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Dicta on natural born citizenship

The previous article, “Crackpotting natural born citizenship” exceeded the limit of 500 comments, and this is primarily an article to hold the overflow.

I did want to make one comment in general about the topic. To my knowledge few cases have ever been heard in court about the presidential eligibility of a person born US citizens outside of the United States. The closest we have is the complicated case of John McCain, in which Judge Alsup said in his decision that he thought McCain likely to be eligible.

In the case of US. v. Wong, the court used reasoning that concluded that Mr. Wong was born a citizen under the principles of the common law of England, and pretty much all legal authorities consider the question of persons born US citizens in the US settled as to people like Wong (they are eligible).

The problem with Supreme Court case citations and authorities with regard to the foreign born, is that no case to my knowledge ever needed to distinguish between “born citizen” and “natural born citizen” in order to reach a decision. This is because the only distinction at law in the United States is in regard to eligibility of the President. So when, for example, a court says that there are only two sources of citizenship, birth and naturalization, they are not necessarily analyzing that formula for potential US Presidents. It may well be that someone is, as one commenter here put it, both natural born and naturalized.

Dicta is generally considered less authoritative than the argument that leads to the decision, and the decision itself. These side remarks and observations are not, so it is thought, so carefully reasoned or precisely crafted as the essential parts of the decision. In any discussion of the subject, one should consider how carefully the authority cited might have been speaking in the context in which we cite them.

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264 Responses to Dicta on natural born citizenship

  1. avatar
    Paper May 24, 2013 at 4:22 am #

    The “Cranking” comments closed at 500 while I was writing this response, so the original comments are there

    http://www.obamaconspiracy.org/2013/05/cranking-natural-born-citizen/

    and I continue the conversation here:

    ————

    You are misapplying the discussion of Edw III, particularly as I do not make, and have not made, the argument you suggest. I also did not say common law is the start of it all, the seed that grows from its own genetic code into a tree that produces even foreign-born natural-born citizens. I said it is the first place to go, the starting point, when looking to interpret constitutional terms that have a pedigree from that common law, and not even just this term.

    In exactly that way, Gray does indeed conclude that recognizing such children as natural-born subjects in statute was not declaratory of common law. So? For perhaps the 7,000th time, so? I have just said as much myself. That’s been my understanding from the beginning, and more than once I have noted my agreement to that point, as well as its irrelevance to the question. The discussion of Edw III is in the context of people born here, of saying jus soli is common law, and not jus sanguinis. Fine, good. That is great for Gray’s purpose, nailing down the status of those born here, whose position *is* reflected in common law. He basically is saying don’t try to bring jus sanguinis into *this* argument about people born here, because there are no grounds for that. (Sorry, Bob Gard.). That does not erase jus sanguinis from existence; we have used it for over two hundred years precisely for those born abroad. The question is, should such individuals be included in the term natural-born citizenship? Common law does not address that circumstance, and thus cannot answer the question.

    If you want to answer the question, you need to look further.

    Forget for a second that any such thing as common law exists. Our framers clearly knew of the statutes. It is those statutes that are relevant. It matters not that the states were not homogenous in their adoption or customization of those statutes. Their varying reliance upon them in their own spheres, as well as in the First Continental Congress before we even had a constitution, and again in Burke’s reference to them, demonstrates that these statutes were part of their legal perspective. It is entirely consistent that each sovereign body generates its *own* statutes. The details change within a country, not to mention when transplanted elsewhere. We do it our way. Implementing the principle in our own way does not discard the relevance of the principle.

    Regarding your other citations:

    When they refer to being born within the allegiance, they are referring to the common law, not the natural-born subjects covered by statute. See Minor for how this works: no doubt being born here of citizen parents is good enough, and that is what we are discussing here, not other ways of becoming a citizen.

    Moving on, the “it” Gray mentions, to be interpreted in the *light* of common law, is the Constitution as a whole, not just this term. The language of the *Constitution* could not be understood without *reference* to common law. The interpretation of the Constitution is *influenced.* All these references clearly are not all encompassing, as those words are words of limited effect, and as we use all kinds of things beyond common law all the time in interpreting the Constitution and its terms.

    nbc: Note how the Court discusses the Edw III case dealing with children born abroad to subject parents and how the court rejects that this is part of common law, but rather part of statutory law. Seems to be rejecting your suggestion that common law is the start of it all. Why else would the court address the claim and reject it? The concept of jus sanguinis was never admitted in our common law unless by statute.

    The Court is necessarily limited by common law as that is the only commonality there existed. While English Common Law continued in the colonies, statutory laws were to varying degrees accepted or denied as relevant.

    Gray appears to be clear

    In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    Not in light of statutory enactments, but in light of common law.

    The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]

    and

    In Smith v Alabama, referenced by the Court

    There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

    It then explains the fundamental principle of the concept natural born to be not ‘at birth’ or even ‘by birth’ per se but rather “birth within the allegiance’

    The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection.

  2. avatar
    Scientist May 24, 2013 at 7:06 am #

    Paper: The “Cranking” comments closed at 500 while I was writing this response, so the original comments are there

    http://www.obamaconspiracy.org/2013/05/cranking-natural-born-citizen/

    and I continue the conversation here:

    Regarding that thread, yes nbc, you “researched” and found the comments of Professor Tokaji, which said exactly what I said regarding Powell. Then you admitted you were wrong, because an authority said it, but, somehow, when I said it you ignored it. No appeal to authority nor ad hominem there. No sir.

    Nor do you have the slightest support (even in appeal to authority and ad hominem) for saying that the presidential runner-up could be installed in office, rather than the Vice-President, whose sole raison d’etre is to serve when the President cannot. As Keith correctly noted, under the 12th and 20th the VP serves “until the President-elect can qualify”. If the President-elect’s deficit can be solved by time (age or residency) then the VP’s reign is temporary. If it cannot (NBC) then the VP serves the full term. That is simply how it is.

    By the way, an aside on ad hominem. Although it gets a bad name, looking at the person behind the argument is not always unjustified. Suppose Lucas Smith had produced a Kenyan birth certificate free of the obvious flaws people here have noted. Would his being a convicted forger be irrelevant to judging the document? I think not and certainly in any court proceeding if he were called as a witness that would be used to impeach his testimony. So, since you have misread Powell and the 12th and 20th amendments, it is not out of line to wonder what else you might have misread. Call it impeaching the witness.

    Now as to your statements regarding logic and reason:

    1. There is neither logic nor reason as to why the opinions of a 16th century English judge are unalterably binding in every regard on 21st century Americans, especially when they have been considerably altered in 21st century Britain itself.
    2. Nor is there logic and reason why 18th century fears about a foreign monarch apply to ordinary 21st century immigrants.

    The ONLY response from your side is “That is how we do things here”. Fair enough. But let’s not pretend those are logical or reasoned positions or supported by any empirical data (as a law of nature must be). They are quite illogical and unreasoned, in fact.

  3. avatar
    ballantine May 24, 2013 at 7:52 am #

    Paper:
    The “Cranking” comments closed at 500 while I was writing this response, so the original comments are there

    http://www.obamaconspiracy.org/2013/05/cranking-natural-born-citizen/

    and I continue the conversation here:

    ————

    You are misapplying the discussion of Edw III, particularly as I do not make, and have not made, the argument you suggest. I also did not say common law is the start of it all, the seed that grows from its own genetic code into a tree that produces even foreign-born natural-born citizens.I said it is the first place to go, the starting point, when looking to interpret constitutional terms that have a pedigree from that common law, and not even just this term.

    In exactly that way, Gray does indeed conclude that recognizing such children as natural-born subjects in statute was not declaratory of common law.So? For perhaps the 7,000th time, so?I have just said as much myself.That’s been my understanding from the beginning, and more than once I have noted my agreement to that point, as well asits irrelevance to the question.The discussion of Edw III is in the context of people born here, of saying jus soli is common law, and not jus sanguinis.Fine, good.That is great for Gray’s purpose, nailing down the status of those born here, whose position *is* reflected in common law.He basically is saying don’t try to bring jus sanguinis into *this* argument about people born here, because there are no grounds for that.(Sorry, Bob Gard.). That does not erase jus sanguinis from existence; we have used it for over two hundred years precisely for those born abroad.The question is, should such individuals be included in the term natural-born citizenship? Common law does not address that circumstance, and thus cannot answer the question.

    If you want to answer the question, you need to look further.

    Forget for a second that any such thing as common law exists.Our framers clearly knew of the statutes.It is those statutes that are relevant.It matters not that the states were not homogenous in their adoption or customization of those statutes.Their varying reliance upon them in their own spheres, as well as in the First Continental Congress before we even had a constitution, and again in Burke’s reference to them, demonstrates that these statutes were part of their legal perspective.It is entirely consistent that each sovereign body generates its *own* statutes. The details change within a country, not to mention when transplanted elsewhere.We do it our way.Implementing the principle in our own way does not discard the relevance of the principle.

    Regarding your other citations:

    When they refer to being born within the allegiance, they are referring to the common law, not the natural-born subjects covered by statute.See Minor for how this works: no doubtbeing born here of citizen parents is good enough, and that is what we are discussing here, not other ways of becoming a citizen.

    Moving on, the “it” Gray mentions, to be interpreted in the *light* of common law, is the Constitution as a whole, not just this term.The language ofthe *Constitution*could not be understood without *reference* to common law.The interpretation of the Constitution is *influenced.* All these references clearly are not all encompassing, as those words are words of limited effect, and as we use all kinds of things beyond common law all the time in interpreting the Constitution and its terms.

    Seems you are trying awfully hard to find something in Wong Kim Ark to support your position. It isn’t there. Gray makes no hint that another class of persons could be natural born or that there was some meaning in addition to the common law. He does make clear that foreign born persons had to be naturalized to even be citizens. Thus, the only way such persons could be natural born citizens is through naturalization. Thus, your argument depends upon someone being naturalized at birth by a statute that only proclaims them to be a citizen and having such person be a natural born citizen. Gray obviously didn’t address such question but says nothing that would remotely support it. And if our naturalization statute proclaim numerous classes of people to be just citizens, as they do, exactly why would one class be treated as natural born citizens? The argument really doesn’t make that much sense. If Congress wanted to make a class of persons natural born citizens they would pass a statute saying so like the English statutes did. Statutory construction 101.

  4. avatar
    ballantine May 24, 2013 at 9:07 am #

    Another point about English statutory subjects is they were never treated the same as common law subjects despite the language of the statute. Under England’s own view of the law, such persons owed their natural allegiance to their nation of their birth, not England. England could not claim the natural allegiance of all born on its soil and deny other nations the right to do the same. Hence, such persons were not treated as British subjects (other than for commercial purposes) until they came back to England or at least left their native country (their position was not consistent on such point). Hence, it was essentially a conditional subjectship that could be claimed by returning to England. In the language of public international law (ie, the law of nations), they were british subjects for municipal or commercial purposes, not public purposes. This was generally the state of public law at the time anyway though England’s position seemed to be that jus soli always trumped jus sanguinis.

    The United States appeared to take the same position, at least prior to the 1880s, though there isn’t a great deal of authority. Statutory citizens at birth were not treated as citizens while in the nation of their birth if such nation claimed their allegiance. Hence, unlike natural born citizens who owed their natural allegiance to the United States from birth, statutory citizens at birth didn’t owe allegiance at all to the United States until they left their native land. So it is clear that foreign born statutory citizens were not treated the same as persons born within the jurisdiction.

  5. avatar
    ballantine May 24, 2013 at 10:21 am #

    From the other thread:

    Keith::
    It is not ‘a term’. It is a ‘noun phrase’. Webster defines all three words in the phrase. Don’t blame me because you don’t understand plain English.

    You are getting into Apuzzite territory. You can define the words separately, clice, dice and do anything you want, it does not come out as a citizen at birth. You say:

    “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.”

    So Webster says “natural” means “natural.” DUH! He doesn’t say a statutory citizen at birth is natural and a statutory citizen after birth is artificial. Such doesn’t even make sense. They are both made citizens aby the same statute. And what is an articifial citizen? You are simply making thing up here. If there was a distinction it would be between those made citizens by natural law, according to Coke Jus soli, and those that need a statute. But it is simply a lie to state that Webster defined the term as you like. You, by yourself, without authority, are decided what type of citizenship is natural. It is sad the lengths you will go through to try to find any authority that supports you.

  6. avatar
    Keith May 24, 2013 at 10:25 am #

    From the other thread…

    nbc May 24, 2013 at 2:19 am #

    Keith: The EXISTING FACT is that Congress does make rules that makes certain foreign born people citizens due to their blood relationship with American Citizens. This is known as jus sanguinis.

    Those people are BORN CITIZENS and thus, have achieved citizenship NATURALly. Other folks, who are not born citizens of the US, but seek to become US citizens, must achieve that exalted status ARTIFICIALLY.

    Yes, you can define whatever you want naturally to be but the problem is that you have to explain why you believe such a status was intended?

    We all want children born abroad to US parents to be natural born, but are they? Born citizens… Is that what you believe natural born means? So far Vattel and Blackstone suggest that natural born reflects the underlying citizenship that requires no statute. In Vattel’s case it’s blood in Blackstone Common Law, it is allegiance that follows from birth.

    We could of course propose a Constitutional amendment to achieve this, if necessary but I am trying to understand under what arguments you equate natural born with ‘at birth’?

    No. Natural Born does not mean Born Citizen.

    What I am saying is that a person can be
    1) a ‘Natural’ citizen or an ‘Artificial’ citizen.
    2) a ‘Born’ citizen or a ‘Made’ citizen.

    A natural citizen is a one who achieves citizenship due to some right inherent in his condition. An artificial citizen is one who has no such inherent right, and achieves citizenship by some patronage.

    A born citizen is one who is a citizen immediately at birth. A made citizen is one who achieves citizenship sometime after birth.

    These are two different dichotomies and the binary choices are between ‘natural’ and ‘artificial’ and between ‘born’ and ‘made’. There are therefore four possible combinations:

    a) natural born
    b) natural made
    c) artificial born
    d) artificial made

    Since (b) and (c) are trivially impossible, we are left with (a) and (d). In normal parlance, (d) is known as ‘naturalized’, which means ‘made like natural citizen’.

    The inherent right to citizenship is known as ‘birthright’, and there are two types of ‘birthright’, as I have droned on about endlessly, jus soli and jus sanguinis. Jus soli is described in the Constution, jus sanguinis is only implied in the Constitution via Congress power to make a uniform law on Naturalization.

    Clearly, a person who is a born citizen does not need to be naturalized sometime after birth; they are naturally a citizen and do not need to be made artificially. Congress does not need to make citizens out of people who are born citizens.

    Saying that a person is ‘a natural citizen’ is not the same as saying the person is a ‘born citizen’. However, since the only way to be a ‘natural citizen’ is to be born a citizen, the phrase ‘natural born citizen’ is equivalent to ‘citizen at birth’. Furthermore, ‘born citizen’ is a sufficient shorthand for ‘natural born citizen’ since it you are born a citizen, you come by that citizenship naturally, and there is no other way to come by it naturally.

  7. avatar
    Keith May 24, 2013 at 10:33 am #

    ballantine: He doesn’t say a statutory citizen at birth is natural and a statutory citizen after birth is artificial. Such doesn’t even make sense. They are both made citizens aby the same statute.

    No they aren’t. The various naturalization acts are completely different from USC1401 and USC1402.

  8. avatar
    ballantine May 24, 2013 at 10:38 am #

    Keith:
    From the other thread…

    No. Natural Born does not mean Born Citizen.

    What I am saying is that a person can be
    1) a ‘Natural’ citizen or an ‘Artificial’ citizen.
    2) a ‘Born’ citizen or a ‘Made’ citizen.

    A natural citizen is a one who achieves citizenship due to some right inherent in his condition. An artificial citizen is one who has no such inherent right, and achieves citizenship by some patronage.

    A born citizen is one who is a citizen immediately at birth. A made citizen is one who achieves citizenship sometime after birth.

    These are two different dichotomies and the binary choices are between ‘natural’ and ‘artificial’ and between ‘born’ and ‘made’. There are therefore four possible combinations:

    a) natural born
    b) natural made
    c) artificial born
    d) artificial made

    Since (b) and (c) are trivially impossible, we are left with (a) and (d). In normal parlance, (d) is known as ‘naturalized’, which means ‘made like natural citizen’.

    The inherent right to citizenship is known as ‘birthright’, and there are two types of ‘birthright’, as I have droned on about endlessly, jus soli and jus sanguinis. Jus soli is described in the Constution, jus sanguinis is only implied in the Constitution via Congress power to make a uniform law on Naturalization.

    Clearly, a person who is a born citizen does not need to be naturalized sometime after birth; they are naturally a citizen and do not need to be made artificially. Congress does not need to make citizens out of people who are born citizens.

    Saying that a person is ‘a natural citizen’ is not the same as saying the person is a ‘born citizen’. However, since the only way to be a ‘natural citizen’ is to be born a citizen, the phrase ‘natural born citizen’ is equivalent to ‘citizen at birth’. Furthermore, ‘born citizen’ is a sufficient shorthand for ‘natural born citizen’ since it you are born a citizen, you come by that citizenship naturally, and there is no other way to come by it naturally.

    Gibberish. A foreign born person is an alien unless naturalized by statute. That is English law and our law. A person who would be an alien who is naturalized by statute is as much “made” or “artificial” citizen as someone naturalized after birth. The Constituion does not say “born citizen.” It says “natural born citizen” and the term “natural” has to mean something. The history of the term makes clear it comes from natural law, not statute. You can twist and insert the language all you want but the dictionary does not say what you what without you deciding who is an artificial citizen and who is not. I think it’s time you post on Appuzo’s blog. He will understand your convoluted logic.

  9. avatar
    Scientist May 24, 2013 at 10:41 am #

    ballantine: If there was a distinction it would be between those made citizens by natural law, according to Coke Jus soli, and those that need a statute.

    I’m not sure that isn’t Appuzite also (you definitely made THAT word up). Neither soli nor sanguinis is more or less natural than the other. They are both human legal constructs, which different countries use in one way or another (almost all countries today, including the US, use a mix). Nor are countries, whose existence within certain boundaries depends on laws and treaties, really natural entities. Most of the US land borders follow no natural feature at all, and much of the US-Canada border separates people who are linguistically, culturally and ethnically almost indistinguishable. It’s possible Japan is a natural country, with clear natural borders and a homogeneous language and culture found only there, but the US, my friend, ain’t.

    I’m sorry, but “natural law” is a fiction that can be used to argue anything one wishes. I’ve heard it argued that homosexuality is “unnatural” because most people are hetero and that it’s “natural” because it’s been found in almost every animal species where it’s been looked for. I doubt there is an issue where one could not argue “natural law” equally well on both sides. I could certainly argue that there is nothing natural about saying the voters can’t pick a President based on where he was born. That may be the law in some places, but it is neither natural, nor rational, nor logical.

  10. avatar
    ballantine May 24, 2013 at 10:47 am #

    Scientist: I’m not sure that isn’t Appuzite also (you definitely made THAT word up).Neither soli nor sanguinis is more or less natural than the other. They are both human legal constructs, which different countries use in one way or another (almost all countries today, including the US, use a mix).Nor are countries, whose existence within certain boundaries depends on laws and treaties, really natural entities.Most of the US land borders follow no natural feature at all, and much of the US-Canada border separates people who are linguistically, culturally and ethnically almost indistinguishable.It’spossible Japan is a natural country, with clear natural borders and a homogeneous language and culture found only there, but the US, my friend, ain’t.

    I’m sorry, but “natural law” is a fiction that can be used to argue anything one wishes.I’ve heard it argued that homosexuality is “unnatural” because most people are hetero and that it’s “natural” because it’s been foundin almost every animal species where it’s been looked for.I doubt there is an issue where one could not argue “natural law” equally well on both sides.I could certainly argue that there is nothing natural about saying the voters can’t pick a President based on where hewas born.That may be the law in some places,but it is neither natural, nor rational, nor logical.

    I generally agree. I was not the one claiming to define the term by speculating what type of citizen was natural and what type artificial. But if we were going to make such distinction it would make more sense to distinguish those who get citizenship by statute anjd those by nature. Now I understand you don’t want to look at history, but the English though jus soli was the law of nature. Anyway, it is stupid to try to read any particular definition into Webster. He does not define the term “natural” in this context and the phrase itself is a legal term of art defined by history use, not by breaking down its parts and trying to determine who is artificial.

  11. avatar
    ballantine May 24, 2013 at 10:49 am #

    Keith: No they aren’t. The various naturalization acts are completely different from USC1401 and USC1402.

    Is that supposed to make a difference. The early acts were all single statutes. Seriously, give it up. Try finding an authority that actually says you are right.

  12. avatar
    Scientist May 24, 2013 at 11:04 am #

    ballantine: Now I understand you don’t want to look at history, but the English though jus soli was the law of nature.

    And the French thought it wasn’t. Imagine if Montcalm’s men had been sober on that New Year’s Eve at Quebec. The Dutch didn’t think soli was natural either. They still had the Dutch feudal system of a Patroonship in the county I live in (Albany, NY) into the 1840s, almost 70 years after the Revolution, so maybe they should get a say too.

    If there is any such thing as “natural law” it is that which is universal among all (or the vast majority) of human societies. Neither soli nor sanguinis passes that test (though a mix of the 2 comes close in today’s world).

    So, I think you get yourself into a real mess trying to argue “natural law”.

  13. avatar
    ballantine May 24, 2013 at 11:25 am #

    Scientist: And the French thought it wasn’t.Imagine if Montcalm’s men had been sober on that New Year’s Eve at Quebec.The Dutch didn’t think soli was natural either.They still had the Dutch feudal system of a Patroonship in the county I live in (Albany, NY) into the 1840s, almost 70 years after the Revolution, so maybe they should get a say too.

    If there is any such thing as “natural law” it is that which is universal among all (or the vastmajority) of human societies.Neither soli nor sanguinis passes that test (though a mix of the 2 comes close in today’s world).

    So, I think you get yourself into a real mess trying to argue “natural law”.

    I don’t want to argue natural law, I was just suggesting what the best argument as to what a “natural” citizen might mean which was contary to Keith’s assertions. Again, we have many phrases that are legal terms of art that are defined by historical usage. One will not understand what they meant trying to re-construct them from a dictionary. The “natural” in “natural born citizen” comes from the law of nature as viewed long ago in England. It shouldn’t have anything to do with any concept of natural law today or even at the time of the founding when it was a well known term irrespective of its origins. The birthers are the ones who claim some meaning based upon their perception of natural law, as that is all they can do. Whether or not the founders though jus soli conformed to natural law or not, the term had a well known meaning during such period and that is what a court will presume it meant.

  14. avatar
    Scientist May 24, 2013 at 12:13 pm #

    ballantine: Whether or not the founders though jus soli conformed to natural law or not, the term had a well known meaning during such period and that is what a court will presume it meant.

    So after 500 and some posts we are back to originalism. And originalism is not itself found in the Constitution, so it’s not original.

    “Freedom of the press” in 1789 meant ink and paper. You could argue they meant to include all electronic media; I could argue that’s impossible, since they didn’t exist. Yet I think almost everybody would see it as nonsensical to censor the web version of a publication, yet leave the print version uncensored. So we pretend the original document covers something not even dreamt of at the time,

    So let me ask you and (and nbc) if you truly believe McCain and Cruz are ineligible, would you have birfed your way through a McCain administration or would you birf your way through a Cruz one? I suspect the answer is no, which leads me to the inescapable conclusion that perhaps the question is less important than the number of words here would indicate and maybe, when all is said and done, the voters should vote and everyone should get on with more important things.

    That seems to me logical and reasonable (yes nbc, it is). As for history and precedent, if we never broke history and precedents we would all still be living in caves.

  15. avatar
    ballantine May 24, 2013 at 12:56 pm #

    Scientist: So after 500 and some posts we are back to originalism.And originalism is not itself found in the Constitution, so it’s not original.

    Yet you post more than anyone on this unimportant topic. Don’t you understand by now that lawyers like to argue about obscure Constitutional issues. We know that you don’t care what the founders thought and don’t like our courts and on and on. However, everyone else does as even non-originalists start with text and history. They may argue that the understanding be updated to reflect modern circumstances, however one has to start somewhere. Just letting Congress or the people decide whatever they want means you don’t have a Constitution. Such is the system we have and it is not going to change because you don’t like it. Sure, the political circumstances will mean that Cruz is given a free pass. Perhaps in light of uncertainty around the clause, such is the best course. However, Cruz himself will spend his time blocking all non-originalist judges over the next few years and it is worth pointing out how weak the originalist argument is for his eligiblity.

  16. avatar
    Scientist May 24, 2013 at 1:20 pm #

    ballantine: Yet you post more than anyone on this unimportant topic.

    I like harassing anyone who thinks they are “right” and the possessor of absolute “truth”. To your credit you admit uncertainty, so I am not referring to you. Imagine if Mario or Orly or nbc could simply utter the statement, “It’s possible that I am wrong.”

    ballantine: Just letting Congress or the people decide whatever they want means you don’t have a Constitution.

    And letting courts decide everything is a judicial dictatorship. I could attack you as you attack me and say you’d like every question to end up in court, but I won’t. A reasonable compromise is for the courts to give the benefit of the doubt to the legislature and the people and only intervene where it is clear and essential. Most especially in this area, where no one’s rights are abridged, no one’s life is destroyed and the person concerned only holds the office for a limited time.

    Moreover, judges recognize this themselves-the political question doctrine. They admit there are areas they just stay the hell out of. Is this one? I suspect you think it well could be.

    ballantine: Sure, the political circumstances will mean that Cruz is given a free pass. Perhaps in light of uncertainty around the clause, such is the best course. However, Cruz himself will spend his time blocking all non-originalist judges over the next few years and it is worth pointing out how weak the originalist argument is for his eligiblity.

    If you don’t like Cruz (and I don’t) you should not count on courts to save you, especially not this Supreme Court, many of whose members probably love him. Get out and campaign for those you do like.

  17. avatar
    Pieter Nosworthy May 24, 2013 at 1:43 pm #

    Some wish to consider the possible irrelevance of the observations rendered in MvH regarding what Art II eligibility means; “There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position [Please note this last sentence].” And, thus; “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.”

    Prior to WKA, there was notable reflection on the Civil Rights Act of 1866 and Vattel. What some might wonder is to ask if the “doubts” expressed were addressed decades later in WKA and formally answered that those merely born in the United States, regardless of the citizenship of the father (parents), sufficient for Art II presidential eligibility consideration.

    Too easy to dismiss portions of MvH as mere dicta. This decision has been cited profusely (WKA and Lockwood). Perhaps we should set aside dismissal of what we don’t like and accept precedence as understood perspective for later USSC understanding.

    Doc, please let me know if this comment is beyond the pale.

  18. avatar
    G May 24, 2013 at 1:58 pm #

    From the prior thread, NBC wrote:

    I am looking for that argument which explains why we should consider such children to be ‘natural born’. Is it ‘fairness’, is it because ‘at birth’ means something special?

    As the Court in WKA argued, there is little guidance on this other than from common law.

    Common law is slower to develop and may never accept some statutory laws as being ‘common law’, other times, it may envelop statutory law concepts. As such it tends to be better reasoned but perhaps not up with the times.

    Still, I appreciate better the arguments that common law may not be the full story. The problem however becomes, what else and how do we establish this ‘what else’?

    I thought that was a very good and honest post that provided a fair representation of the issue at hand and where the strengths and weaknesses lie in the legal arguments.

    So while I certainly respect and understand the argument comes down to the “how do we establish this ‘what else’?”, I still contend that even though it may seem like a legal issue, that the legal venue is actually one of the more unlikely paths to get the chance to ever address it. The process to get this issue before the courts in the first place requires some very particular and timely events to make it a case with potential to weigh such arguments at all…

    …and as those timed situations are fairly solidly dependent on events in the political process of electing a President-to-be, the perception of “fairness” will in the end, most likely win the day. Heck, such a perception of “fairness” is likely to deter an opponent from even taking such a case forward at all…and even if they did, is certainly a factor that will weigh heavily on any judicial body it comes before for consideration.

    So I simply think that in the bigger picture, should such a “citizen at birth by statute” candidate ever run and win the electoral vote, the issue will simply be considered “answered” as an “eligible” condition, by the mere win alone, without the court and legal system ever getting involved or having to weigh in at all.

  19. avatar
    Majority Will May 24, 2013 at 1:59 pm #

    “Appuzite”

    I prefer Appuzish. It’s closer to sounding like a Yiddish word which would piss him off.

  20. avatar
    nbc May 24, 2013 at 2:11 pm #

    Scientist: I like harassing anyone who thinks they are “right” and the possessor of absolute “truth”. To your credit you admit uncertainty, so I am not referring to you. Imagine if Mario or Orly or nbc could simply utter the statement, “It’s possible that I am wrong.”

    you still have not forgiven me for pointing out the true meaning of the 20th amendment. But if you had actually read my postings you would not make such foolish statements.

    Sigh… You really need to relax a little and perhaps read our Constitution to understand how it separates the various powers.

    Good luck my friend… A little research can go a long way.

  21. avatar
    nbc May 24, 2013 at 2:12 pm #

    ballantine: Gibberish. A foreign born person is an alien unless naturalized by statute. That is English law and our law.

    Yep.

  22. avatar
    Pieter Nosworthy May 24, 2013 at 2:26 pm #

    Ms. Virginia Minor, a citizen of Missouri, was denied her political rights in her estimation per the 14th. When her case was presented to the USSC they decided those rights, specifically, per her Art II citizenship; “There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position.”

    A court prior to WKA, doggedly avoided the 14th and rather render opinion on political rights per the original constitution’s Art II.

    My understanding is that the later WKA intentionally ignored Art II understanding and decided citizenship based SOLELY on a 14th perspective.

    I got it, “doubts”. I’m confused, too. Dicta arguments are largely a matter of convenience.

    Doc, thanks very much for letting me comment.

  23. avatar
    ballantine May 24, 2013 at 2:27 pm #

    Pieter Nosworthy:
    Some wish to consider the possible irrelevance of the observations rendered in MvH regarding what Art II eligibility means; “There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position [Please note this last sentence].” And, thus; “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.”

    Prior to WKA, there was notable reflection on the Civil Rights Act of 1866 and Vattel. What some might wonder is to ask if the “doubts” expressed were addressed decades later in WKA and formally answered that those merely born in the United States, regardless of the citizenship of the father (parents), sufficient for Art II presidential eligibility consideration.

    Too easy to dismiss portions of MvH as mere dicta. This decision has been cited profusely (WKA and Lockwood). Perhaps we should set aside dismissal of what we don’t like and accept precedence as understood perspective for later USSC understanding.

    Doc, please let me know if this comment is beyond the pale.

    Sigh, it has been explained to you many times why Minor is not authority, you just won’t listen. Not only is Minor dicta, it expressly declined to address the status of children of aliens. It says we should look to the common law, but declined to address the status of children of aliens at common law. WKA spent 20 plus pages looking at the status of children of aliens under the common law. No legal authority has ever cited Minor on the status of children of aliens because it didn’t say anything more that some unknown persons had some doubt. WKA cited Minor first to confirm that we should look to the common law and second to show such court was not committed to a view of the status of children of aliens. How many courts have to dismiss the claim that Minor is precedent before it dawns on you amateurs that it is not precedent? The only decision any court is going to cite is Wong Kim Ark and if you don’t understand that yet, you are hopeless.

  24. avatar
    Majority Will May 24, 2013 at 2:34 pm #

    ballantine: Sigh, it has been explained to you many times why Minor is not authority, you just won’t listen.Not only is Minor dicta, it expressly declined to address the status of children of aliens.It says we should look to the common law, but declined to address the status of children of aliens at common law.WKA spent 20 plus pages looking at the status of children of aliens under the common law.No legal authority has ever cited Minor on the status of children of aliens because it didn’t say anything more that some unknown persons had some doubt. WKA cited Minor first to confirm that we should look to the common law and second to show such court was not committed to a view of the status of children of aliens.How many courts have to dismiss the claim that Minor is precedent before it dawns on you amateurs that it is not precedent?The only decision any court is going to cite is Wong Kim Ark and if you don’t understand that yet, you are hopeless.

    He won’t stop until you:
    1) agree with him and say everyone was kidding about precedence and settled law
    2) provide him with a link for the best mail order handcuffs and a confirmed date to march up to the White House.

  25. avatar
    ballantine May 24, 2013 at 2:50 pm #

    Majority Will: He won’t stop until you:
    1) agree with him and say everyone was kidding about precedence and settled law
    2) provide him with a link for the best mail order handcuffs and a confirmed date to march up to the White House.

    That won’t do it either. From experience, one pretty much just has to ignore him. It is amazing that these people are so set in their beliefs they will not let them go no matter how clearly it is explained to them. Every court and scholar must be wrong because they are not mature enough to admite they are wrong.

  26. avatar
    Pieter Nosworthy May 24, 2013 at 2:57 pm #

    Dicta, Juliet had her head on straight when she said, “What’s in a name? that which we call a rose. By any other name would smell as sweet;” Sweet, of course, is a relative term.

    Some dislike the MvH opinion regarding what constitutes an Art II citizen; “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

    The court, within a paragraph, stated they would not decide the case on the 14th but upon other grounds. Yet those with agendas insist otherwise..

    The rational argument is whether WKA answered “doubts” if those born within the United States, regardless of the citizenship of the parents [father], are eligible for presidential office.

    I say no. But, I am no different than this forum. I have no meaningful say in the matter.

    Doc, again, thanks.

  27. avatar
    Majority Will May 24, 2013 at 2:59 pm #

    ballantine: That won’t do it either.From experience, one pretty much just has to ignore him.It is amazing that these people are so set in their beliefs they will not let them go no matter how clearly it is explained to them.Every court and scholar must be wrong because they are not mature enough to admite they are wrong.

    I like your plan.

  28. avatar
    Scientist May 24, 2013 at 3:40 pm #

    nbc: you still have not forgiven me for pointing out the true meaning of the 20th amendment.

    You wouldn’t know “true meaning” if it bit you in the tuches.

    The 20th is very clear as I explained above, and you are simply wrong. The Vice President serves as President for the entire term if the President-elect can never qualify. The guy who loses the election doesn’t figure in. That’s life-you wanna be Prez you got’s to win. Surely, even you can see that…

    nbc: A little research can go a long way.

    Show me research that supports your interpretation. Ya got bupkis, pal. Fuggedabudit.

    You were wrong on Powell and you are wrong here.

  29. avatar
    Scientist May 24, 2013 at 3:46 pm #

    G: I thought that was a very good and honest post that provided a fair representation of the issue at hand and where the strengths and weaknesses lie in the legal arguments.

    So while I certainly respect and understand the argument comes down to the “how do we establish this ‘what else’?”, I still contend that even though it may seem like a legal issue, that the legal venue is actually one of the more unlikely paths to get the chance to ever address it. The process to get this issue before the courts in the first place requires some very particular and timely events to make it a case with potential to weigh such arguments at all…

    …and as those timed situations are fairly solidly dependent on events in the political process of electing a President-to-be, the perception of “fairness” will in the end, most likely win the day. Heck, such a perception of “fairness” is likely to deter an opponent from even taking such a case forward at all…and even if they did, is certainly a factor that will weigh heavily on any judicial body it comes before for consideration.

    So I simply think that in the bigger picture, should such a “citizen at birth by statute” candidate ever run and win the electoral vote, the issue will simply be considered “answered” as an “eligible” condition, by the mere win alone, without the court and legal system ever getting involved or having to weigh in at all.

    I agree. And I don’t hate the courts. They have their place. Picking presidents just isn’t it.

  30. avatar
    Scientist May 24, 2013 at 3:59 pm #

    I want to add in light of G’s comment that those who would advocate the judiciary stepping in to take the election away from someone who clearly won ought to strongly consider the effect that would have on the public regard for the institution. I would think those who truly respect the judiciary wouldn’t want it to inflict such damage on its reputation.

  31. avatar
    Dr. Conspiracy May 24, 2013 at 4:42 pm #

    As for dicta, let me suggest you go read the Wikipedia article linked under that word in the main article above. This is settled in the rest of the world and pointless to argue here.

    The more important point is that the Minor decision does not say what you think it says. It is presenting a sufficient condition to be a natural born citizen, not a necessary one. Your reading of the text is such a well known formal fallacy that it has a name (that I learned in University decades ago): denying the antecedent.

    Even if Minor did not have the disclaimer that it does have, it still wouldn’t be a definition. In fact the judge in the Allen case said this plainly:

    President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise

    This is settled for US-born children of aliens. Minor does nothing for the case of foreign-born citizens at birth.

    So anyhow, you’re back in the ban list.

    Pieter Nosworthy: Dicta, Juliet had her head on straight when she said, “What’s in a name? that which we call a rose. By any other name would smell as sweet;” Sweet, of course, is a relative term.

    Some dislike the MvH opinion regarding what constitutes an Art II citizen; “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

  32. avatar
    Paper May 24, 2013 at 4:43 pm #

    No, I am not. I am saying it’s discussion of common law is not applicable. Not for you, not for me. I am saying you and nbc can’t use Gray’s comments about common law to chop off citizens born abroad from consideration as members of natural-born citizenship. I am saying if you are interested in the question of whether or not such citizens are natural-born citizens you have to look somewhere else, and Gray does not proscribe us from doing so. Gray does not say that the total definition and membership of natural-born citizenry is to be found in common law.

    The bit about naturalization is a separate point, referenced here by Dr. C’s overflow article above. Your points about that will have to hold their horses for the moment. I am first addressing your (and nbc’s) comments about common law. Others have been touching on the issue of naturalization as raised in WKA, and I have lightly gone into it in this forum, but first things first: common law does not speak of such citizens. Certainly not in its original stance.

    Some propose such arguments about those statutes being declaratory of common law, but I have not relied upon that argument. Maskell *surveys* different attitudes concerning common law, but does not restrict himself to, or invest himself in, the “declaratory” school of thought. He mentions at least two other views, 1) of common law being modified, and 2) also of the adaptation of it to our experiences, necessitating some review beyond a strict reliance upon pure, unadulterated common law (if one even can speak of purity when it comes to such a thing).

    I myself favor more the latter view. I find that sufficient. I am not much in favor of the “declaratory” view; I don’t think it necessary to sift that puppy, and without making a final determination I don’t need to make, I think that may be an overreach. The view about modification is more interesting. Some of that depends exactly on what one means by modification. The process of statutes modifying common law is noteworthy. We may perhaps not just speak of common law changing in and of itself in response to centuries of statutes, like a structural shift in our bodies of jaw size or the like, but rather of statute being accepted by common law, or being accepted as importantly supplemental to common law, or integrally supplemental, as glasses are to eyes, pacemakers and blood-thinners to hearts, etc.

    But beyond that interesting arena, or middle ground, we also always have the context of how we applied common law, of how we adapted it and its supplements. We see repeatedly that in our early days the statutes are mentioned in connection with common law. That they were not adapted homogenously, or adopted word-for-word, seems irrelevant. We see that the framers knew of these statutes and their *connection* to common law. We see they were trying them out, modifying and adapting them to their individual sovereign circumstances. Then, after we revamp our new Constitution, we see Burke in 1790 referring to the way the English handled such citizens born abroad. He then goes off and writes a statute just as the English had, no matter any incidental error about which statute. We know he was correct in principle. The English did indeed deal with those cases in just that way.

    At the very least, none of this history regarding common law shuts off consideration of such citizens being recognized as natural-born citizens. So my main point is that at the very least you cannot use common law to *preclude* such inclusion of citizens in natural-born citizenship.

    I do go further and think the “history” opens the door to such inclusion. When we look toward common law, we also immediately see a supplemental, historical reliance upon statutes. WKA does not anywhere *preclude* that observation, nor an application of it to those born abroad. WKA is neither here nor there on *this* point.

    Of course that history and its implications for the only constitutional reliance upon natural-born citizenship is not even today finished or resolved, in that we have had no need to test its application with regards those born abroad.

    You say we would have passed a statute, but we did just that in 1790. Moreover, though the explicit term is dropped in 1795, we continue to distinguish such persons from the rest of the world. They are not required to go through the same process. They are declared citizens at birth, unlike distinctly considered foreigners. Why not just say all those born abroad need to apply for naturalization? There is a clear understanding of a distinction, one that relies upon jus sanguinis.

    Where did we get such an idea?

    Even if the character of the idea changed in 1795, its initialization is in the 1790 act, whereby we are back to Burke and his notice of English statutes dealing with such circumstances. Those statutes specifically made such people natural-born subjects, which is the genesis of our term, natural-born citizen. So, the distinction we actually do make for over two hundred years originates not in merely some generic notion of citizenship, but in a history or legacy of the natural-born (subject/citizen).

    You also cannot point to the change in 1795 as a reversal of position, as opposed to a stylistic choice or of a refocusing on the primary importance of the citizenry.

    We can say, ah they realized their mistake! Or they decided they didn’t want such persons to be president. Or we could say, they were just cleaning up the text. Or we could note that after all the requirement itself was essentially something like an afterthought, without a record of debate. While important to the presidency, it wasn’t exactly treated as a vital concern, worthy of debate as many other matters were. In this light, if our focus in said statute is the nature of our citizenry, no need to clutter the statute with a separate matter.

    But that is all just to say 1795 leaves us nowhere concrete.

    Even if 1795 were a reversal, was it a reversal of interpretation of a constitutional term, or just a change in statute? If our argument comes down to Congress just needs to include the term in a statute, that certainly is an interesting proposition. If that is the limiting factor, Congress could resolve the matter lickety-split. Thus, in 1790 yes. After 1795, maybe not. But change the statute and in 2016 we are back to yes.

    At the moment, I am just pointing out that our beginnings a) do not preclude such inclusion, b) are open to such inclusion, and c) even lean toward such inclusion.

    We may back off and say no way. But we don’t see them doing that in the beginning, and what we do see is more toward inclusion, an adapting of that history to our beginning circumstances. We also are discussing an undefined term. If we rely only upon common law strictly as such, we still then have an undefined term in its total scope; common law does not set the boundaries of the definition. Common law as so described leaves us without an answer. You can’t use it, and I can’t use it.

    But I can refer to the closely related, intimately related statutes. The very term natural-born citizen as adapted by us comes from a tradition where statute included such citizens in the definition. Common law may not have, but the English system, which we adapted, did.

    ballantine: Seems you are trying awfully hard to find something in Wong Kim Ark to support your position.It isn’t there.Gray makes no hint that another class of persons could be natural born or that there was some meaning in addition to the common law. He does make clear that foreign born persons had to be naturalized to even be citizens.Thus, the only way such persons could be natural born citizens is through naturalization. Thus, your argument depends upon someone being naturalized at birth by a statute that only proclaims them to be a citizen and having such person be a natural born citizen.Gray obviously didn’t address such question but says nothing that would remotely support it. And if our naturalization statute proclaim numerous classes of people to be just citizens, as they do, exactly why would one class be treated as natural born citizens?The argument really doesn’t make that much sense.If Congress wanted to make a class of persons natural born citizens they would pass a statute saying so like the English statutes did.Statutory construction 101.

  33. avatar
    Paper May 24, 2013 at 5:48 pm #

    And someone who never lived in this country could not 1) meet the residency requirements, nor 2) would their potentially recognized natural-born citizenship mean anything in such instance as they would not be making use of it. Someone born abroad could never be president until they came to this country. So that fits the nature of the English statutes as well.

    It is meaningless to talk about someone being elected president who does not live here, even if they met the residency requirements and then returned to living abroad. They would have to enter our jurisdiction. In our jurisdiction, they could be drafted if the draft made a comeback. They could also run for president, if we recognized such persons as natural-born citizens.

    Whether or not such person in the most extreme scenario of such citizenship could ever win (whereby a person meets the least residency requirement, but then lives much of their life in their birth country only to return at the last minute to run for president), well, it makes for a good laugh.

    The question is not if such citizens are treated the same in all respects as those born here, but if they are eligible to be president by way of being considered natural-born citizens. If they are so considered, these differences are irrelevant to the question of eligibility.

    ballantine:
    Another point about English statutory subjects is they were never treated the same as common law subjects despite the language of the statute.Under England’s own view of the law, such persons owed their natural allegiance to their nation of their birth, not England. England could not claim the natural allegiance of all born on its soil and deny other nations the right to do the same.Hence, such persons were not treated as British subjects (other than for commercial purposes) until they came back to England or at least left their native country (their position was not consistent on such point).Hence, it was essentially a conditional subjectship that could be claimed by returning to England.In the language of public international law (ie, the law of nations), they were british subjects for municipal or commercial purposes, not public purposes.This was generally the state of public law at the time anyway though England’s position seemed to be that jus soli always trumped jus sanguinis.

    The United States appeared to take the same position, at least prior to the 1880s, though there isn’t a great deal of authority. Statutory citizens at birth were not treated as citizens while in the nation of their birth if such nation claimed their allegiance.Hence, unlike natural born citizens who owed their natural allegiance to the United States from birth, statutory citizens at birth didn’t owe allegiance at all to the United States until they left their native land.So it is clear that foreign born statutory citizens were not treated the same as persons born within the jurisdiction.

  34. avatar
    ballantine May 24, 2013 at 6:10 pm #

    Paper:
    No, I am not.I am saying it’s discussion of common law is not applicable.Not for you, not for me. I am saying you and nbc can’t use Gray’s comments about common law to chop off citizens born abroad from consideration as members of natural-born citizenship.I am saying if you are interested in the question of whether or not such citizens are natural-born citizens you have to look somewhere else, and Gray does not proscribe us from doing so.Gray does not say that the total definition and membership of natural-born citizenry is to be found in common law.

    First, if you want to converse with people, try keeping your posts under 15,000 words.

    Second. Gray left open the possibility that someone naturalized at birth could be natural
    born. He did not leave open the possibility that the common law included jus sanguinis either from the statutes being declaratory or the common law being modified. What do you not understand about the statement that foreign born persons can only become citizens by being naturalized, a rule reaffirmed by all courts since.
    That means the only argument left is the naturalized at birth argument. See, Gray actually cites legal authority. You, and Maskell on this point, do not. There is no significant legal authority in the early republic that said foreign born persons can be citizens withou statute. The ones who did argue the statutes declaratory were expressly rejected by Gray and all mainstream scholarship.

    So where does that leave your argument. Speculating why the language was changed in 1795? Speculation is not legal argument and the most basic statutory construction argument would be that they intended that they should be citizens, not natural born citizens. In the real world, if you wanted to maintain your position in front of a court, you would actually have to show some one in such period agreed with you. You can’t.

    The English statutes that made persons natural born subjects never treated such persons as common law natural born subjects. Such foreign born persons were presumed to owe their primary allegiance and political obligations to the nation of their birth, not England. In fact, England did not treat them as a British subjects other than for commercial purposes if and until they returned to England. In other words, under English law, a statutory subject’s political rights and obligations were determined by the nation of his birth unless he returned to England. Even then, there would likely be a dispute with the nation of his birth. The United States followed the same rule in the early republic. I suggest you research was the law actually was in the early republic and in England rather than throwing out speculation, nost of which has already been rejected by the court.

  35. avatar
    Paper May 24, 2013 at 6:52 pm #

    I try. I don’t always succeed. I try to do justice to your arguments. That sometimes takes more words, even after editing, than I like. I would like to keep things shorter, but at a certain point I spend tons of time trying to edit and then I feel the need to add more to cover your points. I can’t argue with you here, though. As much as I appreciate long walks on long roads, I also believe in brevity.

    ballantine: First, if you want to converse with people, try keeping your posts under 15,000 words.

  36. avatar
    Paper May 24, 2013 at 7:03 pm #

    And this is why to my mind I find my posts getting longer…because you keep misinterpreting what I am saying, whether brief or extended.

    How many times must I repeat that my argument has nothing to do with common law including jus sanguinis? How many times must I repeat that it is not about the statutes being treated as common law?

    If you agree that Gray left the possibility open, then we agree, and you are agreeing that common law has nothing to do with whether or not those born abroad are to be considered natural-born citizens. So before we move on to the separate issue of naturalization, are you saying you have changed your tune on common law?

    ballantine: First, if you want to converse with people, try keeping your posts under 15,000 words.

    Second. Gray left open the possibility that someone naturalized at birth could be natural
    born.He did not leave open the possibility that the common law included jus sanguinis either from the statutes being declaratory or the common law being modified.What do you not understand about the statement that foreign born persons can only become citizens bbeing naturalized, a rule reaffirmed by all courts since.
    That means the only argument left is the naturalized at birth argument.See, Gray actually cites legal authority.You, and Maskell on this point, do not. There is no significant legal authority in the early republic that said foreign born persons can be citizens withou statute. The ones who did argue the statutes declaratory were expressly rejected by Gray and all mainstream scholarship.

    So where does that leave your argument.Speculating why the language was changed in 1795?Speculation is not legal argument and the most basic statutory construction argument would be that they intended that they should be citizens, not natural born citizens.In the real world, if you wanted to maintain your position in front of a court, you would actually have to show some one in such period agreed with you. You can’t.

    The English statutes that made persons natural born subjectsnever treated such persons as common law natural born subjects. Such foreign bornpersons were presumed to owe their primary allegiance and political obligations to the nation of their birth, not England. In fact, England did not treat them as a British subjects other than for commercial purposes if anduntil they returned to England.In other words, under English law, a statutory subject’s political rights and obligations were determined by the nation of his birth unless he returned to England.Even then, there would likely be a dispute with the nation of his birth.The United States followed the same rule in the early republic. I suggest you research was the law actually was in the early republic and in England rather than throwing out speculation, nost of which has already been rejected by the court.

  37. avatar
    Paper May 24, 2013 at 7:10 pm #

    That is not a statement about common law. That is a statement about naturalization. I said, first things first. I wasn’t interested in prematurely jumping into that separate conversation, when to my mind you (and nbc) were making irrelevant points about common law considerations.

    ballantine:

    What do you not understand about the statement that foreign born persons can only become citizens bbeing naturalized, a rule reaffirmed by all courts since.

  38. avatar
    Paper May 24, 2013 at 7:41 pm #

    Again, I cited United States v Marguet-Pillado. That is a legal authority.

    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.

    As for the early Republic, I have already noted the lack of legal authority making an outright statement on this matter. My citations in this regard refer to the matter of interpretation being informed not exclusively by common law, but involving other relevant circumstances, which is something done all the time with the Constitution beyond this one term.

    Gray’s citations of early days also suffer from not referring to those born abroad. I do not, but neither ones he. In this particular regard, Gray and I equally do not cite authority on the matter. Gray cites extensively about common law as pertains to jus soli. That is a different matter.

    You also say here that Gray leaves the door open. My point exactly.

    ballantine:

    See, Gray actually cites legal authority.You, and Maskell on this point, do not.

  39. avatar
    Paper May 24, 2013 at 8:12 pm #

    1795 is neither here nor there. That was my point. I provided a range of options, speculation, to demonstrate that 1795 leaves us nowhere, for your argument or mine.

    If they did intended to treat them as citizens and not natural-born citizens in 1795, while having specifically rendered them as such in 1790, can Congress in 2013 just put it back in the statute? I don’t see how 1795 even in this construction speaks to the issue we face of the definition of the constitutional term.

    Speaking of the real world, I can’t cite someone in that early period explicitly agreeing with me on the definition of natural-born citizen, and neither can you.

    ballantine:

    So where does that leave your argument.Speculating why the language was changed in 1795?Speculation is not legal argument and the most basic statutory construction argument would be that they intended that they should be citizens, not natural born citizens.In the real world, if you wanted to maintain your position in front of a court, you would actually have to show some one in such period agreed with you. You can’t.

  40. avatar
    ballantine May 24, 2013 at 8:56 pm #

    Paper:
    I try.I don’t always succeed.I try to do justice to your arguments.That sometimes takes more words, even after editing, than I like. I would like to keep things shorter, but at a certain point I spend tons of time trying to edit and then I feel the need to add more to cover your points.I can’t argue with you here, though.As much as I appreciate long walks on long roads, I also believe in brevity.

    Seriously, I have tried to be patient with you. I have studied these issues in great detail. You have not. You have no understanding at all of English nationality law, early American nationality law or public law in the 18th and 19th centuries on these issues, Seriously, why are you pretending to understand subjects you have no knowledge of. This is the same issue with birthers. Amateurs pretending to be experts on points of law they don’t begin to understand. I have no idea why you are so invested in your jus sanguinis theory. You can’t admit no matter how much authority is cited that it was established law for 200 years that foreign born persons can only be citizens if they are naturalized. I guess no matter how many times the Supreme Court has said that, it still doesn’t get through to you. So are you stupid or dishonest? What are the other options? How many times do they have to say it until amateurs like you get it?

    All you other arguments are based upon speculation and not supported by any actual authority. I surely hope you are not an attorney as you might be as bad an attorney as the birther attorneys if you think you have provided any legal argument to support your position. The implications of the 1790 and 1795 Acts by an honest person don’t help you no matter what spin you try to put on it. It is very easy to spin such statutes to say the opposite of what you say they mean.

    It is clear you have no understanding that under English law statutory citizens at birth were only citizens for commercial purposes and didn’t owe allegiance to England or have political rights or obligations of a common law subject. Indeed, even if they went back to England there would be a dispute whether they owed any allegiance to England at all other than for commercial purposes (i.e., the right to inherit). For example, the US Congress took the position that our native born citizens who were also British subjects didn’t owe any allegiance to England even if they went back to England. The fact that you have no idea what I am talking about show how silly it is for you to opine on this issue at all.

    The bottom line Is this topic is way over your head and you just don’t understand that people with no education on this subject who claim to be experts on the internet are not entitled to any deference. Seriously, just shut up or find some actual real legal authority that actually supports you. No one is interested in you trying to speculate what people meant when you have no evidence or your failure to understand the plain language of supreme court decisions. Seriously, I hope you don’t actually practice law as I find your posts to be embarrassing at this point.

  41. avatar
    nbc May 24, 2013 at 9:14 pm #

    ballantine: Just letting Congress or the people decide whatever they want means you don’t have a Constitution.

    Yes, and basically opens our country up to the ‘majority rule’ which will allow a majority to take away the rights of a minority.
    Our Founders were wise enough to realize that the separation of powers allows the Courts to be the final arbiter of the law. This does not mean that the Courts will get it right all the time, but they provide a significant safety buffer against the usurpation of rights by a majority.

  42. avatar
    nbc May 24, 2013 at 9:17 pm #

    Paper: If they did intended to treat them as citizens and not natural-born citizens in 1795, while having specifically rendered them as such in 1790, can Congress in 2013 just put it back in the statute?

    It can but that does not mean that they statute is constitutional. I can easily see how the 1790 reference was inadvertently added when copying from an English statute which used the term natural-born.

    Regardless, I believe that the Courts have been clear that Congress cannot use statutory law to expand or contract constitutional terms. Calling children by birth abroad to us citizen parents natural born, does not necessarily make them so. In fact, FAM 7 points out that its meaning may be different from the constitutional term.

    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.

    Following English practices 🙂

    Similarly we cannot conclude that since 8 USC uses the term naturalization in a perhaps limited definition, for the purposes of the statute, does not mean that it is the complete or correct definition when interpreting the meaning of the term in court.

  43. avatar
    nbc May 24, 2013 at 9:21 pm #

    ballantine: Second. Gray left open the possibility that someone naturalized at birth could be natural
    born. He did not leave open the possibility that the common law included jus sanguinis either from the statutes being declaratory or the common law being modified. What do you not understand about the statement that foreign born persons can only become citizens by being naturalized, a rule reaffirmed by all courts since.

    Yes, exactly, and if the argument is that ‘at birth’ is the defining principle of NBC then it runs counter to the findings by the Court which showed that it meant birth under allegiance which follows from birth on soil and being born owing allegiance, the latter to deal with common law exceptions. People born outside the dominion of a King, where always considered to be aliens, again with common law exceptions.

  44. avatar
    Scientist May 24, 2013 at 9:28 pm #

    ballantine: Seriously, I hope you don’t actually practice law as I find your posts to be embarrassing at this point.

    ballantine- I find your last statement quite out of line (not just the bit I quoted). Would you care to enlighten us as to your personal experience arguing such cases in actual courts before real judges? Are you a renowned attorney, posting here under a pseudonym? If so, come clean. If not, for all your studies (and the paper you have not actually finished) you are speculating as to how an actual court in 2013 would react.

    Let’s note the fact from Doc’s posting above the the one actual judge who heard such a case (regarding McCain) said he was probably eligible. Definitive? No. But hardly grounds for you to be arrogant that you are right. By the way, i am not claiming at all that I am right, merely that it is a close enough call that any court should and will defer to the voters.

    So, I find both you and nbc to be incredibly smug and self-righteous in view of the fact that the one real court case with the actual set of facts at issue here did not exactly result in a smashing vindication of your position. Yes, there are cases with quite different facts that peripherally support your position. But, so far, in terms of real cases pertaining to the actual situation being discussed, if I were betting my hard-earned cash, I would have to bet against you.

  45. avatar
    nbc May 24, 2013 at 9:30 pm #

    Paper: No, I am not. I am saying it’s discussion of common law is not applicable. Not for you, not for me. I am saying you and nbc can’t use Gray’s comments about common law to chop off citizens born abroad from consideration as members of natural-born citizenship.

    Of course we can. It follows from simple logic that

    1. The term needs to be defined by Common Law, not statutory principles, Common Law
    2. The court observes that under Common Law, Natural Born means born owing allegiance, which follows from birth on soil.
    3. While the Government had argued that Common Law included jus sanguinis, the court observed that such was never part of Common Law and thus the conclusion that Vattel ruled birthright citizenship was rejected.

    I think the court could not have been more clear about this, although I am dismayed how several law articles have somewhat quote-mined Wong Kim Ark.

    Since WKA is a major precedent on the meaning of natural born, I consider its ruling to be quite relevant.

    As to dicta, remember that the Government had argued that it was jus sanguinis that determine birthright citizenship. The court, extending its logic about finding the meaning of natural born in common law, observed that jus sanguinis never had been part of common law and that such children needed to be naturalized.

    I see little wiggle room here. It’s jus soli all the way down, so to speak 🙂

    1. It is close to undeniable that under WKA Common Law never included jus sanguinis so any appeal to this has to be rejected.
    2. It is certain but perhaps still arguable that Natural Born, under common law meant Birth on soil, not birth by blood, or citizen at birth or any variation thereof.

    By birth on soil, a child so born became an ‘automatic’ citizen of our Nation and no statutes were necessary to grant him this status. I think it is quite defensible to define natural born as birth without the need for explicit statute as it was always considered that children so born were citizens. In the US/UK this principle was jus soli, other nations relied on jus sanguinis. For a young nation like the US, it makes a lot of sense that it continued the common law traditions.

  46. avatar
    Scientist May 24, 2013 at 9:34 pm #

    nbc: Our Founders were wise enough to realize that the separation of powers allows the Courts to be the final arbiter of the law.

    I wonder who said the following: “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

    Could it have been one of the Founders?

  47. avatar
    nbc May 24, 2013 at 9:45 pm #

    Pieter Nosworthy: My understanding is that the later WKA intentionally ignored Art II understanding and decided citizenship based SOLELY on a 14th perspective.

    The Court observed that the 14th was merely declaratory of what our Constitution had already provided for: birth on soil, subject to jurisdiction or naturalization were the ways to get citizenship. Ironically, under Rogers v Bellei, the 14th may have created a third form: naturalized outside the jurisdiction of the United States.

    The court in WKA, like MvH, observed that the Constitution uses only several terms to provide citizenship, the natural born clause for eligibility and the power of congress to provide for uniform rules of naturalization.
    Since WKA could not have been naturalized due to anti Chinese immigration laws, the Court therefor had to establish if he was a citizen by birth.

  48. avatar
    nbc May 24, 2013 at 9:56 pm #

    Scientist: Could it have been one of the Founders?

    YOu do realize that the Constitution was written and signed by more than one founder. Jefferson had his opinion as to who was the ultimate arbiter, and while he believed that such would be dangerous, the constitution itself was found to be in disagreement with his position. As was perhaps the person to whom Jefferson was writing.

    Jefferson also appears to be mostly discussing the concept of mandamus by courts against the judiciary.

    Jefferson, in this letter, may have been aware of the ruling in Marbury v Madison, 5 U.S. 137 (1803), which was the foundation for judicial review. Ironically, the court did do what Jefferson is describing, ruling that the law which allowed the courts to grant a mandamus was itself unconstitutional.

    But the power of judicial review had been clearly established. And while Jefferson may not have approved of Marbury, his position is interesting footnote from history but less relevant to the issue as to whether or not our Constitution provides for judicial review.

  49. avatar
    nbc May 24, 2013 at 9:59 pm #

    Scientist: ballantine- I find your last statement quite out of line (not just the bit I quoted). Would you care to enlighten us as to your personal experience arguing such cases in actual courts before real judges? Are you a renowned attorney, posting here under a pseudonym? If so, come clean. If not, for all your studies (and the paper you have not actually finished) you are speculating as to how an actual court in 2013 would react.

    Come on Scientist, does the irony of your comments escape you here?

  50. avatar
    ballantine May 24, 2013 at 9:59 pm #

    Scientist: ballantine- I find your last statement quite out of line (not just the bit I quoted).Would you care to enlighten us as to your personal experience arguing such cases in actual courts before real judges?Are you a renowned attorney, posting here under a pseudonym?If so, come clean.If not, for all your studies (and the paper you have not actually finished) you are speculating as to how an actual court in 2013 would react.

    Let’s note the fact from Doc’s posting above the the one actual judge who heard such a case (regarding McCain) said he was probably eligible.Definitive?No.But hardly grounds for you to be arrogant that you are right.By the way, i am not claiming at all that I am right, merely that it is a close enough call that any court should and will defer to the voters.

    So, I find both you and nbc to be incredibly smug and self-righteous in view of the fact that the one real court case with the actual set of facts at issue here did not exactly result in a smashing vindication of your position.Yes, there are cases with quite different facts that peripherally support your position.But, so far, in terms of real cases pertaining to the actual situation being discussed, if I were betting my hard-earned cash, I would have to bet against you.

    Sorry, I am losing patience with amateurs like you and Paper pretending to be constirutional scholars. Paper has been wrong on everything he has said and has refused to admit what our courts have clearly stated. It is not a matter of opinion, it is fact. You simply don’t believe in our laws or constituion and we really can’t figure out why you post here at all. NBC and I have cited a mountain of authority to support out claims. All we get in response are amateurs claiming they are right because they are right. If you can’t tell at this point that I forgotten more about this subject than you or these orther people have learned, I really can’t help you. I don’t need to prove anything to you, but I work at one of the largest law firms in the world and have clerked for one of the highest courts in the counry. All that has nothing to do with the fact that neither you nor Paper understand English nationalit law, our early nationality law or the public law of allegiance. Seriously, neither of you could pass the most elementary test on the subject. Why do you spend so much time here pretending to be some kind of legal expert on topics you know so little about? Maybe I’ll pretend to be a scientist on the internet questioning the opinions of real experts. Is that fun. I will actually publish a paper on this topic in the near future. You couldn’t get a serious paper published on this topic on a birther blog. But keep spending all you time posting as we really need the opinion of a scientist who has no understanding of nationality law.

  51. avatar
    nbc May 24, 2013 at 10:13 pm #

    Scientist: So, I find both you and nbc to be incredibly smug and self-righteous in view of the fact that the one real court case with the actual set of facts at issue here did not exactly result in a smashing vindication of your position.

    I see, we should let our position be determined by a court which did not really rule on the issue.

    What did the court say in Robinson v Bowen?

    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.

    So we need to look at the history of the case which was initiated by Robinson as a COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

    What was Robinson arguing?

    Senator McCain’s 1936 birth in the Panama Canal Zone fails that test
    because, at the time of his birth, Senator McCain’s Panama birth did not confer citizenship on him.

    and

    On its face, a “natural born” citizen means a citizen at birth. As set forth below, Senator McCain was not a citizen at birth, and is therefore not a “natural born” citizen.

    He argued that McCain had failed because at the time of his birth he was not a citizen. Robinson was not arguing the much broader question. Since he appears to have accepted that natural born means citizen at birth, the court did not have to review this foundation.

    So, I would say that relying on Robinson as to why a court has rejected my or Ballantine’s arguments is not well supported by the actual records.

    Again, a bit of research could have helped here…

  52. avatar
    Paper May 24, 2013 at 11:54 pm #

    Oh please, your patience is merely condescension and it is ridiculous. I do not believe I have treated you similarly. As I said, I simply have been pursuing arguments, not pretending to anything. But since you ask so nicely, well, actually, never mind, not going to waste time explaining my experience to you. Not that it matters. This is not about me as a person.

    You spent a bunch of time saying I don’t understand Gray, and then you end up saying Gray leaves the door open, which was my point from the start.

    You spent a bunch of time lecturing me that common law does not include statute, but I never said that it does. Despite being extremely clear (G apparently understood my point well enough) that I was not relying upon common law, you persist in your lectures that I need to stop relying upon common law.

    I haven’t even really addressed the naturalization of foreign born persons. So where do you get off saying I can’t admit anything about that topic. You want to lambast me about something I have barely addressed?

    You say that “the fact that you [Paper] have no idea what I am talking about show how silly it is for you to opine on this issue at all [the rights of statutory citizens at birth when in or out of country],” but the fact that you think I don’t understand what you are talking about (I barely touched that topic and did not opine about the past) reflects more on you than me. Perhaps not on your knowledge, but on your attitude, or something.

    You repeatedly critique arguments I have not made, and characterize me as pretending to be an expert on points of law, when, whatever my experience, I have stated clearly that what interests me about this topic is merely exploring how even now it remains unsettled.

    After all those misrepresentations by you, I am supposed to be chastened by your experience or powers of perception?

    Wow. Just wow.

    Look, this is the internet. Perhaps you are reading tone where there is none on my part. Perhaps you are glossing matters too quickly because after all you have tons of experience. Perhaps simply that I challenge and question, particularly when you misread what I say, gets you going, and I become “that guy” to you.

    So, I would refer you to those you at least cannot call amateurs on the internet, but I suppose in a way you actually have already done so, speaking on the previous thread about those scholars who by your lights haven’t done their research. I guess I need to leave it to more professional minds to decide if you perceive them any better than you do me.

    (Perhaps you legitimately can read a little bit of tone in that last sentence…but can’t be too nice to you after all…) 😉

    ballantine:

    Seriously, I have tried to be patient with you….

    [etc etc etc]

  53. avatar
    ballantine May 25, 2013 at 12:40 am #

    Paper:
    Oh please, your patience is merely condescension and it is ridiculous.I do not believe I have treated you similarly.As I said, I simply have been pursuing arguments, not pretending to anything.But since you ask so nicely, well, actually, never mind, not going to waste time explaining my experience to you.Not that it matters.This is not about me as a person.

    You spent a bunch of time saying I don’t understand Gray, and then you end up saying Gray leaves the door open, which was my point from the start.

    You spent a bunch of time lecturing me that common law does not include statute, but I never saidthat it does.Despite being extremely clear (G apparently understood my point well enough) that I was not relying upon common law, you persist in your lectures that I need to stop relying upon common law.

    I haven’t even really addressed the naturalization of foreign born persons. So where do you get off saying I can’t admit anything about that topic. You want to lambast me about something I have barely addressed?

    You say that “the fact that you [Paper] have no idea what I am talking about show how silly it is for you to opine on this issue at all [the rights of statutory citizens at birth when in or out of country],” but the fact that you think I don’t understand what you are talking about (I barely touched that topic and did not opine about the past) reflects more on you than me.Perhaps not on your knowledge, but on your attitude, or something.

    You repeatedly critique arguments I have not made, and characterize me as pretending to be an expert on points of law, when, whatever my experience, I have stated clearly that what interests me about this topic is merely exploring how even now it remains unsettled.

    After all those misrepresentations by you, I am supposed to be chastened by your experience or powers of perception?

    Wow.Just wow.

    Look, this is the internet.Perhaps you are reading tone where there is none on my part.Perhaps you are glossing matters too quickly because after all you have tons of experience.Perhaps simply that I challenge and question, particularly when you misread what I say, gets you going, and I become “that guy” to you.

    So, I would refer you to those you at least cannot call amateurs on the internet, but I suppose in a way you actually have already done so, speaking on the previous thread about those scholars who by your lights haven’t done their research.I guess I need to leave it to more professional minds to decide if you perceive them any better than you do me.

    (Perhaps you legitimately can read a little bit of tone in that last sentence…but can’t be too nice to you after all…)

    Well at least some of your posts are less than 15,000 words, but still you keep repeating the same nonsense. You still don’t understand that Gray only left the door open that the foreign born might be naturlaized to be natural born, the argument you won’t address even though it is the only argument left open. It is sad you still don’t get that Rather you just blauther on and on with theories you can cite no authority to support. Gray pointed to much legal authority that the term was defined by the common law definition and he could have cited much more. Indeed, there is a mountain of authority that says the president must be native born including pretty much every significant early scholar. You don’t cite any authority but just blauther on and on with rank speculation. Statutory British subjects were not the same as common law subjects and statutory citizens were not treated the same as common law citizens. They were not treated the same under public law and no legal authority of any signifixance said they were eligible to be president. Rather than blauser on, why not try citing some actual legal authority. However, if you can’t first admit that the foreign born are aliens without the aid of statute, you shouldn’t even bother.

  54. avatar
    Paper May 25, 2013 at 12:43 am #

    I am not pretending any such thing, but I would like to see Akhil Amar chuckle while you call him an amateur.

    Amar, a former professor to some Supreme Court justices, *is* a constitutional scholar, one who maintains that those persons born abroad as citizens are eligible to the presidency.

    He could be wrong, but I would love to see his eyes twinkling as you gave him what for.

    ballantine: Sorry, I am losing patience with amateurs like you and Paper pretending to be constirutional scholars.

  55. avatar
    Paper May 25, 2013 at 12:48 am #

    What makes you say that I don’t understand that? Or at least appreciate that position?

    Is it sad that you find things sad without justification?

    ballantine:

    You still don’t understand that Gray only left the door open that the foreign born might be naturlaized to be natural born, the argument you won’t address even though it is the only argument left open. It is sad you still don’t get that.

  56. avatar
    nbc May 25, 2013 at 12:53 am #

    Paper:
    What makes you say that I don’t understand that? Or at least appreciate that position?

    Is it sad that you find things sad without justification?

    Ballantine has a valid point here. So I do not think he lacks justification.

  57. avatar
    nbc May 25, 2013 at 12:56 am #

    Paper: I am not pretending any such thing, but I would like to see Akhil Amar chuckle while you call him an amateur.

    He called you an amateur for the way you presented your argument. As to Akhil Amar, you can read some of his musings here

  58. avatar
    nbc May 25, 2013 at 1:01 am #

    Any references for Akhil Amar’s position?

    True, only “natural born citizens” as opposed to naturalized immigrants can be President. Seven of the Constitution’s thirty-nine signers were themselves foreign-born Americans, and several criticized this limitation. Perhaps future Americans will one day discard it.

    So far nothing helpful…

    He seems to be more interested in allowing naturalized citizens to be eligible.

  59. avatar
    ballantine May 25, 2013 at 1:11 am #

    If Akhil Amar were challenged on this he wouldn’t refuse to ackowledge what the court has said or what is clearly settled law. Nor would he keep repeating arguments he couldn’t support with any actual authority. It is one thing to make statements. It is another to actually support them with evidence.

  60. avatar
    Paper May 25, 2013 at 1:16 am #

    No, he doesn’t, not about my understanding of this point about being naturalized as natural-born. I believe I may have muttered some things along this line in the early parts of the previous thread. There also were some abstruse considerations, walking into the weeds to admire the view so to speak, so I appreciate you may have missed it.

    But of late, I have been silent on this aspect of the conversation, in order to focus on other aspects. So I continue to be amused at such unjustified commentary.

    nbc: Ballantine has a valid point here. So I do not think he lacks justification.

  61. avatar
    Paper May 25, 2013 at 1:20 am #

    You continue to mischaracterize me. I appreciate your lack of appreciation of my style. But I also find you a bit of a bully, so we are even.

    ballantine:
    If Akhil Amar were challenged on this he wouldn’t refuse to ackowledge what the court has said or what is clearly settled law.Nor would he keep repeating arguments he couldn’t support with any actual authority.It is one thing to make statements.It is another to actually support them with evidence.

  62. avatar
    nbc May 25, 2013 at 1:24 am #

    Paper: So I continue to be amused at such unjustified commentary.

    Perhaps you may spend less time on 1000’s of words and more clearly outline your argument. Gray leaves open little room. Perhaps some clear outline of your arguments would benefit.

    As I understand it you believe that natural born means citizen ‘at birth’. Am I correct?

  63. avatar
    nbc May 25, 2013 at 1:26 am #

    Paper: You continue to mischaracterize me. I appreciate your lack of appreciation of my style. But I also find you a bit of a bully, so we are even.

    Perhaps an attempt to clarify would benefit. Just stating that Amar would be amused does not help your case. Is he making the same argument as you are?

    What exactly is his argument? So far I see that he wants anyone to be eligible to be the President of our Nation, natural born and naturalized.

    I have seen little that suggests to me that your claims, if I understand them correctly, find any support in legal jurisprudence. Am I correct about that?

  64. avatar
    nbc May 25, 2013 at 1:35 am #

    Paper: Gray’s citations of early days also suffer from not referring to those born abroad.

    But he does. I have referred you to Edward 3 several times now. Remember that he showed that children born abroad to citizen parents were not considered natural born under common law.

  65. avatar
    Paper May 25, 2013 at 1:56 am #

    I do not imagine you will favor his reasoning once you get to it, but here is his position from America’s Constitution: A Biography.

    “Early America’s evident concerns about presidential dynasties also lurked beneath Article II’s most questionable eligibility rule: its requirement that a president be a ‘natural born Citizen’–that is, a citizen at the time of his birth.” (91)

    In footnote 91: “For example, a child born abroad of American parentage would be eligible, so long as the citizenship rules in place at the time of his birth so provided.”

    nbc:
    Any references for Akhil Amar’s position?

    So far nothing helpful…

    He seems to be more interested in allowing naturalized citizens to be eligible.

  66. avatar
    nbc May 25, 2013 at 2:12 am #

    Paper: For example, a child born abroad of American parentage would be eligible, so long as the citizenship rules in place at the time of his birth so provided

    Helpful but any supporting reasoning? The limited information I have on Amar suggests that this is not really the focus of his interest and thus he may not have explained how he reached this conclusion.

    Not very helpful so far, but I appreciate you providing me a reference. I have found too many scholars glossing over this.

  67. avatar
    Paper May 25, 2013 at 3:08 am #

    I don’t think I want to get between you and Amar. I tried that with Maskell, and you guys ended up comparing me to a birther and characterizing me as an amateur pretending to be a constitutional scholar. I’m not weeping in the corner from such “unprecedented” internet forum brusqueness, but neither am I interested in playing that game twice.

    I was interested in the issue. Fighting is just boring to me.

    nbc: Helpful but any supporting reasoning? The limited information I have on Amar suggests that this is not really the focus of his interest and thus he may not have explained how he reached this conclusion.

    Not very helpful so far, but I appreciate you providing me a reference. I have found too many scholars glossing over this.

  68. avatar
    Paper May 25, 2013 at 3:12 am #

    Yes, under common law.

    Though I believe you mentioned it to *me* only once. Be that as it may, I have read it several times.

    nbc: But he does. I have referred you to Edward 3 several times now. Remember that he showed that children born abroad to citizen parents were not considered natural born under common law.

  69. avatar
    Paper May 25, 2013 at 3:39 am #

    I have taken no position. Over the years, I have come to lean toward the argument that those persons born citizens abroad can be considered natural-born citizens. But I have no dog in this fight. I like digging into gray areas. After such conversations as we have had, I find myself moving more into the citizen by or at birth camp.

    nbc:
    As I understand it you believe that natural born means citizen ‘at birth’. Am I correct?

  70. avatar
    nbc May 25, 2013 at 4:26 am #

    Paper: Yes, under common law.

    And the court found that the term natural born had to be understood in light of common law.

    In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    So you are arguing that even though the Court rejected that jus sanguinis played a role in the common law definition of NBC, that it left open the door that children born abroad to US citizens, who were naturalized by statute at birth, could somehow be considered natural born citizens?

    WKA: The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.

    And the court was clear that the term MUST be interpreted in the light of common law…

    In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    That seems to end the hope that WKA leaves open much of a door.

    But that conclusion is based on the premise that ‘natural born’ means ‘at birth’ and there appears to be no supporting evidence for that position. Under common law, it was clear that the relevant component was allegiance, which followed from birth on soil. Under common law it was also clear that a child born abroad to citizen parents was an alien.

    Hence the leap to: Natural born means ‘at birth’ remains somewhat unsupported, would you not agree?

    The problem with this approach is that therefor Congress could very well expand natural born citizenship to anyone naturalized by passing a statute that considers them to be citizens born. But that would undermine the reason for the eligibility clause.

    From Osborn v. Bank of United States, 22 US 738 – Supreme Court 1824, cited in WKA which explains that naturalization cannot prescribe the capacities of the naturalized and that his status is indistinguishable from the native born, except so far as the Constitution makes that distinction. Again, this argues against the position that Congress can use its statutory powers to make a naturalized citizen more than than what the Constitution allows.

    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 authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances 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 court also distinguished between natural born and naturalized when it observes

    The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.

    One would expect that if the concept of natural born required mere citizenship at birth that one could find some supporting evidence. I have seen none that appear to rise to the occasion.

    So let me end with the most damaging statement

    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 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 by birth clearly excludes naturalized citizens, no?

  71. avatar
    nbc May 25, 2013 at 4:39 am #

    Schneider v Rusk also distinguishes between natural/native born and naturalized

    We start from the premise that 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. Art. II, 1.

    and

    Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President,

    So again, things become trickier and trickier. While the latter statement was made in dissent, it mirrors the statement made by the majority.

    United States v. Schwimmer, 279 US 644 – Supreme Court 1929

    Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens. All alike owe allegiance to the Government, and the Government owes to them the duty of protection. These are reciprocal obligations and each is a consideration for the other. Luria v. United States, 231 U.S. 9, 22. But aliens can acquire such equality only by naturalization according to the uniform rules prescribed by the Congress. They have no natural right to become citizens, but only that which is by statute conferred upon them.

  72. avatar
    nbc May 25, 2013 at 4:45 am #

    As to those born abroad to US citizen parents being naturalized

    Rogers v. Bellei, 401 US 815 – Supreme Court 1971

    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.

    Referencing Wong Kim Ark

    The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country.

    Citing Elk v Wilkins

    And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment

    “contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons 842*842 not . . . 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.” 112 U. S., at 101-102.

  73. avatar
    Dr. Conspiracy May 25, 2013 at 7:22 am #

    I should point out that the OED definitive of “native-born” is “having a specified position or character by birth” not “born in a place.”

    nbc: Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President,

  74. avatar
    Scientist May 25, 2013 at 7:59 am #

    ballantine: Sorry, I am losing patience with amateurs like you and Paper pretending to be constirutional scholars. Paper has been wrong on everything he has said and has refused to admit what our courts have clearly stated. It is not a matter of opinion, it is fact. You simply don’t believe in our laws or constituion and we really can’t figure out why you post here at all. NBC and I have cited a mountain of authority to support out claims. All we get in response are amateurs claiming they are right because they are right. If you can’t tell at this point that I forgotten more about this subject than you or these orther people have learned, I really can’t help you. I don’t need to prove anything to you, but I work at one of the largest law firms in the world and have clerked for one of the highest courts in the counry. All that has nothing to do with the fact that neither you nor Paper understand English nationalit law, our early nationality law or the public law of allegiance. Seriously, neither of you could pass the most elementary test on the subject. Why do you spend so much time here pretending to be some kind of legal expert on topics you know so little about? Maybe I’ll pretend to be a scientist on the internet questioning the opinions of real experts. Is that fun. I will actually publish a paper on this topic in the near future. You couldn’t get a serious paper published on this topic on a birther blog. But keep spending all you time posting as we really need the opinion of a scientist who has no understanding of nationality law.

    Well your post is riddled with spelling errors, including “constituion”. I don’t know what that is, so how can I say whether I believe in it or not. You don’t impress me as a careful person whom I would want as my personal or business attorney.

    As for your arguments, they are simply this- a hypothesis with some foundation in past courts, but one that is untested in modern-day courts. Many wonderful hypotheses that sound quite reasonable fail when actually tested in the real world. The one time yours was tested in recent times, the judge didn’t exactly leap to support it. Until your hypothesis is submitted to an actual test, there is no proof as to your being right or wrong.

    So, let me simply offer this, a bet that if Cruz is elected, he takes office despite your hypothesis. I will be happy to provide you my real name and coordinates if you will do the same (through Doc if he is willing) and will even deposit the agreed upon amount, along with yourself, in an escrow account. I would be agreeable to either the winner collecting the money personally or designating a charity of the winner’s choice. Of course, in the most likely event that Cruz is not elected, the money would be returned to each of us.

    I suspect you are a giant hat without any actual cattle and will duck this challenge with a bunch of wussy excuses, but I am willing to submit that hypothesis to an experimental test. Et tu, Brute?

  75. avatar
    Scientist May 25, 2013 at 8:17 am #

    nbc: This
    order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.

    nbc: What was Robinson arguing?

    Senator McCain’s 1936 birth in the Panama Canal Zone fails that test
    because, at the time of his birth, Senator McCain’s Panama birth did not confer citizenship on him.

    and

    On its face, a “natural born” citizen means a citizen at birth. As set forth below, Senator McCain was not a citizen at birth, and is therefore not a “natural born” citizen.

    He argued that McCain had failed because at the time of his birth he was not a citizen. Robinson was not arguing the much broader question. Since he appears to have accepted that natural born means citizen at birth, the court did not have to review this foundation.

    I am aware of the argument made. I disagree with your conclusion. The court accepted as fact that McCain was born outside of the US, yet still said “it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.”

    I never claimed, despite your twisting, that this was definitive and would reflect the actual ruling this judge would have made nor what higher courts would say. But the judge could have said, “I think it highly probable that Senator McCain is NOT a natural born citizen.” He did not. Moreover, he could have made such a statement yet still found against the plaintiff on standing or political question or other grounds. But he didn’t, did he?

    So what you and ballantine have is a big load of hypothesis and no actual data. I don’t deny I have the same. The difference is that I don’t claim I am right and everyone else wrong.

    nbc: Again, a bit of research could have helped here…

    A bit of research and thinking before you type would have helped you to read Powell correctly. You F’ed that one up big time. Someone smarter than you would reflect on that and consider whether they were mis-reading other things as well.

    I will offer you the same bet I offered ballantine. Are you hat or cattle? My hypothesis is you are hat. Prove me wrong.

  76. avatar
    Scientist May 25, 2013 at 8:48 am #

    nbc: YOu do realize that the Constitution was written and signed by more than one founder. Jefferson had his opinion as to who was the ultimate arbiter, and while he believed that such would be dangerous, the constitution itself was found to be in disagreement with his position. As was perhaps the person to whom Jefferson was writing.

    Of course I realize there were many founders, who disagreed on a great deal. You were the one who said, “Our Founders were wise enough to realize that the separation of powers allows the Courts to be the final arbiter of the law.” Which ones? We know Jefferson disagreed with Marbury v Madison. Hamilton was dead. Jay was silent on the matter, though while he was Chief Justice he did not overturn any laws. Madison likewise. So you simply cannot say that “the Founders” supported giving the judiciary the power to decide all questions. Some did, some didn’t.

    The Constitution does not explicitly give the judiciary the power to overturn laws. If you wish to argue Congress requires specific enumerated powers to do something, it is illogical to turn around and then say the judiciary does not.

    Your position on most issues really amounts to a deference to the past, not guidance by logic, reason or data. You are like the medieval anatomists who knew Galen and found that enough. Thank goodness, some medical scientists like Vesalius decided the past was prologue, not the final word.

  77. avatar
    Scientist May 25, 2013 at 11:28 am #

    There is considerable irony in someone who wants to argue (ballantine’s own words), yet not with amateurs, who comes to a blog run by a non-lawyer and populated by amateurs. Why doesn’t such a person go organize a symposium at a law school or through their Bar Association? The fact is there are not hordes of present-day legal experts flocking to ballantine and nbc’s position. Almost all take the opposite side.

    Here is Bonner, whom ballantine has mentioned: “In conclusion, this papers reinterpretation of Article IIs natural born presidential eligibility clause indicates that any person who holds the right to United States citizenship by virtue of the Constitution, treaties, or statutes in effect at the time of his or her birth, or any citizen born within the territorial limits of the United States, qualifies as natural born under Article II. Such an interpretive result would appear to reflect the history of the clauses enactment while serving the central principle of egalitarianism that animated the founding of the United States.”

    I urge everyone to read the whole paper, which can be downloaded as a pdf (I haven’t chhecked for layers)
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133663

    The honest truth is that whether or not ballantine and nbc’s position might have been a majority position in 1789, it is a minority one today. Not as out-in space as Apuzzo’s to be sure, but not reflective of the mainstream nonetheless. I may be an amatuer, but I can easily tell that much.

    As far as amateurs arguing science, that is what I would expect on a blog and they are welcome to do so. If I wish a scientific discussion with my peers, I go to a scientific conference. ballantine and nbc-get off your behinds and present your ideas to legal scholars. If you convince any of them, come back and let us know. Until then, you got squat…

  78. avatar
    brygenon May 25, 2013 at 2:37 pm #

    nbc: So we need to look at the history of the case which was initiated by Robinson
    […]
    What was Robinson arguing?

    Point: Markham Robinson did not put your argument before the Court. But when we apply that same principle to the historical cases you’ve been citing, NBC, all your precedents vanish into irrelevance. Turnabout is fair play. Robinson v. Bowen was spot-on our eligibility question, while none of your citations deal with the argument here. If you can disregard Robinson v. Bowen because Robinson did not precisely advance your position, why can we not put a big red X through every court citation you’ve ever presented?

    Plus, the Robinson v. Bowen denial went beyond what anyone here has been arguing in allowing Congress to make natural-born citizens. The Court accepted that of Congress could, by law, grant citizenship from birth retroactively, and even the retroactive grant would make natural-born citizens:

    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.

    Robinson v. Bowen, 567 F. Supp. 2d 1144 – Dist. Court, ND California 2008

    The plaintiff, Markham Robinson, had argued against retroactive citizenship. Robinson’s argument was Jack Chin’s paper, cited here previously. The Court rejected the plaintiff’s argument, and by necessary implication rejected yours, NBC.

    nbc: So, I would say that relying on Robinson as to why a court has rejected my or Ballantine’s arguments is not well supported by the actual records.

    And you keep saying it as the real world screams that you and Ballantine are wrong. NBC, if you look up the ruling you might note that the Court cited a couple of your favorite cases: Rogers v. Bellei and United States v. Wong Kim Ark. In the real court, before the real judge, your citations played *against* your thesis.

    Renowned constitutional scholars, courts, and Congress’s own research service clearly say that you are wrong. Instead of taking correction, you reduce those authorities to voices offering arguments for your evaluation. Alas, evaluating legal arguments is not your thing. You are bad at it.

  79. avatar
    nbc May 25, 2013 at 3:33 pm #

    brygenon: If you can disregard Robinson v. Bowen because Robinson did not precisely advance your position, why can we not put a big red X through every court citation you’ve ever presented?

    Simple, the Court simply did not find Robinson’s arguments sufficient to require the relief he requested. The case however does not address anything that we have raised, as it merely assumes that a child born abroad to US citizen parents is natural born but argues that McCain failed because he was not a citizen at birth.

    Why should we look at other court rulings? Because these court rulings outline the foundation for the meaning of the term ‘natural born’ and show that it comes from Common Law, and that naturalization means that such citizens are not eligible.

    The Court in Robinson made no findings other than a determination that given the relief requested, a preliminary injunction, that Robinson’s arguments had failed to convince the court.

    Renowned constitutional scholars, courts, and Congress’s own research service clearly say that you are wrong.

    I see, you are relying on the appeal to authority here, or the relevance of a court which never had been properly briefed on the arguments? Now I can understand why you would do this, rather than show where Ballantine and I are wrong.

    Alas, that does not appear to be your forte. Too bad my friend.

    So on one hand we have Brygenon who leaves the decision to ‘scholars’, the CRS and courts while ignoring both the flaws in their arguments, because he considers them to be renowned scholars.

    I am saddened how few people show the intellectual curiosity to go beyond the statements of these so called ‘renowned scholars’ to determine the validity of their arguments.
    Now the court cannot be blamed for accepting that which both parties agreed to: citizenship at birth means natural born citizen. But the court, other than pointing out that he was not convinced by Robinson’s arguments as to why McCain still was not eligible, cannot be blamed for not having to decide on the validity of what both sides had agreed to. The Court can only address a controversy…

    Yes, the court sites Rogers v Bellei and US v Wong Kim Ark which clearly disagree with his position, but the issue brought before the court was not if children so born are natural born, but rather if McCain was a citizen at birth.

    The courts have consistently held that the naturalized and native/natural born stand on equal footing, except when it comes to eligibility for President. The courts also have clearly stated that all those who receive citizenship by statute are naturalized.

    As to the CRS and these ‘renowned’ scholars, as I and Ballantine have shown and argued, their claims are not very well developed. But that appears to be something few are willing to consider, let alone argue against.

    Yes, the court in Robinson did state that which both parties had agreed to. Not a very good foundation when arguing against observations that the agreed to concept was incorrect.

    Hope this clarifies.

    I have provided US v Wong Kim Ark and Rogers v Bellei as clearly contradicting the claim that natural born is equivalent to being a citizen at birth.
    And of course, there is a simple argument to show that Congress does not have the power to extend natural born citizenship to those not originally covered.

    Let’s agree that all those naturalized after birth, cannot be natural born. So what if Congress passes a law that states that all naturalized in the United States become citizens from birth? Clearly such a declaration falls within the powers of Congress to provide for uniform rules of naturalization.
    Now Congress has effectively used a statute to violate the make the eligibility clause meaningless. Noone would argue that Congress can use a statute to void a constitutional requirement.

    This simple/simplistic argument shows clearly that Congress cannot use its powers to extend natural born status by simple statute. So why do we accept that it can do so when it comes to those born abroad to US citizens? Especially since the concept that natural born means ‘at birth’, is at odds with the rulings on these issues?

    Perhaps this helps to clarify?

  80. avatar
    nbc May 25, 2013 at 3:43 pm #

    Scientist: Of course I realize there were many founders, who disagreed on a great deal.

    I see, you are showing that not all Founders agreed with Marbury, whose decision reached the conclusion that the courts are the final arbiter. Again, while you may not agree with their interpretation, their findings have continued to be accepted as valid precedent by the courts and therefore, it is unreasonable to argue that the ruling has no relevance. Sure, Jefferson, who had good reasons to be upset with Marbury as it found against him but also found that the Court lacked tools to grant a mandamus since that law was itself unconstitutional.

    I take your point however that not all Founders agreed with the Court being the final arbiter and will retract my statement that suggested otherwise.

    But if you want to argue that the courts are not the final arbiter when it comes to constitutionality of our laws, then you have to go against quite a bit of legal precedence that contradicts you. Of course, nothing precludes a future Court from disregarding this precedent but given the times Marbury has been approvingly quoted, I would not hold my breath and until that moment, the ruling leaves us no doubt.

    Of course, this does not mean that Congress cannot pass unconstitutional laws, it just means that we cannot point to them passing such laws as evidence that this makes them constitutional. The Courts have frowned upon this kind of argument.

  81. avatar
    nbc May 25, 2013 at 3:49 pm #

    Dr. Conspiracy: I should point out that the OED definitive of “native-born” is “having a specified position or character by birth” not “born in a place.”

    By birth not at birth. Yes, like natural born, the decision as to what is native depends on whether it is jus soli or jus sanguinis that guides the unwritten laws. The use of native-born versus naturalized combined with the observation that naturalization includes all who become citizens by statute helps resolve the issue I believe.

    When the Court in Bellei uses native/natural born versus naturalized, arguing that their rights are the same, other than eligibility to become President, it becomes problematic to argue that those naturalized are still native/natural.

    I see the same arguments amongst various scholars where they switch from by birth to at birth without realizing that this may be a giant leap of faith.

    Some relevant definitions

    Native, One born in bondage; a born thrall One born in a place; one connected with a place by birth, whether subsequently resident there or not. – Legally, a person is a native of the place or country where the parents have their domicile, which may or may not be the place of actual birth.

    Native-born, Having a certain position or status by birth. Belonging to a particular place or country by birth; sometimes spec. applied to persons of immigrant race born in a colony. (emphasis in the original)

    Natural-born, Having a specified position or character by birth; used esp. with subject (emphasis in the original)

    Naturalize, To admit (an alien) to the position and rights of citizenship; to invest with the privileges of a native-born subject.

  82. avatar
    G May 25, 2013 at 4:49 pm #

    While I certainly appreciate your perspective, I think it is too extreme to accuse any failure to dive into the chain of custody details to the same Nth degree as lacking “intellectual curiosity”. While you and Ballentine certainly are building a case, your retort to strike down any other written modern finding or “authority” who has commented on the issue is to simply dismiss that they obviously didn’t research the topic in enough detail, as you two have .

    In other words, the argument against these other modern opinions is that the fail, because they, for whatever reason, “didn’t go there” and therefore, misconstrued what you have found, within their own citations.

    So your position is that these other references and modern scholars are simply “weak” in examining the argument, as you have. But the reality is that even in the courtroom, certain arguments don’t always “go there” and become accepted by the parties or the ruling judge as sufficient, without further detailed chain-of-custody reexamination being necessary.

    You’ve made very valid points about the courts needing to follow the law and examine the history of law, so that the majority cannot trample over minority rights. Very true. However, it is hard to make a case where expanding and broadening interpretations of rights and allowing for more inclusive definitions is endangering any minority rights in the process. I don’t see a perceived violation of “fairness” in these situations.

    So, in the unlikely event that such a high-profile case ever be brought forth and argued by the court, will the parties really have the will to need to “go there”, or will what you would consider “weaker”, or less “tenable” positions be considered “sufficient” to allow for new expansion of case law, despite historical interpretations? I know that “fairness” is a different concept than strict, constructional arguments…but we’re dealing with the reality of human court systems and the perception of “fairness” does tend to come into play.

    So, while I really liked your simplified example of where Congressional powers of naturalization could become abused to create new statutes that retroactively grant “at birth” citizenship, I see where that would be perceived as a “bridge too far” in terms of “fairness”, as there would be a clear distinction still to be made here, as they never actually had such citizenship bestowed upon them at the time of their birth. However, the existing statutes don’t do that – there merely provide a declarative “at birth” citizenship status for those jus sanguinis cases, not a retroactive one.

    Such statutes have been in place for how long now? How many people have considered themselves under these statutes that their own government made, to be citizens of this country from the moment of their birth? Yes, you can certainly technically argue that the history of the law shows that such statute means they are actually naturalized at birth. But it is a distinction that only has merit in being challenged in one specific Constitutional instance and to do so unavoidably invokes a sense of stripping away assumed rights. So this is a situation in which, technicalities or not, perception and politics are likely to hold greater sway than adherence to stricter, originalist legal arguments, regardless of their strength. The “weaker” argument can still win the day and the will to challenge it…well, there just doesn’t seem to be enough will to want to “go there”, even though one can. I doubt even so in the courts.

    While you might try to argue that this weakens Constitutional principles in general, I’m not sure it would be seen that way and would simply be glossed over as an acceptable blurring of the lines, in which our form of government and legal system still continue to function and “fairness” was sufficiently maintained, as no minority rights were really harmed in the “blurring”.

    nbc: I am saddened how few people show the intellectual curiosity to go beyond the statements of these so called ‘renowned scholars’ to determine the validity of their arguments.
    Now the court cannot be blamed for accepting that which both parties agreed to: citizenship at birth means natural born citizen. But the court, other than pointing out that he was not convinced by Robinson’s arguments as to why McCain still was not eligible, cannot be blamed for not having to decide on the validity of what both sides had agreed to. The Court can only address a controversy…

    nbc: Let’s agree that all those naturalized after birth, cannot be natural born. So what if Congress passes a law that states that all naturalized in the United States become citizens from birth? Clearly such a declaration falls within the powers of Congress to provide for uniform rules of naturalization.
    Now Congress has effectively used a statute to violate the make the eligibility clause meaningless. Noone would argue that Congress can use a statute to void a constitutional requirement.

    This simple/simplistic argument shows clearly that Congress cannot use its powers to extend natural born status by simple statute. So why do we accept that it can do so when it comes to those born abroad to US citizens? Especially since the concept that natural born means ‘at birth’, is at odds with the rulings on these issues?

  83. avatar
    nbc May 25, 2013 at 5:24 pm #

    G: While I certainly appreciate your perspective, I think it is too extreme to accuse any failure to dive into the chain of custody details to the same Nth degree as lacking “intellectual curiosity”.

    The objections were limited to several posters who appear to be more interested in arguing that renowned scholars have settled the matter, which I find understable but also somewhat irrelevant. The position of scholars will undoubtedly be considered by the Court, as it did analyzing the writings by Collins who had strongly argued against the position and who got an AG to help settle his position using WKA as a suitable case to do so.

    However, the court also did pursue the ‘chain of custody’ when it came to arguments that for instance common law had adopted jus sanguinis by tracking down the arguments to two sources

    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 [p670] 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 Court will consider the chain of custody of arguments, which in the end appear to follow one of two branches. The first one argues that jus sanguinis had been adopted by common law, something the Court in US v Wong Kim Ark explicitly rejected. The other, more subtle, argues that Congress, using its constitutional powers to provide for uniform rules of naturalization can extend natural born status to anyone they rule to be a citizen at birth. However, this would not exclude the possibility that Congress could use a statute to extend such citizenship to all naturalized. Furthermore, it is based on the claim that ‘by birth’ or ‘birthright’ focuses on the time of birth being the sole determinant of natural born, something I believe fails when looking at the meaning of the term.

    Finally, the courts have consistently observed to pathways to citizenship, birth and naturalization and argued that those natural/native born and those naturalized share the same rights, except for one, the eligibility to become a President. If one wants to argue that those naturalized at birth are not naturalized, then you have to overcome the observations in US v Wong Kim Ark and Rogers v Bellei which contradict such a position.

    I may have missed other approaches, and I am aware that some have argued that the 14th did away with the eligibility clause or variations on that theme but again, the argument is weak at best.

    Many of those arguing that children naturalized at birth are natural born, do point to US v Wong Kim Ark and other relevant rulings, such as Rogers, but somehow fail to recognize its findings properly, as I do not believe that the case that equivocates the terms “by birth” and “at birth” has much strength.

    So, relying merely on the proclamations of scholars without addressing how they reached their positions, makes any objections quite weak, if we want to understand the true and complete meaning of the term ‘natural born’.

    But, I do hear your objections and they are reasonable in its generality.

  84. avatar
    G May 25, 2013 at 5:34 pm #

    Thanks. This makes sense to me.

    nbc: The Court will consider the chain of custody of arguments, which in the end appear to follow one of two branches. The first one argues that jus sanguinis had been adopted by common law, something the Court in US v Wong Kim Ark explicitly rejected. The other, more subtle, argues that Congress, using its constitutional powers to provide for uniform rules of naturalization can extend natural born status to anyone they rule to be a citizen at birth. However, this would not exclude the possibility that Congress could use a statute to extend such citizenship to all naturalized. Furthermore, it is based on the claim that ‘by birth’ or ‘birthright’ focuses on the time of birth being the sole determinant of natural born, something I believe fails when looking at the meaning of the term.

    Finally, the courts have consistently observed to pathways to citizenship, birth and naturalization and argued that those natural/native born and those naturalized share the same rights, except for one, the eligibility to become a President. If one wants to argue that those naturalized at birth are not naturalized, then you have to overcome the observations in US v Wong Kim Ark and Rogers v Bellei which contradict such a position.

    I may have missed other approaches, and I am aware that some have argued that the 14th did away with the eligibility clause or variations on that theme but again, the argument is weak at best.

  85. avatar
    nbc May 25, 2013 at 5:39 pm #

    For an interesting alternative perspective going back to Bacon, you can read

    The works of Francis Bacon, lord chancellor of England, Volume 2 By Francis Bacon, Basil Montagu

    However, Bacon relies on Hussey

    By the statute of 25 E III which, if you will believe Hussey, is but a declaration of the common law, all children born in any parts of the world, if they be of English parents, continuing at that time as liege subjects to the king and having done no act to forfeit the benefit of their allegiance are ipso facto naturalized.

    But he too considers them to be naturalized, although ipso facto, however this relies on Hussey’s argument which the Court in US v Wong Kim Ark rejected.

  86. avatar
    nbc May 25, 2013 at 6:00 pm #

    Another fascinating book is The Law of Nationality By Munroe Smith

    He discusses in depth the law of nationality and its development in various countries.

    In discussing the US he observes on p. 947

    Citizen and Subjects The of 1787 established no rules governing the acquisition or loss of American nationality whole matter therefore remained governed the subsidiary law of the land the common law All persons born in the territory of the United States were its subjects all persons bom out of its territory though of American parents were aliens.

    It discusses many issues raised by people on our forums… Makes for helpful background information.

  87. avatar
    Scientist May 25, 2013 at 7:11 pm #

    nbc: I take your point however that not all Founders agreed with the Court being the final arbiter and will retract my statement that suggested otherwise.

    OK, fair enough. There are those to this day who think Marbury was wrongly decided and invests quasi-dictatorial powers in the judiciary. I have some sympathy with their point, but as a practical matter that horse has left the barn. We are left to count on the judiciary to use that power wisely, restrained by the knowledge that if they make a practice of grossly overstepping, the point would come where the other branches would ignore their decisions. So, they have reason to stay within limits.

    nbc: The other, more subtle, argues that Congress, using its constitutional powers to provide for uniform rules of naturalization can extend natural born status to anyone they rule to be a citizen at birth. However, this would not exclude the possibility that Congress could use a statute to extend such citizenship to all naturalized.

    In view of my statement above, let’s consider your point. Perhaps Congress could use a statute to make all naturalized natural born, not just those born to US citizen parents. Here is the thing though-in 225 years they have not done so. No one in Congress has ever proposed doing so, even those who favor eliminating the NBC requirement have tried to do so through amendment.

    Let’s pursue the analogy-I fear that making the Supreme Court all-powerful could result in them just willy-nilly striking down all laws and making their own. But, while they have made quite a few bad decisions they haven’t done that. You fear that Congress will amend the Constitution wholesale by statute. But they haven’t done that. So maybe we both ought to relax, accept judicial oversight and Congress perhaps tinkering at the edges of the NBC clause, but accept that neither is likely to go hog-wild, because they haven’t in over 2 centuries and both are subject to real-world checks on their power, even were it theoretically unlimited,.

    So, that may be a resolution we can all live with-that Congress can go that far and no farther (as the Court can go so far and no farther) without an amendment. They can make citizens at birth natural born by statute, but no one else. What say you?

  88. avatar
    nbc May 25, 2013 at 7:24 pm #

    Scientist: In view of my statement above, let’s consider your point. Perhaps Congress could use a statute to make all naturalized natural born, not just those born to US citizen parents.

    That would run afoul of the Courts observing that Congress cannot use a statute to override a Constitutional requirement.

    I do understand your fascination with what you believe Congress can do, but that does not make it legally or Constitutionally defensible.

    So, that may be a resolution we can all live with-that Congress can go that far and no farther (as the Court can go so far and no farther) without an amendment. They can make citizens at birth natural born by statute, but no one else. What say you?

    I see nothing beyond mere assertion and speculation here. No attempt to argue where these limitations come from or where its power to declare some natural born come from, totally undermining the concept of uniform rules of naturalization.

    And no. The Supreme Court is not all powerful as it cannot make its own laws… My goodness sakes.. What happened to trying to adhere to our Constitution when making such suggestions.

    But I understand your position and find it not very convincing.

  89. avatar
    Scientist May 25, 2013 at 7:26 pm #

    By the way nbc, your arguments might be better received if you canned the sarcasm, emoticons and snark. If you do so, i will certainly try to do the same.

    It would also help if you acknowledged that even in court, the social and political context, actual history, not just legal history, matters. Courts do care`what the public and political leaders think. They don’t live in a vacuum. As the saying goes, “The Supreme Court follows the election returns.” That isn’t to say they would never, ever go against the opinion of the people and the political class. But I think if you look at history, the occasions when they go against a broad popular consensus of the public and political leaders are very few and far between. The courts resisted rights for blacks, women, gays, etc. and then, when the social climate changed, they suddenly found that those rights existed.

    You would be well advised not to simply shrug off the fact that several people born abroad to citizen parents have run as serious candidates. That really does matter. That the Senate voted 98-0 that McCain was eligible really does matter. Those are not absolutely binding on the courts, but I think you are foolish to pretend those do not matter.

  90. avatar
    Scientist May 25, 2013 at 7:37 pm #

    nbc: No attempt to argue where these limitations come from or where its power to declare some natural born come from, totally undermining the concept of uniform rules of naturalization

    Those born to citizens abroad are already treated differently for naturalization than immigrants. They do not have to apply, are not screened, do not have to pass a test and cannot be turned down for any reason. The laws do not treat them the same as immigrants.

    nbc: The Supreme Court is not all powerful as it cannot make its own laws… My goodness sakes.. What happened to trying to adhere to our Constitution when making such suggestions.

    Really? The court makes laws all the time. They devise formulas for school desegregation plans, for drawing congressional district boundaries, for campaign finance laws. You are literally the only person I have ever run into who even attempts to deny that. Some think it’s justified in some cases and some don’t, but you are the only person I have encountered who denies it happens.

    nbc: But I understand your position and find it not very convincing.

    Can you name anyone here whom you have convinced? I don’t see any.

  91. avatar
    Scientist May 25, 2013 at 7:55 pm #

    nbc: That would run afoul of the Courts observing that Congress cannot use a statute to override a Constitutional requirement.

    They aren’t overriding anything. No court has ever said that those born to citizen parents overseas are ineligible. You can pretend they have but they haven’t. Statutes stand unless overruled, not the reverse.

    I see you wouldn’t take my bet. yet you are sure you are right. Are you opposed to making money? You are free to donate it to the charity of your choice. I think you owe me an explanation.

  92. avatar
    Scientist May 25, 2013 at 8:35 pm #

    nbc: No attempt to argue where these limitations come from or where its power to declare some natural born come from, totally undermining the concept of uniform rules of naturalization.

    Let’s develop this further. The logic of nbc’s position renders the entire nationality part of the Immigration Nationality Act unconstitutional because it is NOT AT ALL uniform as regards how it treats those who are born abroad to US citizens and those who are born to non-citizens. The latter must show English proficiency and knowledge of US history and government (a test that it has been shown a great many native-born fail). They must have been lawfully admitted as permanent residents and reside here for a certain number of years and can only be naturalized inside the US. They can be denied for a criminal record, certain political views, etc.

    Not a single one of these apply to those born to citizen parents. So it seems there are 3 possibilities:

    1. The Act is unconstitutional and must be changed to impose the same naturalization requirements on these folks as on ordinary immigrants in order to have uniform rules. I’m not sure how to give infants those tests, but that’s what we are looking at.
    2. They really are not naturalized. Which then implies they are natural born, since there are supposed to be only 2 ways to acquire citizenship.
    3. Or there are 3 classes of citizen.

    I cannot see any other logical possibilities.

  93. avatar
    nbc May 25, 2013 at 8:38 pm #

    Scientist: Those born to citizens abroad are already treated differently for naturalization than immigrants. They do not have to apply, are not screened, do not have to pass a test and cannot be turned down for any reason. The laws do not treat them the same as immigrants.

    They all are naturalized, there are strict limitations as to what test they need to pass and they can be turned down if failing to abide by the rules. The term uniform does introduce some questions as to what this ‘uniformity’ refers to. The courts do not seem to object that different rules may apply to different circumstances, hence the differentiation between children born to two citizen parents, and one, mother, or one, father, all historically being treated differently.
    Thus the term, uniform likely refers to that anyone who becomes a naturalized citizen has uniformly the same rights. Alternatively, it could apply equally to all states, not leaving the decision of naturalization up to the individual states. Or perhaps a combination thereof.

    As to the former:

    How far the Government may admit a man to the rights of citizenship by progression, is called in question. The Constitution vests in Congress the power to establish a uniform rule of naturalization; it is not various rules they have the power to make, but one complete uniform rule; now, is it one rule, if a man is admitted progressively? It is; because it is only part of a rule, that a man shall be entitled to certain privileges at the end of one year’s residence. Another part is to give more in two years, and the whole is completed at the end of three years. The naturalization laws of Carolina proceed upon this plan: they do not there conceive it proper to give the complete right at once; they give citizenship for certain purposes at first, extending them afterwards as the person is fitted to receive them.

    In other words, it could be that all naturalized enjoy the same privileges. Under this interpretation, Congress can still refuse aliens to be naturalized as it did with respect to Chinese, and children born to some US citizens (inadvertently), but once admitted as a naturalized citizen, they all enjoy the same rights and privileges.

    This appears to be a powerful argument against the idea that some naturalized citizens can become President and others cannot. TIme to further develop this argument. Thanks for pointing me to another indicator that may help us understand the meaning of this term.

    In Federalist Papers 42, Madison observes

    We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States.

    And Hamilton in Federalist Paper 32

    he third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.

    Thus in 1790 Congress passed:

    “An Act to establish an uniform Rule of Naturalization,”

    So how have courts looked at this?

    In Nehme v. INS, 252 F. 3d 415 – Court of Appeals, 5th Circuit 2001, the plaintiff argued that the rules were not uniform.

    Next, we will consider what the constitutional mandate of uniformity requires in the context of naturalization laws, and finally whether the legal separation requirement conforms with the uniformity requirement.

    Arguing

    As early as the 1880’s, federal courts held that in the bankruptcy context, the 428*428 uniformity rule merely requires Congress to pass one law applicable to all states of the union. Darling v. Berry, 13 F. 659, 667-68 (C.C.D.Iowa 1882). A law is uniform even though it operates differently in different states, because Congress “cannot create uniform conditions and circumstances in the various states of the Union.” Id. at 668. The Supreme Court has referred to this requirement as one of “geographical uniformity,” as opposed to personal uniformity. Hanover Nat’l Bank v. Moyses, 186 U.S. 181, 188, 22 S.Ct. 857, 860-61, 46 L.Ed. 1113 (1902).[13]

    So the Court ruled that uniform refers to uniformity throughout all the States.

    Schneider v. Rusk, 377 US 163 – Supreme Court 1964

    We start from the premise that 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. Art. II, 1.

    and

    While the rights of citizenship of the native born derive from 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, “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 authorize Congress to enlarge or abridge those rights.

    So the fact that Congress cannot enlarge or abridge the rights of the naturalized, and recognizes native borns, defined from the fourteenth as being coextensive with one exception.

    Afroyim v. Rusk, 387 US 253 – Supreme Court 1967 citing Osborn v. Bank of the United States, 9 Wheat. 738, 827,

    “[The naturalized citizen] 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 authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.”

    Enlarge or abridge… Uniform rule, that’s where it ends.

  94. avatar
    nbc May 25, 2013 at 8:40 pm #

    Scientist: The logic of nbc’s position renders the entire nationality part of the Immigration Nationality Act unconstitutional because it is NOT AT ALL uniform as regards how it treats those who are born abroad to US citizens and those who are born to non-citizens.

    I believe I have addressed these in my preceding posting. Uniform refers to making uniform laws without expanding or abridging the rights of people naturalized.

  95. avatar
    nbc May 25, 2013 at 8:59 pm #

    Scientist: nbc: That would run afoul of the Courts observing that Congress cannot use a statute to override a Constitutional requirement.

    They aren’t overriding anything. No court has ever said that those born to citizen parents overseas are ineligible. You can pretend they have but they haven’t. Statutes stand unless overruled, not the reverse.

    Well if they are eligible they would not need laws of naturalization now do they? Sure, statutes stand until overruled or until new statutes replace the original statute. So if you accept that Congress can call a child so born natural-born and then no longer refer to them as such in later actions, it would appear that you have to admit that they are no longer natural born, unless of course, they never needed a law, but that is contradicted by the fact that the Courts have observed that for a while children so born were not necessarily even citizens.

    So many pitfalls. So one has to carefully establish how such children would be able to be considered natural born through statute, or if such a statute is not necessary?

    So far there does not appear to emerge a coherent scenario as to how such children would/should/could be considered natural born and the mere enactment of a statute cannot be used to argue in favor of its constitutionality either.

    Are we slipping back to ‘Congress can do whatever it wants’ or whatever it wants within certain limits, the extent of which do not appear to have clear boundaries?

    By considering certain naturalized citizens to be natural born, Congress may very well overstep its bounds as they are now expanding/abridging the rights of some naturalized and not others.

    Again I am struggling to see how this would work out.

  96. avatar
    nbc May 25, 2013 at 9:01 pm #

    Scientist: By the way nbc, your arguments might be better received if you canned the sarcasm, emoticons and snark. If you do so, i will certainly try to do the same.

    I like to share in what I receive, however that becomes an eternal cycle. So fair enough. I will try to do so, much against my common use of sarcasm as a means of communication.

  97. avatar
    nbc May 25, 2013 at 9:07 pm #

    Scientist: 1. The Act is unconstitutional and must be changed to impose the same naturalization requirements on these folks as on ordinary immigrants in order to have uniform rules. I’m not sure how to give infants those tests, but that’s what we are looking at.
    2. They really are not naturalized. Which then implies they are natural born, since there are supposed to be only 2 ways to acquire citizenship.
    3. Or there are 3 classes of citizen.

    I cannot see any other logical possibilities

    1. has now become irrelevant as this is not my argument. Uniformity has been used to refer to geographical uniformity, 2) cannot be supported in light of WKA and Rogers v Bellei, and 3. is contradicted by our Constitution, although some argue, put to doubt by Rogers which recognizes a naturalized citizen who is not protected by the 14th Amendment. I doubt that this argument in Rogers will survive long in future scrutiny as it would lead to some interesting circumstances if Congress allows aliens to be naturalized in embassies in foreign countries.

    Although the court disagrees that a child so born has second-class citizenship, since once naturalized, he enjoys the same privileges and rights as others naturalized. But that would exclude by extension, being able to run for president.

    It will be hard to argue that those not born on soil, and who become citizens are not naturalized, and when one accepts that position, the next step, that all naturalized will have the same rights, becomes rather straightforward.

    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 authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States precisely under the same circumstances 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.

    Dicta in Osborn v. Bank of the United States – 22 U.S. 738, (1824), accepted in various non dicta circumstances.

  98. avatar
    brygenon May 25, 2013 at 9:27 pm #

    nbc: Thus the term, uniform likely refers to that anyone who becomes a naturalized citizen has uniformly the same rights. Alternatively, it could apply equally to all states, not leaving the decision of naturalization up to the individual states. Or perhaps a combination thereof.

    It’s the second: uniform across the states.

  99. avatar
    nbc May 25, 2013 at 9:29 pm #

    brygenon: It’s the second: uniform across the states.

    You could have read the rest of my posting 🙂

  100. avatar
    Paper May 26, 2013 at 1:37 am #

    Here’s the thing, and before anyone pitches a fit, I am simply pointing to something very basic, for nbc’s response.

    You quote WKA, but the “it” WKA refers to is the Constitution as a whole, not the term by itself. So it is the whole Constitution then that *must* be interpreted in the light of common law. That would include the term, of course, but is that not a very different thing from your insistence, as seems to be your point, that this term must be defined only by common law? Do we do that with the rest of the Constitution?

    I have asked this question here before, but let me quote from South Carolina v. United States (1905) and get your response.

    After noting the role for taking “words in their natural sense,” and bearing in mind the “recourse to the common law,” listing various citations including the one from WKA, this Court then sums up by saying that in order to “determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.” Later, the court speaks to the relevance of “that that which is implied is as much a part of the Constitution as that which is expressed.”

    That in a nutshell is what I have been saying.

    So before considering other matters, what do you make of this?

    Mr. Chief Justice Marshall, in Gobbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68, well declared:

    ‘As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.’

    One other fact must be borne in mind, and that is that in interpreting the Constitution we must have recourse to the common law. As said by Mr. Justice Matthews in Smith v. Alabama: ‘The interpretation of the Constitution of the United States in necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.’

    And by Mr. Justice Gray in United States v. Wong Kim Ark:

    ‘In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution….The language of the Constitution, as has been well said, could not be understood without reference to the common law. ‘

    To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants….

    … If, therefore, we confine our inquiry to the express provisions of the Constitution, there is disclosed no limitation on the power of the general government to collect license taxes.

    But it is undoubtedly true that that which is implied is as much a part of the Constitution as that which is expressed.

    ————

    nbc: And the court found that the term natural born had to be understood in light of common law.

    In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    So you are arguing that even though the Court rejected that jus sanguinis played a role in the common law definition of NBC, that it left open the door that children born abroad to US citizens, who were naturalized by statute at birth, could somehow be considered natural born citizens?

    And the court was clear that the term MUST be interpreted in the light of common law…

    In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    That seems to end the hope that WKA leaves open much of a door.

  101. avatar
    Keith May 26, 2013 at 9:32 pm #

    I thought I had finished with this thread, having explained my approach to the issue from plain English definition of the words, an approach that draws one to understand ‘native born citizen’ as one who achieves citizenship ‘naturally’ according to ‘birthright’. It follows that and ‘birthright’ can be ‘jus soli’, defined in the Constitution or ‘jus sanguinis’ defined by Congress.

    Objectors to this approach point out that there exists opinions and even quotes from case law that would indicate that because ‘jus sangujinis’ citizens owe their citizenship to the patronage of Congress, which could be withdrawn, such citizens must be considered ‘naturalized’, even though such quotes and case citations are never discussing the point of ‘jus sanguinis’ directly, only as contrasting with the facts of the issue before the court.

    Like I said, I think we understand each other, and neither will be swayed by the others argument. I am focused on what I believe is the spirit of the Constitution, while objectors to my approach are focused on they believe to be the letter of the Constitution. I find my approach compatible with both, while they tie themselves in to reject any such consideration. Can it really be that the Framers of the Constitution meant to exclude John McCain from the Presidency because of the accident of history that his parents were honorably serving their country overseas when the birth occurred? I think not, and I’ll just have to respectfully disagree and remember that the majority of opinion in the United States is on ‘my’ side.

    That’s a lot of summary to get to the point of what prompted me to reenter the discussion. And that is as follows.

    Are Native Americans ‘Natural Born Citizens’?. Would Russel Means have been eligible to be President?

    If we recall the argument from nbc and ballantyne, the crux of the matter is that a person born ‘outside the jurisdiction’ requires an act of Congress to make them a citizen, therefore they are naturalized.

    Native Americans are born ‘outside the jurisdiction’, and require an act of Congress to make them a citizen. Before 1924, Native Americans were able to achieve citizenship by serving in the military, or becoming landowners and taxpayers (Dawes Act), and applying for citizenship. After the 1924 Indian Citizenship Act of 1924, Native Americans no longer needed to apply for citizenship. The Act did not apply to persons born before 1924, and was replaced by the Nationality Act of 1940 which was modified again in 1952.

    The specific section is 8 USC 1401(b).

    The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, and subject to the jurisdiction thereof;

    (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

    (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

    (there are 5 more paragraphs dealing with various circumstances of persons born outside the United States)

    The point I am making here is that Congress is expanding the concept of ‘jurisdiction’ via a statute, and that statute applies to ‘jurisdiction’ over individuals born in the United States, as well as those born overseas.

    I expect an appeal to the authority of Framers would find that they did not consider Native Americans as nationals even, let alone citizens, and yet I don’t think many thinking persons today would consider them anything other than natural born citizens.

    Still, Congress can change 8 USC 1401(b) anytime it has the whim.

  102. avatar
    nbc May 26, 2013 at 9:45 pm #

    Keith: I thought I had finished with this thread, having explained my approach to the issue from plain English definition of the words, an approach that draws one to understand ‘native born citizen’ as one who achieves citizenship ‘naturally’ according to ‘birthright’.

    Yes, such an understanding however may not be relevant as one could argue what is meant by natural. One way to simply resolve this is to observe that such children do not acquire citizenship from statute or law.
    From there, understanding birthright citizen will avoid the pitfalls of trying to apply ‘English analysis’, and such an interpretation also aligns with scholarly research and legal precedent.

    While I appreciate your efforts, it does not follow much of the legal analysis and even scholarly research, especially when it comes to the one which ruled the day: US v Wong Kim Ark.

    Remember that in WKA, the government had claimed that birthright citizenship ala Vattel was more probably and even the lower court found that while it may appear to be more logical, it does not follow legal precedents.

    Which is why when analyzing words not defined in the Constitution, courts look at common law, not what we may find to be a logical interpretation.

    The point I am making here is that Congress is expanding the concept of ‘jurisdiction’ via a statute, and that statute applies to ‘jurisdiction’ over individuals born in the United States, as well as those born overseas.

    Of course, children born abroad to US citizen parents do not really fall under US jurisdiction. In case of the Indians, their birth on soil would place them closer to birthright citizenship, were it not for the fact that the 14th was argued to exclude Indians. However, it is hard to argue that Indians are not subject to our jurisdiction, even at the time the 14th was written, that position was tentative at best.

    But it is indeed a good question if Indians are natural born citizens. It would be fun to pursue this as well, however at the moment, children born to citizen parents is far more interesting to me. But given the findings by the Courts on this issue, we should be careful not conflate the birth of Indians within the limits of our Nation with those born outside the limits and jurisdiction.

    Nowadays Indians by virtue of their birth on soil and birth subject to US jurisdiction could be argued to be natural born as the meet both requirements.

    That’s still a long way to go for those born beyond our limits and not subject to our jurisdiction.

    In most cases Indians are subject to US jurisdiction AND to tribal law when on the reservations. It would be hard to argue that those children born abroad are under our jurisdiction.

  103. avatar
    G May 26, 2013 at 10:17 pm #

    I think this pretty much sums up the two different approaches to the issue at play here.

    Keith: I am focused on what I believe is the spirit of the Constitution, while objectors to my approach are focused on they believe to be the letter of the Constitution.

  104. avatar
    nbc May 26, 2013 at 10:53 pm #

    G:
    I think this pretty much sums up the two different approaches to the issue at play here.

    Yes. The problem with ‘spirit of the Constitution’ is often more difficult to understand than the ‘letter of the Constitution’. To avoid open ended interpretations to our Constitutions, we cannot let us be guided what we hope the Founders had in mind.

    I understand Keith’s position which may be more ‘fair’ but that has never really been a legally relevant standard.

  105. avatar
    Keith May 26, 2013 at 11:38 pm #

    nbc: Yes. The problem with ‘spirit of the Constitution’ is often more difficult to understand than the ‘letter of the Constitution’. To avoid open ended interpretations to our Constitutions, we cannot let us be guided what we hope the Founders had in mind.

    I understand Keith’s position which may be more ‘fair’ but that has never really been a legally relevant standard.

    Except that I believe my approach honors BOTH the intent and letter of the Constitution, while your approach is not even certain about the letter.

    At the time of my first encounter with OCT, I basically held your opinion, McCain was not eligible according to the strict reading of the law. I found that an unreasonable and unworthy situation. The technicality placed McCain’s eligibility into a gray area, and worthy of academic debate (unlike Obama’s, about which there was no reasonable doubt), but it is manifestly unfair to consider McCain ineligible.

    Congress agreed (not because of me) and passed a resolution that basically said they considered him NBC and would not accept a challenge based on that technicality. As far as I’m concerned that closes the argument for McCain (and Cruz for that matter).

    That there are still folks like you that want to dispute that is OK. The Congressional resolution was non-binding, and they may want to reject that precedent in the future. However, that doesn’t make the argument any less of a ‘how many Angels can dance on the head of a pin’ argument.

    The fact that case law and argument from common law continues to leave the issue ambiguous with regard to ‘jus sanguinis’ makes continued argument along those lines pointless. There is point-counterpoint on both sides forever. This is why I (and others including the Doc) have looked elsewhere.

    Understanding the language from the dictionary definition of words is a time honored tool. It’s use in this case arrives at an unambiguous description of my (and the majority of opinion) understanding of both the intent and letter of the Constitution. I see no point in looking further, or in continuing to argue about the shoe size of the Angels.

    Note: I used the word ‘spirit’ before, but ‘intent’ is probably closer to what I meant. But both words work for me.

  106. avatar
    nbc May 27, 2013 at 1:26 am #

    Keith: Except that I believe my approach honors BOTH the intent and letter of the Constitution, while your approach is not even certain about the letter.

    You have convinced yourself that you are right. Nothing wrong with that, but to defend your position you cannot appeal to flawed logic. Common law is quite clear… So how do we establish the value of your argument? The congressional enactment?… That is a bit circular is it not…

    Once you realize that Common Law is quite clear, you will realize why your subjective interpretation, while interesting, may be rejected because of its failures to provide non circular logic.

    What is wrong with accepting the binding approach chosen by the Supreme Court, which avoids the subjective interpretations?

  107. avatar
    The Magic M May 27, 2013 at 6:03 am #

    nbc: The problem with ‘spirit of the Constitution’ is often more difficult to understand than the ‘letter of the Constitution’.

    For any law, Constitution or ordinary, going beyond the letter of the law creates all kinds of grey areas. But laws were made to be understood and observed by the people. Grey areas are a bad thing to have on purpose.

    Let’s take an example:

    A law, enacted in 1880, says “Couples are allowed to own pets, anybody else is not”.
    This law contains two words that are important to its scope, “couples” and “pets”.
    If you follow the letter of the law (and exclude for a moment the same-sex issue), “couple” means “a man and a woman in a relationship” and “pet” means “an animal typically held as a companion at home”.

    Now what if you could prove that the lawmakers actually meant “married people” when they said “couple”? Suppose further that “couple = married people” was not just some special understanding but the typical equivalence that held in 1880?
    What happens if a non-married couple today reads the law, assumes that it allows them to own a dog and gets dragged to court and sentenced because “the lawmakers meant this to hold only for married people”? You would consider that a grave injustice.

    So taking intent over the letter of the law is dangerous.

    Let’s now turn to another aspect of substituting the current meaning over the original meaning.
    Let’s say a law says “Only married people may own pets”. Back in 1880, only a man and a woman could legally marry. Does that mean today’s reading of the law must exclude same-sex couples where same-sex marriage is legal?
    My argument is that when the lawmakers decide to expand the meaning of marriage to include same-sex marriages, they consider all consequences of this decision, including that the scope of existing laws/regulations covering marriage changes. Otherwise they would’ve changed those laws as well to reflect the fact that they still are supposed to refer only to heterosexual marriages.
    So this argument warrants a contemporary reading of a law, not an originalist approach – people in a homosexual marriage may own pets, too.

    For the same reason, today “pets” would not include lions, but it may do so in 100 years when it has become common to have a tame lion in every other household.

    Anything else would create many situations where it is almost impossible to determine whether you are violating a law, because in addition to its text, you would have to check when the law was enacted, what the original meaning of its key words were back then etc.

    I always say that the good thing about laws is that they typically use generic terms (or none at all) to avoid becoming outdated or opening loopholes. When the law on libel was enacted, nobody envisioned the internet, yet libel on the internet is just as illegal as offline, simply because generic key words such as “communication” were used.

  108. avatar
    Keith May 27, 2013 at 10:25 am #

    nbc: Once you realize that Common Law is quite clear, you will realize why your subjective interpretation, while interesting, may be rejected because of its failures to provide non circular logic

    Except that Common Law is neither clear, nor immutable.

    No appeal to Common Law before 2007 that you have found discusses ‘jus sanguinis’ in the American or English context. Not one.

    On the other hand, the non-binding Congressional resolution from 2007, that named McCain as a National Born Citizen set a precedent in Common Law that directly addresses ‘jus sanguinis’ in exactly that way. That precedent is, of course, not immutable just as Common Law is not immutable, it can be overridden by a specific statute.

    Common Law is ‘the way things are’, without a statute controlling it. As soon as a statute encodes the effect of the Common Law, then it isn’t Common Law anymore. Courts can redefine or add to Common Law. So can Congress, as in the McCain resolution.

    The American legal system took the 18th century version of the English Common Law as a starting point, not the end point. ECL had evolved over centuries, perhaps millennia. It doesn’t stop evolving just because a new country is established.

  109. avatar
    Paper May 27, 2013 at 12:58 pm #

    I myself think when using common law as a reference it makes a lot of sense to speak of the common law of the time. Not to apply later shifts in common law to that part of the interpretive process. That’s a whole other debate, of course.

    That said, I continue to wait to hear why nbc thinks the interpretation of this term, or even of any term in the Constitution, is limited only to common law, or if his view is something other than that.

    In this regard, like you, I note how pure common law back then does not discuss or involve those born abroad to existing citizens. We all seem to agree on that, at least for the constraints of this discussion.

    WKA does not say the term natural born citizen must be entirely constrained by the scope of common law. Or at least I don’t see how nbc insistently reaches that complete and encompassing view. WKA says the Constitution as a whole must be read in the light of common law. That is fairly uncontroversial, but other considerations are often used in interpreting the Constitution, especially where the consideration in question is not unambiguous, even given common law. Are they not?

    I would be interested in the argument for such a view. It doesn’t seem to fit what I read by scholars, even those in argument over interpretive approaches, nor as put forth by the justices themselves in such cases as South Carolina v. United States. Nor even WKA in my view.

    I wait to hear the argument for such a view.

    Keith: Except that Common Law is neither clear, nor immutable.

    No appeal to Common Law before 2007 that you have found discusses ‘jus sanguinis’ in the American or English context. Not one.

    On the other hand, the non-binding Congressional resolution from 2007, that named McCain as a National Born Citizen set a precedent in Common Law that directly addresses ‘jus sanguinis’ in exactly that way. That precedent is, of course, not immutable just as Common Law is not immutable, it can be overridden by a specific statute.

    Common Law is ‘the way things are’, without a statute controlling it. As soon as a statute encodes the effect of the Common Law, then it isn’t Common Law anymore. Courts can redefine or add to Common Law. So can Congress, as in the McCain resolution.

    The American legal system took the 18th century version of the English Common Law as a starting point, not the end point. ECL had evolved over centuries, perhaps millennia. It doesn’t stop evolving just because a new country is established.

  110. avatar
    brygenon May 27, 2013 at 1:54 pm #

    nbc: Simple, the Court simply did not find Robinson’s arguments sufficient to require the relief he requested. The case however does not address anything that we have raised, as it merely assumes that a child born abroad to US citizen parents is natural born but argues that McCain failed because he was not a citizen at birth.

    No one can make you address it, but it’s still there in Robinson v. Bowen, and quoted in the Congressional Research Service’s Report to Congress. The Court allowed that Congress could grant citizenship from birth, natural-born citizenship, retroactively, contrary to plaintiff’s argument and contrary to yours.

    nbc:
    I see, you are relying on the appeal to authority here, or the relevance of a court which never had been properly briefed on the arguments? Now I can understand why you would do this, rather than show where Ballantine and I are wrong.

    I cannot convince *you* that you are wrong. At this point you’ve caveatted and qualified your stance to the point that even inauguration of a foreign-born president would not prove you wrong; it would just show that all the branches of government are less learned, careful, wise, and courageous than yourself. No matter what happens, you thought it might. Your theory predicts nothing. Utterly useless.

    I don’t show where you are wrong? President Cruz couldn’t show you where you are wrong.

    nbc:
    Alas, that does not appear to be your forte. Too bad my friend.

    My forte is reality. Remember, NBC, that I explained the citizen-from-birth theory, including citing Robinson v. Bowen, *before* the public release of that Congressional Research Service Report that so clearly supports me and refutes you. I had no crystal ball. I had sufficient grasp on reality to tell who was worth listening to. Think how silly I’d now feel had I listed to you.

    nbc:
    So on one hand we have Brygenon who leaves the decision to ‘scholars’, the CRS and courts while ignoring both the flaws in their arguments, because he considers them to be renowned scholars.

    Who decides? I think the courts, Congress, and voters. I expect they’ll listen to renowned legal scholars. I don’t think self-styled amateur researchers will have significant influence.

    nbc:
    I am saddened how few people show the intellectual curiosity to go beyond the statements of these so called ‘renowned scholars’ to determine the validity of their arguments.

    We’re all just going to have to live your sadness.

    Amar, Maskell, and myself — we get the jurisdictional argument. It loses. If you can trace out an intricate theory making a case that current legal consensus is in conflict with certain sentences from historical precedent, then award yourself a gold star for the day, but understand: you are doing it for your own amusement. Finding a discrepancy in law is about as hard as adding two plus three.

    nbc:
    Yes, the court sites Rogers v Bellei and US v Wong Kim Ark which clearly disagree with his position […]

    You and the Court are talking past each other there. The Court found points in the precedents that you neglected, and clearly disagreed with you on which are significant. If there’s future litigation on this issue, I expect that’s going to happen to you more.

    nbc:
    The courts have consistently held that the naturalized and native/natural born stand on equal footing, except when it comes to eligibility for President.

    Right. Presidential eligibility is the one and only reason we argue the meaning of “natural-born citizen”. So in the years prior to the Constitutional Convention, what reason could the founders and framers have had for studying it? If you think they agreed that “natural-born citizen” was a term of art implying more than citizenship upon birth, how did that come up? What was the motivation for a term of art naming a special class of citizen when the art recognized no class of citizen as special?

    The historical cases are about whether some person was a citizen. They use “natural-born citizen” to mean citizen from birth because that’s all that mattered.

  111. avatar
    Paper May 27, 2013 at 5:51 pm #

    The question is, why do you restrict the considerations over the term exclusively to common law? I know you say WKA, but WKA, particularly in the quote you rely upon here, is speaking of the Constitution as a whole, and WKA in referencing common law re natural-born citizenship is doing so with regard to those born here. Common law indeed is quite clear about such instances.

    But common law does not speak to the instance of those born aboard to existing citizens.

    So a) common law is a key reference source in interpreting the Constitution, but are you saying it is the only one? And b) as common law does not address our question, how can we rely upon it?

    I’m not sure how you get to the “binding approach” you rely upon, that the totality of the definition of natural-born citizen must be found in common law, as WKA never says that. Or I’d like to hear how you think it does. Beyond what you have said so far. Because I find it difficult to see how having a *recourse* to common law while interpreting the Constitution at large, reading the Constitution in the light of common law, equals your view that every aspect of the term natural-born citizen must be found in common law.

    nbc: You have convinced yourself that you are right. Nothing wrong with that, but to defend your position you cannot appeal to flawed logic. Common law is quite clear… So how do we establish the value of your argument? The congressional enactment?… That is a bit circular is it not…

    Once you realize that Common Law is quite clear, you will realize why your subjective interpretation, while interesting, may be rejected because of its failures to provide non circular logic.

    What is wrong with accepting the binding approach chosen by the Supreme Court, which avoids the subjective interpretations?

  112. avatar
    nbc May 27, 2013 at 7:46 pm #

    brygenon: No one can make you address it, but it’s still there in Robinson v. Bowen, and quoted in the Congressional Research Service’s Report to Congress.

    I addressed it. Now what? The court was never faced with the question which both sides had accepted as true:” is a child born abroad to US citizen parents natural born citizen”

    So the court found that under these circumstances, he had no choice but to reject Robinson’s request for preliminary injunction and dismissed the case.

  113. avatar
    nbc May 27, 2013 at 7:49 pm #

    brygenon: My forte is reality. Remember, NBC, that I explained the citizen-from-birth theory, including citing Robinson v. Bowen, *before* the public release of that Congressional Research Service Report that so clearly supports me and refutes you.

    ROTFL… Reality is a case which does not support your position as it was never asked to rule on it. Instead, it accepted as true, for the reason of denial of the motion for preliminary injunction, that Robinson had failed to show that McCain had failed to qualify on his novel assertion which did accept that such children were natural born. So, you really should not place too much on this case.

  114. avatar
    nbc May 27, 2013 at 7:51 pm #

    brygenon: If you think they agreed that “natural-born citizen” was a term of art implying more than citizenship upon birth, how did that come up? What was the motivation for a term of art naming a special class of citizen when the art recognized no class of citizen as special?

    The historical cases are about whether some person was a citizen. They use “natural-born citizen” to mean citizen from birth because that’s all that mattered.

    Bit circular especially when the term was NOT found to mean citizen from birth without being on soil and under jurisdiction. You are conflating some terms here.

  115. avatar
    nbc May 27, 2013 at 7:55 pm #

    Keith: Except that Common Law is neither clear, nor immutable.

    But it is clear what its meaning was at the time of the signing of the Constitution. Of course, it is not immutable but that is not the argument.

    The simple reality is that the meaning of the term natural-born was to be found in Common Law, according to US v WKA. The court found that those born abroad never were part of common law.

    Seems so simple.

  116. avatar
    nbc May 27, 2013 at 7:57 pm #

    Keith: No appeal to Common Law before 2007 that you have found discusses ‘jus sanguinis’ in the American or English context. Not one.

    Except of course US v Wong Kim Ark which rejected that children so born were covered by common law.

    what year was that? 1898, or close to that.

  117. avatar
    brygenon May 27, 2013 at 8:47 pm #

    nbc: I addressed it. Now what? The court was never faced with the question which both sides had accepted as true:” is a child born abroad to US citizen parents natural born citizen”

    Where by “addressed” you mean snipped.

    The Robinson v. Bowen denial went beyond what anyone here has been arguing in allowing Congress to make natural-born citizens. The Court accepted that of Congress could, by law, grant citizenship from birth retroactively, and even the retroactive grant would make natural-born citizens:

    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.

    Robinson v. Bowen, 567 F. Supp. 2d 1144 – Dist. Court, ND California 2008

    The plaintiff, Markham Robinson, had argued against retroactive citizenship. Robinson’s argument was Jack Chin’s paper, cited here previously. The Court rejected the plaintiff’s argument, and by necessary implication rejected yours, NBC.

    nbc:
    So the court found that under these circumstances, he had no choice but to reject Robinson’s request for preliminary injunction and dismissed the case.

    Did the Court not say what I quoted? Is a retroactive grant somehow consistent with your arguments? Am I wrong that the plaintiff stood on Jack Chin’s paper? Did Professor Chin not put retroactive citizenship at issue? Did I somehow miss the post where you addressed it?

  118. avatar
    brygenon May 27, 2013 at 9:03 pm #

    ballantine: It says “natural born citizen” and the term “natural” has to mean something.

    http://www.quickmeme.com/meme/3ulpdm

  119. avatar
    brygenon May 27, 2013 at 10:09 pm #

    nbc: brygenon: “If you think they agreed that “natural-born citizen” was a term of art implying more than citizenship upon birth, how did that come up? What was the motivation for a term of art naming a special class of citizen when the art recognized no class of citizen as special?

    The historical cases are about whether some person was a citizen. They use “natural-born citizen” to mean citizen from birth because that’s all that mattered.”

    Bit circular especially when the term was NOT found to mean citizen from birth without being on soil and under jurisdiction. You are conflating some terms here.

    Circular? Conflating? Sorry, can’t make any sense of that.

  120. avatar
    brygenon May 27, 2013 at 10:56 pm #

    nbc: ROTFL… Reality is a case which does not support your position as it was never asked to rule on it.

    Let’s hope the floor-rolling laughter you now enjoy helps you overcome your sadness at how few people show the intellectual curiosity you espouse, and deal with the nightmare you gave yourself in reading English common law.

  121. avatar
    nbc May 28, 2013 at 1:10 am #

    I appear to have missed some interesting references related to the concept by/at birth

    Zimmer v Acheson

    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 outlined in Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement by Jack Maskell

    In Zimmer v. Acheson, the United States Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be expatriated under the provisions and requirements of the then-existing federal law:

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

    Revised Statutes 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose 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 descend to children whose fathers never resided in the United States.”

    If Werner Herman Zimmer [the appellant’s father], 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.

    Zimmer v Acheson… More to follow.

  122. avatar
    nbc May 28, 2013 at 1:15 am #

    I just ran across Schaufus and found a reference in Griffith, Expatriation and the American Citizen, 31 How. L.J. 453, 1988.

    As a matter of fact in two cases decided under the 1934 Act, the courts rejected contentions that citizens who obtained derivative citizenship through birth abroad were natural-born but instead treated such citizens as naturalized. See Zimmer v. Acheson, 191 F.2d 209, 211 (10th Cir. 1951); Schaufus v. Attorney General, 45 F. Supp. 61, 66 (D. Md. 1942). See also Hertz, supra note 124, at 1034 & n.172.

    Despite being born citizens at birth, these children were not considered to have been natural-born, but instead they were treated as naturalized.

    Note that this is with respect to citizenship by descent and discusses two cases in which the child was born a citizen of the United States.

  123. avatar
    nbc May 28, 2013 at 1:35 am #

    The court in Schaufus observed

    There are only two types of citizens: those who are native born and those who are naturalized. There is no basis for differentiating between the status of those who are naturalized by the court procedure prescribed by Congress and embraced in the statutes with which we are not here concerned, and those who become naturalized by a derivative right from their parent or parents. In United States v. Wong Kim Ark, 169 U.S. 649, 654, 702, 703, 18 S.Ct. 456, 459, 42 L. Ed. 890 the Supreme Court said:

    “The constitution of the United States, as originally adopted, uses the words `citizen of the United States’ and `natural-born citizen of the United States.’

    * * * * * *

    “The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that `all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and 67*67 history of which were familiarly known to the framers of the constitution.

    * * * * * *

    “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 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 judical tribunals, as in the ordinary provisions of the naturalization acts.” (Italics inserted).

  124. avatar
    nbc May 28, 2013 at 1:41 am #

    brygenon: Let’s hope the floor-rolling laughter you now enjoy helps you overcome your sadness at how few people show the intellectual curiosity you espouse, and deal with the nightmare you gave yourself in reading English common law.

    You’re funny. I am merely following the Court in US v WKA which rejected that children born abroad to citizen parents followed from Common Law and observed instead that it required explicit statute.

    It’s not a nightmare by any standard, if you just follow the simple findings.

    brygenon: Where by “addressed” you mean snipped.

    I showed why the statement was made when both sides had accepted that children born abroad to citizen parents were natural born. Robinson argued that since McCain only at a later time received citizenship, he was not a natural born citizen. The court did not believe that, given the arguments presented, Robinson deserved a preliminary injunction.

    Once the motion for preliminary had been taken care of, the court dismissed the action because of lack of standing iirc.

    Again, understanding the history of the case helps understand what was argued and what was accepted by both parties.

    Careful reading often can help understand what the court is and is not doing in any particular case. Even in US v WKA, much of the ruling makes more sense once you have read the original briefs by the appellant and appellee.

  125. avatar
    nbc May 28, 2013 at 2:09 am #

    brygenon: The Court accepted that of Congress could, by law, grant citizenship from birth retroactively, and even the retroactive grant would make natural-born citizens:

    That is because the court had to accept that to which both sides agreed: Children so born would be natural born. The Court was under no requirement, for purpose of the preliminary injunction to look beyond. It had to look at what was argued and the likelihood of success based on the arguments presented.

    The Court then dismissed the motion for preliminary injunction, and decided to dismiss the full case because of lack of standing.

  126. avatar
    nbc May 28, 2013 at 2:15 am #

    brygenon: The Court accepted that of Congress could, by law, grant citizenship from birth retroactively, and even the retroactive grant would make natural-born citizens:

    That is because the court had to accept that to which both sides agreed: Children so born would be natural born. The Court was under no requirement, for purpose of the preliminary injunction to look beyond. It had to look at what was argued and the likelihood of success based on the arguments presented.

    The Court then dismissed the motion for preliminary injunction, and decided to dismiss the full case because of lack of standing.

    The Court rejected the plaintiff’s argument, and by necessary implication rejected yours, NBC.

    You need to understand what the issue was and what for purpose of the preliminary injunction had been accepted. Both sides had accepted that a child born abroad to citizen parents was natural born. In order to grant a motion for preliminary injunction, the court had to show various things, but one of them involves likelihood of success. The court did not believe that Robinson’s arguments as to why McCain should nevertheless be found ineligible insufficient for the purpose of the motion and denied the motion for preliminary injunction.

    The Court did not have to go beyond what the parties had agreed to, it merely had to show that Robinson’s arguments were not likely to succeed. But the court did not have to address the validity of the underlying argument, other than by observing that since the two parties agreed, that Robinson’s arguments were insufficient to grant preliminary injunction.

    The court, having denied the motion for preliminary injunction focused on the other motions and accepted the motion to dismiss because of lack of standing.

    Understanding in what context the Court made these observations helps understand what the court did and did not find.

    Who knows what the Court might have done if my argument: McCain was not natural born because of being born abroad to US citizen parents.

    Well, I can predict. It would have denied the case because of lack of standing.

    Read the relevant part

    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.

  127. avatar
    nbc May 28, 2013 at 2:36 am #

    Let me quote from the relevant motions

    Plaintiff

    The Constitution provides that only “natural born” citizens can be President. U.S. CONST., art. II, 1, cl. 5. Plain language compels that a person must be a citizen at birth in order to be a “natural born” citizen. Senator McCain’s 1936 birth in the Panama Canal Zone fails that test because, at the time of his birth, Senator McCain’s Panama birth did not confer citizenship on him.

    And he argues, McCain was not a citizen at birth. That was the argument raised in the motion for preliminary judgment.

    To argue that the Court addressed the validity of the claim that natural born means ‘citizen at birth’ misunderstands the motion for preliminary injunction.

  128. avatar
    brygenon May 28, 2013 at 11:11 am #

    nbc: brygenon: “The Court accepted that of Congress could, by law, grant citizenship from birth retroactively, and even the retroactive grant would make natural-born citizens”

    That is because the court had to accept that to which both sides agreed: Children so born would be natural born. The Court was under no requirement, for purpose of the preliminary injunction to look beyond. It had to look at what was argued and the likelihood of success based on the arguments presented.

    The plaintiff did not agree, and in fact disputed, that a retroactive grant could make a natural-born citizen. The Court rejected the plaintiffs argument, and by necessarily implication, rejected yours. You argued, for example, “Regardless, I believe that the Courts have been clear that Congress cannot use statutory law to expand or contract constitutional terms.”

    One more time, the Court wrote:

    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.

    Robinson v. Bowen, 567 F. Supp. 2d 1144 – Dist. Court, ND California 2008

    The Court allowed that Congress could use statutory law to enlarge the class named in a constitutional term, the exact term at issue here. Quoting other text from the case, and calling it “relevant” when it’s not, does change that this part rejects your argument.

  129. avatar
    Sef May 28, 2013 at 12:13 pm #

    brygenon: The plaintiff did not agree, and in fact disputed, that a retroactive grant could make a natural-born citizen. The Court rejected the plaintiffs argument, and by necessarily implication, rejected yours. You argued, for example, “Regardless, I believe that the Courts have been clear that Congress cannot use statutory law to expand or contract constitutional terms.”

    One more time, the Court wrote:

    The Court allowed that Congress could use statutory law to enlarge the class named in a constitutional term, the exact term at issue here. Quoting other text from the case, and calling it “relevant” when it’s not, does change that this part rejects your argument.

    Interesting. Does this not also mean, that if someone in McCain’s position had won the election in ’08 (or ’16, for instance Cruz), that the Congress could quickly change the law, thereby unmaking him NBC, therefor ineligible when Jan 3 rolls around? What Congress giveth it can take away. That’s why we have a Constitution.

  130. avatar
    Paper May 28, 2013 at 1:03 pm #

    So where does WKA say that considerations beyond common law are precluded from the definition of natural-born citizenship as applies to those born abroad to existing citizens? They are discussing the application of the term to those born here, are they not? Mentions of the inapplicability of jus sanguinis are in that context it would seem.

    When I read WKA in this regard I think of Minor, which makes the point that it is discussing the case of someone born here of citizen parents and did not need to look further to address other doubts about other possibilities, such as those born here without citizen parents, which of course is what WKA then addresses.

    We can discuss the later line about those born abroad to citizens as being considered naturalized, but you rest so much on WKA having precluded other considerations beyond common law with regard to other aspects of the term natural-born citizen, and despite your repeated quoting of a line that doesn’t seem to say that, I’m not sure how you get there.

    Feel free to connect the dots. There are those professionals in the field who make a case for considering other factors beyond pure common law. Not merely arguing statute was declaratory of or incorporated into common law. If WKA completely and utterly insists the totality of the term natural-born citizen is encompassed by common law, how do they miss that point? I know you have expressed disappointment in at least some of those people’s research abilities.

    But then connect the dots, rather than just claim they are the ones making a fatal mistake, because right now I read your comments about common law as assertions that do not fit the words on the page, or even later reference to common law, as in South Carolina v. United States. The later line about naturalization is a separate point. My question is about your reliance upon a definition of natural-born citizen as completely ensconced in common law.

    Obviously, I may be limited in my reading of the case, but I don’t think you have made much of a case on this point here. So, I’d like to know if I am missing something, or if you are missing something, and thus also what exactly those with much more experience than I are potentially missing.

    So…?

    nbc: I am merely following the Court in US v WKA which rejected that children born abroad to citizen parents followed from Common Law and observed instead that it required explicit statute.

  131. avatar
    brygenon May 29, 2013 at 1:27 pm #

    Sef: Interesting. Does this not also mean, that if someone in McCain’s position had won the election in ’08 (or ’16, for instance Cruz), that the Congress could quickly change the law, thereby unmaking him NBC, therefor ineligible when Jan 3 rolls around? What Congress giveth it can take away.

    Wrong. Congress’ power to grant citizenship vastly exceeds its power to take it away. See Afroyim v. Rusk, 387 US 253 (1967) and Schneider v. Rusk, 377 U. S. 163 (1964).

  132. avatar
    brygenon May 29, 2013 at 1:41 pm #

    nbc:

    brygenon: Let’s hope the floor-rolling laughter you now enjoy helps you overcome your sadness at how few people show the intellectual curiosity you espouse, and deal with the nightmare you gave yourself in reading English common law.

    You’re funny. I am merely following the Court in US v WKA which rejected that children born abroad to citizen parents followed from Common Law and observed instead that it required explicit statute.

    It’s not a nightmare by any standard, if you just follow the simple findings.

    “English Common Law is quite interesting and a nightmare to read…” — NBC, May 19, 2013, http://www.obamaconspiracy.org/2013/05/cranking-natural-born-citizen/#comments

  133. avatar
    Benji Franklin May 29, 2013 at 2:15 pm #

    Paper: Feel free to connect the dots

    It is an unacceptably cynical point of view to assert that the Framers intended to use the term “Natural Born Citizen” in order to get the populace to ratify the Constitution while being unaware of what they were agreeing to as a citizenship requirement for Presidential eligibility. So the only brand of Originalism, in interpreting the Constitution that we should employ, is “What did the common man think he was approving for our Constitution?”. That would indisputably have been the will of the people, and reasonably trumps any postulated intended deceit by the Framers, or any current day partisan parsing of the term emerging from an endless dead-horse beating of history-strangling, nuance-based arguments trying to put a patriotic or intellectual face on racism.

    The only circumstances that have provoked any assertion that a significant degree of ambiguity about the term’s dimensions exists at all, are real or academically imagined political ones involving a real or theoretical candidacy where, as in the argument’s about Obama’s qualifications, the premise is asserted that the judiciary’s legal resolution of some particular academic argument about what the Framer’s intended the populace to assume they (The People) were approving, should prevail now in the absence of a Framer delivered bright-line definition of NBC.

    But this is not an obscure issue about which the general population has had no opinion since the Revolution. The absence of a detailed bright-line specifically announced Presidential eligibility related definition from the Framers or SCOTUS, cedes the decision to the same force which ultimately determines the working definition of every word or expression and removes any significant residual ambiguity – common usage.

    Take about 250 one year steps back, and see what “Natural Born Citizen” has consistently been interpreted to mean by almost the entire population of the United States. Check out NBC’s site for a sampling of the clear historical record in that regard, many gleaned from Google Books service. Why are almost all pre-Obama school textbooks and literary references agreeing with nearly the entire population of our country, in declaring that Natural Born Citizen simply means “born in the USA?”

    Because that’s what it meant to the Framers and their kids and their kids and their kids and their kids all down through the generations and today to just about everybody in the general public who hasn’t been told that they need to disclaim that understanding now if they hate Obama.

    Against the weight of that nearly universal CLEAR and often stated understanding, technical parsing arguments about something different that the Framers meant, are really just whining complaints about what some partisan wistfully or angrily asserts the Framers MUST have meant, or SHOULD have meant.

    The dots that connect themselves here is imprecisely that common understanding that it always meant from the Revolution, “born in this country”, and that makes it the definition willed by the ratifying citizens, even if every Framer had his own unique and different personal interpretation in mind during the birth of our nation..

  134. avatar
    Dr. Conspiracy May 29, 2013 at 5:15 pm #

    One might to look at ballantine’s compilation in this comment for the the school and other books.

    However, most of them say that the President must be “native born” and that doesn’t have a clear definition, any more than “natural born” does (the OED definition for the two is word for word the same).

    Most Americans 10 years ago would, I think, have said the US Presidents had to be born in the country, and while I respect a consensus view, I don’t think too highly of the level of civic literacy of most people.

    I have no evidence that the ratifiers of the Constitution understood “natural born citizen” one way or another.

    Benji Franklin: Why are almost all pre-Obama school textbooks and literary references agreeing with nearly the entire population of our country, in declaring that Natural Born Citizen simply means “born in the USA?”

  135. avatar
    Dr. Conspiracy May 29, 2013 at 5:22 pm #

    I believe the Congress has expanded the class of persons described by the Constitutional term “felon” many times. Not the best example, however, since the Constitution explicitly gives Congress the power to define felonies.

    brygenon: The Court allowed that Congress could use statutory law to enlarge the class named in a constitutional term, the exact term at issue here. Quoting other text from the case, and calling it “relevant” when it’s not, does change that this part rejects your argument.

  136. avatar
    Paper May 29, 2013 at 7:27 pm #

    Hey Benji, I have no dispute with saying natural-born citizen means born here. The question is if those born elsewhere to citizen parents are also included. I don’t know if your post was to say no to that, or just to say you don’t need citizen parents when born here, which is a no-brainer yes. My question to NBC has to do with *his* reliance on *common law*, not common knowledge on the street so to speak, to close down the definition to only those born here.

    Now, without particularly debating the point about common knowledge, I just note that there is some thought that the Founders were themselves learning some of their own references as they went, with examples in the record of Framers needing to look something up in Blackstone. I’m not venturing into the territory here myself, just noting that this leads to a school of thought that even the Framers’ knowledge is not sacrosanct.

    I myself am not an originalist, especially as the Civil War and Reconstruction changed a lot. Nor am I speaking toward a living constitution. I myself favor those, such as Akhil Amar, who speak of being faithful to the Constitution. Indeed, from such a view, the ratification process, and that public involvement (we are the first country whose own citizens ratified their constitution), beyond the Framers, is very important to consider.

    Benji Franklin: It is an unacceptably cynical point of view to assert that the Framers intended to use the term “Natural Born Citizen” in order to get the populace to ratify the Constitution while being unaware of what they were agreeing to as a citizenship requirement for Presidential eligibility. So the only brand of Originalism, in interpreting the Constitution that we should employ, is “What did the common man think he was approving for our Constitution?”.That would indisputably have been the will of the people, and reasonably trumps any postulated intended deceit by the Framers, or any current day partisan parsing of the term emerging from an endless dead-horse beating of history-strangling, nuance-based arguments trying to put a patriotic or intellectual face on racism.

  137. avatar
    Paper May 29, 2013 at 7:38 pm #

    For what little it is worth, back in the 70s, I learned that if you planned to be President and wanted to be safe, you should arrange for your parents (wry smile) to give birth to you here, but that the question of those born elsewhere to existing citizens was unresolved. To be determined.

    Dr. Conspiracy:

    Most Americans 10 years ago would, I think, have said the US Presidents had to be born in the country, and while I respect a consensus view, I don’t think too highly of the level of civic literacy of most people.

  138. avatar
    Paper May 29, 2013 at 8:04 pm #

    By “to be determined” I of course just mean untested.

  139. avatar
    Benji Franklin May 29, 2013 at 10:52 pm #

    Paper: back in the 70s, I learned that if you planned to be President and wanted to be safe, you should arrange for your parents (wry smile) to give birth to you here, but that the question of those born elsewhere to existing citizens was unresolved. To be determined.

    Well, Paper, my personal take on what seems the most logical way to deal with ANY part of the term’s ambiguity which the Framers let reside in their finished product, is to say that we should only be as restrictive in denying eligibility to candidates, as the Framers were specific in defining the term. Thus native birth, and birth anywhere to at least one United States Citizen parent would seem reasonable, inclusive interpretations of Article 2’s eligibility requirements, respecting the Constitution’s general emphasis on preserving individual citizen rights and privileges.

  140. avatar
    nbc May 30, 2013 at 1:16 am #

    Paper: Hey Benji, I have no dispute with saying natural-born citizen means born here. The question is if those born elsewhere to citizen parents are also included. I don’t know if your post was to say no to that, or just to say you don’t need citizen parents when born here, which is a no-brainer yes. My question to NBC has to do with *his* reliance on *common law*, not common knowledge on the street so to speak, to close down the definition to only those born here.

    The logic is simple: In order to understand the meaning of the term natural born the Court in WKA looked at Common Law.

    They found that under common law

    1. Children born on US soil, subject to our jurisdiction are natural born
    2. Children born outside US soil, are naturalized

    Thus recognizing natural/native-born and naturalized citizens, Courts have observed how those naturalized and those native/natural born have the same rights, except one, as outlined by our Constitution: to be eligible to the office of the President.

    I am collecting a set of rulings that all show how the courts consider children so born, including children born to citizen parents to have received their citizenship by statute and thus are not native/natural born.

    See

    Wong Kam Wo v. Dulles, 236 F. 2d 622 – Court of Appeals, 9th Circuit 1956

    The Court decided whether or not children born outside the US to citizen parents, are in fact native born citizens. The Court observed that they were naturalized.

    [1] The subject-matter of 1993, substantially revised, is now in 8 U.S.C.A. 1401, 1431-1433. As it existed when plaintiffs were born, 1993 read as follows:

    “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose 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 descend to children whose fathers never resided in the United States.”

    In United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890, it was held that 1993 was enacted in the exercise of the power vested in Congress by the constitution “To establish an uniform Rule of Naturalization”.[4] The court said:

    “* * * A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in 625*625 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.”[5]

    Appellee argues that the quoted language from United States v. Wong Kim Ark is dictum. We do not agree. The question before the court was whether Chinese racial extraction prevented a person born in the United States from becoming a citizen by birth. It was necessary for the court to distinguish between citizenship by birth and citizenship by naturalization. The quoted language was pertinent to that inquiry and a part of the rationale of the decision.

    [5] 169 U.S. 649, 702-703, 18 S.Ct. 456, 477. See, also, 169 U.S. at page 672, 18 S.Ct. at page 465. In Zimmer v. Acheson, 10 Cir., 191 F.2d 209, it was specifically held, as to one who acquires citizenship under 1993, that “his status as a citizen was that of a naturalized citizen and not a native-born citizen.” at page 211. The Immigration and Naturalization Service has twice held that persons in the precise position of appellants were citizens pursuant to 1993. Matter of L.G.J. and C.I.P., 3 I. & N.Dec. 206; Lum Po Chu, et al., A 8915206, decided January, 1956, by the Regional Commissioner of the Immigration and Naturalization Service at San Pedro, California. We do not, however, accord substantial weight to these administrative determinations since, at the time they were rendered, the applicable statutes had been repealed.

    See also Zimmer v Acheson and Schaufus v. Attorney General of United States, D.C.Md., 45 F. Supp. 61, 67

    The courts may speculate what was ‘common knowledge’ but to remove doubts they have to rely on well established practices found in common law. Not that common law is always that helpful but in this case, there is no doubt as to the meaning of natural born and that children born abroad require statutory enactments. Which is why the 1790 Naturalization Act was passed, and replaced by the 1795 and 1802 versions.

    1802 reads in part

    SEC 4 And be it further enacted That the children of persons duly naturalized under any of the laws of the United States or who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United States and 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 provided That the right of citizenship shall not descend to persons whose fathers have never resided within the United States Provided also that no person heretofore proscribed by any state or who has been legally convicted of having joined the army of Great Britain during the late war shall be admitted a citizen as aforesaid without the consent of the legislature of the state in which such person was proscribed

    SEC 5 And be it further enacted That all acts heretofore passed respecting naturalization be and the same are hereby repealed

    The 1802 act caused many children born abroad to citizen parents to not even be considered citizens until this was corrected in 1855.

    Other than a mention in a 1790 act, which was replaced in 1795 and 1802, these children appear to not only to have been understand as having naturalized but also that because of such statutory action, they may not have been natural born citizens.

    WKA was clear and courts continue to reference WKA. Naturalized and natural born are the only two classes, and children born abroad to US citizen parents are naturalized.

    The logic is painfully clear although some may find it unfair that children so born are not natural born. But our immigration laws have never been very fair…

  141. avatar
    nbc May 30, 2013 at 1:19 am #

    The character of citizenship is fixed by the first sentence of the first section of Article XIV of the Constitution:

    All persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside.

    The same section of the same article of the Constitution specifically prohibits any modification of the status of United States citizenship by State statute:

    No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States

    Nor can a Federal statute determine or modify the nature of the status of citizenship. The Constitution, in determining the essential character of citizenship and excluding such determinance from the power of Congress, assigns a limited field relating to the subject of citizenship, but not touching upon its essence, in which Congress is specifically authorized by the Constitution to determine by statute the practical methods of applying the fundamental principles. But these fundamental principles are determined by the Constitution alone.

    Any statutory influence upon the status of United States citizenship is invalid. That status having been completely determined by the Constitution, and Congress having been given a specifically limited field in which it can legislate on the subject of citizenship, all legislation is confined within that limited field; a field that does not touch the essential character and nature of that status established by the Constitution under the term “citizenship.”

    Source: STATEMENT OF SIDNEY C. SCHLESINGER, REPRESENTING NATIONAL LAWYERS GUILD, WASHINGTON, D. C.” TO AMEND THE NATIONALITY ACT OF 1940: Hearings

  142. avatar
    nbc May 30, 2013 at 1:31 am #

    Dr. Conspiracy: However, most of them say that the President must be “native born” and that doesn’t have a clear definition, any more than “natural born” does

    Most rulings mention that native born means birth on soil.

    Zimmer v Acheson for example

    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

    Citing

    [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

    Minor v Happersett

    At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.

    Osborne v Bank

    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 authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is 828*828 distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.

    Wong Kim Ark

    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 703*703 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.

    the mere fact of birth within is what the constitution defines as native/natural born.

  143. avatar
    nbc May 30, 2013 at 1:39 am #

    brygenon: Take about 250 one year steps back, and see what “Natural Born Citizen” has consistently been interpreted to mean by almost the entire population of the United States. Check out NBC’s site for a sampling of the clear historical record in that regard, many gleaned from Google Books service. Why are almost all pre-Obama school textbooks and literary references agreeing with nearly the entire population of our country, in declaring that Natural Born Citizen simply means “born in the USA?”

    Indeed, the Constitution only gives congress the power to provide for uniform laws of naturalization, and when it comes to expatriation, the standard is now that a citizen can only lose US citizenship when she voluntarily abandons it.
    Congress may set rules as to the level of evidence: preponderance of evidence, vs beyond a reasonable doubt

  144. avatar
    nbc May 30, 2013 at 1:50 am #

    Dr. Conspiracy: brygenon: The Court allowed that Congress could use statutory law to enlarge the class named in a constitutional term, the exact term at issue here. Quoting other text from the case, and calling it “relevant” when it’s not, does change that this part rejects your argument.

    It can indeed enlarge the class of naturalized citizens but not the class of natural born which is a constitutional term. It would be somewhat contradictory when simple statutory law could be used to enlarge or narrow a well defined class, especially when it limits the rights to eligibility to anyone inside such a class.

    In Robinson v Bowen the court just accepted for the motion of preliminary injunction the position taken by the two parties that citizenship at birth grants NBC status, and found that Robinson’s arguments as to why McCain nevertheless failed, was not likely to succeed.

    It then denied the motion and then dismissed the case based on lack of standing.

    To suggest that the Court ruled in any meaningful manner on the issue raised by me, ignores the background of the case, and what role a motion for preliminary judgment plays and how a court determines whether to grant or reject it.

    Hope this clarifies

    The plaintiff had argued quite a bit different than I had argued and both the plaintiff and the defendant had accepted that Congress can extend NBC citizenship through statute.

    The court merely ruled that Robinson’s argument, was unlikely to succeed and dismissed the motion for preliminary injunction. Nothing in the ruling suggests that the Court was convinced by the underlying validity of the claims, merely that it accepted it for purpose of the motion.

    A motion for preliminary injunction is granted if there is a likelihood of success as well as other foundations. If the Court can show that Robinson is unlikely to succeed then there is no reason for such an injunction.

    For the purpose of the motion for preliminary injunction, the court merely observed that the plaintiff was unlikely to succeed in his claim that even though children born abroad to US citizens could be made natural born, McCain failed to qualify because of the way the laws had been written. While outside the territory, he argued that McCain was born within the jurisdiction of the US.
    The court observed that the term ‘outside the limits and jurisdiction’ meant geographical location.

    It’s important, when it comes to preliminary injunctions, to understand how the court rules. There are different standards than for a motion to dismiss for example.

    Lack of standing meant that the court did not have to address the merits of the case.

  145. avatar
    nbc May 30, 2013 at 2:25 am #

    brygenon: “English Common Law is quite interesting and a nightmare to read…” — NBC, May 19, 2013, http://www.obamaconspiracy.org/2013/05/cranking-natural-born-citizen/#comments

    Confusing two concepts… But I understand… Keep up the good work.

  146. avatar
    nbc May 30, 2013 at 2:31 am #

    Paper: When I read WKA in this regard I think of Minor, which makes the point that it is discussing the case of someone born here of citizen parents and did not need to look further to address other doubts about other possibilities, such as those born here without citizen parents, which of course is what WKA then addresses.

    Minor does mention born on soil to two citizen parents.

    At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their 168*168 parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens

    Even Minor does not comment on the common law extending to children born outside the jurisdiction

    When it comes down to understanding the meaning of the terms left undefined in the Constitution, we look at common law. You may find it regrettable that this is how the court made its decision but that’s how courts have to work. They need some standards as to how to interpret these terms and there is nothing much else to suggest that natural born ever extended beyond birth on soil.

    The fact that WKA considered the status of children born abroad and rejecting them as being covered by our constitution is quite telling.

    I fail to understand why people object to the clear analysis and findings by the Court in WKA. Other courts have mirrored its findings, similarly distinguishing between natural/native born (birth on soil) from naturalized.

  147. avatar
    nbc May 30, 2013 at 2:34 am #

    Paper: My question is about your reliance upon a definition of natural-born citizen as completely ensconced in common law.

    Where else should the court look? Statutory law was at best inconclusive, so why should it consider other sources?

    It makes a lot of sense that for proper understanding one looks at common law. Of course, the court looked beyond and found again, little support.

    What sources should the Court have considered as well? I fail to understand why you find it so objectionable that the court relies on common law here?

  148. avatar
    Paper May 30, 2013 at 2:37 am #

    That’s what I said. I said they were limiting themselves to such, not other cases, where there may be doubts, say those born here without such parents.

    “For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”

    nbc: Minor does mention born on soil to two citizen parents.

  149. avatar
    Paper May 30, 2013 at 3:02 am #

    My point is that they are using common law in reference to ascertain the status of someone born here. For the purpose of their case, it was not necessary for them to define the status of someone born abroad to citizen parents. It was sufficient for everything they had to consider that all those born here are citizens under common law. They did not need to consider whether or not natural-born citizen includes those born abroad to citizen parents, just that common law does not include them.

    In general, certainly with reference to other constitutional terms, if not this one, there are plenty of things to consider beyond common law. I have already cited South Carolina v. United States which speaks of such broader considerations, while including common law a recourse.

    Why should they look beyond common law, consider other sources? Because common law does not cover such circumstances. If they are interested in the question, they need to look elsewhere. Common law is one place to look. But it is not the whole enchilada. It’s not like they never look beyond common law.

    You are saying common law does not cover those born abroad to citizen parents. I am agreeing. But I am just saying that doesn’t end the conversation. Something else may end it. But saying common law doesn’t cover those circumstances just means common law doesn’t cover them. That doesn’t preclude other considerations, and WKA does not preclude them.

    nbc: Where else should the court look? Statutory law was at best inconclusive, so why should it consider other sources?

    It makes a lot of sense that for proper understanding one looks at common law. Of course, the court looked beyond and found again, little support.

    What sources should the Court have considered as well? I fail to understand why you find it so objectionable that the court relies on common law here?

  150. avatar
    Paper May 30, 2013 at 3:41 am #

    Common law is a recourse, a tool in the toolkit. I do not find it regrettable. But it is just not the only tool. I am not inventing the court’s use of other sources and considerations for such things.

    At the moment, I am not concerned about whether or not suggestions exist about natural born citizenship extending beyond birth on soil. I am just discussing common law and its application here. Let’s say for the moment that no matter how we resolve this question of common law, that regardless natural-born citizenship exclusively pertains to those born here, period. I would still be making the point I am making.

    I personally do not object to the analysis and findings of WKA. I am questioning your view of them, at least when it comes to common law. I see your point. I just don’t quite see it as WKA’s point.

    They did not reject them as being covered by our Constitution. They rejected them as being covered by common law, which is an important matter as applied to their actual case about someone born here.

    The further distinction of natural/native vs. naturalized is another matter, involving other factors.

    nbc:

    When it comes down to understanding the meaning of the terms left undefined in the Constitution, we look at common law. You may find it regrettable that this is how the court made its decision but that’s how courts have to work. They need some standards as to how to interpret these terms and there is nothing much else to suggest that natural born ever extended beyond birth on soil.

    The fact that WKA considered the status of children born abroad and rejecting them as being covered by our constitution is quite telling.

    I fail to understand why people object to the clear analysis and findings by the Court in WKA. Other courts have mirrored its findings, similarly distinguishing between natural/native born (birth on soil) from naturalized.

  151. avatar
    ballantine May 30, 2013 at 4:41 pm #

    Paper: Common law is a recourse, a tool in the toolkit. I do not find it regrettable. But it is just not the only tool. I am not inventing the court’s use of other sources and considerations for such things.

    I’m not sure it’s a tool in the toolbox. Isn’t what are trying to say is that the relevant test, as stated in South Carolina v. United States, is what the term was understood to mean to the framers and the people who ratified the Constitution and such understanding is not necessarily limited to the common law. That is the most basic rule of statutory interpretation and I agree it need not be limited necessarily to the common law. By the way, such test of statutory construction actually comes from the common law. The reason the court has focused on the common law is that the common law was the basis of our law and legal institutions in 1787 and the Constitution is full of common law provisions that are treated as something that already existed. Accordingly, in the words of people like Kent and Judge Sandford, the Constitution “presupposed the existence and authority of the common law.” Thus, it may be more accurate to say the common law meaning has always been presumed. Does this mean that the term could not been understood to have a broader meaning? No, such is possible. For example, the Court has looked to the English Declaration of Rights to define the 2nd and 8th Amendments whether or not such provisions were considered part of the common law. Does that mean that the term could not have been understood to mean the common law as modified by statute. No, that is possible as well. However, one can speculate all day on what the term might have been understood to mean. If this was a normal case, not one where the politics will prevent serious inquiry, simply pointing out such were possible understandings of the term would get you nowhere. One can speculate all day, however, without presenting evidence that anyone agreed with such speculation means it is just speculation, not legal argument. You, and people like Maskel and Gordon, appear to be arguing that such is a possible understanding of the term in such period. Yet, you have almost no evidence to support such argument. Putting a favorable spin on the 1790 and 1795 naturalization acts that can just as easily be spun to the opposite conclusion is not very convincing. The fact remains that it is very difficult to argue that a term was understood to include the foreign born when no one of any significance in the entire era said so. In any normal case, such facts would usually mean you have not case, at least without making non-originalist arguments which we know will not impress a good number of judges.

  152. avatar
    ballantine May 30, 2013 at 4:56 pm #

    Paper:
    My point is that they are using common law in reference to ascertain the status of someone born here.For the purpose of their case, it was not necessary for them to define the status of someone born abroad to citizen parents.

    But the court did address the status of someone born abroad to citizen parents anyway and in a substantive manner. This is because the dissent argued that children of citizens born overseas were always natural born citizens and hence our statutes were declaratory of such point. The dissent made this point to support its argument that only children of citizens, not the native born, were natural born citizens. The majority answered that such statutes were not declaratory and that, without statute, the foreign born were aliens following English law. Whether one thinks this is judicial dicta or part of the holding, the conclusion about the status of the foreign born has been re-affirmed by the court over the past century. Accordingly, it is clearly settled law as there is a whole body of case law addressing the discrimination of such statutes among citizen parents. It is simply silly to think the court is going to over-turn more than a century of settled law when there is no actual evidence that anyone in the founding period disagreed with the court’s conclusions. Thus, many of the arguments made by Maskell have already been rejected by the court and there is little or no chance the court is going to re-visit such issues unless someone comes up with a compelling argument that the Court’s conclusions are wrong. The question left unaddressed by the court is whether someone naturalized at birth in a statute that only says they are a “citizen,” as opposed to a “natural born citizen,” can be considered a natural born citizen. Wong Kim Ark obviously doesn’t address this point, but says nothing to support it. I think the court would fall all over itself to read such provision broadly, and perhaps that is appropriate due to the ambiguity involved, however, that doesn’t mean that best argument as an academic or historical question support such broad interpretation.

  153. avatar
    brygenon June 1, 2013 at 2:21 am #

    nbc: brygenon: Take about 250 one year steps back, and see what “Natural Born Citizen” has consistently

    That was “Benji Franklin”, not me.

  154. avatar
    brygenon June 1, 2013 at 3:39 am #

    nbc: In Robinson v Bowen the court just accepted for the motion of preliminary injunction…

    The court merely ruled…

    For the purpose of the motion for preliminary injunction, the court merely observed…

    No, the Court also did what I described the Court doing and quoted the Court doing. Your fallacy here is called “invincible ignorance”. No matter that I quote the Court refuting you; you can just snip it and pretend it never happened.

  155. avatar
    brygenon June 1, 2013 at 4:24 am #

    nbc: The fact that WKA considered the status of children born abroad and rejecting them as being covered by our constitution is quite telling.

    Before the 14’th Amendment, no one’s citizenship was covered by our constitution. Congress had the power to make naturalization statutes, and the states held the rest. Yet before the 14’th Amendment we had presidents who were born after the adoption of the Constitution, and thus must have been natural-born citizens.

    nbc:
    I fail to understand why people object to the clear analysis and findings by the Court in WKA.

    I like your description there: You fail to understand. There are good reasons, but you fail to understand them. That happens a lot when self-styled amateur researchers fall in love with their own sophistry.

    One painfully obvious reason is that the one issue before the U.S. Supreme Court in WKA was the meaning of “subject to the jurisdiction thereof” in the 14’th Amendment. The case had nothing to do with citizenship by statute.

  156. avatar
    nbc June 1, 2013 at 4:47 am #

    brygenon: Before the 14′th Amendment, no one’s citizenship was covered by our constitution. Congress had the power to make naturalization statutes, and the states held the rest.

    Well, yes and no. Of course the 14th was merely declaratory of our Constitution, it was just that some believed the states held the ‘rest’.

    The courts finally educated them otherwise.

  157. avatar
    nbc June 1, 2013 at 4:49 am #

    brygenon: I like your description there: You fail to understand. There are good reasons, but you fail to understand them. That happens a lot when self-styled amateur researchers fall in love with their own sophistry.

    ROTFL, I love it when you get mean 🙂 But really… I see little effort to address my references to legal precedent.

    Poor Brygenon… It’s hard to face up to the facts.

    Hugs and kisses

  158. avatar
    nbc June 1, 2013 at 4:51 am #

    brygenon: No matter that I quote the Court refuting you; you can just snip it and pretend it never happened.

    On the contrary, I explain to you how the court reached its decision for purpose of the preliminary injunction.

    Let me know if you have any further questions. It’s a tricky topic. Understanding goes beyond quote mining, it involves understanding what the court was facing.

    You’re doing fine… Just a few adjustments

    Let me know when you are ready to address the issues. I understand…

  159. avatar
    Paper June 1, 2013 at 12:54 pm #

    ballantine: I’m not sure it’s a tool in the toolbox.Isn’t what are trying to say is that the relevant test, as stated in South Carolina v. United States, is what the term was understood to mean to the framers and the people who ratified the Constitution and such understanding is not necessarily limited to the common law.That is the most basic rule of statutory interpretation and I agree it need not be limited necessarily to the common law.

    That is all I am saying.

    ballantine:
    …Thus, it may be more accurate to say the common law meaning has always been presumed. Does this mean that the term could not been understood to have a broader meaning? No, such is possible…. Does that mean that the term could not have been understood to mean the common law as modified by statute. No, that is possible as well. However, one can speculate all day…. If this was a normal case, not one where the politics will prevent serious inquiry, simply pointing out such were possible understandings of the term would get you nowhere.

    My consideration here in general, but in particular re common law, was/is not to speculate affirmatively.

    It was to notice that these various factors are part of keeping the term from being decisively defined. After all, why is it unresolved? Not because of anything I have done or said. Because it has been untested, and from the beginning was not defined, in the Constitution, nor apparently in any decisive record of our founding.

    I am not trying to use these considerations to get anywhere. To the contrary, I am contesting/questioning nbc’s use of common law to get somewhere, to use common law to decisively declare the term’s meaning.

    So, I agree with you on your point about were this a normal case. I am not here making legal arguments. I am just looking at basic logical considerations and considering how historical matters, or lack thereof, have “conspired” to keep the matter open and unresolved.

    ballantine:
    You, and people like Maskel and Gordon, appear to be arguing that such is a possible understanding of the term in such period.Yet, you have almost no evidence to support such argument.

    You are putting too much on my shoulders. I first am just saying that it seems to me that what we have in our hands from the beginnings of our country leaves the question open. So the starting point is an open question. Where we go from there is another matter.

    At this juncture, I leave Maskell to his own arguments, or rather, his *description* of the arguments. But I just note here re this topic that I think he does confront the issue that nbc raises about the strict reading of common law.

    ballantine:
    The fact remains that it is very difficult to argue that a term was understood to include the foreign born when no one of any significance in the entire era said so. In any normal case, such facts would usually mean you have not case, at least without making non-originalist arguments which we know will not impress a good number of judges.

    My perspective is just that this limitation affects all sides of the argument. We look to the beginning, and yes, it is hard to make the case that there you go, such foreign-born citizens are included, but by the same measure, originalist arguments also don’t help make the case that only those born here are to be included.

    The conversation we have been having here, from my view, has been premised on the hypothetical of how we might look at this matter *if we were forced* to do so in the course of some constitutional crisis or other challenge forcing the need for a judicious decision, which seems unlikely at this point, as we all seem to agree.

    If we were forced into such need, we all would seem to be without certain, decisive footing on originalist terms. But were we to be forced into it, we would need to come to a resolution somehow, and originalist judges would seem destined to be unhappy no matter what here. Common law just doesn’t seem to be the way to lock down a resolution, to me, for either side of the argument. I am just saying that as it is undefined in the Constitution, we then look elsewhere, starting with common law, but this aspect is also not covered by common law, so again we need to look elsewhere. Common law doesn’t settle the matter, in my view, either way, in contrast to nbc’s argument here.

    That’s all, to this point.

  160. avatar
    Paper June 1, 2013 at 1:03 pm #

    ballantine: But the court did address the status of someone born abroad to citizen parents anyway and in a substantive manner.This is because the dissent argued that children of citizens born overseas were always natural born citizens and hence our statutes were declaratory of such point.

    This is where things start to get more interesting, I would agree. I have had a long week, and it is not over. I will need to return to this area when I surface for air from my life.

  161. avatar
    David Farrar June 1, 2013 at 3:58 pm #

    Natural law as articulated by de Vattel, in his work: “PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.” 212-217, defines an Art. II, 1, cl. 4 natural born Citizen as follows:

    A natural born citizen is a person who acquires citizenship as a natural political right of inheritance of the father’s citizenship and not through any plenary authority of government.

    The reason why natural law was used here rather than common law, is because it offers the most immutability, in terms of the criteria of the presidency, which, in itself, reflects the true political objective for creating a constitution in the first place: to prevent a return of a monarchical form of government* by a People who had earlier proclaimed to the world that they can rule ourselves — by far, in their day, the most palpable fear among the delegates to the 1787 Constitution convention.

    ex animo
    davidfarrar
    * It is this criteria that must be used to arrive at the proper definition of an Art. II, 1, cl. 4 natural born Citizen.

  162. avatar
    Daniel June 1, 2013 at 4:06 pm #

    David Farrar:
    Natural law as articulated by de Vattel, in his work: “PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.” 212-217, defines an Art. II, 1, cl. 4 natural born Citizen as follows:

    The reason why natural law was used here rather than common law, is because it offers the most immutability, in terms of the criteria of the presidency, which, in itself, reflects the true political objective for creating a constitution in the first place: to prevent a return of a monarchical form of government* by a People who had earlier proclaimed to the world that they can rule ourselves — by far, in their day, the most palpable fear among the delegates to the 1787 Constitution convention.

    ex animo
    davidfarrar
    * It is this criteria that must be used to arrive at the proper definition of an Art. II, 1, cl. 4 natural born Citizen.

    … in your opinion

  163. avatar
    David Farrar June 1, 2013 at 4:33 pm #

    Daniel,

    Yes, of course; IMHO.

    Art. II, 1, cl. 4 sets out the qualifications for the President and Vice-President of the United States. In a sense then, Art. II, 1, cl. 4 does nothing less than create the “Ruling class” for the Republic. If your greatest concern was the country relapsing back to a monarchical from of government, as, indeed, it did in just a few years later, in the War of 1812; the last thing you would want to do is use common law, municipal law, no less, to create the criteria of your ruling class. The more immutable the criteria becomes, the harder it would be to bring about change to let’s say: “a President for Life” without holding a Constitutional Convention.

    ex animo
    davidfarrar

  164. avatar
    nbc June 1, 2013 at 7:18 pm #

    David Farrar: Natural law as articulated by de Vattel, in his work: “PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.” 212-217, defines an Art. II, 1, cl. 4 natural born Citizen as follows:

    And rejected by the Supreme Court in US v Wong Kim Ark.

    Now what?

  165. avatar
    nbc June 1, 2013 at 8:35 pm #

    David Farrar: The more immutable the criteria becomes, the harder it would be to bring about change to let’s say: “a President for Life” without holding a Constitutional Convention.

    ROTFL… Such wild imagination… The natural born definition is not going to make a single bit of difference here.

    The Founders used it in a manner well understood in Common Law with which they were quite familiar.

    The Court in US v Wong Kim Ark agreed and explicitly rejected the Vattel hypothesis.

    You’re more than a century late with your hopes and desires.

  166. avatar
    Paper June 2, 2013 at 10:01 am #

    Well, hey, thanks for giving me and nbc a clear point of agreement!

    Thanks, too, for an easy, quick one, in the middle of our other considerations, to go along with my Sunday morning coffee: nope, sorry; we don’t do it your way here.

    Also, when you use the word “define,” you actually would want to quote the text–not just paraphrase it. Adding, for example, your own emphasis about, and clear-cut rejection of, plenary authority is called cheating.

    Particularly with regards the topic at hand here and now, which is about those born abroad. Vattel himself, on this topic, contradicts you. See the very section you reference.

    From the Chitty edition:

    215. Children of citizens born in a foreign country.

    It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights ( 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say “of itself,” for, civil or political laws may, for particular reasons, ordain otherwise.

    Voila, c’est tout.

    David Farrar:
    Natural law as articulated by de Vattel, in his work: “PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.” 212-217, defines an Art. II, 1, cl. 4 natural born Citizen as follows:

    A natural born citizen is a person who acquires citizenship as a natural political right of inheritance of the father’s citizenship and not through any plenary authority of government.


    ex animo
    davidfarrar
    * It is this criteria that must be used to arrive at the proper definition of an Art. II, 1, cl. 4 natural born Citizen.

  167. avatar
    David Farrar June 2, 2013 at 11:28 am #

    “By the law of nature alone, children follow the condition of their fathers, and enter into all their rights ( 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say “of itself,” for, civil or political laws may, for particular reasons, ordain otherwise.”

    As we have all agreed, hopefully, by now, there are only two ways to acquire US citizenship at birth: those that acquire US citizenship at birth as a natural political right and those that acquire US citizenship at birth through “…civil or political laws.”

    Up until 2009, it was generally understood by all that Wong Kim Art was, indeed, a born US citizen by “…civil or political laws.” It is now only the Ankeny case that has dared to suggest that simply being a born US citizen is, in fact, an Art. II, 1, cl. 4 natural born Citizen.

    Using common law, English, American, or otherwise, represents a weakening of the clear intent of the delegates to the Constitutional Convention to set the qualifications for their ‘ruling class’ as immutable as possible to avoid mere legislative changes that could re-instill a monarchy.

    As history has show us, in the summer of 1814, with the British burning Washington D.C., they weren’t far off the mark.

    ex animo
    davidfarrar

  168. avatar
    dunstvangeet June 2, 2013 at 12:23 pm #

    Hey, David…

    Smith v. Alabama – “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

    Hear that, the Constitution was written in the language of the common law, and must be read with that in mind. Your entire premise that the common law doesn’t define Natural Born Citizen would be thrown out with that one quote from the Supreme Court.

  169. avatar
    Daniel June 2, 2013 at 12:26 pm #

    David Farrar:
    Daniel,

    Yes, of course; IMHO.

    And considering that every credentialed Constitutional expert, Congress, The research branch of the library of Congress, The courts, and 200 years of Jurisprudence disagree with you……

    Your opinion and a dollar will get you a cup of coffee in a cheap cafe.

    Interestingly enough, a dollar without your opinion will also get you a cup of coffee in a cheap cafe.

  170. avatar
    nbc June 2, 2013 at 2:36 pm #

    dunstvangeet: Smith v. Alabama – “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

    Yes, which led the court in US v WKA to reject David’s concepts about Vattel.

    More than a 100 years late to the party…

  171. avatar
    nbc June 2, 2013 at 2:38 pm #

    Paper: Well, hey, thanks for giving me and nbc a clear point of agreement!

    ROTFL…

    Vattel’s definitions were never really accepted by US Common law, even though the plaintiffs in US v WKA, desperately tried. The lower court rejected their follies as did the Supreme Court. Why David wants to reargue a long since settled issue is beyond me.

    Funny how he has a lot of irrelevant ‘assertions’ but fails to note that the issue has long since been settled.

    Someone should have told David earlier

  172. avatar
    nbc June 2, 2013 at 2:41 pm #

    David Farrar: Up until 2009, it was generally understood by all that Wong Kim Art was, indeed, a born US citizen by “…civil or political laws.” It is now only the Ankeny case that has dared to suggest that simply being a born US citizen is, in fact, an Art. II, 1, cl. 4 natural born Citizen.

    Nope, he was born a citzen by our Constitution and the 14th Amendment which merely was declaratory iof our Constitution.

    US v WKA was clear that birth on soil, regardless of the status of the parents has under our common law always been a natural born citizen.
    It also rejected that those born abroad to US citizen parents were even citizens, unless naturalized.

    Poor David. Can anyone provide him with a link to the ruling…

    US v WKA long since rejected poor David’s ‘arguments’… Why he is more than 100 years late to the party and wants to re-litigate long since settled precedents is quite fascinating to me.

  173. avatar
    David Farrar June 2, 2013 at 2:48 pm #

    nbc

    Actually, I don’t see any clause in any of the articles passed by either the 1st or 2nd Continental Congress, nor any in the US Constitution itself, that relied on English common law.

    Now, understand: I am not a constitutional attorney. But other constitutional attorneys have made such a claim. To be clear, they excluded the Bill of Rights, because they expanded the rights of the governed, but common law just didn’t act to empower a sovereign who was already empowered.

    ex animo
    davidfarrar

  174. avatar
    nbc June 2, 2013 at 3:10 pm #

    David Farrar: Actually, I don’t see any clause in any of the articles passed by either the 1st or 2nd Continental Congress, nor any in the US Constitution itself, that relied on English common law.

    Still missing the point? Well let me take you through it slowly…

    1. The Constitution does not say who are our citizens other than mentioning the term natural-born, the power of Congress to pass uniform laws of naturalization and the term ‘ctitizen of the US’
    2. The Court in US v WKA observed that citizenship comes from two sources: being natural born and naturalization. Since WKA cannot be a naturalized citizen, he can only being a citizen by being natural born.
    3. Since the Constitution does not define the term ‘natural born’ the court observes that, under precedent, the term should be found in common law practices.
    4. The court observes how the common law before, during and after the revolution defined natural born to mean ‘birth on soil, subject to jurisdiction’.
    5. The Court observed how the 14th was merely declaratory of this when it observed that those born or naturalized in the US, are our citizens. The former referring to our natural-born citizens, the latter requiring explicit statute.

    It’s not that hard really…

    In US v WKA, the plaintiffs (government) had argued that it was Vattel who ruled the day. The court found that this was not supported by anything and how children born abroad to US citizen parents required explicit statutory enactment to become citizens.

    You’re welcome my friend… You are still over a 100 years late to the ‘party’. But perhaps reading US v WKA and the relevant briefs and the lower court’s ruling may benefit your understanding?

  175. avatar
    dunstvangeet June 2, 2013 at 3:36 pm #

    David Farrar:
    nbc

    Actually, I don’t see any clause in any of the articles passed by either the 1st or 2nd Continental Congress, nor any in the US Constitution itself, that relied on English common law.

    So, according to you, there is absolutely no term in the Constitution that relied upon English Common Law, is that correct? And the converse of this would be that if I could find one term in the Constitution that relied upon English Common Law for it’s definition, your argument would be false, right?

  176. avatar
    nbc June 2, 2013 at 3:42 pm #

    dunstvangeet: So, according to you, there is absolutely no term in the Constitution that relied upon English Common Law, is that correct? And the converse of this would be that if I could find one term in the Constitution that relied upon English Common Law for it’s definition, your argument would be false, right?

    I am not sure we should look too deep for any logic in David’s “arguments” and we may accept his reading comprehension problems as a more fundamental problem?

    more than a 100 years too late to the party…

  177. avatar
    dunstvangeet June 2, 2013 at 4:08 pm #

    nbc: I am not sure we should look too deep for any logic in David’s “arguments” and we may accept his reading comprehension problems as a more fundamental problem?

    more than a 100 years too late to the party…

    Oh, I agree with you. I’m just trying to get David to lay down his arguments. I’m engaging him by asking him exactly what he means. Then we’ll see whether or not his arguments actually stand logical validity once he lays them down.

  178. avatar
    nbc June 2, 2013 at 4:19 pm #

    dunstvangeet: Oh, I agree with you. I’m just trying to get David to lay down his arguments. I’m engaging him by asking him exactly what he means. Then we’ll see whether or not his arguments actually stand logical validity once he lays them down.

    Well, getting David to make a coherent argument has been so far quite troublesome. He jumps around without addressing the relevance of US v WKA beyond some broad assertions, while avoiding the ruling.

  179. avatar
    Majority Will June 2, 2013 at 5:10 pm #

    nbc: Well, getting David to make a coherent argument has been so far quite troublesome.He jumps around without addressing the relevance of US v WKA beyond some broad assertions, while avoiding the ruling.

    And he has a full time job spending every waking hour every day on hundreds of internet threads spreading blatant lies about the President.
    Is there a Stormfront Birther of the Year Award?

  180. avatar
    brygenon June 2, 2013 at 6:25 pm #

    nbc: On the contrary, I explain to you how the court reached its decision for purpose of the preliminary injunction.

    Let me know if you have any further questions.

    I already got the answer:

    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).

    http://www.obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/

    http://www.obamaconspiracy.org/2010/11/congressional-research-service-punctures-birther-balloon/

    nbc:
    It’s a tricky topic. Understanding goes beyond quote mining, it involves understanding what the court was facing.

    It might have been tricky before the CRS papers were publicized, but when I saw that the Congressional Research Service quoted and interpreted the case substantially the same way I had, I was satisfied that I had not been tricked. The earlier paper is 14 pages long, and a page of it is devoted to that ruling in Robinson v. Bowen. It gets the longest quote in the memorandum.

  181. avatar
    nbc June 2, 2013 at 8:34 pm #

    brygenon: It might have been tricky before the CRS papers were publicized, but when I saw that the Congressional Research Service quoted and interpreted the case substantially the same way I had, I was satisfied that I had not been tricked.

    And still you are refusing to look at the case and understand the circumstances under which the ruling was made.
    That’s too bad as I provided you with all the necessary tools to do so. Instead you rely on a third party who has shown little understanding of the issues involved. I showed you how the issue was not the status of a child born abroad to US citizens, as both sides had stipulated to that, so for the purpose of a preliminary injunction the court did not have to address this issue.

    What it did have to address, for purpose of the motion, was whether or not the arguments raised by the plaintiff had a chance of success. And as the court observed, the arguments did not.
    So no need for a preliminary injunction.

    You do understand what the court meant by

    This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.

    Hope this helps. And as Eugene Volokh explains:

    All this makes the judge’s views quoted above pretty much dictum rather than legally binding on anyone — but then again the reasoning in many judicial opinions (for instance, most concurrences and all dissents) falls in the same category. The judge thought that his opinion on the subject would be helpful, so he rendered it.

  182. avatar
    David Farrar June 2, 2013 at 8:51 pm #

    NBC,

    I am sure you know the difference between acquiring US citizenship at birth by natural political right, and acquiring US citizenship at birth by statute, by naturalization, by any plenary authority of government. Call it what you like. It isn’t natural and, therefore, it is not an Art. II, 1, cl. 4 natural born Citizen.

    ex animo
    davidfarrar

  183. avatar
    David Farrar June 2, 2013 at 9:07 pm #

    dunstvangeet,

    Most of the US Constitution is dealing with setting up a new nation among other nations , so I would say international law should be applied first, when applicable, then common law, as with Art. II, 1, cl. 4 natural born Citizen, and their obvious need to make the qualifications for the president and vice-president far, far more immutable than common law, lest a quick return to a monarchical dictatorship.

    ex animo
    davidfarrar

  184. avatar
    Paper June 2, 2013 at 9:08 pm #

    It’s the natural law thing again. Natural law, natural law, siss boom bah. He should buy Bob Gard’s book.

    nbc: ROTFL…
    Why David wants to reargue a long since settled issue is beyond me.

  185. avatar
    Yoda June 2, 2013 at 9:10 pm #

    David Farrar:
    dunstvangeet,

    Most of the US Constitution is dealing with setting up a new nation among other nations , so I would say international law should be applied first, when applicable, then common law, as with Art. II, 1, cl. 4 natural born Citizen, and their obvious need to make the qualifications for the president and vice-president far, far more immutable than common law, lest a quick return to a monarchical dictatorship.

    ex animo
    davidfarrar

    David, I have told you this before, but we do not have a ruling class here. It is as simple as that.

  186. avatar
    brygenon June 2, 2013 at 9:13 pm #

    Dr. Conspiracy: Most Americans 10 years ago would, I think, have said the US Presidents had to be born in the country, and while I respect a consensus view, I don’t think too highly of the level of civic literacy of most people.

    How did you come up with 10 years? McCain ran second to G. W. Bush in the 2000 Republican primaries. I thought people were generally aware that he wasn’t born in the United States and I don’t recall him having any difficulty because of it. Was anyone citing ineligibility as a reason not to vote for McCain?

    Of course McCain’s 2008 run is even more persuasive. He did not win, but we do know that any authority that was going to find him ineligible was going to do so after the voters elected him President of the United States. Counterfactual reasoning is perilous business, but clearly both experts and the lay public expected McCain to take office had he won.

  187. avatar
    Dr. Conspiracy June 2, 2013 at 9:22 pm #

    There was some concern about a monarchy, but it must not have been too strong because all the proposals for term limits for the President were rejected by the Convention.

    David Farrar: Most of the US Constitution is dealing with setting up a new nation among other nations , so I would say international law should be applied first, when applicable, then common law, as with Art. II, 1, cl. 4 natural born Citizen, and their obvious need to make the qualifications for the president and vice-president far, far more immutable than common law, lest a quick return to a monarchical dictatorship.

  188. avatar
    Dr. Conspiracy June 2, 2013 at 9:28 pm #

    I picked the number 10 year to move it past the Obama candidacy era. John McCain was OK because doubts were preempted by S.Res 511, and some comments by the major news outlets. Folks on the other side didn’t choose to create a ruckus like the birthers did.

    I don’t think Americans are generally concerned about eligibility. The only reason Obama had problems is that some people wanted to exclude him at all costs and eligibility was an excuse and a handy diversion from racism. Getting the vote is the important thing to most folks.

    Now I’m a big advocate for the rule of law, but I’d never embark on a crusade for a questionable interpretation of the Constitution.

    brygenon: How did you come up with 10 years? McCain ran second to G. W. Bush in the 2000 Republican primaries. I thought people were generally aware that he wasn’t born in the United States and I don’t recall him having any difficulty because of it. Was anyone citing ineligibility as a reason not to vote for McCain?

    Of course McCain’s 2008 run is even more persuasive. He did not win, but we do know that any authority that was going to find him ineligible was going to do so after the voters elected him President of the United States. Counterfactual reasoning is perilous business, but clearly both experts and the lay public expected McCain to take office had he won.

  189. avatar
    David Farrar June 2, 2013 at 9:30 pm #

    dunstvangeet

    Yes, I am sorry. Its just that I get tired of writing the President and Vice-president when it comes to explaining what Art. II, 1, cl. 4 is all about. It does, in fact, create the qualifications for the President and Vice-president of the United States, the closest thing we have to a sovereign ruling class. Of course, the unique thing about our ‘ruling class’ is that we are all in it. Well, almost everybody. Of course those who haven’t pledge to support and abide by our constitution shouldn’t be considered as part of our ruling class, many would think.

    ex animo
    davidfarrar

  190. avatar
    dunstvangeet June 2, 2013 at 10:20 pm #

    David, neither of your two statements answer the simple question that I gave you. I asked you whether your position was to state that there is nothing in our constitution that is derived from English Common Law. No phrase, no word, no clause, etc. It was a very simple question, and you answered nothing about it, you did not answer my question.

    As far as your statement that the constitution is mainly about setting up a government, that is not international law, but that is actually domestic law. Why would we go to international law for something that is purely a domestic law thing? It’s the difference between cats and dogs.

    International law deals with what happens between two nations. International law doesn’t care whether the nation is a monarchy, or a republic. Those are two nations, and international law derives how those nations interact.

    Whether those nations are a monarchy or a republic is strick for domestic law. Why would we look for the definitions of things for domestic law in international law?

  191. avatar
    Daniel June 2, 2013 at 11:16 pm #

    David Farrar:
    dunstvangeet

    Yes, I am sorry. Its just that I get tired of writing the President and Vice-president when it comes to explaining what Art. II, 1, cl. 4 is all about. It does, in fact, create the qualifications for the President and Vice-president of the United States, the closest thing we have to a sovereign ruling class. Of course, the unique thing about our ‘ruling class’ is that we are all in it. Well, almost everybody. Of course those who haven’t pledge to support and abide by our constitution shouldn’t be considered as part of our ruling class, many would think.

    ex animo
    davidfarrar

    What about anti-American people, who piss on the constitution…. like birthers?

  192. avatar
    nbc June 2, 2013 at 11:23 pm #

    David Farrar: Yes, I am sorry. Its just that I get tired of writing the President and Vice-president when it comes to explaining what Art. II, 1, cl. 4 is all about.

    You should read US v Wong Kim Ark and not rely on your fantasies.

  193. avatar
    nbc June 2, 2013 at 11:24 pm #

    David Farrar: Most of the US Constitution is dealing with setting up a new nation among other nations

    Which is why jus soli would make so much more sense. But you have to remember how the nation continued and even accepted at the state level, common law.
    So again, your fantasies appear to be at odds with what really happened….

  194. avatar
    nbc June 2, 2013 at 11:35 pm #

    Paper: It’s the natural law thing again.

    The jus soli followed from natural law, just not the kind David likes.

    Such follies. He fails to understand the history of our Nation and is caught up in fantasies about what really happened.

    More than a 100 years too late to the party. US v WKA clearly rejected David’s follies, as had several courts before it.

  195. avatar
    ballantine June 3, 2013 at 11:34 am #

    dunstvangeet:
    David, neither of your two statements answer the simple question that I gave you.I asked you whether your position was to state that there is nothing in our constitution that is derived from English Common Law.No phrase, no word, no clause, etc.It was a very simple question, and you answered nothing about it, you did not answer my question.

    He can’t answer because the matter is not subject to any debate. I think Judge Sanford explains this point very well.

    “The Constitution of the United States, like those of all the original states (and in fact, of all the states now forming the Union, with the exception of Louisiana,) presupposed the existence and authority of the common law…. A brief reference to the Constitution of the United States will illustrate this idea. It gives the sole power of impeachment to the House of Representatives, and the sole power of trying an impeachment to the Senate. Impeachment is thus treated as a well known, defined and established proceeding. Yet it was only known to the common law, and could be understood only by reference to the principles of that law. The Congress was authorized to provide for the punishment of felonies committed on the high seas, and for punishing certain other crimes. The common law furnished the only definition of felonies. The trial of all crimes, except in cases of impeachment, was to be by jury; and the Constitution speaks of treason, bribery, indictment, cases in equity, an uniform system of bankruptcy, attainder, and the writ of habeas corpus; all of which were unknown even by name, to any other system of jurisprudence than the common law. In like manner, the amendments to the Constitution make provisions in reference to the right of petition, search warrants, capital crimes, grand jury, trial by jury, bail, fines, and the rules of the common law. In these instances, no legislative definition or exposition, was apparently deemed necessary by the framers of the Constitution. They are spoken of as substantial things, already existing and established, and which will continue to exist. And the legislation of Congress immediately following its adoption, and in which they proceeded to carry out in detail the new system of government, left most of these things to stand upon the same footing that they previously were, the principles of the unwritten or common law. It has never been deemed necessary for Congress to legislate upon the rules of pleading or evidence, or of the construction of statutes or contracts, or upon any of the multifarious rules and principles of law and equity, which have been daily used and applied in civil cases, in the courts of the United States, from the year 1789 to the present day. So of the rules of evidence, and the proceedings in criminal cases. All these principles, rules and forms of proceeding, have been adopted from the common law, as a matter of course, without doubt or question.” Lynch v. Clarke (NY 1844)

  196. avatar
    dunstvangeet June 3, 2013 at 12:06 pm #

    ballantine: He can’t answer because the matter is not subject to any debate.I think Judge Sanford explains this point very well.

    You spoiled my post after if David actually answered my question…

    *sniffles*

  197. avatar
    brygenon June 3, 2013 at 4:56 pm #

    nbc: And still you are refusing to look at the case and understand the circumstances under which the ruling was made. That’s too bad as I provided you with all the necessary tools to do so. Instead you rely on a third party who has shown little understanding of the issues involved. I showed you how the issue was not the status of a child born abroad to US citizens, as both sides had stipulated to that, so for the purpose of a preliminary injunction the court did not have to address this issue.

    You know who else relies on that “third party who has shown little understanding”? Congress. NBC, remember lecturing birthers on how Congress is the authority constitutionally empowered to judge presidential qualifications? I think I have cause to take what the Congressional Research Service formally reports to Congress much more seriously than I take what you write in blog comments. Still, I’m willing to spend a little time checking out what you say…

    I looked up the stipulation in the case — there was only one — document 24, signed by the Court as 28. See:

    http://dockets.justia.com/docket/california/candce/3:2008cv03836/206145/

    There’s no mention of anything about “the status of a child born abroad to US citizens”. The parties stipulated merely that certain parts of the complaint should be dismissed.

    I looked for anyplace the defense agreed with the plaintiff on the criteria for being natural-born, as you had claimed they did. I found no such thing.

    I Googled “stipulation” and found sites aimed at we lay people explaining:

    Parties may stipulate to any matter concerning the rights or obligations of the parties. The litigants cannot, however, stipulate as to the validity or constitutionality of a statute or as to what the law is, because such issues must be determined by the court.

    http://legal-dictionary.thefreedictionary.com/stipulation

    So NBC, can you cite where “both sides had stipulated to” “the status of a child born abroad to US citizens”? Or was your claim that the parties so stipulated an act of fabrication? Or, as I suspect, was it a mistake, a result of once again pretending an expertise you do not command? You lecture us on the analysis of complex legal precedents, yet you face-plant on “stipulated”.

    NBC, I’m an amateur, a hobbyist, same as you. The difference is that where we don’t know what we’re talking about, I defer to those who do.

  198. avatar
    nbc June 3, 2013 at 5:14 pm #

    brygenon: You know who else relies on that “third party who has shown little understanding”? Congress. NBC, remember lecturing birthers on how Congress is the authority constitutionally empowered to judge presidential qualifications?

    Which does not preclude the courts from making such decisions. But I am glad you are moving the goalposts once again my friend, now that your legal foundations have found to be built on quicksand.

    I am no longer convinced that the issue of presidential qualification is blocked by the political doctrine. It was always quite a weak argument imho.

    NBC, I’m an amateur, a hobbyist, same as you. The difference is that where we don’t know what we’re talking about, I defer to those who do.

    ROTFL, you’re funny.

    Now, let’s for the purpose of the discussion accept that you are right. How do you believe a ruling with respect to a preliminary injunction has any relevance to the merits of the case?
    I showed you how a ruling in a preliminary injunction cannot be enforced in the trial on the merits, and how such pronounciations are at best dicta? The Judge found that for purpose of the motion for preliminary injunction he was not convinced that the plaintiff could succeed. Especially, since the plaintiff had not raised the issue of birth abroad as being disabling but rather the status of McCain at the time of his birth.

    I do appreciate your efforts but inevitably you will have to come to realize the relevance of a ruling in the context of a preliminary injunction.

    I wish you well
    As to stipulated, I used the wrong term, but the foundation remains that both sides accepted that a child born abroad to US citizen parents was indeed a natural born citizen. The plaintiff objected to McCain meeting that requirement because of the lack of a statute covering his status at birth.

    You prefer the words of third parties, I’d rather present and defend my own arguments with actual arguments, rather than saying “well I trust them more”…

    That’s the difference I believe

    A party thus is not required to prove his case in full at a preliminary-injunction hearing. Progress Development Corp. v. Mitchell, 286 F.2d 222 (C.A.7 1961), and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits, Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 54, 405 F.2d 1321, 1324 (1968); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (C.A.2 1953). In light of these considerations, it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits. E. g., Brown v. Chote, supra; Gellman v. Maryland, 538 F.2d 603 (C.A.4 1976); Santiago v. Corporacion de Renovacion Urbana y Vivienda de Puerto Rico, 453 F.2d 794 (C.A.1 1972).

  199. avatar
    nbc June 3, 2013 at 5:25 pm #

    Let me try to explain in simpler terms

    A motion for a preliminary junction is just that, a request to grant relief until the case is properly heard. The ruling on such a motion is not precedential, it is not even a final ruling. Worse, the findings of fact and conclusions of law are not even binding at the trial on the merits.

    Hope this clarifies.

    Of course, one still has to appreciate why the Court rejected the motion in the first place, and it was based on the subjective view of the court as to the likelihood of success that the plaintiff, who clearly accepted a child born abroad to US citizen parents, as a natural born citizen, could argue an interpretation of a statute in the way Chin had proposed. The court found that the likelihood of success was insufficient.

  200. avatar
    G June 4, 2013 at 8:35 am #

    It sure seems to be that those that squawk about the Constitution the most tend to be the same ignorant folks who understand it the least and whose fantasies are the furthest from it.

    Daniel: What about anti-American people, who piss on the constitution…. like birthers?

  201. avatar
    The Magic M June 4, 2013 at 8:58 am #

    G: It sure seems to be that those that squawk about the Constitution the most tend to be the same ignorant folks who understand it the least and whose fantasies are the furthest from it.

    Over here, same same but different:

    The German Constitution, being more complex and often more specific than the US one, typically is the wrong place to build “how I would like things to be” on.
    Those who try inevitably are limited to Article 1 I with its very broad “inviolable human dignity” provision.
    Therefore you can spot the German wannabe-Constitutionalists by the number of references to Article 1 I and the fact that they rarely cite any other Constitutional article (except the other crank favourite, Art. 20 IV which codifies a “right to resistance” under certain circumstances).

  202. avatar
    Paper June 4, 2013 at 10:27 am #

    I do not have the wherewithal at the moment to dig into much, including the ongoing Robinson v. Bowen discussion, but nbc, I again note United States v. Marguet-Pillado for your review and discussion:

    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.

  203. avatar
    brygenon June 5, 2013 at 3:46 am #

    nbc:

    brygenon: You know who else relies on that “third party who has shown little understanding”? Congress. NBC, remember lecturing birthers on how Congress is the authority constitutionally empowered to judge presidential qualifications?

    Which does not preclude the courts from making such decisions. But I am glad you are moving the goalposts once again my friend, now that your legal foundations have found to be built on quicksand.

    I am no longer convinced that the issue of presidential qualification is blocked by the political doctrine. It was always quite a weak argument imho.

    You move your goalposts one sentence after (falsely) accusing me of moving the goalposts. You don’t deny lecturing that Congress is the body that evaluates presidential eligibility, but when Congress’s research service refutes you, you’re no longer convinced.

    nbc:

    NBC, I’m an amateur, a hobbyist, same as you. The difference is that where we don’t know what we’re talking about, I defer to those who do.

    ROTFL, you’re funny.

    If I count correctly that’s the third time you’ve responded to me with “ROTFL” in this one thread. Ever personally know anyone who laughed at inappropriate times? Can you recall awkward moments when everyone around recognized it as a defense mechanism?

    nbc:
    Now, let’s for the purpose of the discussion accept that you are right. How do you believe a ruling with respect to a preliminary injunction has any relevance to the merits of the case?

    I’ve answered that over and over for years: To rule on the motion for preliminary injunction, the district Court considered the likelihood of Robinson prevailing on the merits.

    nbc:
    I showed you how a ruling in a preliminary injunction cannot be enforced in the trial on the merits, and how such pronounciations are at best dicta? The Judge found that for purpose of the motion for preliminary injunction he was not convinced that the plaintiff could succeed. Especially, since the plaintiff had not raised the issue of birth abroad as being disabling but rather the status of McCain at the time of his birth.

    I do appreciate your efforts but inevitably you will have to come to realize the relevance of a ruling in the context of a preliminary injunction.

    I’ve no problem reviewing the relevance. I first cited and quoted it to you as the one clear judicial expression where the controversy before the court was the Article II eligibility of a foreign-born candidate. I used it to show that Professor Amar’s explanation correctly predicted the ruling of a federal court, in stark contrast to your theories. I was clear and explicit from the beginning that it was a district court ruling on a motion for preliminary injunction, yet you thought that I needed your lecture on how it was just a district court ruling on a motion for preliminary injunction.

    Subsequently we learned what the Congressional Research Service formally reported to Congress. Twice. The CRS told it as I had told it, right down to citing, quoting, and explaining that ruling in Robinson v. Bowen.

    http://www.obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/

    Today the mainstream is lining up behind Ted Cruz being Article II eligible or probably eligible, usually citing the CRS analysis and occasionally mentioning the Robinson ruling. It now has relevance beyond what I could have anticipated when we first discussed it, but at least I knew better than to listen to you.

    nbc:
    As to stipulated, I used the wrong term, but the foundation remains that both sides accepted that a child born abroad to US citizen parents was indeed a natural born citizen.

    You also had the concept wrong. You thought the parties could stipulate as to the law.

    nbc:
    that both sides accepted that a child born abroad to US citizen parents was indeed a natural born citizen.

    I can’t find where the defense accepted that. Can you cite it?

  204. avatar
    nbc June 5, 2013 at 3:57 am #

    brygenon: You don’t deny lecturing that Congress is the body that evaluates presidential eligibility, but when Congress’s research service refutes you, you’re no longer convinced.

    They do not refute me, they disagree with my position. I think my position is much more defensible but of course, it will require someone who is willing to argue the position and i have found few that are interested.

    I can understand why you feel comfortable in the findings of a researcher absolving you of the task to have to examine the arguments in more depth.

    Either we are willing to apply our own skills to analyze or we blindly accept. I respect your choice.

  205. avatar
    nbc June 5, 2013 at 3:58 am #

    Paper: 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.

    That’s a statement of fact. Both parties agreed. But that does not make it the correct one, it merely means that it was not part of the suit.

    If both parties agree, then there is no controversy.

  206. avatar
    David Farrar June 5, 2013 at 10:35 am #

    nbc,

    There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).

    ex animo
    davidfarrar

  207. avatar
    Paper June 5, 2013 at 10:44 am #

    Well, yes, it could be incorrect, but it is a legal authority, a district court, saying it.

    It does not seem like you have read the case? The statement I quote is central to the court’s determination in the case. There is nothing in the opinions suggesting the parties were making any agreement to this statement, nor that any such agreement is relevant to the court’s point.

    The first point the court addresses is if that statement is supported by the law (which is what it is discussing when it makes that statement), as a prerequisite to reaching their decision. If the court had decided it was not supported by the law, they would have rejected Marguet-Pillado’s argument.

    Later this court states:

    Because Marguet-Pillado’s proposed instruction was supported by the law, the district court was required to give that instruction to the jury so long as it had “some foundation in the evidence.”

    The court then goes on to decide there is some foundation in the evidence.

    Re the government’s side, here is the very next sentence after the quote I just provided:

    Nonethe- less, the government asserts that the requested instruction “was not supported by the law” because “[t]he issue of Marguet-Pillado’s claim of derivative citizenship was decided as a matter of law” in Marguet I.

    So the government did not even want that statement read.

    nbc: That’s a statement of fact. Both parties agreed. But that does not make it the correct one, it merely means that it was not part of the suit.

    If both parties agree, then there is no controversy.

  208. avatar
    ballantine June 5, 2013 at 10:45 am #

    David Farrar:
    nbc,

    There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).

    ex animo
    davidfarrar

    Of course, if you could read, you would know the Supreme Court has ruled Art. II and the 14th Amendment mean the same thing, both taken from the common law. You and all the other fringe amateurs can talk about natural law all you want and its not going to change what the Supreme Court has said.

  209. avatar
    Yoda June 5, 2013 at 10:46 am #

    David Farrar: nbc,There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).ex animodavidfarrar

    As always, you are wrong. Even after all this time, it appears that have not read or at least do not understand the decision in WKA. The Court very clearly stated that the 14th Amendment was merely declaratory in nature and was stating what has always been. As such, one can not acquire citizenship though the 14th Amendment. There is no such thing as a 14th Amendment citizen.

  210. avatar
    ballantine June 5, 2013 at 10:52 am #

    nbc: They do not refute me, they disagree with my position. I think my position is much more defensible but of course, it will require someone who is willing to argue the position and i have found few that are interested.

    I can understand why you feel comfortable in the findings of a researcher absolving you of the task to have to examine the arguments in more depth.

    Either we are willing to apply our own skills to analyze or we blindly accept. I respect your choice.

    It is clear no one really wants to have a serious discussion about this. Shows that
    the natural born citizenship clause has become an anachronism and there is little interest in finding its original meaning. Perhaps it should be left in the hands of Congress. However, simply citing the CRS report when such report makes a very weak case is not very convincing. The same can be said for many of the scholarly opinions on the subject that cite argumentss alreadly long rejected by our courts. As an academic question, I still find it interesting as it reaches broader questions about citizenship laws in general.

  211. avatar
    Paper June 5, 2013 at 11:01 am #

    Well, that would be where everyone of importance disagrees with you. Even if we were to accept your version of natural
    inheritance, which I do not think we do, the 14th amendment’s authority would be included.

    Note that in your reference to
    natural inheritance you cite the *Constitution*–“i.e., an Art. II, 1, cl. 4 natural born US Citizen.”

    The Constitution, you will note, *includes* the amendments. So first if you are going to cite one part of the Constitution, then you cannot break off another part as being merely “positive” law as distinct from the rest of that very same Constitution.

    Our Constitution is the primary authority, not natural inheritance. If the Constitution contradicts a view of natural inheritance, the natural loses, the Constitution wins. Even common law is only a resource for reading the Constitution; it does not override the Constitution.

    You want to say that the Constitution should be read in light of natural inheritance? Well, the Constitution itself in its 14th amendment, as pointed out in WKA for starters, says otherwise.

    David Farrar:
    nbc,

    There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).

    ex animo
    davidfarrar

  212. avatar
    Dr Kenneth Noisewater June 5, 2013 at 11:16 am #

    David Farrar: nbc,There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).ex animodavidfarrar

    Do you even read what you wrote? You’re talking about citizenship at birth yet claim people can be naturalized at birth. Can you point to any instances of people born in the US who were naturalized at birth? Naturalization is a process for those not born US Citizens. Being born a citizen is natural born citizenship.

    ex scientia tridens
    Dr Kenneth Noisewater

  213. avatar
    brygenon June 5, 2013 at 11:59 am #

    nbc: They do not refute me, they disagree with my position. I think my position is much more defensible but of course, it will require someone who is willing to argue the position and i have found few that are interested.

    I can understand why you feel comfortable in the findings of a researcher absolving you of the task to have to examine the arguments in more depth.

    I just wasted quite a bit of time checking out your claim that the parties in Robinson v. Bowen stipulated as to the status of a foreign-born child of citizens. You don’t know what you are talking about but you make your own rules and judge your own case. If you find people willing to argue in depth on your terms, be aware that you will be debating with the insane.

  214. avatar
    ballantine June 5, 2013 at 12:10 pm #

    Paper:
    Well, that would be where everyone of importance disagrees with you.Even if we were to accept your version of natural
    inheritance, which I do not think we do, the 14th amendment’s authority would be included.

    Note that in your reference to
    natural inheritance you cite the *Constitution*–”i.e., an Art. II, 1, cl. 4 natural born US Citizen.”

    The Constitution, you will note, *includes* the amendments.So first if you are going to cite one part of the Constitution, then you cannot break off another part as being merely “positive” law as distinct from the rest of that very same Constitution.

    Our Constitution is the primary authority, not natural inheritance.If the Constitution contradicts a view of natural inheritance, the natural loses, the Constitution wins.Even common law is only a resource for reading the Constitution; it does not override the Constitution.

    You want to say that the Constitution should be read in light of natural inheritance?Well, the Constitution itself in its 14th amendment, as pointed out in WKA for starters, says otherwise.

    Speaking of natural law, a funny thing is that two members of the Committee of Fifteen (Howard and Morrell) that wrote the 14th Amendment spoke of jus soli as natural law, including the person who introduced the citizenship. If fact, nearly every significant participant in the citizenship debates thought the common law rule to be the universal or general rule of all citizenship. Such wasn’t true by 1866, but it shows how anglo-centric we were. In fact, many people of such period were still being educated on Blackstone.

    Another funny thing about the 14th Amendment debates is that no one mentioned foreign born children of citizens and, as Rogers v. Bellie points out, the Amendment by its terms appears to in adverdently leave out such people. Shows that the debates on these issues were often not comprehensive. Language was proposed and all anyone wanted to argue about was the application to Indians and the Chinese.

  215. avatar
    Sef June 5, 2013 at 12:18 pm #

    A question for those who know about such things: Is NBC a lawyer?

  216. avatar
    ballantine June 5, 2013 at 12:30 pm #

    Dr Kenneth Noisewater: Do you even read what you wrote?You’re talking about citizenship at birth yet claim people can be naturalized at birth.Can you point to any instances of people born in the US who were naturalized at birth?Naturalization is a process for those not born US Citizens.Being born a citizen is natural born citizenship.

    ex scientia tridens
    Dr Kenneth Noisewater

    I think it is a matter of terminology. Miller v. Allbright was one of the cases challenging the constitutionality of our naturalization acts discriminating between a citizen mother and a citizen father. Stevens and Scalia both cite Wong Kim Ark for the proposition that there are two types of citizens, by birth and by naturalization, but appear to disagree on which one Miller would be, though it is really not clear.

    Justice Stevens:

    “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.”

    Justice Scalia:

    “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.”

    Stevens position is confusing as he appears to call such person a citizen by birth by an Act of Congress, but Congress only has the power of naturalization or its treaty power. So absent treaty, how can a person made a citizen by the power of naturalization not be naturalized? It is confusing.

  217. avatar
    Majority Will June 5, 2013 at 12:30 pm #

    Dr Kenneth Noisewater: Do you even read what you wrote? You’re talking about citizenship at birth yet claim people can be naturalized at birth.Can you point to any instances of people born in the US who were naturalized at birth?Naturalization is a process for those not born US Citizens.Being born a citizen is natural born citizenship.

    ex scientia tridens
    Dr Kenneth Noisewater

    Like so many delusional birthers, they invent their own interpretations of the law and revise history to suit their fantasies.

    Hubris, bigotry and willful ignorance neatly intertwined.

  218. avatar
    Northland10 June 5, 2013 at 1:50 pm #

    Yoda: As always, you are wrong.Even after all this time, it appears that have not read or at least do not understand the decision in WKA.The Court very clearly stated that the 14th Amendment was merely declaratory in nature and was stating what has always been.As such, one can not acquire citizenship though the 14th Amendment.There is no such thing as a 14th Amendment citizen.

    I suspect many like David have not read WKA. Since it does not tell them what they want to hear, they avoid it. As to his “natural law” statements, he shows he has never read any real Natural Law writers, and is incapable of quoting anything.

    In short, if they don’t read it, they can deny it exists. Big Brother would love them.

  219. avatar
    NBC June 5, 2013 at 1:57 pm #

    ballantine: Stevens position is confusing as he appears to call such person a citizen by birth by an Act of Congress, but Congress only has the power of naturalization or its treaty power. So absent treaty, how can a person made a citizen by the power of naturalization not be naturalized? It is confusing.

    Not if one understands that naturalization indeed means “by act of congress”. After all, children so born, without such a statute, would be born aliens.

    From US v Wong Kim Ark to the more recent rulings, all suggest that children born outside of the US to citizen parents, requires an act of naturalization from Congress.

    Such is hard to deny. While some insist that such children are “natural born”, the courts have considered a clear distinction between those born on soil and those naturalized.

    Natural born is best understood by observing that children do not require any act or statute to become such. In our nation, the rule is and has always been jus soli and while Congress has found it wise to naturalize children born abroad to US citizens, it is an uphill battle to argue that such children are ‘natural born’.

    US v Wong Kim Ark is still quite valid when it observes:

    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.

    There is no escaping the logic in the ruling of US v Wong Kim Ark.

  220. avatar
    NBC June 5, 2013 at 1:57 pm #

    Sef: A question for those who know about such things: Is NBC a lawyer?

    Nope

  221. avatar
    NBC June 5, 2013 at 2:02 pm #

    ballantine: However, simply citing the CRS report when such report makes a very weak case is not very convincing. The same can be said for many of the scholarly opinions on the subject that cite argumentss alreadly long rejected by our courts. As an academic question, I still find it interesting as it reaches broader questions about citizenship laws in general.

    I fully agree. And I do understand the lack of interest, as the only remaining arguments appear to be: Well, Congress said so, or “the CRS said so”, and yet, when looking at the legal precedent, the case becomes untenable or poorly supported at best.

    Why people insist on ignoring the US v Wong Kim Ark ruling as well as the later rulings showing the clear separation between those born on soil, under our jurisdiction whose natural citizenship follows from our Constitution and who need no naturalization, and those who require explicit statutes, and who are therefore naturalized.

    And no, I am not a lawyer, nor a birther. Just someone with too much time on his hands to research these interesting topics.

    Too bad there appears to be little interest on these blogs to engage in a meaningful manner with the observations I presented, except for a few like Ballantine who appears to be quite familiar with the precedents.

  222. avatar
    NBC June 5, 2013 at 2:05 pm #

    brygenon: . If you find people willing to argue in depth on your terms, be aware that you will be debating with the insane.

    Or the lazy… Sorry my friend. I spent quite a bit of time educating you on the concept of preliminary injunction and what the Court ruled. Seems it was largely wasted. But I would not be as harsh on yourself as you appear to be.
    It requires a significant investment in time to research these topics and sometimes people find it more comforting to just accept ‘authority’ rather than to do the necessary research themselves. Look for instance at how so many birthers appear to be enamored by Mario or Leo, even though their ‘scholarly’ arguments quickly fall apart on close scrutiny…
    Dealing with uncertainty is not an easy thing and causes discomfort in many. I personally thrive on uncertainty because that’s where we need to look for the answers.

    It’s like the story of the drunk:

    A drunk, near a lamp post, is on his hands and knees, apparently looking for something. A bystander asks him what happened. The drunk said I lost my car keys. The bystander asks: where did you lose them. The drunk points to a dark area: Over there… The bystander asks: why are you looking for them here? The drunk responds: well, this is where the light is…

  223. avatar
    NBC June 5, 2013 at 2:11 pm #

    Paper: Well, yes, it could be incorrect, but it is a legal authority, a district court, saying it.

    It does not seem like you have read the case? The statement I quote is central to the court’s determination in the case.

    The statement is incidental to the case at best. Both parties agree on the statement, and the court has to decide if the appellant has a case to have requested the court to read a statement.

    It’s important to understand when a district court makes a legal finding and when it accepts, for the purpose of the ruling, such a finding. In this case, both sides apparently accepted the statement as valid or did not dispute it but rather focused on the legal question as to ‘if the statement should have been read’.

  224. avatar
    NBC June 5, 2013 at 2:11 pm #

    Paper: So the government did not even want that statement read.

    Exactly.

  225. avatar
    NBC June 5, 2013 at 2:14 pm #

    David Farrar: There are only two ways to achieve US citizenship at birth: by natural inheritance (i.e., an Art. II, 1, cl. 4 natural born US Citizen) and by positive law (i.e., the 14th Amendment, naturalization, by statute).

    So you keep saying and yet we know that

    1. Vattel’s definition was denied by the Courts in US v Wong Kim Ark
    2. The court found that common law definition meant birth on soil, subject to our jurisdiction
    3. The court observed that the 14th was merely declarative of the ‘natural law’ of our nation: Jus Soli.

    Sorry my friend but your meaningless statements have no foundation in fact, history, legal precedent or logic.

    Other than that… They make for a great but rejected hypothesis.

  226. avatar
    NBC June 5, 2013 at 2:15 pm #

    Paper: Our Constitution is the primary authority, not natural inheritance. If the Constitution contradicts a view of natural inheritance, the natural loses, the Constitution wins. Even common law is only a resource for reading the Constitution; it does not override the Constitution.

    What David fails to understand is that the Common Law rule of jus soli was argued to be the ‘natural law’. Vattel had a different opinion and his position was argued in US v Wong Kim Ark and lost.

    It’s something David has yet to come to terms with.

  227. avatar
    NBC June 5, 2013 at 2:19 pm #

    Dr Kenneth Noisewater: Do you even read what you wrote? You’re talking about citizenship at birth yet claim people can be naturalized at birth. Can you point to any instances of people born in the US who were naturalized at birth? Naturalization is a process for those not born US Citizens. Being born a citizen is natural born citizenship.

    And yet, those who by statute are born a citizen, are still naturalized… Without statute they would not even be citizens. Natural born does not require such statutes, it follows from the rules of the nation, which in our nation have always been ‘jus soli’.

    In the US, there is no such thing as naturalization at birth for those born on soil, but there is for those born outside our limits and jurisdiction. They are naturalized by statute.

    Mario went wrong on the same issue, believing that the 14th naturalized Wong Kim Ark…

  228. avatar
    NBC June 5, 2013 at 2:27 pm #

    Ballantine provided us with some relevant quotes about naturalization.

    It’s important to understand these terms to understand why Mario, and David are somewhat wrong… Poor Mario was educated by Ballantine on these principles, but he never really applied his newly gained knowledge.

  229. avatar
    Monkey Boy June 5, 2013 at 2:47 pm #

    David Farrar: The reason why natural law was used here rather than common law, is because it offers the most immutability, in terms of the criteria of the presidency, which, in itself, reflects the true political objective for creating a constitution in the first place: to prevent a return of a monarchical form of government* by a People who had earlier proclaimed to the world that they can rule ourselves — by far, in their day, the most palpable fear among the delegates to the 1787 Constitution convention.

    Oh, boy. Rocket scientist, historian, and legal scholar, David “out of breath” Farrar is at it again.

    Natural law is the law of survival; the law of the jungle. The physically strongest exploits weaker ones.

    When people organize themselves into communities, their laws are made and exist by covenant. Not necessarily unnatural, but, also not determined by a Deity, or by some mysterious force of nature.

  230. avatar
    NBC June 5, 2013 at 2:57 pm #

    Monkey Boy: When people organize themselves into communities, their laws are made and exist by covenant. Not necessarily unnatural, but, also not determined by a Deity, or by some mysterious force of nature.

    And worse, the jus soli rule was argued to be the right one under natural law 🙂

    David Farrar chose the losing side in US v Wong Kim Ark… He is more than 100 years late to the party…

    But noone has told him yet… Oh wait…

  231. avatar
    Northland10 June 5, 2013 at 3:06 pm #

    David Farrar:
    Natural law as articulated by de Vattel, in his work: “PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.” 212-217, defines an Art. II, 1, cl. 4 natural born Citizen as follows:

    The reason why natural law was used here rather than common law, is because it offers the most immutability, in terms of the criteria of the presidency, which, in itself, reflects the true political objective for creating a constitution in the first place: to prevent a return of a monarchical form of government* by a People who had earlier proclaimed to the world that they can rule ourselves — by far, in their day, the most palpable fear among the delegates to the 1787 Constitution convention.

    Umm, Vattel was a monarchist. You have not actually read his works, have you?

  232. avatar
    Majority Will June 5, 2013 at 3:59 pm #

    Northland10: Umm, Vattel was a monarchist.You have not actually read his works, have you?

    I’m still somewhat astounded at how obtuse these birther bigots can be or that they think sane people believe any of their idiotic claims were ever taught in civics classes or law schools.

  233. avatar
    G June 5, 2013 at 5:05 pm #

    Well said on this point!

    Monkey Boy: When people organize themselves into communities, their laws are made and exist by covenant. Not necessarily unnatural, but, also not determined by a Deity, or by some mysterious force of nature.

  234. avatar
    G June 5, 2013 at 5:16 pm #

    On this point, I tend to quibble. While it is certainly true, in terms of where pure physical strength match-ups in nature are concerned, that the tend is to exploit the weaker ones, that is simply only a small representation of natural survival, adaptation and exploitation strategies employed in nature. The “law of the jungle” and dominance is way more complex than that.

    Monkey Boy: Natural law is the law of survival; the law of the jungle. The physically strongest exploits weaker ones.

  235. avatar
    Paper June 5, 2013 at 5:25 pm #

    The court says that if the statement is supported by law, then it should be read, if it also has some foundation in evidence (which they also decide it does). If it were not supported, it would not matter if the parties agreed or not. If anything, the government doesn’t agree, saying that such a statement doesn’t apply to someone like Marguet-Pillado.

    The first thing this court does is to spend time on finding that the statement is supported by law. How is that incidental? It is central. It is a prerequisite without which they cannot proceed. They are not saying no one here, none of the parties involved here, dispute the instruction, they agree, and we must decide; they are saying no one disputes it because it is “‘an accurate statement of law,’ in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen.” They based their decision on the statement being an accurate statement of law. They even respond to the dissent by saying that they are reaffirming the standard for how an individual may acquire such citizenship, and that their decision does not change that.

    I understand how something may pertain only to a ruling. I don’t see how that is the case here. They are saying it cannot be precluded because first of all it is an accurate statement of law. They repeat that a few times. They do not say Marguet-Pillado is such a citizen, just that that is the accurate standard in law. So he can use it in trying to make his case, even if his case is “weak, insufficient, inconsistent, or of doubtful credibility.”

    NBC: The statement is incidental to the case at best. Both parties agree on the statement, and the court has to decide if the appellant has a case to have requested the court to read a statement.

    It’s important to understand when a district court makes a legal finding and when it accepts, for the purpose of the ruling, such a finding. In this case, both sides apparently accepted the statement as valid or did not dispute it but rather focused on the legal question as to ‘if the statement should have been read’.

  236. avatar
    Keith June 5, 2013 at 7:06 pm #

    G:
    On this point, I tend to quibble.While it is certainly true, in terms of where pure physical strength match-ups in nature are concerned, that the tend is to exploit the weaker ones, that is simply only a small representation of natural survival, adaptation and exploitation strategies employed in nature.The “law of the jungle” and dominance is way more complex than that.

    It is not a quibble.

    I am glad I continued to read before I wrote a small novel about how this is a dangerous misunderstanding that leads to all kinds of abhorrent behaviour like eugenics, assimilation, and other racist bullshit.

    Thank you for beating me to it and saving much apoplectic ranting and raving.

  237. avatar
    NBC June 5, 2013 at 9:35 pm #

    Paper: The court says that if the statement is supported by law, then it should be read, if it also has some foundation in evidence (which they also decide it does). If it were not supported, it would not matter if the parties agreed or not. If anything, the government doesn’t agree, saying that such a statement doesn’t apply to someone like Marguet-Pillado.

    You are missing the point, the Government said that Marguet-Pillado’s citizenship had already been decided so there was no need for the statement. I doubt they cared much about what the statement said, the issue was about whether or not the court should have read it. Both sides had accepted the statement but that by itself does not mean it is accurate. If the parties agree to the content of the statement, the judge can do little.
    But that does not make the statement binding or even relevant.

    It’s important to understand what was argued and what the findings of the court were. The issue was about the instruction, not the content of the instruction. Even the court suggests that whether or not the instruction should be read is an issue of law, and the lower court can decide this.

    In fact all that was relevant was him being a citizen, the natural born part really did not matter.

  238. avatar
    NBC June 5, 2013 at 9:38 pm #

    Paper: The first thing this court does is to spend time on finding that the statement is supported by law. How is that incidental? It is central. It is a prerequisite without which they cannot proceed.

    The parties agreed, the court agreed. Nothing more to do here. But that does not make the claim factual, it’s just that there was no controversy here.

  239. avatar
    NBC June 5, 2013 at 9:50 pm #

    Paper: They even respond to the dissent by saying that they are reaffirming the standard for how an individual may acquire such citizenship, and that their decision does not change that.

    Sure, the plaintiff can obtain citizenship through derivative citizenship but that was about the only relevant issue. The natural born had no relevance as to his citizenship status. It is clear that one can obtain derivative citizenship status and that the court ruled that the jury should be allowed to determine if the plaintiff had done so.

    So

    1. The issue is not about natural born citizenship but about citizenship
    2. The court and the parties all agreed on the definition, the natural born part was of little relevance and while the court may have paid more attention, it precluded the statement from being read because of previous findings.
    3. The appeal’s court finds that the lower court inappropriately denied the reading of the statement and the lower court can now focus on presenting the statement to the Jury.

    Pretty slim evidence. The appeal’s court accepted that the statement was ‘accurate’ because it was non controversial but that does not mean that it was necessarily factual. The importance was not being ‘natural born’ but rather being a citizen so I am not surprised that the parties agreed. Again, the formulation was seen as irrelevant by the court and the government.
    Now they have to revisit it and perhaps they will be more careful.

    The evidedence is sufficient to establish a foundation that Marguet-Pillado was not an alien because he had derived citizenship.

    It was the alien/citizen part that the court focused on.

  240. avatar
    NBC June 5, 2013 at 9:53 pm #

    Again I wonder why people are unwilling to talk about US v Wong Kim Ark…. The implications are clear…

    The novel idea that those who are naturalized at birth are also natural born has no foundation in common law. So whence comes this finding? The Courts continue to distinguish between natural/native born and naturalized, the former by virtue of birth on soil, the latter from statute.

  241. avatar
    Paper June 6, 2013 at 1:19 am #

    It’s not quite novel, in that even if it was a mistake or just plain wrong, which we do not know to be so, it existed for at least five years between 1790 and 1795.

    We already have ascertained that common law is not the final word regarding those born abroad to existing citizens. Perhaps it is not a certain, clear argument to speak of such a definition of natural-born citizen, but neither is limiting it to only those born here. We don’t have certainty either way from our founding days.

    WKA also does not preclude such a view, that those naturalized at birth may be considered natural-born. It says there are only two sources; it does not say they cannot overlap. Other courts discuss that, that the two sources are the same save for eligibility to the presidency, but not WKA.

    WKA is the keystone for those born here, no question, but perhaps you over-rely upon it?

    As for later and current cases, I am endeavoring to discuss some of those. I am reviewing your latest responses about Marguet-Pillado. I am at the moment unconvinced by your reading. At first and second glance, your gloss of it seems inaccurate. I understand your points; they just seem in error. But now for sleep…

    NBC:
    Again I wonder why people are unwilling to talk about US v Wong Kim Ark…. The implications are clear…

    The novel idea that those who are naturalized at birth are also natural born has no foundation in common law. So whence comes this finding? The Courts continue to distinguish between natural/native born and naturalized, the former by virtue of birth on soil, the latter from statute.

  242. avatar
    nbc June 6, 2013 at 2:14 am #

    Paper: We already have ascertained that common law is not the final word regarding those born abroad to existing citizens.

    True, there is naturalization. The courts have been quite clear on this.

    Paper: WKA also does not preclude such a view, that those naturalized at birth may be considered natural-born. It says there are only two sources; it does not say they cannot overlap.

    I am not so sure

    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.

    Under the circumstances defined in the Constitution… The court already showed that this only included jus soli, and that the children born abroad to US children needed a naturalization statute. So the by birth is limited to “on soil”. While of course, Congress can naturalize children to become citizens by birth, they are not under common law, natural born citizens.

    As to the question if Congress can broaden or narrow a constitutionally defined term, I believe that the argument is that it cannot. So naturalization statutes cannot be used to override the meaning of a constitutional term. As defined in the Constitution ‘natural born’ meant born on soil and jus sanguinis was never covered and thus not part of our constitutional grant of such citizenship.

    Thus there remains only one pathway, somehow you need to argue that the Congress can extend the class of people covered by a constitutional term. In other words, you have to explain how Congress could not suddenly declare all aliens naturalized in the United States to be natural born citizens by declaring them to be retroactively so.

    That would be an uphill battle to explain what the limits are to Congress…

    As to Marguet-Pillado, I think you may want to focus on Tuan Anh Nguyen v. INS, 533 US 53 – Supreme Court 2001 which is far more interesting as to the arguments made about citizens by birth.

    And as is observed in FAM 7, declaring someone to be a natural born citizen does not necessarily makes him one for constitutional purposes and the presidential eligibility.

    The court muddies the waters by considering children born out of wedlock to be naturalized since they are made citizens by birth retroactively, observing how the INA defines naturalization to be something that happens after birth (the court may want to look into the committee records to realize that the definition was merely for purpose of the statute, which distinguished between”Nationality at Birth and Collective Naturalization” and “Nationality Through Naturalization”

    So in other words, citizens at birth suddenly becomes muddied by the Courts, unless we realize that the court was unwilling to apply the same standard of review to those so born and others not born out of wedlock. The court has been digging an ever deepening hole of rulings that are almost impossible to reconcile logically.

    So given the recent court findings, I may need to have to tone down my arguments. While it is clear that an appeal to common law is not going to make children born abroad natural born citizens, the concept of at/by birth may be used to allow Congress to naturalize such children as citizens. But are they also natural born for the purpose of the eligibility of the presidency. That will remain an issue that has yet to be explored in any meaningful manner in the courts.

    Things become even more puzzling since under 8 USC 1409, children so born out of wedlock to citizen mothers become citizens at birth, and those so born to citizen fathers, only after some elements are met, and then they are, according to the court made a citizen by birth retroactively.

    The courts are starting to act quite irrationally when it comes to citizenship, first rogers v bellei, now 8 USC 1409, or at last part of it.

    Of course, that is not where it all ends. Nationality Through Naturalization includes the possibility that a child becomes a citizen at birth.

    This will take some time for me to digest 🙂

  243. avatar
    nbc June 6, 2013 at 2:34 am #

    On review, we find that the legislative history supports the Service’s position. It is well settled that there are two sources of United States citizenship, birth and naturalization. See Miller v. Albright , 523 U.S. 420, 422 (1998) (citing United States v. Wong Kim Ark , 169 U.S. 649, 702-03 (1898)). The bill, as originally introduced, amended the citizenship at birth provision at section 301 of the Act, as opposed to the naturalization provisions at sections 320 and 321 of the Act. Under these provisions, foreign-born children adopted by United States citizens would have derived United States citizenship automatically, retroactive to the date of birth. Both the Departments of Justice and State objected to the bill as originally drafted because it confused the fundamental distinction between acquisition of citizenship at birth and through naturalization. See H.R. Rep. No.N 106-852, at 5, 9-13. In response to the Administration’s concerns, the Committee modified the bill to amend the naturalization provisions and grant automatic citizenship, retroactive to the date that the statutory requirements are met.

    Funny how they quote from WKA and still claim that citizenship at birth by statute is not naturalization… But it is also interesting that Congress considered to naturalize such adopted child retroactively to the time of birth. Clearly, Congress believed that it has the power to do so.

  244. avatar
    Keith June 6, 2013 at 3:49 am #

    NBC: Again I wonder why people are unwilling to talk about US v Wong Kim Ark….

    Again, because WKA was about jus soli, not jus sanguinis.

    You object to points raised in Robinson v Bowen on the grounds that it wasn’t a precedent setting decision, even though is was specifically about jus sanguinis.

    WKA was not about jus sanguinis, and the comments that touch on it are dicta, not precedent.

    You can’t have it both ways. If you want to rely on WKA for your argument, you have to accept Robinson too. And they conflict, which means that you have to look elsewhere to split the difference. That’s why no one is interested in discussing WKA’s relevance to a jus sanguinis argument.

    Neither case is final on the topic, but at least Robinson is ON topic.

  245. avatar
    nbc June 6, 2013 at 5:02 am #

    Keith: Again, because WKA was about jus soli, not jus sanguinis.

    Did you not read the case? The comments I quoted are essential since the appellants had claimed that it was jus sanguinis which was the common law rule, following Vattel. The court found that on the contrary, jus sanguinis had never been part of the common law, and that children born abroad to US citizens required explicit naturalization statutes.

    You cannot ignore the issue by claiming it to be dicta as it addresses the main issue raised in opposition.

    As to Robinson, we have a statement that accepts what both sides had already accepted for the purpose of the motion for preliminary injunction. The Court also knows that any such ruling for that purpose does not even have precedential value for the case itself.

    So why focus on Robinsons which has limited relevance and ignore the court which looked at the issues raised in US v WKA.

    Let me ask you: Have you read the lower court’s findings? Have you read the various briefs that were filed by the appellants and appellee?

    Do you know why the court had to address the issue about jus sanguinis? Do you know why it researched the relevance of jus sanguinis on the common law?

    I know, it’s 50 pages or more, and whenever I read it, I find something new so I cannot blame you for not having read the whole ruling but I have provided, I believe, enough references for you to study.

    I do understand your position about ‘born citizen’ however, as I have shown in quite some detail, US v WKA does not support such a finding. Of course, you could also have read the dissent and realized what the ruling was about: Not only was WKA found to be natural born but under the majority ruling, children born abroad to US citizens could not be eligible to the office of the President.

    Oh, they understood very well…

    Natural in Natural born means that it requires no statutes or laws. As everyone knows, children born on US soil, need no laws or statutes to be considered citizens and for this reason they are natural born. Alien born children of US citizens, were it not for a statute, would not even be citizens and the naturalization statute merely grants them citizenship at the time of their birth. Not to be confused with ‘by birth’

    Let me help you

    The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

    and

    Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.

    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.

    Citizenship by birth is established by birth under the circumstances defined in the Constitution which are limited to those born on soil and subject to our jurisdiction and needs no naturalization…

    Natural born… 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.

    Only by being naturalized. But then they are not citizens by birth. At best they are citizens at birth. If they were truly citizens by birth, there would not be a need for naturalization statutes, it would be natural but as we all know, it isn’t.

    And no I do not have to accept the clear dicta in a ruling on a motion for preliminary injunction as binding on anything, as it is not even binding on the case when brought to trial. Of course, the judge dismissed the case based on lack of standing and out with it went the hope that the issue would be heard on the merits.

    And of course, the judge merely had to decide if Robinson’s hypothesis had a chance of success, since both parties agreed that birth abroad to citizen parents would grant natural born citizenship. So no controversy there.

    I do understand however why you would want to ignore US v Wong Kim Ark…But merely calling it a jus soli case, ignores the history of the case and the arguments raised in the briefs.

    Let me know if you need a link to them. They are quite enjoyable and Mario found out the hard way, that they also showed how the opponents of WKA were arguing jus sanguinis and Vattel and how their arguments were fully rejected by both courts.

    Let me help you here

    He maintains that the doctrine of international law as to citizenship exists in the United States, and not that of the common law; that the citizenship clauseof the fourteenth amendment is in consonance with the international rule, and should be so interpreted; and that, therefore, birth within the United States does not confer the right of citizenship. His views have been repeated and elaborated in his brief with much reasoning and plausibility.

    Despite all this, the court rejected the proposition. It’s quite an insightful ruling.

  246. avatar
    Paper June 6, 2013 at 8:16 am #

    I was going to get there, or rather, it is on my list. But I am not here trying to make a case. I am here looking into a topic and often simply responding to some of your specific points.

    As such, I think you have not adequately addressed United States v. Marguet-Pillado. For the moment, I will just log that as an example of a legal authority, rightly or wrongly, declaring those individuals born as citizens abroad to be natural-born.

    But I have a life, and there is only so much I can pursue at any given moment.

    nbc: As to Marguet-Pillado, I think you may want to focus on Tuan Anh Nguyen v. INS, 533 US 53 – Supreme Court 2001 which is far more interesting as to the arguments made about citizens by birth.

  247. avatar
    ballantine June 6, 2013 at 9:29 am #

    Paper:
    I was going to get there, or rather, it is on my list.But I am not here trying to make a case.I am here looking into a topic and often simply responding to some of your specific points.

    As such, I think you have not adequately addressed United States v. Marguet-Pillado.For the moment, I will just log that as an example of a legal authority, rightly or wrongly, declaring those individuals born as citizens abroad to be natural-born.

    But I have a life, and there is only so much I can pursue at any given moment.

    Sure, any case that supports you is helpful authority. However, I wouldn’t get carried away with Marguet-Pillado. If I remember, the court cited no authority and made no explanation as to how such assertion comported with supreme court precedent. Remember, a person” born outside the United States to a biologically-related United States citizen parent” isn’t even a citizen, much less a natural born citizen, without an act of Congress. Such is settled law at the Supreme Court level. An assertion without explanation is of very limited usefulness for courts from other jurisdictions.

  248. avatar
    Paper June 6, 2013 at 9:33 am #

    I would agree that Congress cannot broaden or narrow a constitutional term. Again, however, I will note that that limit is beside the point. I think it is a failing argument, because it only matters if you have already won the argument. If you haven’t already won, it doesn’t matter.

    You say as defined in the Constitution, but it precisely is not defined in the Constitution. You are making an argument that jus sanguinis for those born abroad was never covered (a separate matter from jus sanguinis re those born here). But if, in the beginning, it is uncertain that such citizens were included in the term natural-born citizen, it also is uncertain that they were excluded.

    If the definition of natural-born citizen includes all those born as citizens per statute, then Congress is not broadening or narrowing any constitutional term, because the term already includes that scope. They would be changing the scope of who is a natural-born citizen at any given moment in time, but not the definition, not the constitutional term, because that would include their ability to do just that.

    If the definition does not include such citizens, then sure, Congress doesn’t get to add them in just because it feels like it. It would then need a constitutional amendment.

    We, however, also can note that for over two hundred years, Congress has indeed changed the scope of who is a citizen at birth. In the process, they may or may not have changed who is born a natural-born citizen, but, more than once, they definitely have changed who could be born a citizen.

    So the upshot of such a “scandalous” possibility is simply that if the definition of natural-born citizen in Article II includes such citizens, Congress would only have the additional authority to change the scope of who may be eligible for the presidency. Arguably, they already have greater authority than that!

    But yes, if the term does not include such a scope, then it does not include such a scope. If it does include such scope, however, your point falls by the wayside.

    I will note that the term includes the word “born,” and I certainly am not arguing that Congress can declare anyone it wants to be natural-born. Could it technically do so? Well, if it can, that question isn’t primarily about natural-born citizenship as a term. If the term were amended out so that any citizen of adequate age and residence could be president, you would still have that question, just phrased differently about whether or not they can make *anyone* of any nature a citizen at birth. That is a separate question, and such concerns would seem to exist with or without the term natural-born citizen. If it is a concern, it is a concern regardless. I myself think the line is clear about retroactive, or let me say I would hope that that would be a line, but if you are worried about that, you can be worried about that without the term.

    If it is an uphill battle, it already is an uphill battle. Forget about retroactive. Could Congress prospectively declare anyone born, say, in Russia, a natural-born citizen, or just a “mere” citizen at birth, regardless of their parentage? I mean, if they could avoid being laughed out and voted out of office as a result. Could they? That’s a question regardless of whether or not natural-born citizenship includes those born as citizens abroad.

    nbc: As to the question if Congress can broaden or narrow a constitutionally defined term, I believe that the argument is that it cannot. So naturalization statutes cannot be used to override the meaning of a constitutional term. As defined in the Constitution ‘natural born’ meant born on soil and jus sanguinis was never covered and thus not part of our constitutional grant of such citizenship.

    Thus there remains only one pathway, somehow you need to argue that the Congress can extend the class of people covered by a constitutional term. In other words, you have to explain how Congress could not suddenly declare all aliens naturalized in the United States to be natural born citizens by declaring them to be retroactively so.

    That would be an uphill battle to explain what the limits are to Congress…

  249. avatar
    ballantine June 6, 2013 at 9:33 am #

    Keith:

    You can’t have it both ways. If you want to rely on WKA for your argument, you have to accept Robinson too. And they conflict, which means that you have to look elsewhere to split the difference. That’s why no one is interested in discussing WKA’s relevance to a jus sanguinis argument.

    Neither case is final on the topic, but at least Robinson is ON topic.

    Your being silly. You can’t compare the seminal Supreme Court citizenship case in our history with a district court deciding a preliminary injunction which, by definition, is not reaching the merits. Wong Kim Ark did set our precedent for jus sanguinis and has been followed by the court ever since. It simply didn’t answer whether someone naturalized at birth by statute or treaty could be natural born.

  250. avatar
    ballantine June 6, 2013 at 9:51 am #

    Paper:

    But if, in the beginning, it is uncertain that such citizens were included in the term natural-born citizen, it also is uncertain that they were excluded.

    That is a perfectly reasonable argument and I imagine a court in light of uncertainy would resolve such uncertainty in favor of eligilbity. However, such conclusion raises all sorts of questions on how that squares with prior court precedents and what power Congress actually has. If Congress can make the foreign born either natural born citizens or naturalized citizens, wouldn’t it be expected to make such distinction? And if it can make natural born citizens, why would such be limited to children of citizens?

    We all understand the politics of this question makes it a special case where the normal rules of interpretation may not apply. However, to the normal question of what the phrase was understood to mean in the founding period, one simply cannot say it was understood to mean a “citizen at birth” as simply no one said that is what it meant. We can speculate on why no one talked about the foreign born, what their view of English law was or what might have been meant by the 1790 and 1795 acts. However, there is no actual evidence that any authority of signifigance thought anyone who was a citizen at birth was “natural born.” In the normal state of things, such would be fatal to the argument. However, here it probably makes sense to resolve any ambiguity in favor of eligibility.

  251. avatar
    Benji Franklin June 6, 2013 at 11:41 am #

    ballantine: However, here it probably makes sense to resolve any ambiguity in favor of eligibility.

    The power of this simple statement applied to the issue of Presidential eligibility is deceptively over-shadowed when it appears here in the 5th year fog of so many thousands of posted emotional, political, and often ignorance-based assertions and hate-distracted wishful-thinking about what real or imagined aspects of law should ultimately be determinant for deciding Obama’s eligibility on the one hand, or any candidate’s eligibility theoretically.

    You are a practicing lawyer in the midst of most of us who are more often misled observers of the practice of law as it is fictionalized on television. There, dramatic impact focuses on some case-overturning discovery of an obscure contractual clause or a forgotten old law. On TV, high drama results from the specter of some nice person losing their family home because they didn’t have their dog groomed often enough, and so forth.

    In a case like that, lawyers, (correct me if I’m wrong here) would expect the home to almost certainly stay in that owner’s possession because most courts would respect the fairness represented by old legal sayings such as, “The Law abhors forfeiture.”

    When you say, “…here it probably makes sense to resolve any ambiguity in favor of eligibility”, Birthers probably assume you are just arbitrarily saying that to favor Obama, and don’t imagine that your suggestion would be such a likely outcome in a court of law.

    My analysis of this particular issue, in determining only the citizenship requirement for Article 2 eligibility, how any residual ambiguity left in defining Natural Born Citizen, should be objectively resolved most fairly, go like this:

    The question pits the Constitutionally unstated, controversial, postulated right of every citizen to collectively have whatever claimed improved national loyalty a President might have, as the definition of Natural Born Citizen is assumed to be more exclusive (the term’s status-changing Birther position), against the postulated right of each otherwise qualified citizen, to, if elected, hold the office of President of the United States in conformance with the less exclusive status quo interpretation of the definition which enabled Obama’s election to begin with.

    The Birther NBC interpreting position if enforced would, they argue hypothetically, satisfy the right of all citizens collectively to uncertainly benefit from some theoretically more-loyal president, based ONLY on a more restrictively defined set of birth circumstances.

    The opposing (staus quo) NBC interpreting position if continued, would collectively guarantee the ACTUAL, (not just hypothetical) continuing individual right of every citizen judged eligible under the ambiguous status quo definition, to run for and hold the office of President.

    I believe your simple statement, Ballantine, implies that the judiciary, trying to arrive at an equitable resolution of the ambiguity still existing for the term NBC, would be much more likely to say that providing for only a Constitutionally unspecified controversially and theoretically more loyal President, was not grounds for forfeiting the practical EXISTING actual rights of so many otherwise qualified American citizens, to hold the office of President.

    Do you agree with any of my interpretation of your statement and this issue?

  252. avatar
    Benji Franklin June 6, 2013 at 11:20 pm #

    Ballantine,

    I meant to add to my previous posting, that Birthers essentially deny that any ambiguity remains in the term, Natural Born Citizen; witness their assertion that the interpretation they give it is “obviously” correct, and renders opposing interpretations akin to treason.

  253. avatar
    Keith June 7, 2013 at 2:21 am #

    ballantine: Wong Kim Ark did set our precedent for jus sanguinis and has been followed by the court ever since.

    No it didn’t.

    It reiterated ‘jus soli’, and confirmed that Congress authority to grant or refuse citizenship to foreigners did not trump the 14th Amendment when it came to persons born on in the US.

    The only thing WKA said about ‘jus sanguinis’ citizenship was that some one born in the USA, as was Wong, did not derive citizenship via ‘jus sanguinis’, but via ‘jus soli’.

    It did not, except in dicta, say that ‘jus sanguinis’ citizens were not natural born, it said persons born on the soil were not ‘jus sanguinis’. It only said that ‘jus sanguinis did not apply to WKA; he did not derive his citizenship through a blood relationship, but through a soil relationship. Neither side argued anything other than Wong was born in California; neither side made any argument that WKA derived his citizenship via ‘blood ties’.

    The Government’s argument was that WKA was not a citizen at all, because his parents were not and could not become citizens. The Court found that for someone born on American soil, parentage didn’t matter; ‘jus sanguinis’ is not an issue for someone born on American soil. There was no decision to be made in WKA about someone born overseas claiming citizenship via blood relationship; WKA has NOTHING to say about such persons. Robinson, while not a ‘precedent’ is at least on topic, WKA is not.

    Wong Kim Ark is seminal because it was the test case to prove that the 14th Amendment did exactly what it was meant to do: reverse the travesty of the Dred Scott decision. The 14th Amendment removed any question of ‘jus sanguinis’ being applied to persons born on American soil, and WKA confirmed that, that is all. It did not set any precedent about foreign born persons or the nature of their citizenship.

  254. avatar
    nbc June 7, 2013 at 3:26 am #

    Keith: It reiterated ‘jus soli’, and confirmed that Congress authority to grant or refuse citizenship to foreigners did not trump the 14th Amendment when it came to persons born on in the US.

    The only thing WKA said about ‘jus sanguinis’ citizenship was that some one born in the USA, as was Wong, did not derive citizenship via ‘jus sanguinis’, but via ‘jus soli’

    You may have missed the part where they address how children born abroad to citizen parents were not considered to be part of the common law and that they derived their citizenship through statute.

    You still seem to be unfamiliar with the ruling and why the court looked at those born abroad to citizen parents.

    And Ballantine is right, the courts have indeed quoted Wong Kim Ark on this topic.

    Let me give you an overview

    In the lead opinion, joined by the Chief Justice, Justice Stevens reasserted the vitality of the Court’s century-old summary of the law applying to acquisition of citizenship at birth:

    There are “two sources of citizenship, and two only: birth and naturalization.” 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.” Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.

    Miller, 118 S.Ct. at 1432 (citations omitted) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702-03, 18 S.Ct. 456, 477-78, 42 L.Ed. 890 (1898)).

    Source: In the lead opinion, joined by the Chief Justice, Justice Stevens reasserted the vitality of the Court’s century-old summary of the law applying to acquisition of citizenship at birth:

    There are “two sources of citizenship, and two only: birth and naturalization.” 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.” Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.

    Miller, 118 S.Ct. at 1432 (citations omitted) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702-03, 18 S.Ct. 456, 477-78, 42 L.Ed. 890 (1898)).

    Second, naturalization and derivative grants of citizenship by birth are both conferred by statutes, and are at root both naturalization proceedings. See Miller v. Albright, 523 U.S. 420, ___, ___, 118 S.Ct. 1428, 1432, 1446, 140 L.Ed.2d 575 (1998) (plurality opinion); Wong Kam Wo v. Dulles, 236 F.2d 622, 625 (9th Cir.1956)

    Source: Friend v. Reno, 172 F. 3d 638 – Court of Appeals, 9th Circuit 1999

    and the really funny one, which denies that it is dictum

    In United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890, it was held that 1993 was enacted in the exercise of the power vested in Congress by the constitution “To establish an uniform Rule of Naturalization”.[4] The court said:

    “* * * A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in 625*625 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.”[5]

    Appellee argues that the quoted language from United States v. Wong Kim Ark is dictum. We do not agree. The question before the court was whether Chinese racial extraction prevented a person born in the United States from becoming a citizen by birth. It was necessary for the court to distinguish between citizenship by birth and citizenship by naturalization. The quoted language was pertinent to that inquiry and a part of the rationale of the decision.

    Source: Wong Kam Wo v. Dulles, 236 F. 2d 622 – Court of Appeals, 9th Circuit 1956

    What a little research can do for one’s arguments…

    You should really learn to listen to Ballantine… He knows his stuff.

  255. avatar
    nbc June 7, 2013 at 3:36 am #

    Keith: The Government’s argument was that WKA was not a citizen at all, because his parents were not and could not become citizens. The Court found that for someone born on American soil, parentage didn’t matter; ‘jus sanguinis’ is not an issue for someone born on American soil.

    You may have missed the briefs filed by the parties and the lower court ruling. The issue was that the appellants had argued that the law of nations, jus sanguinis had replaced common law.
    The court had to address this claim…

    Sorry… It’s perhaps a less well known part of US v WKA…

  256. avatar
    nbc June 7, 2013 at 3:39 am #

    Paper: I was going to get there, or rather, it is on my list. But I am not here trying to make a case. I am here looking into a topic and often simply responding to some of your specific points.

    Join the club 🙂

  257. avatar
    nbc June 7, 2013 at 3:48 am #

    The very learned and useful opinion of Mr. Justice Gray, speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, — 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;

    Source: Weedin v. Chin Bow, 274 US 657 – Supreme Court 1927

    Never doubt a Ballantine 🙂

  258. avatar
    nbc June 7, 2013 at 4:03 am #

    n Wong Kim Ark, supra, Mr. Justice Gray, speaking of the provisions of the Act of 1802, said:

    “But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent Comm. 52, 53; Binney, Alienigenæ, 20, 25; 2 Am.Law Reg. 203, 205. Mr. Binney’s paper, as he states in his preface, was printed by him in the hope that congress might supply this defect in our law.” 169 U.S. at page 673, 18 S.Ct. at page 466.

    In Weedin v. Chin Bow, Chief Justice Taft said:

    “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.” 274 U.S. at page 663, 47 S.Ct. at page 774.

    Source: D’alessio v. Lehman, 183 F. Supp. 345 – Dist. Court, ND Ohio 1960

  259. avatar
    nbc June 7, 2013 at 4:09 am #

    Keith: On the other hand, the non-binding Congressional resolution from 2007, that named McCain as a National Born Citizen set a precedent in Common Law that directly addresses ‘jus sanguinis’ in exactly that way. That precedent is, of course, not immutable just as Common Law is not immutable, it can be overridden by a specific statute.

    PS: A legislative non binding resolution does not make common law…. But it is irrelevant, the meaning of the term natural born cannot be changed by mere statute. And while common law can be overridden by statute, again this has no relevance to the meaning of the term natural born which was to be found in how the term was used in common law. The court was looking for an understanding of what the Founders had meant when they used the term.

    But as I and others have shown, jus sanguinis has always been statutory and thus involves naturalization. The courts have been extremely clear and consistent on that topic.

  260. avatar
    nbc June 7, 2013 at 4:11 am #

    Keith: Common Law is ‘the way things are’, without a statute controlling it. As soon as a statute encodes the effect of the Common Law, then it isn’t Common Law anymore. Courts can redefine or add to Common Law. So can Congress, as in the McCain resolution.

    I see your confusion. The term natural born is not defined by how common law may define it not, but rather by how the term was used at the time of the Founders.

    It’s an easy confusion. Congress can indeed say whatever it wants, but as the Supreme Court has observed various times, that does not make it constitutionally valid.

    Your understanding of what congress did though, does not really match what I believe actually happened.

    It was not even a statute, it was a non binding resolution btw. Just to make sure you understand its legally speaking, meaningless status…

  261. avatar
    nbc June 7, 2013 at 4:14 am #

    So Keith, for something you claim did not set any precedent with regard to the nature of citizenship of children born abroad to US citizen parents, I can find an aweful lot of citations that suggest otherwise… What am I missing?

    PS: Google search provides with an excellent interface to find these citing cases.

  262. avatar
    ballantine June 7, 2013 at 7:50 am #

    Keith: No it didn’t.

    It reiterated ‘jus soli’, and confirmed that Congress authority to grant or refuse citizenship to foreigners did not trump the 14th Amendment when it came to persons born on in the US.

    The only thing WKA said about ‘jus sanguinis’ citizenship was that some one born in the USA, as was Wong, did not derive citizenship via ‘jus sanguinis’, but via ‘jus soli’.

    Good grief. It’s like talking to a wall. You simply have no understanding of what you are talking about. WKA did clearly state that anyone born outside the US is an alien unless made so by statute. One can argue whether it is dicta or not. However, if it’s dicta, it’s judicial dicta, which from the Supreme Court is treated the same as holding as the issue was argued by the dissent and the Court dealt with its substantively. What you appear incapable of understanding is that the Court has followed such dicta ever since. The Miller v, Allbright line of cases begin with the premise that the foreign born cannot be a citizen without statute. Such is not dicta, it is the necessary premise of the examination of whether the discrimination in our naturalization statutes is constitutional. If such people didn’t need statute there would be no need to examine the statutes. Seriously, try researching how many courts after WKA have repeated the same point before repeating the same nonsense over and over. It is about as settled law as one can get.

  263. avatar
    Keith June 7, 2013 at 8:12 am #

    nbc: There are “two sources of citizenship, and two only: birth and naturalization.” 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.” Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.

    I understand that fully, and have never said anything even close to contradicting it. What I have said is that when Congress passes a law that says that ‘blood ties’ meeting specific circumstances makes one a citizen at/of the instant of birth and that the naturalization process is not applicable, then that person is a born citizen who has obtained that citizenship naturally, as opposed to one who obtains citizenship later in life through the process that make them ‘like natural’ but not natural born – naturalization.

    The point is NOT that Congress has provided for them via statute; it is that Congress has provided for them without recourse to naturalization.

    nbc: It was not even a statute, it was a non binding resolution btw. Just to make sure you understand its legally speaking, meaningless status…

    Again I understand this fully. It is a declaration that that particular Congress considered that McCain’s ‘jus sanguinis’ ties (specifically cited in the resolution) included him in the set of ‘natural born citizens’. The motivation for that resolution is precisely because of the discussion we are having here, there is an honest academic debate on the topic. The 2008 Congress took sides in that debate. It is not binding on any other Congress or Court. It is however, a powerful precedent for future considerations.

    You seem to be making the same mistake about WKA that Vattelists make about Minor. WKA did not have to exhaustively define all possible paths to NBC any more than Minor did. In Minor, the court only had to determine if Ms. Minor was to be considered a Citizen before going on to the rest of the arguments, and found one absolute, unimpeachable set of circumstances that undeniably, under anyones definition demonstrated that she was indeed a citizen. The court mentioned she had two citizen parents, but there was no need, the 14th Amendment was in force for almost 10 years and all they had to do was cite that she was born in the USA (under the jurisdiction). The Minor Court was unwilling to do that, for whatever reason; it was left to the WKA Court to finish the discussion of ‘jus soli’.

    Similarly in WKA, the court only had to decide whether Wong was a citizen or not. If Wong claimed Citizenship via blood relationship, then that claim must fail, because his parents were not permitted to become citizens and he had no such blood relationship to US Citizens. If he was a citizen, it could only be via ‘jus soli’ as defined in the Constitution. Again, the WKA Court did not have to make any finding about whether or not a citizenship established via Congressional statute was or was not Natural Born Citizenship, it didn’t matter to Wong’s case. That is why it is dicta and not finding. In the Court’s ruling, everything about foreign born citizens, beyond the uncontested fact that Wong was not foreign born, can be removed without changing the findings in any way what-so-ever, in exactly the same way that the Courts mention of 2 citizen parents can be removed from Minor.

    The discussion of ‘jus sanguinis’ has not been finished, as demonstrated by the present thread. It won’t be finished until some SOS knocks back Ted Cruz, and he takes them to court. But that won’t happen because any SOS that did that would be vilified, and every court in the land would point at the McCain campaign and the Congressional resolution. Non-binding or not, it is a powerful and pointed statement of the majority opinion, not only of the Congress in 2008, but the American academic, legal, and body politic of the country. It is today’s reality despite the academic debate. It is today’s Common Law, the way it is.

  264. avatar
    Ballantine June 7, 2013 at 8:35 am #

    Benji Franklin:
    Ballantine,

    I meant to add to my previous posting, that Birthers essentially deny that any ambiguity remains in the term, Natural Born Citizen; witness their assertion that the interpretation they give it is “obviously” correct, and renders opposing interpretations akin to treason.

    That is true, but they are mostly ignorant as their is almost no authority to support their position. Thus, they are dismissed out of hand. They would have a batter chance aruing there was ambiguity.

    It is possible if the court thought the term ambiguous that they would balance the equities you describe and perhaps seek a resolution they think equitable, however, in the end, if they were unsure, I suspect they would find a way to defer to the democratic process.

    I think separation of powers is a delicate concept. The Court knows it is seen as the un-democratic branch and knows if it oversteps its bounds it can create a backlash or even constitutional crisis. Accordingly, the court is usually hesitant to over-rule the democratic process without being on strong grounds. You don’t think the current GOP would go nuclear if a liberal supreme court over-ruled a popular piece of GOP legislation on shaky grounds. They would call for impeachment or removing the court’s jurisdiction. Interfering with, or over-ruling, a presidential election on shaky grounds could cause a constitutional crisis. Such surely could have happened with Bush v. Gore and probably would have if the sides were reversed.

    I don’t think there is anything wrong with deferring to the democratic process if you really don’t know what a term means. Conservative scholars have long maintained that we ignore the “privileges and immunities” clause since we really don’t know what it was intended to mean and we generally have. Interferrring with the democratic process based on a propvision no one can agree as to what it means might challenge the legitimacy of Court. I think the Court thinks about such things.