Tag Archives: Congress

Supreme Court Justice Scalia believes natural born citizenship is jus soli

by Dr. Conspiracy on 27. Sep, 2009 in Citizenship, Supreme Court

Justice Scalia

Justice Scalia

Jus soli citizenship is based on the land of birth and jus sanguinis is citizenship based on parentage. In the oral arguments of Tuan Anh Nguyen v. INS  (No. 99-2071), Justice Scalia made it clear that his view is that natural born citizenship, the requirement to be president, is based on jus soli (birth in the United States).

Here is the relevant section from the transcript:

Justice Scalia: … I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England?

They did not want that.

They wanted natural born Americans.

[Ms.]. Davis: Yes, by the same token…

Justice Scalia: That is jus soli, isn’t it?

[Ms.] Davis: By the same token, one could say that the provision would apply now to ensure that Congress can’t apply suspect classifications to keep certain individuals from aspiring to those offices.

Justice Scalia: Well, maybe.

I’m just referring to the meaning of natural born within the Constitution.

I don’t think you’re disagreeing.

It requires jus soli, doesn’t it?

The transcript is fascinating listening.

Thanks to NBC for the link! We have such GREAT commenters here!

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International law and citizenship in the United States

by Dr. Conspiracy on 27. Sep, 2009 in Citizenship

The consensus view today is that everyone born in the United States (with a few exceptions) is a natural born citizen, following the historical survey of the Supreme Court of New York in Lynch vs. Clarke and many subsequent court decisions, US Attorney general decisions, and books on the subject. Their view is that the common law of Britain is the source of this stream of history, and the place to turn to when defining terms used in the Constitution (as affirmed by the Supreme Court in Smith vs. Alabama).

In recent times a move is afoot to argue that citizenship at birth in the United States is only acquired by birth in the United States of citizen parents(s), following the philosophy of Emerich de Vattel in his book, The Law of Nations. They say that this is the view of the founders of the United States, who understood such concepts according to “international law” rather than “common law”. While de Vattel is just one commentator on international law, they say that his views control.

So to further the discussion, I offer the following text from the book INTERNATIONAL LAW, Chiefly as Interpreted and Applied in the United States by Charles Cheney Hide, professor of law at Northwestern University (1922). Please refer to the original for important footnotes.

THE ACQUISITION OF AMERICAN NATIONALITY BY BIRTH

a
Citizenship

(1)
By Right of Place. Jure Soli

(a)

§ 343. The Common Law.

According to the common law every child born “within the ligeance and jurisdiction” of the King of England was regarded as his subject. It is not true that all persons born within the King’s domain were within his ” ligeance and jurisdiction.” Thus, the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof; likewise the child born within the realm whose father was an alien, and at the time of the birth of the child, a diplomatic officer accredited to the Crown by a foreign sovereign. As these were, however, the only instances where persons born within the royal domain failed to acquire English nationality, it became natural to assert as a rule of law, commonly known as the jus soli, that, subject to these exceptions, a person became a natural-born subject by reason of his birth within the King’s domain. (more…)

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Birthers waste millions in taxpayer dollars

by Dr. Conspiracy on 25. Sep, 2009 in Lounge

You’ve heard, I’m sure, the claim that Obama has spent some large amount of money (since the amount is a wild guess, specifics vary widely) keeping his birth certificate a secret. Those who follow these questions know that nothing Obama can do will make the Conspiracy Theorists withdraw. If he was born in Hawaii, then he’s not a natural born citizen anyway. If a court rules the against them, it just means the judge is traitor. If nothing Obama can do (short of resigning) will have any effect on birther activity, then it is certain  that the birthers bear all of  the responsibility for all the public funds spent in dealing with birtherism.

What are those costs?

  • Members of Congress are flooded with emails, letters and phone calls asking questions and making demands related to birther theories. Their staff read and answer the mail.
  • State officials, including secretaries of state, are pestered with birther questions.
  • FOIA requests (which in most cases are free to the requester) have been filed, and must be researched and responded to
  • The state and federal courts have been flooded with cases (at least 60 actions!) and many of the plaintiffs have asked that the filing fee be waived.
  • Many of the cases involve government defendants (state secretaries of state, Nancy Pelosi, the State Department, the Department of Homeland Security, the Federal Elections Commission, Vice President Cheney, Secretary of State Clinton, Vice President Biden, Secretary of State Gates, various military commanders, the US House of Representatives and the US Senate — not to mention Barack and Michelle Obama). All of these are defended at public expense.

Add up the time and effort of congressional staff, judges, law clerks, state officials and federal agency staffers. It’s got to be in the millions. Birthers are not harmless.

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A thought from the past

by Dr. Conspiracy on 20. Sep, 2009 in Citizenship

The late 1700′s occasioned a spirited debate over the qualifications of citizens, those aliens who desired to adhere to the United States and become members of American society. Some argued that only those born here should become citizens, and others argued for lengthy residence requirements. Nathaniel Macon of North Carolina gave us some words that I think are a caution to us in the present citizenship controversy:

gentlemen in their zeal to get at particular persons, will go too far in this business

Sitgreaves, Annals of Congress, 5th Cong. 2d sess., 1572; 1780.

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“It’s an insult to his mother”

by Dr. Conspiracy on 25. Aug, 2009 in Lounge, Stanley Ann Dunham

Stanley Ann Dunham

Stanley Ann Dunham

The utter lack of disrespect that some birthers show towards the president’s deceased mother appalls me, particularly the frequent claims that she is a “liar”. I was raised not to disrespect anyone’s mother, and particularly not a departed one, and I was taught not to call anyone a liar unless I was pretty damned sure it was true. What compounds the insult is that there is no evidence whatever to support the nasty speculation.

The New York Times article earlier this month, carried comments from Congressman Neil Abercrombie.

… Mr. Abercrombie, who has represented Hawaii for nearly two decades in Congress, was a close friend of Mr. Obama’s parents, who were students at the University of Hawaii in 1961. The president’s father, Barack H. Obama Sr., was from Kenya, but Mr. Abercrombie said the suggestion that the Obama baby was born in Africa is an absurd impossibility.

“He was born in Kapiolani Hospital, right down the street from where I lived,” Mr. Abercrombie said. “They had no money. I can’t imagine how they would get to Kenya. It makes no sense at all. It’s an insult to his mother.”

I agree.

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Executive Order 13489 – Presidential Records

by Dr. Conspiracy on 19. Aug, 2009 in Ask a Theorist, Misc. Conspiracies

Obama Conspiracy Theories received an email from a visitor expressing concerns about an executive order by President Obama:

I’d like for OCT to comment on Executive Order 13489, one of Obama’s first official acts in office, and which is largely interpreted as banning the release of his records without his permission and which also revokes Section 6 of Executive Order 13233 so as to ban Congress and the courts from interceding.

The preamble to the Executive order says:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows

The key point in understanding what’s going on here is the definition of “Presidential records”. Here is the relevant passage from the Presidential Records Act (44 U.S.C. Chapter 22):

§ 2201 Definitions… 2) The term “Presidential records” means documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

from which it is obvious that “Presidential records” are not those records being sought by eligibility doubters, documents created before Obama became President.

Nothing to see here. Move along.

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Natural born citizen: clarified!

by Dr. Conspiracy on 13. Aug, 2009 in Citizenship, Featured Articles

Understanding natural born citizen gets confusing when the definition of the term “natural born citizen” is conflated with the kinds of people who fit it (qualifications that change by country and over time). Some hugely long articles and comments have appeared, and they are long because they are wrestling with, or taking advantage of, the confusion. I must admit that I was confounded over this for quite a while myself (being self taught and not a trained lawyer). I finally got straightened out after reading some history books.

Perhaps the analogy with “naturalized citizen” will make things clear. One would never define naturalized citizen as someone who takes an oath after living in the United States for some number of years, or someone who marries, or someone…. Congress can make new naturalization qualifications any day it wants. A naturalized citizen is defined as someone who becomes a citizen through law after they are born. Once defined, then we can enumerate the various ways someone can become a naturalized citizen in the United States (or some other country). The definition of “naturalized citizen” hasn’t changed in 200 years, but the rules for becoming one certainly have.

The same error would be to define natural born citizen in terms of who qualifies to be one, someone who is born this and has parents that. That’s not a definition of what a natural born citizen is, but rather of  possible qualifications under a particular constitution or set of laws to be one.

So let’s get to the definition. (more…)

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