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Was John McCain a citizen at birth?

It depends upon what the meaning of the word “is” is.

Bill Clinton is forever associated with legal nitpicking as the result of his famous quote: “It depends upon what the meaning of the word ‘is’ is.” I think his point is substantive, not nitpicking. Clinton had said before a grand jury about Monica Lewinsky: “there’s nothing going on between us.” He used the contracted form of “is” for the present tense, which he took not to mean that there never had been anything going on. The essay that follows discusses the same tense distinction for the word “is” and how that relates to the question of whether John McCain is eligible to become president.

Citizen McCain

Gabriel Chin laid out the argument that McCain was not a citizen at birth in his paper, “Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship” in the Michigan Law Review’s First Impressions. The point at interest is not so much what Chin argued as what Federal District Judge William Alsup said in his decision on a motion in Robinson v. Bowen regarding McCain’s eligibility. After dealing with the substantive argument over the state of the law when McCain was born in 1936, Judge Alsup added:

In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already.  This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.

This gives the paradoxical possibility that McCain was not a US Citizen at the time of his birth, but a citizen at birth today.

Schrödinger’s cat

Schrödinger’s cat is a thought experiment regarding the uncertainty principle in quantum mechanics. The Wikipedia states it this way:

Schrödinger’s cat: a cat, a flask of poison, and a radioactive source are placed in a sealed box. If an internal monitor detects radioactivity (i.e., a single atom decaying), the flask is shattered, releasing the poison that kills the cat. The Copenhagen interpretation of quantum mechanics implies that after a while, the cat is simultaneously alive and dead. Yet, when one looks in the box, one sees the cat either alive or dead, not both alive and dead. This poses the question of when exactly quantum superposition ends and reality collapses into one possibility or the other.

If John McCain must rely on the 1937 statute for his citizenship, then at birth he was, in the quantum mechanical analogy, both a citizen and not a citizen because it could not be observed at his birth whether or not Congress would pass a future statute making him a citizen at birth. (There are other arguments that McCain was a citizen that do not rely on the 1937 statute.)

The Naturalization Act of 1790

Happily for historical hypothetical foreign-born aspirants to the presidency, the Congress passed a law in 1790 making the children of citizens born overseas “natural born citizens” subject to the proviso that their fathers must have been at one time residents of the United States. Because the proviso applies to events that occur before birth, one can observe the citizenship status of the child at birth by the 1790 Act (which sadly was repealed in 1795).

The Framer’s Intent

Little is known about the Framer’s intent when they added the words “natural born citizen” to the requirements for the American president. One said “not a foreigner” another said to “insure attachment to the country.” A tantalizing account comes from George Bancroft’s History of the Formation of the Constitution  of the United States (1884) based either on his interview with James Madison, or some source unknown to us. He wrote:

One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty-one years. The idea then arose that no number of years could properly prepare a foreigner for the office of president;

I don’t think that the Framers intended retroactive citizenship at birth, but on the other hand, I also think that John McCain should be considered to have always been an American.

Ted Cruz

Cruz presents a case not so much different from that of John McCain because his citizenship relies on a statute as well; however, the statute was firmly in place when Cruz was born and so according to US Law, he is a citizen at birth. That fact could have been observed from the start.

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55 Responses to Was John McCain a citizen at birth?

  1. avatar
    y_p_w March 23, 2016 at 4:42 pm #

    I don’t believe the issue is whether or not certain required events happened before birth, but whether or not certain required events (i.e. birth) happened before the law went into effect.

    If you read the State Department’s manuals, they actually state that the rules for birth outside the US apply for the Panama Canal Zone before this law went into effect. They also state (which isn’t clear in the law) that those born under this law are considered US citizens retroactive to birth. I don’t know if it would hold up in court, but it’s never really been tested.

  2. avatar
    Dave B. March 23, 2016 at 8:09 pm #

    Chin refers to this 1937 House committee report:

    http://prawfsblawg.blogs.com/prawfsblawg/files/hr_751303.pdf

    It’s pretty much indispensable to a discussion of the issue. As Chin indicates, some members of Congress held the position that the Canal Zone was outside ANY statute providing for US citizenship at birth:
    Chin:

    “In the House, John Sparkman explained:

    It has been held that the Canal Zone is not such foreign territory as to come under the law of 1855 [Revised Statutes section 1993] and, on the other hand, it is not part of the United States which would bring it within the fourteenth amendment; consequently there has been great doubt about the citizenship status of children born in the Canal Zone.

    Sparkman concluded: “The Canal Zone is a ‘no man’s land.’ Every place in the world except the Canal Zone has been covered either by the law of 1855, which applies to foreign countries, or by the fourteenth amendment, which applies to the United States and its possessions.””

    The heads of the executive departments whose letters are included in the House report acknowledged the doubts about citizenship at birth in the Canal Zone. As far as McCain was concerned, those doubts would depend upon the interpretation of Sec. 1993 of the Revised Statutes. In relevant part:

    “Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of 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”

    Under the strictest, most literal interpretation, Sec. 1993 wouldn’t apply to the Canal Zone– it being out of the limits but NOT out of the jurisdiction of the United States. There is of course the very reasonable alternative interpretation, that Sec. 1993 applied to all places outside the United States. The State Department’s Foreign Affairs Manual illustrates how Sec. 1993 applied to Guam, for example:

    “7 FAM 1124.2-2 Status Acquired by Birth In Guam After Annexation And Before August 1, 1950

    a. Before August 1, 1950, the effective date of the Organic Act, it was held that:

    (1) A person born in Guam on or after April 11, 1899, in wedlock to a U.S. national father or out of wedlock to a U.S. national mother became a non-citizen U.S. national at birth.

    (2) Children born in Guam to U.S. citizens acquired U.S. citizenship under the conditions that applied to persons born abroad.

    (3) Persons born in Guam to aliens did not acquire U.S. nationality at birth.”

    https://fam.state.gov/FAM/07FAM/07FAM1120.html

    Under that same strict, literal interpretation, there should have been similar “doubts” about Sec. 1993’s application to Guam. I’ve seen no indication that there were such doubts. And I’ve never heard of any similar issue raised in regard to Guantanamo.
    The most substantial citizenshipl issue in regard to the Canal Zone hinged on the fact that Sec. 1993 required residence in the United States for transmission of citizenship. Whatever position one had on how to interpret Sec. 1993, the Canal Zone was not part of the United States; residence in the Canal Zone could not satisfy the statute’s requirement for transmission of citizenship. As pointed out in the House report,

    “A child born in the Canal Zone whose father was also born in the Canal Zone and who has continuously resided here and is employed here by the United States Government and both of whose parents were American citizens, would not acquire citizenship at birth under existing law and could acquire citizenship only through regular naturalization proceedings.”

    Secretary of War Woodring, quoting from a letter from the governor of the Canal Zone:

    “The questions involved are of greater concern to those affected because of thee fact that, in a number of cases which is constantly increasing, children born in the Canal Zone of American fathers who are employees of the Government of the United States are themselves reaching maturity, entering the Government service, and becoming the parents of children, without ever having resided elsewhere than in the Canal Zone. One of the most important questions involved therefore, concerns the citizenship status of children born in the Canal Zone of these second-generation citizens of the United States in those cases where a parent capable of transmitting citizenship has not resided in the United States previous to the birth of such a child.”

    Congress resolved that question by omitting any requirement that the parent had been a resident of the United States from the 1937 statute providing for citizenship at birth in the Canal Zone. And because many Canal Zone residents were using hospitals outside the Zone– such as Colón Hospital– for births, the statute extended that exception to the whole Republic of Panama, provided a US citizen parent was an employee of the United States government or the Canal’s operating entity. That’s still in effect today, decades after the Canal Zone ceased to exist.

    Oh, and I came across this little pearl in that report:

    “Prior to the enactment of May 24 1934,children born abroad acquired American citizenship only in case the father was a citizen. It was never required that both parents be citizens.”

  3. avatar
    y_p_w March 24, 2016 at 1:03 am #

    FAM 1127.1-3b/c says the following:

    b. Status Acquired by Birth In The Canal Zone After Extension of U.S.

    · From February 26, 1904, until August 4, 1937, acquisition of U.S. citizenship by persons born in the Canal Zone was governed by Section 1993, Rev Stat. (see 7 FAM 1135). Thus from February 26, 1904 to May 23, 1934, citizenship was transmitted only to children whose fathers were, at the time of the child’s birth, U.S. citizens who had previously resided in the United States. The original Section 1993, R.S., was amended by Act of May 24, 1934, and made possible transmission of citizenship by either U.S. citizen parent who had previously resided in the United States.

    c. Laws Granting U.S. Citizenship To Certain Persons Born in the Canal Zone

    (1) The Act of August 4, 1937 (50 Stat. 558)(“the Act”) was the first statute to provide for citizenship to certain individuals born in the Canal Zone. Section 1 of the Act provided for acquisition of U.S. citizenship by persons born in the Canal Zone on or after February 26, 1904, to a U.S. citizen parent. The wording of Section 1 was the same as that of Section 303(a) INA, quoted in 7 FAM 1127.1-2 a . The U.S. citizen parent did not need prior U.S. residence to transmit citizenship, and no retention requirement applied to the children. The Department holds that children born in the Canal Zone between May 24, 1934 and August 4, 1937 were not subject to the retention requirements of Section 1993 R.S., as amended.

    However, there’s also the USCIS Policy Manual:

    https://www.uscis.gov/policymanual/Print/PolicyManual-Volume12-PartA-Chapter2.html

    Canal Zone or the Republic of Panama on or after February 26, 1904​;​ [2] See INA 303. If the person was born in the Canal Zone, he or she acquired U.S. citizenship at birth if born between February 26, 1904 and October 1, 1979, and one parent was a U.S. citizen at the time of the person’s birth. The Canal Zone ceased to exist on October 1, 1979. See the so-called Torrijos–Carter Treaties (September 7, 1977). If the person was born in the Republic of Panama, but not in the Canal Zone, one parent must have been a U.S. citizen parent employed by the U.S. Government, or by the Panama Railroad Company, at the time of the person’s birth.

    So USCIS says those eligible under INA 303(a) were US citizens at birth. As a practical matter, it probably doesn’t mean much unless it’s assumed that citizenship at birth makes one a “natural-born citizen”.

  4. avatar
    Dave B. March 24, 2016 at 3:35 am #

    For all practical purposes the retention requirements of Sec. 1993 of the Revised Statutes:

    “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””

    might as well have never existed, because they never applied to anybody. They were replaced by the considerably less restrictive retention requirements of Sec. 201(g) of the Nationality Act of 1940 years before anyone born subject to them could’ve even begun to satisfy them.

    y_p_w: The Department holds that children born in the Canal Zone between May 24, 1934 and August 4, 1937 were not subject to the retention requirements of Section 1993 R.S., as amended.

  5. avatar
    Nancy R Owens March 24, 2016 at 9:17 pm #

    Yes.

  6. avatar
    CRJ March 25, 2016 at 12:41 pm #

    The noticable difference in language is blurred by those [wishing] FOREIGN Allegiances noticed in the Person or Personality for President.

    Of course the U.S. Constitution declares [Citizen]s [ineligible] after the Adoption of the Constitution that are naturalized by statute, including Amendments which are a form of Declared Naturalization.

    Because of this exclusion of [Citizen]s after the Adoption of the Constitution in preference of [natural born Citizen] it’s impossible not to consider [Citizen] having more than one definition and singular interpretation a conundrum in the context of Law in the discussion of the qualification of President.

    [Citizen] can be a [natural born Citizen] as in the President is a [Citizen] of the USA and a [natural born Citizen]

    but also [Citizen] cannot be [ natural born Citizen] as in Senators and Representatives can serve and not be [ natural born Citizen ].

    Losing the objectivity of differences simply serves to dis lodge any elevated criteria in the Offices which also exist with age criteria.

    Losing the objectivity of differences also conspires to deny the reserved respect for different religions if you’d like to extend that road out through the Field.

    The distinguished term [ natural born Citizen ] of course is never doubted by anyone of those [ Born in the U.S. to Citizen Parents] We all are in agreement to that. {Minor v. Happersett}.

    In Judy v. McCain [ https://dockets.justia.com/docket/nevada/nvdce/2:2008cv01162/61642 ]
    which is much more relevant in the consideration based on the respect of standing (Candidate v. Candidate) where Chin’s argument was employed considering [statute as naturalization] the argument of the Judge referrs the obligation of qualification as the burden of the Winner not the Loser, and in such declares McCain as ineligible.

    In fact one can not Naturalize [natural born Citizen] as [ natural born Subject] was prostituted by Command of the King with England.

    We live in a Nation under the Law of the Republic for which we stand.

    Many military personal can serve as qualified for the military, but like all military persons are not qualified for the Offices of Representative or Senator by Age, not all are qualified for the Office of President by Age or by the Time it takes in being a [ natural born Citizen] {2 Generations}

  7. avatar
    Rickey March 25, 2016 at 1:46 pm #

    CRJ:

    Blah, Blah, Blah.

    How did you make out in the Utah caucus? What is you delegate count? Have you booked your flight to Philadelphia?

  8. avatar
    bob March 25, 2016 at 4:59 pm #

    CRJ:
    Of course the U.S. Constitution declares [Citizen]s [ineligible] after the Adoption of the Constitution that are naturalized by statute, including Amendments which are a form of Declared Naturalization.

    The U.S. Constitution “declares” none of those things.

    In Judy v. McCain

    …the court dismissed the suit because Judy couldn’t play lawyer very well, and then denied as moot Judy’s belated attempt to revive his dead case.

    And, surprise!, Judy’s ego compelled him to derail yet another otherwise intelligent conversation.

  9. avatar
    Lupin March 26, 2016 at 4:22 am #

    bob: And, surprise!, Judy’s ego compelled him to derail yet another otherwise intelligent conversation.

    https://www.youtube.com/watch?v=lbS2KSRUVHo

  10. avatar
    Rickey March 28, 2016 at 3:48 am #

    bob:

    And, surprise!, Judy’s ego compelled him to derail yet another otherwise intelligent conversation.

    This gives some insight into what is going on inside his head, and it’s not pretty.

    https://www.youtube.com/watch?v=ufNUmU9GrY8

  11. avatar
    Dr. Conspiracy March 28, 2016 at 9:33 am #

    ARRRRRRRRRRRRRRRRRRRRRRRRRRRRRGGGGGGGGGGGGGGGGGHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!

    Rickey: This gives some insight into what is going on inside his head, and it’s not pretty.

  12. avatar
    Ellen March 28, 2016 at 1:34 pm #

    IF the common law applies, and the WKA ruling is clear that it does, then no problem at all. That’s because the common law did not only apply to births on the soil, but also to lands abroad that were under the control of the sovereign—and what could be more under the control of the United States than a military base? (BTW, he was born on the base, not in Colon Hospital, as that forged McCain “birth certificate” claims.)

  13. avatar
    Arthur March 28, 2016 at 3:41 pm #

    Rickey: This gives some insight into what is going on inside his head, and it’s not pretty.

    https://www.youtube.com/watch?v=ufNUmU9GrY8

    Well. That was like watching a music video made by someone like Jame Gumb, the highly disturbed character from “Silence of the Lambs.”

  14. avatar
    y_p_w March 28, 2016 at 4:44 pm #

    Ellen:
    IF the common law applies, and the WKA ruling is clear that it does, then no problem at all. That’s because the common law did not only apply to births on the soil, but also to lands abroad that were under the control of the sovereign—and what could be more under the control of the United States than a military base? (BTW, he was born on the base, not in Colon Hospital, as that forged McCain “birth certificate” claims.)

    The State Department made it clear that mere birth on an US overseas military base has never conferred any kind of citizenship on a child. The same goes for diplomatic missions or consulates. They’re subject to certain prescriptive protections, but they’ve never been considered part of the United States nor carried any sort of extraterritorial status.

  15. avatar
    CRJ March 28, 2016 at 4:48 pm #

    Arthur: Well. That was like watching a music video made by someone like Jame Gumb, the highly disturbed character from “Silence of the Lambs.”

    Just close your eyes and listen.. its a new original Christmas song that’s kind of fun for couples. Where is you guy’s sense of fun?

    Rickey: This gives some insight into what is going on inside his head, and it’s not pretty.

    I’m not sure what’s not pretty about “Lacy Stockings”? You gotta something against Victoria’s Secrets? Maybe too American for you?

    https://en.wikipedia.org/wiki/Victoria%27s_Secret
    https://en.wikipedia.org/wiki/L_Brands

    I would have thought you’d choose something a little more “America”

    https://www.youtube.com/watch?v=9A-6RO5r8J0&index=9&list=PLLBPYMWei1g5qg8aQZmyw3qP73wCkpRAK

  16. avatar
    Scientist March 28, 2016 at 5:18 pm #

    y_p_w: The State Department made it clear that mere birth on an US overseas military base has never conferred any kind of citizenship on a child. The same goes for diplomatic missions or consulates. They’re subject to certain prescriptive protections, but they’ve never been considered part of the United States nor carried any sort of extraterritorial status.

    Military bases abroad are not US territory, generally. However, the Panama Canal Zone was,

  17. avatar
    bob March 28, 2016 at 5:41 pm #

    CRJ: Just close your eyes and listen.

    Talk about cruel and unusual punishment.

  18. avatar
    Arthur March 28, 2016 at 6:23 pm #

    bob: Talk about cruel and unusual punishment.

    Indeed.

  19. avatar
    Northland10 March 28, 2016 at 7:35 pm #

    bob: Talk about cruel and unusual punishment.

    Years of listening to choir and musical auditions helped create a defense mechanism where I just shut off what I am hearing. It was not strong enough to protect me here.

  20. avatar
    y_p_w March 28, 2016 at 8:37 pm #

    Scientist: Military bases abroad are not US territory, generally.However, the Panama Canal Zone was,

    Sure. However, at the time McCain was born there, it had a special status as an unincorporated territory closer to American Samoa than to let’s say Hawaii. Birth on the soil itself didn’t confer US citizenship of any kind absent other conditions. There was never a specific statute conferring jus soli citiozenship there such as there eventually was in Puerto Rico or other US territories.

  21. avatar
    Rickey March 28, 2016 at 8:40 pm #

    CRJ: Just close your eyes and listen.. its a new original Christmas song that’s kind of fun for couples. Where is you guy’s sense of fun?

    Listening to chalk squeak on a blackboard isn’t my idea of fun.

  22. avatar
    Rickey March 28, 2016 at 8:55 pm #

    bob: Talk about cruel and unusual punishment.

    This story is eerily reminiscent of CRJ.

    http://www.nbcnews.com/news/us-news/suspected-d-c-gunman-once-disrupted-congress-proclaimed-himself-prophet-n546871

  23. avatar
    Keith March 29, 2016 at 12:14 am #

    Rickey: This gives some insight into what is going on inside his head, and it’s not pretty.

    https://www.youtube.com/watch?v=ufNUmU9GrY8

    Dr. Conspiracy:
    ARRRRRRRRRRRRRRRRRRRRRRRRRRRRRGGGGGGGGGGGGGGGGGHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!

    Good Gawd A’mighty!

    CRJ bin doon way 2 much LSD

  24. avatar
    CRJ March 29, 2016 at 1:40 am #

    Rickey: bob: Talk about cruel and unusual punishment.

    I know it must be painful to admit months ago Mr. Judy properly cited a criminal investigation while @Bob ,@RealityCheck, and whoever else were in obligatory denial.

    Time has proven Mr, Judy wise who would have said 6 months ago that The Huffington Post Post this?

    [It’s Time for Hillary Clinton to Concede the Democratic Nomination to Bernie Sanders

    You’ve read the words correctly, and the FBI investigation is a “criminal investigation.”

    The Christian Science Monitor clearly states the nature of the FBI’s investigation, stating “The FBI is indeed conducting a [criminal investigation] into the possible mishandling of classified information on the private email server Clinton used for State Department communications.”

    Say it again, “criminal investigation.”

    It’s time for Democrats to deal with reality, not just allegiance to a political icon,]

    http://m.huffpost.com/us/entry/its-time-for-hillary-clin_b_9555422.html?

    It all goes back to Ideas and Principles being bigger than Personalities. The same will be proven against Obama has American History will look back at him as a usurper, a defacto Pres, , simply unqualified and a Bully that sought his ego rather than the United States Constitution and Truth.

    It’s still a shame in the U.S. Court and Justice that CLOWNS think they can hide in cover up. The light begins to shine and the lies they told themselves so many times they began to believe them come can’t stand the light and it all unravels and is undone for the lie cannot stand on a firm foundation.

  25. avatar
    CRJ March 29, 2016 at 1:41 am #

    CLINTON CIRCUS – Why #EmailGate? Hillary Clinton Clowns Coming Around INTERROGATIONS may Clown the #FBI Federal Prosecutors are deposing Clinton and her aides in the outline of building a criminal case where testimonies and questioning under oath could be used to indict her and her aides in the breach of National Security secrets in her tenure as Secretary of State.
    The Criminal Code type interrogations will help Federal Prosecutors better understand whether Clinton or her aides either [knowingly or negligently] discussed classified government secrets over a non-secure email system when she served as secretary of State.
    Both [negligence and knowingly] can be Cont..

    , http://codyjudy.blogspot.com/2016/03/breaking-news-clinton-circus-why.html

    https://m.facebook.com/story.php?story_fbid=1152019638166151&id=510896692278452

  26. avatar
    CRJ March 29, 2016 at 1:45 am #

    Rickey: This story is eerily reminiscent of CRJ.

    [Was John McCain a citizen at birth?]

    That’s because this is where the first Presidential Candidate to challenge McCain on ELIGIBILITY began.

    https://dockets.justia.com/docket/nevada/nvdce/2:2008cv01162/61642

    Don’t confuse yourself with [true] and [false] or you’ll end up walking in the wrong direction thinking your right. Often it’s the penalty suffered due to injustice that differentiates the two.

    That remains however yours to figure out for yourself. No one can do it for you.

  27. avatar
    bob March 29, 2016 at 12:03 pm #

    CRJ:
    You’ve read the words correctly, and the FBI investigation is a “criminal investigation.”

    Judy continues to display his inability to read, as nowhere does it say that Clinton is being investigated.

    The same will be proven against Obama has American History will look back at him as a usurper, a defacto Pres

    President Obama has been twice duly elected to office he enjoys.

    CRJ:
    That’s because this is where the first Presidential Candidate to challenge McCain on ELIGIBILITY began.

    Only Judy would consider filing frivolous lawsuits to be a badge of honor.

    And, of course, Judy was not first person to challenge McCain — Hollander was the first, Robinson was second. Hollander, Robinson, and Judy all appeared on the same number of ballots in 2008, and received the same number of votes in 2008: exactly zero.

    Just as Judy appeared on no ballots and received no votes in 2012 and 2016.

  28. avatar
    Ellen March 29, 2016 at 1:00 pm #

    Re: “The State Department made it clear that mere birth on an US overseas military base has never conferred any kind of citizenship on a child. The same goes for diplomatic missions or consulates. They’re subject to certain prescriptive protections, but they’ve never been considered part of the United States nor carried any sort of extraterritorial status.”

    Answer: Well, of course, you may be right. But those laws and opinions beg a huge question. Is the law what applies or is the original meaning of the US Constitution? And if the original meaning of the US Constitution refers to the common law (which, of course it does), then those opinions and laws are wrong.

    IF a child were born on a US base and the State Department denied him a US passport, that person could sue and would have a good chance to win.

    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” (The Wong Kim Ark Decision, quoting US v. Rhodes)

    And under the common law not only was the soil of the country “the allegiance” but also overseas territories that were controlled at the time. (And what could be more under the control of the USA overseas than a US military base.)

  29. avatar
    Scientist March 29, 2016 at 1:27 pm #

    Ellen: IF a child were born on a US base and the State Department denied him a US passport, that person could sue and would have a good chance to win.

    Bases are not US territory and are not under US control-they are leased from the host country and governed by various status of forces agreements. Children born on a military base are under the exact same legal status as any children born outside the US, and acquire citizen ship based on the citizenship of the parents, with certain residency requirements.

    As far as I know, this is considered well-established law and so I think the chances of winning would be very slight.

  30. avatar
    Crustacean March 29, 2016 at 2:25 pm #

    My brother was born at the Naval Station in Guantanamo Bay, Cuba. I recall growing up and hearing my parents joke that he could never be POTUS because of his “foreign” birth. I suppose that means I come from a family of birthers…

    Scientist: Children born on a military base are under the exact same legal status as any children born outside the US

  31. avatar
    Ellen March 29, 2016 at 4:03 pm #

    Re: “Bases are not US territory and are not under US control-they are leased from the host country and governed by various status of forces agreements.”

    According to the common law, on which we know that the Natural Born Citizen clause was based, Natural Born Citizen were not merely born on the soil of the country. They also were born in areas CONTROLLED by that country—and that control did not have to be permanent, temporary was good enough. It should be obvious that a US military base is controlled by the US government.

  32. avatar
    Scientist March 29, 2016 at 4:14 pm #

    Ellen: It should be obvious that a US military base is controlled by the US government.

    Legally it isn’t. US activities on a base in foreign countries are subject to restrictions imposed by the foreign government. This has been an issue, for example, at the Incirlik Air Force base in Turkey, where specific permission of the Turkish government was needed to carry out raids on ISIS.

    Now, I happen to believe that those born US citizens abroad are eligible to be President, but that has nothing to do with US control of territory and there is no difference between those born on military bases vs those born off base.

  33. avatar
    ballantine March 29, 2016 at 4:48 pm #

    Ellen:
    Re: “Bases are not US territory and are not under US control-they are leased from the host country and governed by various status of forces agreements.”

    According to the common law, on which we know that the Natural Born Citizen clause was based, Natural Born Citizen were not merely born on the soil of the country. They also were born in areas CONTROLLED by that country—and that control did not have to be permanent, temporary was good enough. It should be obvious that a US military base is controlled by the US government.

    The difficulty I think is that modern practice is to enter into status of forces agreements which may impose some form of foreign allegiance and alter normal common law provisions. These agreements were not around in 1787 where, as Ellen, says territory controlled by the English military was considered English territory for purposes of the common law. There were no military bases in the days in the modern sense of the word. An analogous situation from that time might be that an English war ship docked in New York in 1790 with the permission of the United States would not be deemed to be subject to the jurisdiction of the United States nor would its sailors owe allegiance to the United States. Persons born on such ship, though such would not actually happen, would be natural born subjects as they clearly would be born under the allegiance and protection of the King as such term was understood under the common law. However, to the extent the common law is changed by a status of forces agreement or treaty, the answer is less clear to me. Trying to apply 18th century law to the 21st century is not easy.

  34. avatar
    Scientist March 29, 2016 at 5:24 pm #

    ballantine: Trying to apply 18th century law to the 21st century is not easy.

    And that is a problem with originalism. For one thing, these ancient rules were made at a time when dual citizenship was not generally recognized, whereas today it is. I don’t think it’s proper to only examine what Cruz’s situation would have been had he been born in 1790. You have to look at what the situation was in 1970 and that is what is determinative.

  35. avatar
    Dr. Conspiracy March 29, 2016 at 5:44 pm #

    The really bad singing contributed to the morbidly weird impression I had of the video. I also don’t usually associate Christmas with sexual titillation. YMMV.

    CRJ: Just close your eyes and listen..

  36. avatar
    Dr. Conspiracy March 29, 2016 at 9:03 pm #

    Dual citizenship is not Ted Cruz’ problem. We’ve had several presidents who were dual citizens. I haven’t gotten the originalism v. living constitution issue with eligibility. If (and I emphasize “if”) the Framers intended that the US president be born a citizen in the country, that makes sense in the jet age as well as in 1789.

    Scientist: For one thing, these ancient rules were made at a time when dual citizenship was not generally recognized,

  37. avatar
    Rickey March 29, 2016 at 10:06 pm #

    Dr. Conspiracy:
    The really bad singing contributed to the morbidly weird impression I had of the video. I also don’t usually associate Christmas with sexual titillation. YMMV.

    I’m no prude, but the part about squeezing Mrs. Claus’ “rump” is unlike anything I have heard in a Christmas song.

  38. avatar
    Scientist March 30, 2016 at 6:44 am #

    Dr. Conspiracy: If (and I emphasize “if”) the Framers intended that the US president be born a citizen in the country, that makes sense in the jet age as well as in 1789.

    1. Of course, we don’t know what they intended, since there was no discussion.
    2. It is certainly not necessarily the case that things that made sense in 1789 still do. Nor is it clear some of them even made sense in 1789.
    3. “Jet age”? I don’t think I’ve heard that term in decades.

  39. avatar
    Dr. Conspiracy March 30, 2016 at 8:52 am #

    “Makes sense” refers to “comprehensible” more than “good policy.” “Born in the country” means the same thing today that it meant in 1789, and the advance in technology, nor societal mores invalidates the concept. Maybe we should revisit the policy, but at least we understand it and it is one that can be applied.

    Scientist: 2. It is certainly not necessarily the case that things that made sense in 1789 still do.

  40. avatar
    Lupin March 30, 2016 at 8:53 am #

    Dr. Conspiracy: that makes sense in the jet age as well as in 1789.

    I had a flashback to pretty air hostesses in PanAm uniforms. 🙂

  41. avatar
    Scientist March 30, 2016 at 11:09 am #

    Dr. Conspiracy: “Born in the country” means the same thing today that it meant in 1789, and the advance in technology, nor societal mores invalidates the concept.

    If the Constitution said those words, then there would be no argument. Of course, it doesn’t. Rather it uses a legal term of art (in effect, jargon) and terms of art can and do change their meaning, whether in law, science, music or anything else.

    Today, “natural born X”, whether X is citizen, killer, fool or ball player essentially means “X from birth”. So, even if you could prove beyond a doubt that in 1790 it excluded those born abroad (and I think we agree such a contention can be neither proven, nor disproven conclusively) that would not be the end of the argument.

  42. avatar
    Ellen March 30, 2016 at 12:00 pm #

    i agree with Ballantine, of course, that it is difficult to apply 18th Century law to the modern condition. But that does not change the fact that the Natural Born Citizen clause refers to the common law as it was in the 18th century.

    A old equivalent of a military base might be, say, Calais, which was on the French mainland, but occupied by England for many years, and when children were born in Calais, they were, of course ENGLISH. Why? Because of the common law.

    So we have McCain, born on a military base, and the common law says that not only the children born on the soil but children born in occupied territory are Natural Born.

    Now, as to how a status of forces agreement would apply to that: IF the agreement says that US law applies on the base, that confirms that the area is under US jurisdiction. (If not, well, are there any that are not?) And being under US jurisdiction surely confirms that it is under US control—just the same as Calais was to the English.

  43. avatar
    CRJ March 30, 2016 at 7:20 pm #

    Dr. Conspiracy: The really bad singing contributed to the morbidly weird impression I had of the video. I also don’t usually associate Christmas with sexual titillation. YMMV.

    Rickey: I’m no prude, but the part about squeezing Mrs. Claus’ “rump” is unlike anything I have heard in a Christmas song.

    Really sounds like you haven’t been married with children before. If that’s the case, you’ve missed out on a lot. I’m sorry. Those are some sweet fun times! …lol

    Crustacean: My brother was born at the Naval Station in Guantanamo Bay, Cuba. I recall growing up and hearing my parents joke that he could never be POTUS because of his “foreign” birth. I suppose that means I come from a family of birthers…

    That’s actually refreshing to hear. Hat Tip for your families service and Constitutional sense.

    bob: Hollander was the first, Robinson was second

    Hollander’s law suit was tossed for not having Standing – he wasn’t a Presidential Candidate, but was a New Hampshire resident.
    http://www.historycommons.org/entity.jsp?entity=fred_hollander_1

    Robinson was chair of the American Independent Party suing the Secretary of State Deborah Bowen https://dockets.justia.com/docket/california/candce/3:2008cv03836/206145
    again, not a Presidential Candidate suing another Candidate.

    I rest validating
    Judy v. McCain was the first Presidential Candidate to sue a Presidential Candidate in 2008.

    https://dockets.justia.com/docket/nevada/nvdce/2:2008cv01162/61642

    I also received votes in the Presidential Election of 2008, and 2012.

    Primaries are nearly a joke as we all know SuperDelegates control the Nomination in the Democratic Party.

    http://www.codyjudy.blogspot.com/2016/03/breaking-report-superdelegates-private.html

    This isn’t to say if a Court actually held a Bench Trial on the merits of a Case like checks and balances advocates in the Constitutions Qualifications I’d be a lot more popular.

    As reports like this one and many many others disregard spotlighting a Case with STANDING for those which were dismissed for a lack of STANDING are favored to match the agenda.

    Of course no one hear wrote a letter or advocated to any degree the hope that the U.S. Supreme Court would hear Judy v. Obama 14-9396 being content to sit in the shadows of victory by technicalities rather than the merits. I equate the celebrations around here to be great victory parties for the apposing teams forfeiture caused by a flat tire of the school bus.

    Woweee.. so proud for that win? What you equate as winning is seriously embarrassing.

    Get me on the football field in a Court of Law and lets see what happens?

  44. avatar
    Dr. Conspiracy March 30, 2016 at 8:37 pm #

    That would be an error on your part.

    CRJ: Really sounds like you haven’t been married with children before.

  45. avatar
    bob March 30, 2016 at 8:39 pm #

    CRJ:
    not a Presidential Candidate suing another Candidate.

    Hollander and Robinson were candidates just as much as Judy was: None appeared on any ballots, and none received any votes.

    I also received votes in the Presidential Election of 2008, and 2012.

    If that was true, it should be no problem for Judy to prove it.

    This isn’t to say if a Court actually held a Bench Trial on the merits

    Around a dozen courts ruled — on the merits — that President Obama was a natural-born citizen and therefore eligible for the office to which he was twice elected. Judy continues to ignore those rulings because they destroy his version of reality.

    As reports like this one and many many others disregard spotlighting a Case with STANDING for those which were dismissed for a lack of STANDING are favored to match the agenda.

    Judy’s case against McCain was dismissed because Judy couldn’t play lawyer very well (and reconsideration was denied because McCain’s loss mooted the case). Judy’s latest case against President Obama was dismissed because it was frivolous.

    Judy’s a loser, regardless of standing.

    Of course no one hear wrote a letter or advocated to any degree the hope that the U.S. Supreme Court would hear Judy v. Obama 14-9396 being content to sit in the shadows of victory by technicalities rather than the merits.

    Judy fails to understand that the district court ruled his suit was frivolous because it was meritless. As in: it had no merit. A ruling affirmed by the 10th Circuit.

    And — yet again — Judy’s ego compels him to ruin another otherwise intelligent conversation by making it all about him.

  46. avatar
    Northland10 March 31, 2016 at 11:26 am #

    CRJ: Of course no one hear wrote a letter or advocated to any degree the hope that the U.S. Supreme Court would hear Judy v. Obama 14-9396 being content to sit in the shadows of victory by technicalities rather than the merits. I equate the celebrations around here to be great victory parties for the apposing teams forfeiture caused by a flat tire of the school bus.

    There was no need for me to write a letter or advocate. Your case was frivolous and without merit. I agreed with the lower courts and knew that SCOTUS did not need me to point out the obvious.

  47. avatar
    y_p_w March 31, 2016 at 6:00 pm #

    Ellen:
    Re: “The State Department made it clear that mere birth on an US overseas military base has never conferred any kind of citizenship on a child. The same goes for diplomatic missions or consulates. They’re subject to certain prescriptive protections, but they’ve never been considered part of the United States nor carried any sort of extraterritorial status.”

    Answer: Well, of course, you may be right. But those laws and opinions beg a huge question. Is the law what applies or is the original meaning of the US Constitution? And if the original meaning of the US Constitution refers to the common law (which, of course it does), then those opinions and laws are wrong.

    IF a child were born on a US base and the State Department denied him a US passport, that person could sue and would have a good chance to win.

    There’s case law. Try Thomas v. Lynch from last year. Jermaine Amani Thomas was born on a US military base to a US citizen service member originally from Jamaica who didn’t meet the “physical presence requirements” to confer of US citizenship via 8 USC 1403(g). His mother was Kenyan. He was admitted to the US as a permanent resident but then the feds moved to deport him after several criminal convictions. His attorneys argued that he was a 14th Amendment US citizen due to his birth on a US military base abroad. His petition was denied.

    http://www.ca5.uscourts.gov/opinions%5Cpub%5C14/14-60297-CV0.pdf

  48. avatar
    Notorial Dissent April 1, 2016 at 2:54 am #

    What Judy also does not acknowledge and accept is that he didn’t actually even file an appeal with the USSC as what he filed, if you can be generous enough to call that mish mash of gibberish a filing, was an attempt to relitigate the already dead issues he’d tried at the district level, instead of actually filing a proper appeal by explaining why the district and appeals court got it wrong, so he not only failed initially in his attempts to play lawyer, he failed a second time by not filing a proper appeal to the USSC. So Judy in essence FAILED twice.

  49. avatar
    Rickey April 1, 2016 at 6:12 pm #

    CRJ:

    As reports like this one and many many others disregard spotlighting a Case with STANDING for those which were dismissed for a lack of STANDING are favored to match the agenda.

    No Court ever ruled that you have standing.

    What you fail to understand is that there are several legal hurdles which you have to clear before a court case can proceed. Standing is just one of those hurdles, and in order to have your case heard you have to clear all of them. If you fail to clear one of them, there is no need for the Court to consider the others.

    In your case you asked for damages because you claimed that an ineligible candidate received campaign contributions which otherwise could have gone to you. You failed to cite any case law that you were entitled to damages even if your allegations about Obama’s eligibility were correct. In other words, you failed to state a claim for which damages could be awarded, hence your claim was frivolous. Once that determination was made, both the District Court and the Court of Appeals had no need to go any further.

    You had no chance of prevailing on appeal because your appeal failed to address the reasons why your lawsuit was dismissed. Instead of trying to convince the Court of Appeals that you had a legally recognized basis for asking for damages, you completely ignored that point and instead argued that your case was important and you repeated your specious “two-citizen parents” argument.

    You have been told this many times. One of your many problems is that you never learn from your mistakes.

  50. avatar
    Northland10 April 1, 2016 at 8:17 pm #

    Rickey: No Court ever ruled that you have standing.

    What you fail to understand is that there are several legal hurdles which you have to clear before a court case can proceed. Standing is just one of those hurdles, and in order to have your case heard you have to clear all of them. If you fail to clear one of them, there is no need for the Court to consider the others.

    From his special McCain case

    UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

    CODY ROBERT JUDY, Plaintiff, v. JOHN MCCAIN, et al., Defendants.
    Case No. 2:08-CV-01162-KJD-RJJ

    ORDER
    Presently before the case is Plaintiff’s Motion to Reopen Case (#8). Plaintiff first asserts that the Court Clerk incorrectly recorded his address on his receipt for the filing fee. This assertion is correct. However, all court mail was sent to the correct address provided by Plaintiff in his complaint, P.O. Box 2342, not P.O. Box 2742 as incorrectly recorded on his receipt. Therefore, Plaintiff has not shown good cause for his failure to update his address with the Clerk of the Court as required by Local Special Rule 2-2. Therefore, the Court denies Plaintiff’s motion to reopen the case. Furthermore, even if Plaintiff had grounds for reconsideration, the Court would deny the motion, because the issues raised by his complaint are moot.

    Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Reopen Case (#8) is DENIED;

    IT IS FURTHER ORDERED that all other outstanding motions are DENIED.
    DATED this 7 day of January 2009.

    He never refiled or appealed. His next attempt was his 2014 case against Obama and the request for damages.

  51. avatar
    bob April 3, 2016 at 4:53 pm #

    Northland10: His next attempt was his 2014 case against Obama and the request for damages.

    Judy did a meaningless “me too” filing in the 2012 Georgia ballot challenge, in which Taitz famously lost to an empty chair.

  52. avatar
    Rickey April 3, 2016 at 6:57 pm #

    bob: Judy did a meaningless “me too” filing in the 2012 Georgia ballot challenge, in which Taitz famously lost to an empty chair.

    Which continued his uninterrupted string of failures.

  53. avatar
    Ellen April 4, 2016 at 1:55 pm #

    Re: “here’s case law. Try Thomas v. Lynch from last year. Jermaine Amani Thomas was born on a US military base to a US citizen service member originally from Jamaica who didn’t meet the “physical presence requirements” to confer of US citizenship via 8 USC 1403(g). His mother was Kenyan. He was admitted to the US as a permanent resident but then the feds moved to deport him after several criminal convictions. His attorneys argued that he was a 14th Amendment US citizen due to his birth on a US military base abroad. His petition was denied.

    http://www.ca5.uscourts.gov/opinions%5Cpub%5C14/14-60297-CV0.pdf

    Answer: I stand corrected. Boy do I ever stand corrected.

  54. avatar
    Dr. Conspiracy April 4, 2016 at 3:31 pm #

    And by that shall all know that you are not a birther.

    Ellen: I stand corrected.

  55. avatar
    Dave B. April 4, 2016 at 5:48 pm #

    Exactly what I was thinking.

    Dr. Conspiracy:
    And by that shall all know that you are not a birther.