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Archive | May, 2015

Natural born citizen, a Dicey proposition: the blogger who came in from the cold

I expended quite a bit of research effort, and spent quite bit of time in thought to satisfy in my own mind on what the term “natural born citizen” in the US Constitution means. I eventually decided that anyone who was born a US Citizen is a natural born citizen.

There is wide agreement in the legal community that the term “natural born citizen” in the Constitution derived from the term “natural born subject” found in English Common Law. The US Supreme Court in the case of US v. Wong made it abundantly clear that the conditions of the English Common Law made natural born citizens in America too, and had done since the beginning. Where the difficulty comes is that a number of academic authorities say that the “definition” of natural born subject in English Common Law is someone born in the sovereign territory of the monarch of England, and as such excludes anyone born a British subject elsewhere (specifically the children of English subjects). English statutes call such expatriate’s children natural born subjects (and have done since before the American Revolution); however, this is statutory law and not common law. (A few authorities say that these statutes are so ancient as to be included in the Common Law, and a few say that the American Constitution is based both on the English Common Law and applicable English statutes).

All of this ground has been plowed many times on this web site. Most authorities would say that “natural born subject” was defined by Lord Coke in Calvin’s Case, and perhaps use a citation like this from Lord Chief Justice Cockburn (Cockburn on Nationality) for definition (emphasis added):

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.1

I eventually arrived at an uncomfortable argument. I said that “natural born subject” was not defined by Calvin’s Case as someone born in the King’s domains, but rather that decision by Lord Coke provided only a sufficient condition based on the common law for a natural born subject—no more defining it than Minor v. Happersett defines “natural born citizen” for Americans. I argued that a simple dictionary definition of “natural born” from the Oxford English Dictionary cleared up the matter both for common usage and Common Law usage. I’ll repeat that short definition here:

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

I published my argument in “Farmer v. Framer” in 2012. What troubled me about that argument is that I had not seen anything like it from authority, and it sounded awfully like the kind of inexpert “independent research” that has gotten so many birthers in trouble, dictionary and all. While there is plenty of support for my conclusion (e.g. the Congressional Research Service report “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement”), affirming the conclusion doesn’t prove the validity of the argument.

Today, re-plowing old ground, I found my authority, and surprisingly it was right there in the Supreme Court decision in US v. Wong:

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below [underscored]:

“‘British subject’ means any person who owes permanent allegiance to the Crown. ‘Permanent’ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes ‘temporary’ allegiance to the Crown. Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.”

The exceptions afterwards mentioned by Mr. Dicey are only these two:

“1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person’s birth is in hostile occupation, is an alien.”

“2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.”

I realize that Dicey says “law” rather than “common law,” but  in context, Dicey is defining terms at the start of his chapter on British Nationality, and then goes on to provide rules using the terms and the statutes supporting his rules. Here are the rules that follow (not quoted by the Supreme Court):


Rule 22. Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions, is a natural-born British subject. …

Rule 23. – Subject to the exception hereinafter mentioned, any person

(1) whose father is born within the British dominions, or

(2) whose paternal grandfather is born within the British dominions,

is (though not born within the British dominions) a natural-born British subject.

Provided that no person is under this Rule a natural-born British subject whose father is not at the time of such person’s birth a natural-born British subject.

I think it is vitally important to note that when defining “natural born citizen” Dicey uses the word “means,” and when expressing who qualifies to meet the definition, he uses “is.” Let me summarize:

  • “Natural born subject” means a subject at birth (chapter head definition)
  • Someone who is born a subject under the common law is a natural born subject (Rule 22)
  • Someone who is born a subject under statutory law is a natural born subject (Rule 23)

In the commentary (not cited here), Dicey affirms that the common law does not grant the status of natural born subject to those born outside the British dominions, but he does not employ it as a definition.

I have an authority, and I can now rest easier with assurance that I am not a crackpot.2

1Even here where Cockburn says that nationality by descent is not part of the common law, he does not say that “natural born subject” is limited to the common law conditions that make someone born in the realm a natural born subject.

2What is perhaps more troubling about my argument is that what I said in this article is essentially what I said in my article “Crackpotting natural born citizen” two years ago, this month. 😳

Birth certificates for immigrant children: the identity trap

Despite the wishes of some in the United States, children born in the United States become citizens at birth, even though their parents are not citizens, and even though their parents are not legal residents of the United States. That’s the law.

imageWhy is there a problem getting birth certificates for these US citizens in Texas? It comes from the fact that not just anyone can apply for a birth certificate. It has to be the person themself or a parent. The parent has to provide ID, and there’s the rub. The Texas Department of Health has begun enforcing a 2008 rule that says a Mexico consular-issued identification is not acceptable. Aaron Nelson of the San Antonio Express-News writes:

A citizen may request his or her own birth certificate with a driver’s license, or a Social Security card and recent utility bill, for example, but to acquire those documents often calls for a birth certificate.

Like with all such controversies, there is a lawsuit. Read the complaint. Here’s the State’s position.

Justice Department takes interest in birther investigation

The Associated Press article, “Feds seek records on Arpaio’s investigation involving judge,” isn’t about President Obama’s birth certificate, but it lands squarely in the middle of the Dennis Montgomery, Mike Zullo, Joe Arpaio can of birther worms opened up first by Stephen Lemons of the Phoenix New Times in June of 2014, and now to much wider audience by Judge G. Murray Snow in questioning last month during the Melendres v. Arpaio contempt hearing.

According to the AP report, the U.S. Department of Justice is seeking documents given by Montgomery (often called by the press, “the Seattle scammer”) to Arpaio’s team, documents allegedly taken from the CIA that show some kind of conspiracy between the DOJ and Judge Snow (and much more).

Sheriff Arpaio has conceded that the Montgomery material is “junk,” and I suspect the DOJ will do no more than confirm a hoax perpetrated by Montgomery. The request was revealed in a court filing today (29 May 2015) in ECF 1134:

AMENDED NOTICE re: Document Request by the U.S. Department of Justice. Earlier this week, the Court-appointed Monitor received a request from the United States Department of Justice to copy the documents and hard drives containing materials that Dennis Montgomery delivered to the Maricopa County Sherriff’s Office and that were allegedly harvested from the Central Intelligence Agency. The Department of Justice has requested to copy these hard drives on Tuesday, June 2, 2015 under the supervision of a court-appointed security officer. Should any Party wish to be heard regarding this request or procedure, it should immediately notify the Court with its comments or objections and the reasons therefore. Signed by Judge G Murray Snow on 5/29/2015 (KFZ)

The AP reports:

The sheriff’s office says its lawyer will file an objection to an order by Snow for lawyers to provide input on the documents.

Mike Zullo: Following the money

The transcript of Day 3 in the Melendres v. Arpaio contempt hearing is now available, courtesy of the Friends of the Fogbow. It contains a somewhat confusing exchange between Judge G. Murray Snow and Sheriff Arpaio relating to the Cold Case Posse’s involvement with confidential informant Dennis Montgomery in Seattle, and in particular with money.

Q. And is zoo — did you say Zulu? Zullo. Is he a posse member?
A. Yes.
Q. And did you pay funds from Maricopa County for Mr. Zullo to
go to the Washington area?
A. Yes.
Q. And then I assume you paid Anglin and Mackiewicz their travel costs?
A. We don’t pay for Zullo, but —
Q. But you paid Mackiewicz and Anglin.
A. Yes.

Q. And so Mr. Montgomery proposed to — who did he propose to at the MCSO that the DOJ was inappropriately — I assume it was of interest to you if they were wiretapping my phone, among others?
A. Yes. And mine, too.
Q. And yours, too. And so were you conducting this investigation?
A. No.
Q. Who was in your department?
A. This is Zullo and I think Mackiewicz.
Q. What rank does Mackiewicz have?
A. He’s a detective.
Q. Who did he report to about this investigation?
A. I think he and Zullo worked together.
Q. And who did they report to?
A. And Jerry Sheridan.
Q. They reported to Deputy Chief Sheridan?
A. At one time, but let me just say that the information we’re — we’ve been getting is the informer’s not very viable.
Q. Well, I understand that, I think the article itself says, that you became aware after a considerable amount of time that the reporter was giving you junk. Is that fair to say?
A. Yes.
Q. Or the informer was giving you junk?
A. Yes
Q. How much money did you spend on the informant?
A. I don’t recall.
Q. How much money did you spend on the investigation?
A. I don’t have the figures.

Q. Did you keep any of the materials that Mr. Montgomery has
provided you?
A. I don’t have them.
Q. Who does?
A. I believe Zullo does.
Q. And is he subject to your control —
A. Yes.
Q. — as a member of your posse?
A. Yes.

THE COURT: I just wanted to reiterate some of the
things I said during my questioning of you to make sure
everybody was clear. I was told over lunch that posse funds
like Mr. Zullo — Mr. Zullo’s the head of one of your posses.
THE COURT: Is it the Cold Case posse?
THE COURT: I was told that you also have various sources of funding within the MCSO, like the Cold Case posse has its own funds. Is that possible?
THE COURT: Okay. Do you know what the possible funding sources were for the investigations that were related to the Seattle operation? When I say "operation," I mean the one involving Mr. Montgomery and the investigations with Brian Mackiewicz and Mr. Anglin.
THE WITNESS: I’m not sure if it was our RICO, which is drugs seized — I mean moneys seized from drug peddlers, or our general funds.
THE COURT: Were there other possible funds that might be involved that fund various like, for example, the Cold Case posse?
THE WITNESS: They’re independent 501(c) —
THE COURT: 501(c)(3).
THE WITNESS: — and they raise their own money.
THE COURT: All right. And you don’t have any control over those funds?

OK, you got that?