388. avatar
    G May 22, 2013 at 3:01 pm #

    That is how I see it too. I don’t have a problem with people looking towards original intent or common law as a starting point. But when they can’t see past that and include developments since those times, their arguments are simply myopic and they start to over rely on the principle of saying if something wasn’t used or meant in a certain way back then that it couldn’t be. Wasn’t and couldn’t are too different things and while original intent and common law can be used to persuade an argument, they don’t close the door to developments in a different direction over time, without any explicit exclusion barring such an event.

    Scientist: History includes everything up to the present, not just 1788. George Romney and Lowell Weicker and John McCain were on a bunch of primary ballots and McCain was on the general election ballot. Not one of the 50 Secretaries of State raised a peep. That’s history.

  389. avatar
    ballantine May 22, 2013 at 3:04 pm #

    Scientist: i thought you were trying to finish a paper.

    History includes everything up to the present, not just 1788.George Romney and Lowell Weicker and John McCain were on a bunch of primary ballots and McCain was on the general election ballot.Not one of the 50 Secretaries of State raised a peep.That’s history.

    And let me ask you this-who do you think Scalia and the other 4 Republican judges voted for in 2008?Do you think theywent to the poll and thought, “You know, I am unsure if McCain is eligible, so I’m voting for Obama”?

    Yeah, I’ve been trying to finish the paper for years now. Finishing academic papers is hard and it is hard to me to be motivated when I doubt few people in the real world will care. I will get around to it one day. I will, however, give proper credit to this site, as well as fogbow and NBC’s site, for providing much of the research. I would have never found all the authority that people here and at those sites have found.

  390. avatar
    G May 22, 2013 at 3:22 pm #

    I too thought that was an excellent argument and also simply a pragmatic synopsis of how things will play out. I do grasp the argument approach that Ballentine and NBC are making, but what you’ve said here is why the issue is not constrained to only the positions they put forth. Nor is the court system the most likely arena to end up resolving this “gray”. The greatest probability is simply that it becomes established precedent via the ballot box and that the courts never need to weigh in on it at all.

    Scientist: OK, let’s try this.

    While there are no statements from the founders that they intended to include Cruz (I will use him as shorthand), there are also NONE that they intended to EXCLUDE him either.The status of such persons was not discussed at all (the only mention of them at all is in the 1790 law). The founders clearly made the office of President an elected one-though some wanted an appointed, but non-hereditary monarch-like executive.This was discussed.So, the general principle enacted in 1789and preserved up to today is to let the voters speak unless there is a clear and convincing reason to over-ride or limit their choices.Given the lack of explicit statements excluding Cruz, he should be presented to the voters for them to say yea or nay.

  391. avatar
    Scientist May 22, 2013 at 3:54 pm #

    ballantine: Yeah, I’ve been trying to finish the paper for years now. Finishing academic papers is hard and it is hard to me to be motivated when I doubt few people in the real world will care. I will get around to it one day. I will, however, give proper credit to this site, as well as fogbow and NBC’s site, for providing much of the research. I would have never found all the authority that people here and at those sites have found.

    May I ask, are you a law professor? I certainly know the feeling of writing an academic paper knowing that, on a good day, 10 people in the world may care, but if you are in academia, it’s required; if not, then motivation is harder.

  392. avatar
    nbc May 22, 2013 at 7:01 pm #

    Paper: “No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

    It is important what means ‘born a citizen’ it means that it requires no statute but merely the fact of birth is enough. This is causing Maskell a lot of confusion as well.

  393. avatar
    nbc May 22, 2013 at 7:16 pm #

    It’s important to distinguish between citizenship by birth and citizenship by parentage, the former refers to citizenship obtained by birth on soil and is known as jus soli. The term citizenship by parentage is also known as jus sanguinis. When the documents speak of birth or naturalization, they refer to jus soli not a combination thereof. By birth, or subject/citizen born are different concepts from “at birth”.

    A child born outside the US to citizen parents is born an alien and his status at birth is by statute converted into citizenship. This is easy to recognize as without an explicit statute, such a child would be indeed an alien. On the other hand, when a child is born on US soil, there is no statute that confers citizenship, not even the Constitution spells out the details and thus, as the court in WKA observed, who are ‘natural’ citizens has to be determined from common usage, which in the US was jus soli.

    Perhaps a subtle distinction but in the end very important when understanding the meaning of these terms.

    Natural born is often confused with jus sanguinis by birthers because they believe this to be more ‘natural’ but similarly England and Coke considered birth on soil to be more natural. When the issue was raised in WKA, the lower court found that while the Vattel rule may be more logical but that precedent clearly rejected such an interpretation in favor of jus soli.

  394. avatar
    nbc May 22, 2013 at 7:20 pm #

    ballantine: At the end of the day this is simply academic as the politics will never allow a narrow defintion excluding someone like Cruz. Again, it is not simple to determine how they will get there in light of the history.

    We agree but that is only incidental to the discussion as to whether or not Cruz would qualify outside of the political process :-)

    Unless of course a challenger brings the case under the same process used in Powell, where the court found that the action was not blocked by political doctrine because it involved the question whether or not Congress had overstepped its powers when extending /narrowing the eligibility requirements for house membership.

    It would be an interesting challenge that would have to take place after Congress certifies and before the President is sworn in… Not much time…

  395. avatar
    nbc May 22, 2013 at 7:30 pm #

    In the words of Mr. Justice Story, ” Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the domin ions and under the protection of a particular sovereign. Two things usually occur to create citizenship : first, birth, locally within the dominions of the sovereign ; second, birth, within the protection and obedience, or in other words, within the legiance of the sovereign. That is, the party must be born within a place where the sovereign is, at the time, in full pos session and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign as such de facto. There are some exceptions which are founded upon peculiar rea sons, and which, indeed, illustrate and confirm the general doctrine.” 3

    Source: A Treatise on Citizenship, by Birth and by Naturalization: With Reference to the Law of Nations, Roman Civil Law, Law of the United States of America, and the Law of France; Including Provisions in the Federal Constitution, and in the Several State Constitutions, in Respect of Citizenship; Together with Decisions Theron of the Federal and State Courts by ALEXANDER PORTER MORSE

  396. avatar
    nbc May 22, 2013 at 7:45 pm #

    The petition of Dr Ramsey was again read in which he stated “That citizenship with the United States is an adventitious character to every person possessing it who is now thirty years of age and that it can in no case have been acquired but in one of the following modes”

    1st By birth or inheritance

    2dly By having been a party to the late revolution

    3dly By taking an oath of fidelity to some of the States

    4thly By tacit consent

    5thly By adoption and that Mr Smith cannot have acquired the character of a citizen in either of these modes seven years ago.

    By birth or inheritance, one reflects location of birth, the other by being born to a citizen parent.

  397. avatar
    Keith May 22, 2013 at 9:08 pm #

    ballantine: Uh, no Webster does not define “natural born” as a “citizen at birth.” You are trying to read that into it with convoluted logic. Why is a “born citizen” not an artificial citizen? Again, it is settle law that someone born outside the US can only be a citizen by statute. If anything, such would indicate someone who is a citizen without statute. There is no reason to think that someone being a citizen by nature means anyone who is a citizen at birth. Again, it is clear you can’t find anyone that actually states your definition.

    Webster doesn’t define any noun phrases. He defines words. The noun phrase ‘natural born citizen’ is made up of 3 words. Webster defines them all. One must look to an understanding of the words to understand a noun phrase, and Webster’s 1828 dictionary defines those words, and thereby provides a precise meaning for the noun phrase from the meaning of those words.

    I know you can argue that the entire noun phrase can take on additional meaning when used as a term of art in a particular set of jargon, such as a legal system. However that term of art usage does not turn the meaning of the simple words upside down, to mean something completely different from the surface meaning.

    The surface meaning of the noun phrase ‘natural born citizen’ is derived directly from the meaning of the words that make up the phrase: the person gains the privileges and duties of a member of a society naturally, by birthright. And that is an understanding that Webster would be quite happy with, given his own definition of the words.

    (By the way: Webster 1828 again: Birthright n. [birth and right.] Any right or privilege, to which a person is entitled by birth, such as an estate descendible by law to an heir, or civil liberty under a free constitution.)

    Furthermore, when a jargon term of art means something different that the ‘common’ understanding, it is defined somewhere, for example the word ‘theory’ has a qualitative difference in common usage and in scientific usage. That qualitative difference is precisely defined for ‘outsiders’ to discover, but assumed as understood within scientific discussion.

    The problem with looking for a definition of ‘natural born citizen’ as a term of art, is that it doesn’t exist. What does exist is a body of law that says this person or that person is a natural born citizen or not a natural born citizen.

    In every case, every single one, back to and including Coke, a person is judged to be a natural born citizen because they have the quality of citizenship from birth. Whether via jus soli or jus sanguinis, their citizenship is acquired at birth. There have been discussions whether a person in this situation or that situation was indeed a citizen at birth, but if the person was a citizen at birth, then the person was a natural born subject or citizen.

    Again, what changed over time was the set of persons who were judged to be citizens at birth, not the definition of the noun phrase. And that is because the phrase means exactly what the words mean: citizenship achieved naturally due to birthright.

  398. avatar
    Keith May 22, 2013 at 9:12 pm #

    Paper: So…here is Alexander Hamilton:

    By the way, Hamilton and Noah Webster were close friends, both politically and socially. Hamilton lent Webster $1500 (an enormous sum at the time) to move to New York to run the Federalist Party newspaper.

  399. avatar
    nbc May 22, 2013 at 9:18 pm #

    While I appreciate Keith attempts to define natural born citizen, the courts appear to continue to hold otherwise…

    As the Court in Rabang v. INS, 35 F. 3d 1449 – Court of Appeals, 9th Circuit 1994 explains

    The dissent relies on dicta in two Supreme Court cases to conclude that birth in a United States territory constitutes birth “in the United States” under the Fourteenth Amendment. In United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), the Supreme Court held that a person born in San Francisco, California, of Chinese parents, could not be excluded from the United States under the Chinese Exclusion Acts after a temporary visit to China. The Supreme Court held that the Citizenship Clause confers citizenship “by birth within the territory.” Id. at 693, 18 S.Ct. at 473. In Inglis v. Sailors’ Snug Harbour, 28 U.S. 99, 155, 3 Pet. 99, 155, 7 L.Ed. 617 (1830), Mr. Justice Story in his concurring and dissenting opinion to the majority opinion explained that citizenship by birth arises by “birth locally within the dominions of the sovereign; and … birth within the protection and obedience … of the sovereign.”

    Keith: In every case, every single one, back to and including Coke, a person is judged to be a natural born citizen because they have the quality of citizenship from birth. Whether via jus soli or jus sanguinis, their citize