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Why the disconnect on “natural born citizen”?

There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?

Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.

I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):

Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.

It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.

Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.

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34 Responses to Why the disconnect on “natural born citizen”?

  1. avatar
    bgansel9 June 3, 2014 at 3:30 pm #

    “The fact that the birthers always lose in court should inform us on which site has the stronger argument.” – yes and ruling against over 100 years of well settled law is called Judicial Activism and it will be a cold day in Hell before any such new legal meaning will become accepted as established law.

  2. avatar
    JPotter June 3, 2014 at 3:41 pm #

    bgansel9: Judicial Activism

    Have you heard of the new hot wingnut legal term, “judicial deference”? As in, when SCOTUS rolled over and failed to strike down Obamacare, it failed to do its duty (y’know, be “judicially active”), and instead engaged in “judicial deference”.

    The convenience of cognitive dissonance!

  3. avatar
    dunstvangeet June 3, 2014 at 3:50 pm #

    The fact is that the birthers came up with this argument under the following scenario…

    They started with the conclusion that Obama is ineligible, and then looked for the argument that supported that conclusion. The birthers, in reality, never actually knew the two parent rule until they came up with it to specifically declare Obama is ineligible. If Obama had been born on a Friday, they would have tried to find a rule that all people born on a Friday were not really Natural Born Citizens.

  4. avatar
    Paper June 3, 2014 at 4:39 pm #

    >If Obama had been born on a Friday, they would have tried to find a rule that all people born on a Friday were not really Natural Born Citizens.<

    As it turns out, you are not a natural born citizen if you are born on a Friday, which fact has absolutely nothing to do with President Obama actually having been born on a Friday.

    There are a few standard ways around this problem, the most accepted in recent years being when the mother is watching an episode of The Twilight Zone while giving birth. You see, Fridays in America exist in a parallel dimension and watching that particular television show counteracts the spatial shift, bringing the mother back into alignment with American soil. Since the Twenty-first century began, however, any show on the SyFy channel has been deemed acceptable.

    The day of President Obama's birth:

    http://en.m.wikipedia.org/wiki/August_1961

  5. avatar
    ASK Esq June 3, 2014 at 4:45 pm #

    I think that the best aspect of their argument that clearly shows how little they actually believe it to be the correct point of view is how many of the birthers claim that they were taught this rule in school. Of course this is nonsense, for several reasons. First, growing up we were all taught that one of the great things about this country is that anyone born here could grow up to be President. Second is the utter lack of any textbook that contains the two-parent definition. But most importantly is the fact that the alleged two-parent rule didn’t appear until the born in Kenya claim had proven to be ineffective. Once would think that, as it was common knowledge that President Obama’s father was not a citizen, if everyone knew that two citizen parents was required to make a child a natural born citizen, that would have been the first thing anybody would have mentioned about his eligibility. In fact, had it been something that everyone knew, then it wouldn’t have taken the rise of birtherism for it to have been discussed.

  6. avatar
    Atticus Finch June 3, 2014 at 4:53 pm #

    Apuzzo has a novel legal theory in which he believes that there exists a third type of citizenship he referred to as “naturalized at birth citizen”. This type of citizenship is different from those who are natural born citizens and those who are naturalized citizens. These “naturalized at birth” citizens are those who are born in the United States but whose parents are not United States Citizens. It is his theory that these “naturalized at birth” citizens were created by the 14th Amendment and as such can never be considered natural born citizens even though they are born in the United States. Apuzzo contends that prior to the ratification of the 14th Amendment that children born in the United States of non-citizen parents were they themselves aliens.

    The problem with Apuzzo’s “naturalized at birth citizen” is that the courts have never recognized this third type of citizenship. On the contrary, the courts have always recognized two types of citizenships, native/natural born citizens and naturalized citizens. “There are only two types of citizens: those who are native born and those who are naturalized.” Schaufus v. Attorney General of United States 45 F.Supp. 61,66 (D. MD 1942); “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.” Zimmer v. Acheson, 191 F. 2d 209, 211 (10th Cir. 1951)

    Moreover, courts prior to the ratification of the 14th Amendment in 1868 had recognized that there is no legal distinction between those persons born in the United States to those born to citizen parents and non-citizen parents.

    In 1844, a judge in New York noted that a child born in New York of aliens parents during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. He held that she was a citizen of the United States by noting:

    “The term citizen, was used in the Constitution as a word, the meaning of which was already established and well understood. And the Constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. ” No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President,” The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. SUPPOSE A PERSON SHOULD BE ELECTED PRESIDENT WHO WAS NATIVE BORN, BUT OF ALIEN PARENTS, COULD THERE BE ANY REASONABLE DOUBT THAT HE WAS ELIGIBLE UNDER THE CONSTITUTION? I THINK NOT. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen. Court of Chancery, State of New York, Lynch v. Clarke, 1 Sand. Ch. 583, 656 (1844) (emphasis added)

    Justice Curtis in his dissent in the Dred Scott decision observed: “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.” Dred Scott v. Sandford, 60 US 393 576 (1857) (Curtis, J., dissenting)

    In 1858, a court in New York reaffirmed the citizenship status of those born of non-citizen parents “It is further contended, on the part of the defendant, that the plaintiff himself is an alien. He was born in Ballston Spa, in this state, while his father was a resident of Canada, and returned to his father’s domicil, with his mother, within a year after his birth. . . . In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a NATIVE BORN CITIZEN, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question.” Munro v. Merchant, 26 Barb. (N.Y.) 383. 400-401, (1858)

    In the debates to pass the Civil Rights Act of 1866, Senators noted that children born in the United States to non-naturalized parents (i.e. foreign nationals) were citizens of the United States.

    Senator Trumbull observed: “I understand that under naturalization laws children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it at the present time.” Cong. Globe, 39th Cong., 1st Sess. 498 (January 30, 1866)

    Senator Trumbull further added “There has been no time since the foundation of the government when an American Congress could by possibly have enacted such a law, or with propriety have made such a declaration. What is this declaration? All persons born in this country are citizens.” Cong. Globe, 39th Cong., 1st Sess. 570 (February 1, 1866)

    The executive departments of our government have repeatedly affirmed that children born of foreign parents are citizens.

    Mr. Marcy, Secretary of State, in 1854, in an instruction to Mr. Mason, United States Minister to France, said: “In reply to the inquiry which is made by you, . . . whether ‘the children of foreign parents born in the United States, but brought to the country to which the father is a subject, and continuing to reside within the jurisdiction of their fathers country, are entitled to protection as citizens of the United States,’ I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.” Mr. Marcy to Mr. Mason, June 6, 1854, MSS. Inst. France.

    Attorney General Black, in 1859, held that “a free white person born in this country of foreign parents is a citizen of the United States.” 9 Ops. Atty. Gen. 373.

    Attorney General Bates, in 1862, held that a child born in the United States of alien parents who have never been naturalized is, by the fact of birth, a native-born citizen of the United States, entitled to all the rights and privileges of citizenship. 10 Ops. Atty. Gen. 382.

    Noted legal scholar, William Rawle, wrote in 1829:

    “The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. William Rawle, A view of the Constitution of the United States (2nd ed. 1829) page 86

    As such, Apuzzo’s theory that children born in the United States prior to 14th Amendment to alien parents were considered aliens is not supported by case law, executive orders and legal scholars.

  7. avatar
    Dr. Conspiracy June 3, 2014 at 6:11 pm #

    If such a citizenship exists, it would be someone made a citizen by an act of Congress (under its naturalization powers). John McCain might fall into that category, but no one born in the United States who is a citizen under the 14th Amendment.

    Atticus Finch: Apuzzo has a novel legal theory in which he believes that there exists a third type of citizenship he referred to as “naturalized at birth citizen”.

  8. avatar
    Notorial Dissent June 3, 2014 at 6:17 pm #

    dunstvangeet has a very valid, and terribly obvious point here. Birferdom started from a position/conclusion of ineligibility and then made ever attempt to work backwards to find validation. I know most of them have never actually really read the constitution, and only skimmed the Cliff’s notes version they are using, and I doubt if any of them had ever heard of Vatel before all this started. I have to admit I was only peripherally aware of him, and to no detail at all. It is obvious, that they are also using a very abbreviated Cliff’s Notes version of it as well. They manufactured the two parent has to be born in the US rule out of whole cloth, and would have equally adopted the can’t have been born on a Friday rule if it suited their purposes. In other words they were looking for an excuse, any excuse, no matter how fabricated or tenuous, and that is where we still are today. No wiser and no further along, 200+ and counting failures on a false assumption. Intelligence, if nothing else is considered learning from your mistakes, guess where that leaves the entirety of Birferdom?

    I will go with ASK Esq to a point. I quite agree that the plaint that they learned the two parent rule in school is bogus in the main, but on the flip side, I would be willing to bet that the majority of the crowd making the claim, cannot really remember what it was they learned in school, i.e. civics/history/etc., so to them it is a valid statement in that they believe or want to believe it, it just doesn’t happen to be true. I would go further and say that most, if not all, haven’t clue one as to what the constitution really is, what it actually says, or what it means, it is literally terra incognita to them, as they continue to prove on an almost daily basis. I hate making generalizations, but if you can find anyone in Birferdom that this doesn’t apply to, I wish you’d point them out, as I have obviously missed this singular event.

    Again, observation shows that what a logical, rational person would do in the given situation is almost diametrically opposed to what a birfer will automatically do. If it require careful thought and discrimination of competing information, in other words, it ain’t a gonna happen!!

    As Atticus Finch points out, and Apuzzo’s fantasies notwithstanding, the Constitution, in very plain straightforward language recognizes only and exactly TWO types of citizenship, those born here and those naturalized. I can actually see where he comes up with the idea, but it fails in that neither English Common Law, or the later established American law supports or even acknowledges it. That has never changed from our inception, and the 14th only codified it and solidified it. Apuzzo doesn’t like that and refuses to acknowledge over two hundred years of law and precedent, guess tha tis why he’s had so many “victories” in court.

  9. avatar
    bgansel9 June 3, 2014 at 6:27 pm #

    Atticus Finch: Apuzzo’s theory that children born in the United States prior to 14th Amendment to alien parents were considered aliens is not supported by case law, executive orders and legal scholars.

    I would ask Super Mario if he could point to this third type of citizenship in the U.S. Code? It just isn’t there.

  10. avatar
    Atticus Finch June 3, 2014 at 6:34 pm #

    Apuzzo has argued that the laws of citizenship in the United States is governed by the law of nations (international law) when he stated “There is little doubt that citizenship properly falls under the law of nations and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations”

    However, contrary to Apuzzo’s bald assertion, courts have long recognized that the laws of citizenship in the United States has always been considered within the providence of municipal law and not international law.

    “[E]ach government had a right to decide for itself who should be admitted or deemed citizens.” Inglis v. Trustees of Sailor’s Snug Harbour in City of New York, 28 US 99, 162 (1830)

    “Citizenship depends, however, entirely on municipal law and is not regulated by international law. Tomasicchio v. Acheson, 98 F. Supp. 166 , 169 (DC 1951)

    Our concept of citizenship was inherited from England and, accordingly, was based on the principle that rights conferred by naturalization were subject to the conditions reserved in the grant. See Calvin’s Case, 7 Co. Rep. 1 a, 77 Eng. Rep. 377 (1608). Schneider v. Rusk, 377 US 163, 170 (1964)

    “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Ruggiero v. Compania Peruana De Vapores “Inca Capac Yupanqui”, 639 F.2d 872, 875 (2d Cir.1981)

    “Citizenship is established by the laws of each individual country. Those laws are generally classified into two types: jus soli, in which citizenship is based on the place of birth, and jus sanguinis, in which citizenship is based on the citizenship of one (or both) parents.” Wauchope v. US Dept. of State, 756 F. Supp. 1277, 1283 (N.D. Cal 1991), affirmed , Wauchope v. US Dept. of State, 985 F. 2d 1407 (9th Cir. 1993)

    “It is an inherent right in each independent nation to determine for itself, and in accordance with its own laws, what persons may become its citizens and upon what terms. Naturalization is effected therefore, only in accordance with the municipal law of the country to which the foreign born person goes; that is, it is not dependent, in any way, upon the laws of the applicant’s former country.”
    “Aliens under Federal Laws of the United States, 3 Illinois Law Review 494 (1908)

  11. avatar
    Atticus Finch June 3, 2014 at 6:44 pm #

    I love the following quote from Apuzzo “You have neither historical nor legal support for your crank legal theory that the Founders and Framers defined a “natural born Citizen” under English common law and you will go to all lengths to just make stuff up to support your position, including giving us your mangled reading of Wong Kim Ark.”

    Case law that supports the “crank legal theory” that the Framers defined “natural born citizen” under English common law of Jus Soli rather than Vattel’s civil law of jus sanguinis.

    “[W]e find that the Constitution has recognized the general principle of public law that allegiance and citizenship depend on the place of birth. Scott v. Standford, 60 U.S. 393, 581 (1857) (Curtis, J, dissenting)

    Justice Taft writing for the court in Weedin v. Chin Bow, 274 US 657 (1927)observed:

    “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,..” Id at 660

    Justice Taft further noted:

    The majority in that case [Wong Kim Ark], as already said, held that the fundamental principle of the common law with regard to nationality was birth within the allegiance of the Government and that one born in the United States, although of a race and of a parentage denied naturalization under the law, was nevertheless under the language of the Fourteenth Amendment a citizen of the United States by virtue of the jus soli embodied in the Amendment. Id at 670

    As such, the doctrine of Jus Soli as explained by Justice Taft is a common law rule. . In re Reid, 6 F. Supp. 800, 802 (D. Or. 1934)

  12. avatar
    gorefan June 3, 2014 at 7:04 pm #

    “… there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States.”

    Which is why you can get a Judge Samuel Roberts saying

    “The children of aliens, born within the U. S., are aliens; they do not acquire citizenship by birth; but remain in the condition of their parents” A Digest of select British Statutes, comprising those which … appear to be …in force in Pennsylvania

    http://books.google.com/books?id=AKdXAAAAcAAJ&printsec=frontcover&dq=editions:N9U4VKBHNxoC&hl=en&sa=X&ei=ylCOU6XqNouUyATSqYHoDA&ved=0CCgQuwUwAA#v=onepage&q=%22children%20of%20aliens%22&f=false

  13. avatar
    Dr. Conspiracy June 3, 2014 at 7:05 pm #

    I do not remember learning in civics class what I took to be president, but I do remember what it took to buy a vote in Washington County, Alabama. That knowledge makes me wonder about the new rule proposed in South Carolina to lift the ban on election day liquor sales.

    Notorial Dissent: I quite agree that the plaint that they learned the two parent rule in school is bogus in the main,

  14. avatar
    Dr. Conspiracy June 3, 2014 at 7:14 pm #

    He was confused–just look at him citing an Act from 1897 on the next page (he was writing in 1817).

    gorefan: Which is why you can get a Judge Samuel Roberts saying

  15. avatar
    gorefan June 3, 2014 at 7:44 pm #

    Dr. Conspiracy:
    He was confused–just look at him citing an Act from 1897 on the next page (he was writing in 1817).

    In the second edition (1847) that was corrected to 1807.

    http://books.google.com/books?id=r6JXAAAAcAAJ&pg=PA25&dq=Pennsylvania+4+St.+Laws.+Sm.+Ed.+362&hl=en&sa=X&ei=fF2OU8rBNZPdoASU14KICA&ved=0CD4Q6AEwAQ#v=onepage&q=Pennsylvania%204%20St.%20Laws.%20Sm.%20Ed.%20362&f=false

    I agree that this is just his opinion and that he cites no statutes or other authorities to back up his claim. But it still exists. And IMO not surprising that there was not unanimity of thought on the question of citizenship.

    BTW, apparently Roberts’ Digest was a highly regard work and cited on several occasions by the Pennsylvania Supreme Court

  16. avatar
    Reality Check June 3, 2014 at 7:52 pm #

    Let’s not forget Ballantine’s fine collection of references, which was first posted as a comment on an article right here.

    BOOKS ON GOOGLE BOOKS THAT DEFINE “NATURAL BORN CITIZEN”

  17. avatar
    Dr. Conspiracy June 3, 2014 at 9:59 pm #

    Several of his comments are indexed on the featured comments page:

    http://www.obamaconspiracy.org/favorites/

    Reality Check: Let’s not forget Ballantine’s fine collection of references, which was first posted as a comment on an article right here.

  18. avatar
    JPotter June 3, 2014 at 10:17 pm #

    Dr. Conspiracy: That knowledge makes me wonder about the new rule proposed in South Carolina to lift the ban on election day liquor sales.

    When a well-crafted solution makes a problem disappear, people begin to see the solution as a nuisance. Short memories, you know. The small irritation at hand is ever more bothersome than a massive obstacle cleared long ago.

  19. avatar
    Keith June 3, 2014 at 11:22 pm #

    ASK Esq: I think that the best aspect of their argument that clearly shows how little they actually believe it to be the correct point of view is how many of the birthers claim that they were taught this rule in school. Of course this is nonsense, for several reasons. First, growing up we were all taught that one of the great things about this country is that anyone born here could grow up to be President.

    And I, for one, specifically remember studying USA v Wong in High School ‘American Problems’ class. I am pretty darn sure it was mentioned in the previous year’s ‘American History’ class too when we were discussing the Chinese Exclusion Acts.

    IF, and that is a BIG IF, anyone actually was taught the 2 citizen parent nonsense, it would have been in an uncertified home schooling environment. There is absolutely no way that hogwash was taught in an honestly certified school.

  20. avatar
    Keith June 3, 2014 at 11:38 pm #

    Notorial Dissent: I know most of them have never actually really read the constitution, and only skimmed the Cliff’s notes version they are using

    I got into a ‘discussion’ with a guy a couple of years ago who claimed to carry a pocket copy of the Constitution around with him 24/7. It was clear from the discussion that he had never read that little book. He swore till he was blue in the face (metaphorically of course, this was a keyboard discussion) that the Constitution said ‘X’ and when I pointed out that the Constitution actually said ‘not X’, he just couldn’t handle it – because then he had to go read the darn thing to prove me wrong and when he couldn’t I imagine his head exploded. I can’t remember what exactly ‘X” was now; I don’t think it had to do with eligibility, but I think the ‘discussion’ began within that context.

    I was able to point him to the Cornell Law School LLI annotated Constitution and he seemed to be appreciative. He may have even learned something, so I was happy with a small success.

  21. avatar
    Rickey June 3, 2014 at 11:57 pm #

    Keith:

    IF, and that is a BIG IF, anyone actually was taught the 2 citizen parent nonsense, it would have been in an uncertified home schooling environment. There is absolutely no way that hogwash was taught in an honestly certified school.

    The birthers haven’t even found a home schooling textbook which teaches the two citizen parents nonsense. As I have mentioned before, I own a copy of a home schooling textbook on the Constitution which says that a natural born citizen and a native born citizen are one and the same. Of course, that book was written before a black man with a funny name was elected President.

  22. avatar
    Slartibartfast June 4, 2014 at 2:09 am #

    This is a pretty typical bait and switch by Mario. Establish “naturalized at birth” citizens and then throw “14th Amendment citizens” into that group without any support. This is why he will never acknowledge that all natural born citizens under his “definition” from Minor are 14th Amendment citizens as well or that the 14th merely codified existing law. Either invalidates his theory and he knows it.

    Dr. Conspiracy:
    If such a citizenship exists, it would be someone made a citizen by an act of Congress (under its naturalization powers). John McCain might fall into that category, but no one born in the United States who is a citizen under the 14th Amendment.

  23. avatar
    Lupin June 4, 2014 at 2:56 am #

    I’ve found that many intelligent, educated Americans believe that somehow one loses one’s US citizenship if one becomes a citizen of another country, by marriage for example.

    I don;ý know when this notion originated, but I found it quite prevalent.

    I was present at a swearing ceremony for newly naturalized citizens in Los Angeles once, and the officers in charge of handing over the certificates had to tell the Mexicans (& others) to NOT bring & surrender their Mexican passports to them.

  24. avatar
    Thinker June 4, 2014 at 3:58 am #

    From 1907 to 1922, women who were US citizens lost their citizenship if they married a man who was not a citizen. I doubt that this is the source of the current misunderstanding about this that you have seen because this disgraceful piece of US history is not very well known. I didn’t know it until I started learning about citizenship through my interest in birtherism.

    Lupin:
    I’ve found that many intelligent, educated Americans believe that somehow one loses one’s US citizenship if one becomes a citizen of another country, by marriage for example.

  25. avatar
    gorefan June 4, 2014 at 9:09 am #

    Thinker:
    From 1907 to 1922, women who were US citizens lost their citizenship if they married a man who was not a citizen.

    Do you or any know if the SCOTUS ever decide any cases on constitutionality of these acts of Congress? The reason I’m asking is that one of the Birther claims is that Congress cannot pass legislation to make an NBC because NBCism is natural law not positive law. It would seem logical that they could also not pass legislation that would take away one’s NBCness as that would also be positive law overriding natural law.

    Horses produce baby horses – Congress cannot pass a law whereby horses produce baby cattle, neither can Congress pass a law that makes a horse not a horse.

  26. avatar
    Thinker June 4, 2014 at 9:23 am #

    There was a SCOTUS case about it, but I just know what wikipedia tells me. I’m sure there are people here who who could give a much more informed analysis. It was MacKenzie v. Hare in 1915. SCOTUS upheld the provision on the grounds that it wasn’t arbitrary. I guess fairness wasn’t an issue for them back them. I’m pretty sure that the “horses producing baby cows” thing didn’t come into play. LOL. The law that stripped citizenship from women who married foreigners was known as the Expatriation Act of 1907. The provision was repealed by the Cable Act of 1922.

    gorefan: Do you or any know if the SCOTUS ever decide any cases on constitutionality of these acts of Congress?The reason I’m asking is that one of the Birther claims is that Congress cannot pass legislation to make an NBC because NBCism is natural law not positive law.It would seem logical that they could also not pass legislation that would take away one’s NBCness as that would also be positive law overriding natural law.

    Horses produce baby horses – Congress cannot pass a law whereby horses produce baby cattle, neither can Congress pass a law that makes a horse not a horse.

  27. avatar
    JPotter June 4, 2014 at 9:41 am #

    Lupin: I’ve found that many intelligent, educated Americans believe that somehow one loses one’s US citizenship if one becomes a citizen of another country, by marriage for example.

    Making assumption based on symbolism and emotion, rather than thinking along the lines of practical realities.

    As I usually point out, it’s hard to imagine a country allowing other countries to dictate to it who/is isn’t a citizen. That is in effect what the memes you’re referring to imply.

  28. avatar
    JPotter June 4, 2014 at 9:44 am #

    gorefan: The reason I’m asking is that one of the Birther claims is that Congress cannot pass legislation to make an NBC because NBCism is natural law not positive law. It would seem logical that they could also not pass legislation that would take away one’s NBCness as that would also be positive law overriding natural law.

    Horses produce baby horses – Congress cannot pass a law whereby horses produce baby cattle, neither can Congress pass a law that makes a horse not a horse.

    Simplistically confusing actual, biological ‘natural law’ with the poli-sci concept ‘natural law’ … hey, they both have ‘natural’ in the name, must be the same.

    Quite an ironic assumption for an English speaker to make LOL

  29. avatar
    Paper June 4, 2014 at 1:04 pm #

    One notes that this was before women could vote, and that the elimination of this law (and the ground upon which the SCOTUS decision stood) was one of the consequences of the changes implicit to the Nineteenth Amendment (1920).

    Thinker:
    There was a SCOTUS case about it, but I just know what wikipedia tells me. I’m sure there are people here who who could give a much more informed analysis. It was MacKenzie v. Hare in 1915. SCOTUS upheld the provision on the grounds that it wasn’t arbitrary. I guess fairness wasn’t an issue for them back them. I’m pretty sure that the “horses producing baby cows” thing didn’t come into play. LOL. The law that stripped citizenship from women who married foreigners was known as the Expatriation Act of 1907. The provision was repealed by the Cable Act of 1922.

  30. avatar
    Paper June 4, 2014 at 1:17 pm #

    However, a Constitutional amendment removing the natural born citizenship requirement would demonstrate how such logic is more irrelevant and meaningless than it already is.

    gorefan: The reason I’m asking is that one of the Birther claims is that Congress cannot pass legislation to make an NBC because NBCism is natural law not positive law.It would seem logical that they could also not pass legislation that would take away one’s NBCness as that would also be positive law overriding natural law.

  31. avatar
    Matt June 4, 2014 at 8:26 pm #

    Atticus Finch: The problem with Apuzzo’s “naturalized at birth citizen” is that the courts have never recognized this third type of citizenship. On the contrary, the courts have always recognized two types of citizenships, native/natural born citizens and naturalized citizens.

    I am no birther, and I also believe Apuzzo is wrong, but what you wrote in the portion I emphasized in bold text is not supported by Schaufus and Zimmer. You wrote native/natural born but the text of those decisions just says native born.

    If the only two options are native-born and naturalized, then several classes of foreign-born citizens at birth (see 8 USC 1401 subsections (c), (d), (g) and probably (e)) are excluded from natural-born citizenship. This would include Ted Cruz and probably John McCain.

    Or are you suggesting that a child born abroad and meeting one of those subsections is somehow still “native born”?

    I submit that only children born on US soil (regardless of parental citizenship, but not children of diplomats or invading armies) are natural-born; while a foreign-born child who acquires citizenship at birth under 8 USC 1401 is naturalized at birth, but does not meet the English common law definition of natural born citizenship as the Founding Fathers apparently understood it.

  32. avatar
    Keith (not logged on) June 4, 2014 at 9:25 pm #

    Matt: I submit that only children born on US soil (regardless of parental citizenship, but not children of diplomats or invading armies) are natural-born; while a foreign-born child who acquires citizenship at birth under 8 USC 1401 is naturalized at birth, but does not meet the English common law definition of natural born citizenship as the Founding Fathers apparently understood it.

    You have an arguable point. However, ‘automatically naturalised at birth’ is still naturalised and does not violate the two kinds of citizen rule.

    This issue of foreign born citizens at birth is a technical gray area with valid academic arguments on both sides. Congress essentially established the final position when they declared McCain to be NBC. While it can be overruled in the future, it will be very difficult politically to do so.

  33. avatar
    Matt June 4, 2014 at 10:03 pm #

    Keith (not logged on): However, ‘automatically naturalised at birth’ is still naturalised and does not violate the two kinds of citizen rule.

    Yes, you are right. I stand corrected, with apologies to Atticus.

  34. avatar
    Rickey June 4, 2014 at 10:10 pm #

    Matt:

    I submit that only children born on US soil (regardless of parental citizenship, but not children of diplomats or invading armies) are natural-born; while a foreign-born child who acquires citizenship at birth under 8 USC 1401 is naturalized at birth, but does not meet the English common law definition of natural born citizenship as the Founding Fathers apparently understood it.

    I doubt that the Founding Fathers ever considered the possibility of a John McCain scenario. The Founders were skeptical about even having a standing Army, and it is unlikely that the idea of a standing Army being stationed in a foreign country ever occurred to them.

    Furthermore, Black’s defines “naturalized citizen” as “One who, being an alien by birth, has received citizenship under the laws of the state or nation.” Was McCain “an alien by birth?” I don’t believe that he was, seeing as how he was born on a Navy base in Panama and was subject to the jurisdiction of the United States.

    Cruz, of course, is a different case.

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