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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):

(A) ACQUISITION OF BRITISH NATIONALITY AT BIRTH (NATURAL-BORN BRITISH SUBJECTS).

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. 😳

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

  1. avatar
    Pete May 31, 2015 at 9:57 pm #

    Good article.

    I would, however, like to add one very small point.

    As a general rule of thumb, if you worry about whether you might be a crank, you’re almost certainly not a crank.

  2. avatar
    Paul May 31, 2015 at 11:18 pm #

    Have to agree with Pete. I have always asserted that if a citizen was not naturalized, then he/she was natural BORN. There is no third type of citizen.

    But it’s great to see you take so much care to ensure that what you BELIEVE is actually backed up by legal opinion.

  3. avatar
    Lupin June 1, 2015 at 3:02 am #

    “anyone who was born a [US] Citizen is a natural born citizen.”

    Let’s remind everyone that this, too, is what Vattel says.

    Donofrio, Apuzzo, Kerchner and their ilk are incapable of finding a three (as opposed to two) tier of citizenship in Vattel.

  4. avatar
    Suranis June 1, 2015 at 3:30 am #

    I was reading an English version of Vattel while back (I’m Sorry, I don’t speak french!!) and I found several references to the fact that “the local regulations must be followed” which would indicate that even if Vattel did think that his rules were some form of Universal Law he said flat out that if local laws said something different to him you followed that. The fact that he gave an example of England as a place where it was different only reinforces that.

    Can you recommend a good English book on Vattels Ideas for a non lawyer, Lupin? I found I liked a lot of what Vattel had to say.

  5. avatar
    Lupin June 1, 2015 at 5:27 am #

    Suranis: Can you recommend a good English book on Vattels Ideas for a non lawyer, Lupin? I found I liked a lot of what Vattel had to say.

    I’m afraid everything I read on the subject of or about Vattel, his life & works, has always been in French; so I couldn’t recommend any book in English.

    Also, scholars and law students today (at least on my side of the pond) read Vattel if they are interested in the evolution of international law and public law; some of his other quainter or obsolete notions as not deemed that relevant; no one would care about Art 212 if it wasn’t for the birthers.

  6. avatar
    SvenMagnussen June 1, 2015 at 5:43 am #

    You’re conveniently ignoring SCOTUS opinion in Perkins v. Elg. The district court ruled Marie Elg, a native born person, was a natural born citizen of the United States. The appeals court affirmed. SCOTUS affirmed and modified the ruling to find Marie Elg was a natural born citizen in the United States.

    In Schneider v. Rusk, SCOTUS opined a natural born citizen stood upon the footing of the native born citizen. The natural born citizen status is a subset of the native born citizen status. All native born persons could be natural born citizens, but it is not likely. Otherwise, the Founders would have used the term native born US citizens as opposed to natural born citizens if they believed all native born citizens were natural born citizens.

    For example, Marie Elg was a native born person and US citizen and natural born citizen until her father renounced her US citizenship when she was minor living in Sweden. A renouncement is a request for the issuance of a CLN. A person who has renounced is entitled to US passport until a CLN is issued. A request for a US passport is considered to be a withdrawal of the US citizen’s request for the issuance of a CLN. In Elg’s case, the Secretary of State had to intervene on Ms. Elg’s behalf before the US would issue her a US passport at or near the time she reached the age of majority. Since the Secretary of State had to intervene before Ms. Elg would receive a US passport, it indicates a CLN was issued to Ms. Elg and the Secretary of State cancelled the CLN upon Ms. Elg’s request. At that time, only the Secretary of State or the President could cancel a previously issued CLN.

    In the end, SCOTUS ruled Marie Elg was a natural born citizen in the United States and not of the United States to indicate natural born citizenship status is not held in perpetuity after a person is born a citizen in the United States.

  7. avatar
    Suranis June 1, 2015 at 7:55 am #

    OK fair enough. Thanks anyway, Lupin.

  8. avatar
    Reality Check June 1, 2015 at 8:54 am #

    I have always thought that defining “natural born citizen” as anything other than “citizen at birth” is the simplest, cleanest definition and the only one that doesn’t lead to logical inconsistencies with established law.

    For example, we can toss out the “Donofrio” definition because it leads to a large class of non naturalized born citizens not recognized as existing anywhere in law or US legal history. Parentage only matters for children born on US soil when it affects jurisdiction. This class of natural born citizens was defined by common law until the adoption of the 14th Amendment.

    Children born abroad to one or two US citizen parents are citizens from birth by statute. Some have used the term “naturalized born citizen” to describe this class. There is no doubt that there is a legal distinction between this class and the natural born citizens under the 14th Amendment. For one the Supreme Court ruled in the 70s in Rogers v Bellei that what Congress gave they can take away under certain circumstances. The law in question was repealed shortly after that decision however.

    However, I don’t think any prior statute or court decision precludes those born abroad from also being considered natural born citizens. To rule otherwise a court would again have to create a class of born citizens that has heretofore not been clearly recognized. I would be surprised if any court is willing to go down that road based on nothing more than trying to read the minds of the people who wrote the words in 1787.

    Remember too that any decision would have to be based on a challenge to a candidate like Cruz where the burden of proof would be squarely on the challenger and not the challenged candidate. What matters in the end is not what a bunch of scholars think but who can actually run.

  9. avatar
    Dr. Conspiracy June 1, 2015 at 9:17 am #

    I think you are confused here. The Court said: “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.”

    You might be surprised to learn that one Oxford English Dictionary definition for “native” is the same as for “natural born”.

    SvenMagnussen: In Schneider v. Rusk, SCOTUS opined a natural born citizen stood upon the footing of the native born citizen.

  10. avatar
    Dr. Conspiracy June 1, 2015 at 9:21 am #

    The complication is deciding whether or not foreign-born citizens at birth are naturalized. In one sense they are because they are citizens by virtue of a statute passed by Congress under its authority to create a uniform rule of naturalization. In the other sense they are not because their status is not changed and naturalization generally means to change the status of someones nationality.

    I believe that it is important to keep this dual usage in mind when reading any court decision using the term, and be sure (if possible) which meaning the court is using.

    Paul: Have to agree with Pete. I have always asserted that if a citizen was not naturalized, then he/she was natural BORN. There is no third type of citizen.

  11. avatar
    SvenMagnussen June 1, 2015 at 10:22 am #

    Dr. Conspiracy:
    I think you are confused here. The Court said: “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.”

    You might be surprised to learn that one Oxford English Dictionary definition for “native” is the same as for “natural born”.

    In light of Schneider v. Rusk, I don’t think it’s unreasonable to conclude a natural born citizen is a subset of the native born citizen. Marie Elg is an example of native born citizen who was a natural born citizen throughout most, but not all, of her life.

    Perkins v. Elg also resolves the problem of determining whether or not a statutory US citizen at birth is a natural born citizen. Under Perkins v. Elg, the statutory U.S. citizen at birth is a natural born citizen while permanently residing in the United States and not a natural born citizen while permanently residing outside of the United States. That would make a statutory U.S. citizen at birth a superset of the native born citizen.

    A naturalized US citizen is an equal, co-extensive set of the native born citizen with one exception.

  12. avatar
    Dr. Conspiracy June 1, 2015 at 10:37 am #

    The Court did not say that.

    SvenMagnussen: Marie Elg is an example of native born citizen who was a natural born citizen throughout most, but not all, of her life.

  13. avatar
    HistorianDude June 1, 2015 at 10:54 am #

    Dr. Conspiracy: The complication is deciding whether or not foreign-born citizens at birth are naturalized. In one sense they are because they are citizens by virtue of a statute passed by Congress under its authority to create a uniform rule of naturalization. In the other sense they are not because their status is not changed and naturalization generally means to change the status of someones nationality.

    It is significant to note that Congress has defined “naturalization” as follows:

    8 U.S. Code § 1101 – Definitions (a) (23)The term “naturalization” means the conferring of nationality of a state upon a person after birth, by any means whatsoever.

    Given that it is explicitly enumerated in the Constitution that it is the responsibility of Congress “(t)o establish an uniform Rule of Naturalization,” it would appear to me that the definition of naturalization would be part of that responsibility.

  14. avatar
    HistorianDude June 1, 2015 at 11:08 am #

    SvenMagnussen: In light of Schneider v. Rusk, I don’t think it’s unreasonable to conclude a natural born citizen is a subset of the native born citizen.

    I disagree. I am confident that you have that exactly backwards. Native born is a subset of natural born, not the other way around.

    All native born citizens are natural born. But there are some natural born citizens who were not native born.

  15. avatar
    Reality Check June 1, 2015 at 11:08 am #

    From Schneider v Rusk

    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. [p166]

    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. 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.

    That paragraph pretty well kills Mario Apuzzo’s “14th Amendment citizen” nonsense doesn’t it?

  16. avatar
    Jim June 1, 2015 at 12:13 pm #

    Following Doc’s lead, I have done years of exhaustive research into the birther phenomenom and I believe I have finally stumbled onto the HIDDEN birther definition for natural-born Citizen. But before I could see their revelation, I had to prepare myself mentally to understand their philosophy and to prepare myself to think on their level…basically dumb myself down a hundred intelligence points. In order to properly prepare for this stupendous tasks I
    1) Misread SCOTUS findings and came to the opposite conclusion as the court. Especially important was locating quotes and taking them out of context to say something completely different.
    2) Made sure NOT to read de Vattel so I would not see all the anti-american things he advocated and only take a small mistranslated snippet that says something close to what I might think it says so long as it can be used to support my position.
    3) Mis-cited the Constitution whenever possible
    4) Made sure the most convoluted and long-winded answers were accepted over the simple and direct ones.
    5) Tossed away the Constitution and claim Hawaii has broken laws because birthers say so.
    6) Rewrote American history – this was tough, try to forget everything I know and dumb down to the birther view of our history…almost impossible.

    After years of study and hard work, I have finally come up with the birther definition of natural-born Citizen…

    “Anything that keeps the uppity n****r out of our White House”

    You’re welcome

  17. avatar
    Reality Check June 1, 2015 at 12:47 pm #

    Yesterday, I ran in to one of the most deceitful cases of quoting out of context ever by Birther ksdb (Joe Montgomery) over in the thread from Hell at Western Free Press.

    brygenon ksdb No, jurisdictional arguments do not count. They are nothing more than procedural obstacles that skeered judges could hide behind.
    Two Supreme Courts and one state appeals court have all noted that the Minor definition was exclusive. I’ve quoted this several times. After construing what it means to be born in the country subject to its jurisdiction per the 14th amendment, the court said:
    Minor v. Happersett: “The Constitution does not, in words, say who shall be natural-born citizens.”
    U.S. v. Wong Kim Ark: “In Minor v. Happersett, Chief Justice Waite, when construing,
    in behalf of the court, the very provision of the Fourteenth Amendment
    now in question, said: “The Constitution does not, in words, say who
    shall be natural-born citizens.”
    Ankeny v. Daniels: “In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that: ‘ The Constitution does not, in words, say who shall be natural-born citizens.'”
    And Wong Kim Ark even explained specifically how children of citizens were excluded from the birth clause of the 14th amendment:
    “all children born in the United States of citizens or subjects of
    foreign States were excluded from the operation of the first sentence of
    the Fourteenth Amendment is manifest from a unanimous judgment of the
    Court”

    http://www.westernfreepress.com/2015/03/05/ted-cruz-and-natural-born-citizenship-a-belated-reply-to-mario-apuzzo/

    That last part where he quoted from Wong Kim Ark didn’t look right to me so I checked the full quote from WKA:

    that neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),

    So the actual decision said the Court had previously held the opposite view from the one ksdb tried to claim the Court held. I think Joe has pulled this one before according to another commenter there.

  18. avatar
    Benji Franklin June 1, 2015 at 1:16 pm #

    SvenMagnussen: In light of Schneider v. Rusk, I don’t think it’s unreasonable to conclude a natural born citizen is a subset of the native born citizen.

    Ultimately, when disputes arise, the operative legal interpretation of the Constitution, of our statutes, and of the outcome of court cases is the province mostly of the judiciary, and to a lesser clearly defined extent, the Congress.

    It is THEIR decision about which interpretation is MOST reasonable that determines the OFFICIAL meaning of the statutes or parts of the Constitution that are disputed, not the unorthodox, personal, partisan opinion of a private citizen, who argues that from HIS private point of view ,HE thinks that HIS interpretation is , “not unreasonable.”

    The Framers knew disputes would arise about governance and what rules meant. They did not give private citizens the right to settle such cases and controversies. From your private point of view, YOU UNATHORITIVELY think that your conclusion is NOT unreasonable. But the, often authoritative, AND OFFICIAL consensus of the legal community, including virtually every elected official, is that your conclusion is at least, not the MOST reasonable one based on all the evidence, so you lose this argument. Besides, even you must realize, that your conclusion, even if it’s not unreasonable, is BY NO MEANS, necessary.

  19. avatar
    SvenMagnussen June 1, 2015 at 2:06 pm #

    HistorianDude: I disagree. I am confident that you have that exactly backwards. Native born is a subset of natural born, not the other way around.

    All native born citizens are natural born.But there are some natural born citizens who were not native born.

    U.S. citizen is clearly defined in the 14th Amendment, Section 1 and is called a universal set. A native born US citizen and a naturalized US citizen are subsets of the defined, universal set US citizen.

    A natural born citizen is an undefined set. A natural born citizen is an element in the subset native born citizen but not an element not an element in the naturalized US citizen subset. Clearly, all elements of the undefined natural born citizen set have all their elements in the universal set U.S. citizen. Consequently, the natural born citizen set is a superset of the native born US citizen set.

  20. avatar
    SvenMagnussen June 1, 2015 at 3:13 pm #

    Dr. Conspiracy:
    The Court did not say that.

    Here’s the Appeals Court ruling:

    “We are, therefore, of opinion that when in 1929, upon a full disclosure of all the facts set out herein, — as the bill declares was the case, — the State Department of the United States issued to appellee a passport to return to the United States as an American citizen, it acted properly and in accordance with the law. In our opinion appellee is a natural born American citizen whose right to all the privileges of citizenship, — whether or not, as far as concerns diplomatic protection, it be considered as suspended during her minority and sojourn in a foreign country, — was in full effect when on her majority she applied for and received her passport. We are, therefore, of opinion that she was properly admitted into this country and, as the lower court held, is entitled now to be free of molestation.”

    Ms. Elg would not have been issued a US passport after she reached her age of majority if she were not a US citizen. She was issued a US passport, so she was a US citizen when she left Sweden to return to the US.

    It would be unnecessary for the Appeals Court to opine on a suspension of diplomatic protection during her minority if she had not lost her US citizenship during her minority. Diplomatic protection is not suspended for US citizens in foreign countries. Even individuals who have renounced their US citizenship are entitled to diplomatic protection until a CLN is issued. There is no such thing as a suspension of diplomatic protection for a US citizen unless a CLN had been issued.

    In the SCOTUS opinion, CJ Hughes wrote, “In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since.”

    Intervention and instructions by the Secretary of State was necessary because only the President and the Sec of State could cancel a CLN at that time. If a CLN had not been issued to Elg during her minority, an executive level officer, such as the Ambassador or an Assistant Secretary of State had authority to intervene without involving the Sec or State. The Sec of State had to intervene on behalf of Ms. Elg because the CLN had to be cancelled before a US passport could be issued.

  21. avatar
    Dr. Conspiracy June 1, 2015 at 3:21 pm #

    The 14th Amendment does not describe the universal set of US citizens. The 14th Amendment only applies to citizens who are born or naturalized in the United States. Children born to US citizen parents abroad are neither born in the United States nor naturalized in the United States. See: Rogers v. Bellei, 401 U.S. 815 (1971).

    SvenMagnussen: U.S. citizen is clearly defined in the 14th Amendment, Section 1 and is called a universal set.

  22. avatar
    Dr. Conspiracy June 1, 2015 at 3:31 pm #

    If that (“’naturalization’ means the conferring of nationality of a state upon a person after birth”) is the definition of naturalization, and Congress only has the power of naturalization, under what authority does Congress declare someone a citizen at birth? They’ve certainly done it.

    HistorianDude: Given that it is explicitly enumerated in the Constitution that it is the responsibility of Congress “(t)o establish an uniform Rule of Naturalization,” it would appear to me that the definition of naturalization would be part of that responsibility.

  23. avatar
    Dr. Conspiracy June 1, 2015 at 3:39 pm #

    Nothing in that ruling remotely suggests that Elg was not a natural born citizen at any time. The question of the CLN, passport, and admission to the United States is purely an administrative and procedural question. The court did not say that Elg was not entitled to diplomatic protection at one particular time, but rather that that question didn’t matter as regards her citizenship.

    SvenMagnussen: Here’s the Appeals Court ruling:

  24. avatar
    ballantine June 1, 2015 at 3:44 pm #

    Dr. Conspiracy:
    If that (“’naturalization’ means the conferring of nationality of a state upon a person after birth”) is the definition of naturalization, and Congress only has the power of naturalization, under what authority does Congress declare someone a citizen at birth? They’ve certainly done it.

    I think the problem is that there has never been a clear definition of “naturalization.” Coke said that Calvin was naturalized by birth. Parliament gave persons the status of natural born subjects in naturalization acts as did the 1790 Congress. At the same time, English writers usually only called persons naturalized after birth “naturalized subjects” and such has often been the case in the US as well. For example, in Miller v. Allbright, Justice Stevens does not call a foreign born persons made a citizen at birth a “naturalized citizen.” I guess it has never really been that important to date for the court to define who was a naturalized citizen and what the power of Congress to make such determination.

  25. avatar
    Dave B. June 1, 2015 at 4:04 pm #

    Remind me again– who wrote that opinion?

    SvenMagnussen: You’re conveniently ignoring SCOTUS opinion in Perkins v. Elg. The district court ruled Marie Elg, a native born person, was a natural born citizen of the United States. The appeals court affirmed. SCOTUS affirmed and modified the ruling to find Marie Elg was a natural born citizen in the United States.

  26. avatar
    Dave B. June 1, 2015 at 4:15 pm #

    Here’s what Justice Douglass actually SAID:

    “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.
    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.”

    There’s no “natural born citizen status is a subset of the native born citizen status” there. That makes it rather PLAIN that native citizens ARE natural born citizens. Native born PERSONS who are not natural born CITIZENS fit into the exceptions regularly noted by the reality-based community on this blog.

    SvenMagnussen: In Schneider v. Rusk, SCOTUS opined a natural born citizen stood upon the footing of the native born citizen. The natural born citizen status is a subset of the native born citizen status. All native born persons could be natural born citizens, but it is not likely. Otherwise, the Founders would have used the term native born US citizens as opposed to natural born citizens if they believed all native born citizens were natural born citizens.

  27. avatar
    Dave B. June 1, 2015 at 4:18 pm #

    Whatever you’re reading, just imagine Lupin reading it to you in that very effective French accent we heard on RC’s show. That should do it.
    Every time I read a particularly stinging insult to a birther, I imagine Lupin delivering it like that and it’s WAY better.

    Suranis:
    OK fair enough. Thanks anyway, Lupin.

  28. avatar
    ballantine June 1, 2015 at 4:26 pm #

    SvenMagnussen: Schneider v. Rusk,

    Schneider v. Rusk doesn’t say it is a subset. You are trying to read that into it. The Court has said may times that a native born citizen is eligible to be President which means it is not a subset. No legal authority has ever said the a citizen by birth under the 14th Amendment is different that a natural born citizen. In fact, Wong Kim Ark says they mean the same thing. It is the whole point of the decision. Such is also what the framers of the Amendment said over and over. They were just restating pre-existing law making clear it is color blind. You seem to just make up your own law and repeat the same nonsense over and over no matter how many people show you that you are wrong which is why no one will pay attention to you.

  29. avatar
    Dave B. June 1, 2015 at 4:40 pm #

    There was EXACTLY such a thing as “suspension of diplomatic protection” under Sec. 6 of the Act of March 2, 1907 (34 Statutes at Large 1228). From the State Department’s Foreign Affairs Manual 7 FAM 1100 Appendix L, Retention Provisions:

    “The Act of March 2, 1907 – Residence and Protection:
    In 1907 Congress imposed requirements on U.S. citizens residing abroad who acquired citizenship under Section 1993 of the Revised Statutes (RS) of 1874 and who wished to avail themselves of the protection of the United States Government. A U.S. citizen who did not comply with this law did not lose U.S. citizenship but lost the right to diplomatic protection. Section 6 of the Act of March 2, 1907, (34 Statutes at Large 1228) stated that:
    “All children born outside the limits of the United States who are citizens thereof in accordance with the provisions of [Section 1993 R.S.] and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States, and shall be further required to take an oath of allegiance to the United States upon attaining their majority.””

    http://www.state.gov/documents/organization/153156.pdf

    (pp. 4-5)

    SvenMagnussen: It would be unnecessary for the Appeals Court to opine on a suspension of diplomatic protection during her minority if she had not lost her US citizenship during her minority. Diplomatic protection is not suspended for US citizens in foreign countries. Even individuals who have renounced their US citizenship are entitled to diplomatic protection until a CLN is issued. There is no such thing as a suspension of diplomatic protection for a US citizen unless a CLN had been issued.

  30. avatar
    bgansel9 June 1, 2015 at 6:14 pm #

    SvenMagnussen: For example, Marie Elg was a native born person and US citizen and natural born citizen until her father renounced her US citizenship when she was minor living in Sweden.

    Her father renounced HIS citizenship, he did not renounce hers. A parent cannot renounce the citizenship of a child.

  31. avatar
    Pete June 1, 2015 at 6:19 pm #

    SvenMagnussen: U.S. citizen is clearly defined in the 14th Amendment, Section 1 and is called a universal set. A native born US citizen and a naturalized US citizen are subsets of the defined, universal set US citizen.

    A natural born citizen is an undefined set. A natural born citizen is an element in the subset native born citizen but not an element not an element in the naturalized US citizen subset. Clearly, all elements of the undefined natural born citizen set have all their elements in the universal set U.S. citizen. Consequently, the natural born citizen set is a superset of the native born US citizen set.

    Sorry, but no.

    First of all, the 14th Amendment does not comprehensively define United States citizenship. It addresses the citizenship of those born on United States soil, and those who are naturalized in the United States, but the 14th Amendment does not address the citizenship of those who are born citizens abroad.

    Second, you need to go back and retake 8th-grade mathematics. You also need to study basic logic. Your logic doesn’t even make sense.

    A native-born citizen is one who is born in the United States. That’s by definition.

    Citizens include:

    1) Native-born citizens (who are also natural born citizens);
    2) Naturalized citizens; and
    3) Persons who are born United States citizens abroad.

    There is pretty good reason to believe that those in category #3 are natural born citizens. I won’t go over all of those reasons, because that’s ground that’s been rehashed here many times. Suffice it to say, there’s been a lot of commentary and analysis both here and elsewhere, by actual legal scholars, and probably 95% of the time (possibly more than 95%) it ends with the conclusion that such persons are natural born citizens, too.

    That being the case, it would be quite surprising if the US Supreme Court were to rule any other way in an actual test case.

    So the only reasonable conclusion, by reasonable people, is that “native born” is a subset of “natural born,” because “natural born” includes BOTH those who are born US citizens on US soil, and those who are born US citizens abroad.

    Thank me very much.

  32. avatar
    bgansel9 June 1, 2015 at 6:24 pm #

    Pete: First of all, the 14th Amendment does not comprehensively define United States citizenship. It addresses the citizenship of those born on United States soil, and those who are naturalized in the United States, but the 14th Amendment does not address the citizenship of those who are born citizens abroad.

    Which is exactly why Ted Cruz can run for president. (Thanks Pete for offering me that opportunity to show Sven how Ted Cruz is eligible or the presidency – not that I would ever vote for him, but Sven might.)

  33. avatar
    Pete June 1, 2015 at 6:26 pm #

    Actually, you said:

    Consequently, the natural born citizen set is a superset of the native born US citizen set.

    I’m not sure what logic you used to get there, but that would actually be correct. Because “natural born citizens” includes “native born citizens.”

  34. avatar
    Reality Check June 1, 2015 at 6:57 pm #

    I hope a good case is filed against Ted Cruz by a decent attorney.Then we can get this settled once and for all. My fear is that the only cases will be filed by incompetents like Apuzzo and Klayman. They will both try to turn it into a retroactive case against Obama and pollute the waters.

  35. avatar
    Dr. Conspiracy June 1, 2015 at 9:24 pm #

    This is why I consider any court’s usage of the word “naturalization” dicta insofar as it is applied to presidential eligibility.

    ballantine: I guess it has never really been that important to date for the court to define who was a naturalized citizen and what the power of Congress to make such determination.

  36. avatar
    W. Kevin Vicklund June 2, 2015 at 7:19 am #

    SvenMagnussen: You’re conveniently ignoring SCOTUS opinion in Perkins v. Elg. The district court ruled Marie Elg, a native born person, was a natural born citizen of the United States. The appeals court affirmed. SCOTUS affirmed and modified the ruling to find Marie Elg was a natural born citizen in the United States.

    I see Sven is back peddling this particular lie, despite being corrected previously. SCOTUS did not modify the ruling.

    Fifth. The cross-petition of Miss Elg, upon which certiorari was granted in No. 455, is addressed to the part of the decree below which dismissed the bill of complaint as against the Secretary of State. The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg “solely on the ground that she had lost her native born American citizenship.” The court below, properly recognizing the existence of an actual controversy with the defendants

    Page 307 U. S. 350

    (Aetna Life Ins. Co. v. Haworth, 300 U. S. 227), declared Miss Elg “to be a natural born citizen of the United States,” and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary’s discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship.

  37. avatar
    Sam the Centipede June 2, 2015 at 10:04 am #

    Spot on Doc, there shouldn’t be any argument for anybody who understands a little US law and the English language.

    The two key language points are: (1) “natural born” is NOT a term of art, it has a straightforward meaning in the English language which is “born with that nature”. The term has fallen out of common use in many modern dialects but that’s what it meant in the past and what it means now. So a “natural born citizen” is one who was a citizen at birth, nothing more, nothing less. (2) “naturalization” usually refers to the process of an alien acquiring citizenship in adulthood but it CAN refer to acquiring citizenship AT ANY TIME. So a baby born of US parents on US soil is naturalized at birth (the baby didn’t have any citizenship before being born, so it’s naturalized when born). “Naturalized at birth” and “natural born citizen” are synonymous; anybody who says otherwise is an ignorant idiot. (Mario “Blovario” Apuzzo falls into that category.)

    The other legal/constitutional point is that the egalitarian nature of the US Constitution requires that the only categories are citizens and non-citizens. There are no further sub-categories. All citizens have the same rights and duties, whether they are born that way or acquired their citizenship later in life, and regardless of their skin color or their parents’ citizenship(s).

    The citizenship requirement for the Presidency is not about what type of citizen he is. It’s about WHEN s/he acquired citizenship, specifying that it must have occurred at birth. It’s no different in principle from other “when” requirements about age and residency.

  38. avatar
    Atticus Finch June 2, 2015 at 10:30 am #

    SvenMagnussen: In light of Schneider v. Rusk,I don’t think it’s unreasonable to conclude a natural born citizen is a subset of the native born citizen. Marie Elg is an example of native born citizen who was a natural born citizen throughout most, but not all, of her life.

    Natural born citizen and native born citizen are analogous terms. They are a subset of the generic term citizen. As courts have explained since the beginning of our nation, that there are two types of citizens: those who are naturalized and those who are native born. “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)

    “Several contentions questioning the constitutional validity of § 15 [Naturalization Act of 1906] are advanced, but all, save the one next to be mentioned, are sufficiently answered by observing that the section makes no discrimination between the rights of naturalized and native citizens, Luria v. United States, 231 US 9, 24 (1913)

    The Luria court further noted that a native citizen is the same as a natural born citizen: “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.(internal citations omitted) Id at 22

    Similarly, the court in United States v. Schwimmer, 279 US 644, 649 (1929) observed: “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.”

    “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. Schneider v. Rusk, 377 US 163, 165 (1964)

    Justice Rutledge, in his dissenting opinion in Knauer v. United States, 328 US 654, 677 (1946) used the term native born as determining the eligibility for the presidency when he wrote:

    ”I do not find warrant in the Constitution for believing that it contemplates two classes of citizens, excepting only for two purposes. One is to provide how citizenship shall be acquired, Const., Art. I,§ 8; Amend. XIV,§ 1, the other to determine eligibility for the presidency. Const., Art. II,§ 1. The latter is the only instance in which the charter expressly excludes the naturalized citizen from any right or privilege the native-born possesses.”

    As such, justices of the Supreme Court since the days of Chief Justice Marshall have been using the term “native” born in place of “natural born” to describe those individuals eligible to be president.

    Therefore, the term citizen encompasses both naturalized citizen and native born citizen in which the latter term includes the term natural born.

  39. avatar
    The Magic M (not logged in) June 2, 2015 at 10:50 am #

    I could imagine edge cases where an NBC renounced his citizenship and later naturalized again.
    Would that person still be an NBC? Did he “resume” his natural born citizenship or begin a new one?
    The person would still be native born as he obviously was born in the US which is the definition of native born.

  40. avatar
    Reality Check June 2, 2015 at 11:36 am #

    That’s a great comment Atticus.

  41. avatar
    SvenMagnussen June 2, 2015 at 12:44 pm #

    Doc; (naturalization is dicta with respect to eligibility)

    Section 1993 of the Revised Statutes (RS) of 1874 was a US federal statute declaring foreign born children to be a U.S. citizen since birth if the father of the foreign born child had been a US citizen since the father’s birth. The statute applied retroactively and in the future until it was repealed by the INA of 1940.

    Congress is constitutionally authorized to establish a uniform rule of naturalization. I can’t find anything to indicate Section 1993 of the RS was found unconstitutional. Consequently, Section 1993 of the RS must be a federal statute for establishing a uniform rule for establishing a foreign born person as a US citizen. The child’s US citizenship since the child’s birth is established without any affirmative application or statement of allegiance by the parent or the child to the US government. The situation the same for native born US citizen.

    A native born person uses his birth certificate as proof of citizenship. The birth certificate if proof of time and place of birth. If certain criteria is met, the 14th Amendment or its predecessor the Civil Rights of 1866, then the native born child is a natural born citizen. Therefore, a statutory citizen who is a US citizen since birth or a naturalized US citizen is as a natural born citizen and eligible to be President of the U.S.

    I’m just kidding you. Naturalized citizens are not eligible.

  42. avatar
    Notorial Dissent June 2, 2015 at 2:23 pm #

    Not particularly likely, as someone who has renounced would not be permitted re-entry, and as far as I know it just doesn’t happen. You give it up, and it is gone for good. There may be some exceptions to this, but none I’ve ever come across.

    The Magic M (not logged in):
    I could imagine edge cases where an NBC renounced his citizenship and later naturalized again.
    Would that person still be an NBC? Did he “resume” his natural born citizenship or begin a new one?
    The person would still be native born as he obviously was born in the US which is the definition of native born.

  43. avatar
    Dr. Conspiracy June 2, 2015 at 4:08 pm #

    A birth certificate only proves the facts of birth. Citizenship is a determination.

    SvenMagnussen: A native born person uses his birth certificate as proof of citizenship.

  44. avatar
    Northland10 June 3, 2015 at 11:34 am #

    Reality Check:
    That’s a great comment Atticus.

    And it will be completely lost on Sven. Still, I really appreciate Atticus’s contribution.

  45. avatar
    Joey June 3, 2015 at 11:43 am #

    Dr. Conspiracy:
    A birth certificate only proves the facts of birth. Citizenship is a determination.

    Under federal administrative law, a birth certificate is secondary proof of citizenship and identity. A U.S. Passport is primary evidence of citizenship and identity.
    42CFR 435.407 “Types of Acceptable Documentary Evidence of Citizenship”
    https://www.law.cornell.edu/cfr/text/42/435.407

  46. avatar
    Joey June 3, 2015 at 11:57 am #

    The joke on birthers is that under federal law Barack Obama’s U.S. Passport OR his Driver’s License were always preferable documentary evidence of his citizenship and his identity to his birth certificate.

  47. avatar
    bgansel9 June 3, 2015 at 12:16 pm #

    SvenMagnussen: Section 1993 of the Revised Statutes (RS) of 1874 was a US federal statute declaring foreign born children to be a U.S. citizen since birth if the father of the foreign born child had been a US citizen since the father’s birth. The statute applied retroactively and in the future until it was repealed by the INA of 1940.

    This is BS. The statute did NOT apply retroactively and that situation was corrected in the 1994 INTCA: http://www.americanlaw.com/citabrd.html

  48. avatar
    Dave B. June 3, 2015 at 1:36 pm #

    A birth certificate is secondary proof of citizenship. It’s not an identity document. The documents which may be accepted as proof of identity and must accompany a document establishing citizenship are listed in 42 CFR 435.407(e).

    Joey: Under federal administrative law, a birth certificate is secondary proof of citizenship and identity. A U.S. Passport is primary evidence of citizenship and identity.
    42CFR 435.407 “Types of Acceptable Documentary Evidence of Citizenship”
    https://www.law.cornell.edu/cfr/text/42/435.407

  49. avatar
    Dave B. June 3, 2015 at 1:52 pm #

    Actually, Sec. 1993 WAS retroactive in application as in effect before the 1934 amendment, as was its parent legislation, the Act of 10, 1855– which was specifically made retroactive in response to Binney’s “Alienigenae of the United States.” Sec. 1993 as in effect before the amendment:
    “All children heretofore 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.”
    And as amended by the Act of May 24, 1934:
    “Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.”
    So it wasn’t, as Sven said, “applied retroactively and in the future until it was repealed by the INA (sic) of 1940.” It was retroactive until amended in 1934. What the INTCA made retroactive was transmission of citizenship through a US citizen mother.

    bgansel9: This is BS.The statute did NOT apply retroactively and that situation was corrected in the 1994 INTCA: http://www.americanlaw.com/citabrd.html

  50. avatar
    Joey June 3, 2015 at 3:13 pm #

    Dave B.:
    A birth certificate is secondary proof of citizenship.It’s not an identity document.The documents which may be accepted as proof of identity and must accompany a document establishing citizenship are listed in 42 CFR 435.407(e).

    From 42CFR 435.407 (a)
    “(a) Primary evidence of citizenship and identity. The following evidence must be accepted as satisfactory documentary evidence of both identity and citizenship:”
    Since Barack Obama has both a U.S. Passport and a driver’s license, he’s covered for citizenship and identity.
    From the Washington Post 10/25/12 when the president early voted in Chicago:
    The nation’s First Voter has cast his ballot – and, once again, made history.

    President Obama voted about 5:20 p.m. at a community center in his hometown of Chicago, punching his choices into a touch-screen machine after signing forms and showing his driver’s license. He is the first president to vote before election day.

    “Now ignore the fact that there’s no gray hair on that picture,” Obama cracked to an election official. “I’m just glad I renewed my driver’s license.”

  51. avatar
    bgansel9 June 3, 2015 at 6:12 pm #

    Dave B.: What the INTCA made retroactive was transmission of citizenship through a US citizen mother.

    Well, perhaps I misunderstood, but, what I read of Sven’s post seemed to be discussing the fact that a child of an American mother could not claim citizenship. Was that not the point?

  52. avatar
    Dave B. June 3, 2015 at 11:34 pm #

    Beats me. I couldn’t extract a point that made any sense out of Sven’s comment. Never can.

    bgansel9: Well, perhaps I misunderstood, but, what I read of Sven’s post seemed to be discussing the fact that a child of an American mother could not claim citizenship. Was that not the point?

  53. avatar
    SvenMagnusssen June 4, 2015 at 7:30 am #

    Dave B, RE: Section 1993 of the Revised Statutes (RS) of 1874

    Please enlighten us. A foreign born person, 1855 to 1934, with a father who has been a US citizen since the father’s birth and with the father previously residing in the US is a …. naturalized US citizen or natural born citizen?

  54. avatar
    Suranis June 4, 2015 at 9:21 am #

    I seem to recall a SCOTUS judgment that discussed women’s citizenship and concluded that women have all the rights of citizenship and it was up to congress to give them the right to vote if it chose.

    What was it called… Min… Minor… Damn its on the tip of my tongue.. anyone ever heard of it?

  55. avatar
    Suranis June 4, 2015 at 9:26 am #

    Was the person born a citizen? if Yes; Natural born.

    At least that was the case in Ireland till 2004 and we got our common law from British common law same as the US did.

    SvenMagnusssen: Please enlighten us. A foreign born person, 1855 to 1934, with a father who has been a US citizen since the father’s birth and with the father previously residing in the US is a …. naturalized US citizen or natural born citizen?

  56. avatar
    SvenMagnussen June 4, 2015 at 10:30 am #

    W. Kevin Vicklund: I see Sven is back peddling this particular lie, despite being corrected previously.SCOTUS did not modify the ruling.

    I didn’t see your post until now which is a shame because MacGyver never lies.

    Your quote from the Perkins v. Elg opinion bears repeating:


    The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg “solely on the ground that she had lost her native born American citizenship.”

    Obots choose to ignore this important quote from the opinion:

    “In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State.”

    The Secretary of State does not involve himself/herself with written instructions in US passport disputes unless a CLN is involved. At the time, only a President or Secretary of State could cancel a previously issued CLN. If Elg paid the proper fees and filed an application with a signature, date, and appropriate declarations with proof of claims attached, then the only reason the State Department would refuse her a US passport would be because a CLN had been previously issued.

    The US government’s position throughout the trial was that Elg requested a passport within the time limit of 6 months past her age of majority, but did not actually move back to the US until

    well past the 6 months past her age of majority time limited. SCOTUS and the federal courts affirmed the time limit is for notification of intent and not for actual return date.

    We know Obama did not notify the US government of his intent to recapture his US citizenship status and natural born citizenship status within the 6 months past his age of majority time limit because he would have been immediately recognized as a US citizen since he had been living in US since 1971 as a permanent resident alien.

    Suranis:
    Was the person born a citizen? if Yes; Natural born.

    At least that was the case in Ireland till 2004 and we got our common law from British common law same as the US did.

    The US Congress is not authorized to enlarge or abridge the rights of a US Citizen with respect to citizenship. There many US laws requiring US citizens to state an of allegiance, but any US law requiring a US citizen since birth to state an oath of allegiance to maintain their US citizenship since birth is unconstitutional. The allegiance of a natural born citizen is assumed. It’s unconstitutional to require an NBC to state or sign an oath of allegiance to maintain their citizenship status.

    Prior to 1934, all foreign born persons with a US citizen father were US citizens since birth. In 1934, Section 1993 of the RS was amended with, “…. the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.”

    So, all persons born in a foreign country prior to 1934 with a US citizen father must be natural born citizens. And that means native born citizens and natural born citizens are subsets of the universal set US citizen.

  57. avatar
    Dave B. June 4, 2015 at 10:58 am #

    Oh dear. That’s the “Act of FEBRUARY 10, 1855.”

    Dave B.: Actually, Sec. 1993 WAS retroactive in application as in effect before the 1934 amendment, as was its parent legislation, the Act of 10, 1855– which was specifically made retroactive in response to Binney’s “Alienigenae of the United States.”

    In my opinion, such a person would be a natural born citizen. A considerable segment of the American people have been DEMONSTRATED to come down on that side of that ambiguous political question.

    SvenMagnusssen:
    Dave B, RE: Section 1993 of the Revised Statutes (RS) of 1874

    Please enlighten us. A foreign born person, 1855 to 1934, with a father who has been a US citizen since the father’s birth and with the father previously residing in the US is a …. naturalized US citizen or natural born citizen?

  58. avatar
    gorefan June 4, 2015 at 11:16 am #

    SvenMagnussen:

    We know Obama did not notify the US government of his intent to recapture his US citizenship status and natural born citizenship status within the 6 months past his age of majority time limit because he would have been immediately recognized as a US citizen since he had been living in US since 1971 as a permanent resident alien.

    As you have pointed out President Obama could not have lost his U.S. Citizenship for Indonesian citizenship. So from 1971 onward he was living in the U.S. as a U.S. citizen.

  59. avatar
    David Farrar June 4, 2015 at 12:21 pm #

    Allow me to offer you the work of one Pinckney G. McElwee, Esq., D.C. Bar as recorded in The Congressional Record 6-14-1967.

    Conclusion:

    “I find no proper legal or historical basis on which to conclude that a person born outside of the United States could ever be eligible to occupy the Office of the President of the United States. In other words, in my opinion, Mr. George Romney of Michigan (i.e. Sen Ted Cruz of Texas) is ineligible to become President of the United States because he was born in Mexico (Canada) and is, therefore, not a natural-born citizen as required by the United States Constitution.”

    Mr. McElwee’s construct:

    The Act of March 26, 1790 (1 Stat 103) provides in pp 104: “And the children of citizens of the United States that may be born beyond the seas, or out of the limits of the United States shall be considered as natural-born citizens.”

    In Osborn v. Bank, 22 US (9 Wheat) 738, l.c. 827, Chief Justice Marshall said:
    “A naturalized citizen is indeed made a citizen under an Act of Congress, but the Act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not 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 regards 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 circumstance under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the Constitution makes the distinction. The law makes none.”

    Thus the Act of March 26, 1790 would be unconstitutional if it attempted to enlarge the rights of a naturalized citizen to be equal to those of natural-born citizens under the Constitution. Although it is not within the power of Congress to change or amend the Constitution by means of definitions of languages used in the Constitution so as to mean something different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Congress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution; and under this argument to attach importance to the Act of Congress of March 26, 1790 (1 Stat 103).

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

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

    The Act of 1795 provides:

    “The children of citizens born outside of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.”

    In 1802, when Congress repealed entirely the law of 1790, it enacted that “the children of persons who now are, or have been citizens of the United States, shall, although born outside the limits and jurisdiction of the United States, be considered as citizens of the United States” (2 stat 153). (R.S. 1993). This was followed by the Act of 1855 (10 Stat 604) which repealed the Act of 1802.

    In United States v. Perkins, 17 F S 117, the syllabus reads:

    “Child born in England of mother who had been born in United States, and had married Englishman in England, held not a ‘natural born citizen,’ within the provisions of Federal Constitution, whether child became citizen at birth by reason of mother’s citizenship or by her subsequent repatriation (Cable Act. 8 U.S.C.A. sections 9, 10, 367-370; 8 U.S.C.A. sections 6 and note, 7, 8, 399c(a); Rev. St section 1993; Convention with Great Britain May 13, 1870, art. 1, 16 Stat. 775).”

    And the text of the opinion on page 179 reads:

    “But I think it is immaterial, for the purpose of the instant suit, whether petitioner became an American citizen at his birth by reason of his mother’s citizenship or later by means of the repatriation of his mother. I do not think the authorities sustain his claim that he is a natural-born citizen within the meaning of the provisions of the Constitution, either of section 1, clause 4, or article 2, that ‘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,’ or of the Fourteenth Amendment, 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.”

  60. avatar
    Dave B. June 4, 2015 at 12:48 pm #

    The 1855 Act didn’t repeal the earlier act, which remained in effect until 1941 as Sec. 2172 of the Revised Statutes.

    David Farrar: This was followed by the Act of 1855 (10 Stat 604) which repealed the Act of 1802.

  61. avatar
    David Farrar June 4, 2015 at 1:00 pm #

    I stand corrected. Thank you Dave B.

    It is nice to know 8 U.S.C. 1101(a)(23); INA 101(a)(23)) defines naturalization as “the conferring of nationality of a state upon a person after birth by any means whatsoever,” which includes by birth and at birth.

    But, of course, 7 FAM 1131.6-2 Eligibility for Presidency (TL:CON-68; 04-01-1998) (d) tell us :

    d. This statute is no longer operative (the naturalization Act of 1790), 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.

  62. avatar
    Dr. Conspiracy June 4, 2015 at 2:01 pm #

    We’ve discussed this before a couple of times including an article by me and in the debate with Bob Gard.

    McElwee’s treatise was written for a political purpose, the exclusion of George Romney as a candidate for president. It was read into the Congressional record upon the request of one member from the opposition party to Romney.

    McElwee might be considered an analog of Mario Apuzzo today, neither of whom seems to be noted outside of this narrow topic about which they have no special qualifications.

    My dishonesty alarm went off when McElwee said: “This argument fades away when it is found that this act used the term “natural born” through inadvertence.” McElwee never supports with argument or historical citation that anyone had found that the use of “natural born citizen” in the 1790 Act was inadvertent. McElwee is not making a distinction between history and his own conclusions. He says that Madison was on the committee that replaced the act in 1795, but conveniently omits the fact that he was also in the Congress that passed the act of 1790.

    And of course if one is going to quote McElwee, one shouldn’t cherry pick what he said and omit this part:

    “To summarize: a natural-born citizen of the United States, as that term is used in the Constitution of the United States, means a citizen born within the territorial limits of the United States and subject to the laws of the United States at the time of such birth.

    This does not include children born within the territorial limits of the United States to parents who, although present with the consent of the United States, enjoy diplomatic immunity from the laws of the United States, and, as a consequence are not subject to the laws of the United States.

    Nor would this include children born within the territorial limits of the United States to alien enemy parents in time of War as a part of a hostile military force, and, as a consequence not present with the consent of the United States, and not subject to the laws of the United States.

    BUT THIS DOES INCLUDE CHILDREN BORN TO ALIEN PARENTS WHO ARE PRESENT WITHIN THE TERRITORIAL LIMITS OF THE UNITED STATES “IN AMITY” I.E. WITH THE CONSENT OF THE UNITED STATES, AND SUBJECT TO ITS LAWS AT THE TIME OF BIRTH. U.S. v. Wonk Kim Ark 169 US 649, Luria v. U.S., 231 US 9, Minor v. Happersett 88 US 162.”

    David Farrar: Allow me to offer you the work of one Pinckney G. McElwee, Esq., D.C. Bar as recorded in The Congressional Record 6-14-1967.

  63. avatar
    Suranis June 4, 2015 at 2:24 pm #

    Bull. The Us Congress has passed Laws listing the circumstances where they can strip a US citizen of his citizenship. You should know them, you birthers were trying to claim they meant that Your President had lost his citizenship for a while.

    And those laws done say “except for Natural Born citizens as they are magical and wonderful and pure, apart from Democratic Presidents.”

    I’m sure you have been very successful in challenging the authority of congress to strip people of their citizenship. Want to show us where you or anyone else won?

    SvenMagnussen: The US Congress is not authorized to enlarge or abridge the rights of a US Citizen with respect to citizenship.

  64. avatar
    JackO June 4, 2015 at 2:56 pm #

    Everyone born in the USA is a National
    Not all Nationals are Citizens
    Citizen is a noun
    Modifications of nouns by adjective changes the meaning of the noun.
    Ergo
    Citizen iincludes natural born, native born, and naturalized
    To properly describe a citizenship status the adjective applicable must be included.
    They are not the same!
    I was born out of country to native born father, alien mother (leter naturalized by law), and alway understood I could never be a President of the US as I was a citizen by law!

    Sven might be right

  65. avatar
    David Farrar June 4, 2015 at 3:09 pm #

    Dr. Conspiracy

    Not true: Cherry picking, suppressing evidence, or the fallacy of incomplete evidence is the act of pointing to individual cases or data that seem to confirm a particular position, while ignoring a significant portion of related cases or data that may contradict that position.

    McElwee’s view on the 14th Amendment was irrelevant to the point of discussion.

    The “natural born Citizen” clause pertains to the civic status required to be eligible for public office, whereas the 14th Amendment specifically confers the political status of citizenship in the nation alone. Neither clause contradicts, nor limits the other. While 14th Amendment citizens may be eligible for the office of President, the Amendment does not automatically establish eligibility. If the 14th Amendment had been intended to repeal the natural-born citizen clause, then it would contain specific language to that extent. To imply that it does, would require a complete abandonment of long-established rules of statutory construction:

    “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).

    Further,
    ‘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.”

    Tell this to the former British seamen who were naturalized US citizens when they were kidnapped off of US flag ships in the early party of the 19th century.

  66. avatar
    Dave B. June 4, 2015 at 3:10 pm #

    So you like McElwee, do you? As Doc noted, he shreds your Obama birferness. In that Foreign Affairs Manual, all the State Department does is restate the long-standing policy of the US government on that particular question– that the US government doesn’t HAVE a policy on that particular question.

    David Farrar:
    I stand corrected. Thank you Dave B.

    It is nice to know 8 U.S.C. 1101(a)(23); INA 101(a)(23)) defines naturalization as “the conferring of nationality of a state upon a person after birth by any means whatsoever,”which includes by birth and at birth.

    But, of course, 7 FAM 1131.6-2 Eligibility for Presidency (TL:CON-68; 04-01-1998) (d) tell us :

    d.This statute is no longer operative (the naturalization Act of 1790), 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 notnecessarily imply that he or she is such a citizen for Constitutional purposes.

  67. avatar
    Dave B. June 4, 2015 at 3:12 pm #

    Well now.

    David Farrar: Cherry picking, suppressing evidence, or the fallacy of incomplete evidence is the act of pointing to individual cases or data that seem to confirm a particular position, while ignoring a significant portion of related cases or data that may contradict that position.

  68. avatar
    Andrew Vrba, PmG June 4, 2015 at 3:22 pm #

    David Farrar:
    -whole lotta nothing-

    Well, Well. David Farrar is back. I thought the blog smelt a bit of desperate, long-winded loser today.

  69. avatar
    SvenMagnussen June 4, 2015 at 3:27 pm #

    Suranis:
    Bull. The Us Congress has passed Laws listing the circumstances where they can strip a US citizen of his citizenship.

    Those laws only apply to US citizens who have voluntarily or are considered to have voluntarily to have renounced their US citizenship because the President, the Congress and the Courts are not authorized to strip a US citizen of the privileges, immunities or obligations without a request or implied request for termination of citizenship rights by the U.S. citizen.

    A good example is Marie Elg. Ms. Elg’s was a native born US citizen who had her US citizenship renounced on her behalf by her father when she was a minor. Any US citizen of any age has the right to move out of the country and request to be relieved of the privileges, immunities and obligations offered to or imposed upon US citizens.

    Ms. Elg notified the State Department of her intent to return to the US and recapture the US Citizenship and natural born citizenship status she had taken away from her. The State Department refused to issue her a US passport after she reached the age of majority because she had been issued a CLN when she was a minor. Ms. Elg was offered a US Entry Visa to return to the US on her Swedish passport by the US Ambassador, but Ms. Elg refused. At that time, the US Ambassador was not authorized to issue a US passport to a person previously issued a CLN. The Secretary of State intervened on her behalf after he cancelled her CLN. At that time, only the President and the Sec of State were authorized to cancel a previously issued CLN. With her CLN cancelled, Ms. Elg was issued a US passport.

    Ms. Elg returned to the US to recapture her US citizenship 8 months after she reached the age of majority. The State Department refused to issue her a renewed passport on the theory she forfeited her right to recapture her US citizenship by returning to the US 8 months after her age of majority and not 6 months after her age of majority. Ms. Elg was issued an order for deportation.

    Eventually, SCOTUS opined Ms. Elg recaptured her US citizenship and natural born citizenship status in the United States because she notified the State Department of her intent in a timely manner. The DoJ and friends of the DoJ interpret this to mean Ms. Elg never lost her US citizenship and she was a natural born citizen of the United States since her birth.

    This case is important to career professionals at the State Department because it resolves some important issues about dual citizenship. The Perkins v. Elg case set precedent for dual citizens who are native born. Dual citizens who are native born are natural born citizens in the United States. A dual citizen who is native born is eligible to assume the Office of the President of the United States while they are permanently domiciled in the United States. A dual citizen who is native born is not eligible to assume the Office of the President of the United States while they are domiciled outside of the United States.

    The Perkins v. Elg case precedent applies to US Citizens under Section 1993 of the RS, as well. Perkins v. Elg was decided in 1939. US Citizens under Section 1993 of the RS are dual citizens eligible to assume the Office of the President of the United States while permanently domiciled in the United States. The Nationality Act of 1940 repealed Section 1993 of the RS.

  70. avatar
    Dave B. June 4, 2015 at 3:47 pm #

    What, exactly, are you saying “includes by birth and at birth”?

    David Farrar: It is nice to know 8 U.S.C. 1101(a)(23); INA 101(a)(23)) defines naturalization as “the conferring of nationality of a state upon a person after birth by any means whatsoever,” which includes by birth and at birth.

  71. avatar
    Dr. Kenneth Noisewater June 4, 2015 at 3:51 pm #

    Besides being completely wrong all the time It’s hard to take David Farrar seriously when he claimed he would sue Romney if he became the Republican Nominee and then failed to actually do so.

  72. avatar
    Dr. Conspiracy June 4, 2015 at 4:38 pm #

    “Natural born citizen” means citizen at birth. If the Constitution gives Congress the power to create citizens at birth (and I contend that it has and does), then the Constitution gives them the power to make new natural born citizens. Your argument only works if you assume that “natural born citizen” means something OTHER than citizen at birth, and you will have a hard time demonstrating that, and I refer to the Dicey citation in US v. Wong in the article for one obstacle in your task. This is no different from the Congressional power to define new felonies. Creating a new felony doesn’t change the definition of felony in the Constitution, but I don’t see that there is any distinction between felonies in the common law and felonies under new statutes of Congress.

    David Farrar: “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).

  73. avatar
    Dave B. June 4, 2015 at 7:46 pm #

    Ah yes, I never get tired of that one:
    http://teapartyorg.ning.com/forum/topics/i-will-file-against-mitt-romney-if-he-is-nominated

    He finally rationalized his failure to come through on that one to me. Said something to the effect that he couldn’t afford to investigate it. I don’t know what the heck he thought he had to “investigate.”

    Dr. Kenneth Noisewater:
    Besides being completely wrong all the time It’s hard to take David Farrar seriously when he claimed he would sue Romney if he became the Republican Nominee and then failed to actually do so.

  74. avatar
    ballantine June 4, 2015 at 10:14 pm #

    David Farrar:

    Mr. McElwee’s construct:

    Who cares about Mr. McElwee’s construct? Is he some notable constitutional scholar? Does he actually support his assertions with facts? No and no. Is he the best you can do. You do know that we can cite dozens of actual scholars who disagree with him. And even McElwee says you are wrong about Obama.

    McElwee is dishonest when he says the 1790 Act language was a mistake as they were copying English statutes that made certain foreign born persons “natural born subjects.” Such made them eligible to sit in Parliament and be eligible to hold other offices in England that were not available to persons naturalized after birth. See any analogy there? To say the 1795 Act corrected the mistake is simply making things up as there is no evidence that anyone thought the 1790 Act a mistake. For all we know, the 1795 Act was the mistake.

    In United States v. Perkins, 17 F S 117, the syllabus reads:

    Citing dicta in a circuit court case is not going to convince anyone.

    The “natural born Citizen” clause pertains to the civic status required to be eligible for public office, whereas the 14th Amendment specifically confers the political status of citizenship in the nation alone.

    No actual legal authority has ever said any such thing. The members of the 39th Congress said they were simply restating the common law rule that was in the original Constitution as did the Supreme Court in Wong Kim Ark. Oh, I forgot, no birther is capable of understanding what Wong Kim Ark said and they are too cheap to hire an actual constitutional attorney to explain it to them. The first rule of statutory constitution is that the plain meaning of the phrase controls and the 14th amendment, in plain language, states the definition of natural born subject/citizen from the common law just as Justice Gray and all subsequent authority has made clear.

  75. avatar
    Rickey June 5, 2015 at 1:38 pm #

    ballantine: Who cares about Mr. McElwee’s construct?Is he some notable constitutional scholar?

    In 1959 McElwee published a paper in the South Carolina Law Quarterly entitled “The 14th Amendment to the Constitution of the United States and the Threat That it Poses to Our Democratic Government.” He argued that the 14th Amendment was never ratified. He proposed a Constitutional Amendment giving the Supreme Court the authority to determine if an Amendment was actually adopted.

    He suggested that one day a supermajority in Congress might amend the Constitution by fiat:

    Any political party which came to power in sufficient strength to propose an amendment to the Constitution by 2/3 vote could propose an amendment to abolish all other political parties for the style of Government we see in so many foreign countries. A mere Proclamation of one man (Administrator of General Services Administration) that such an amendment has been adopted by 3/4 of the States would make it an incontestable amendment despite the fact that not a single State actually ratified. In similar fashion, the provisions of Section I, Article II of the Constitution, which fixes the term of office of the President at four years, could quickly be amended to a term of life; thus a dictator could be born.

    Obviously, McElwee’s proposal was ignored.