Tag Archives: Stephen Tonchen

Response to Eligibility Primer (Part 2)

by Dr. Conspiracy on 21. Jun, 2009 in Citizenship

This is a continuation of the discussion of the June 5, 2009, article titled Obama Presidential Eligibility – An Introductory Primer by Stephen Tonchen. We resume at the end of his section 4:

In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).

This is a major gloss over one of the most sweeping surveys of citizenship ever appearing in US jurisprudence. The question before the court was whether Wong Kim Ark, born in California of Chinese subjects at a time when racist legislation (the Chinese Exclusion Act) prohibited the Chinese from becoming naturalized citizens, was a citizen. The Court said that he was. But in the majority opinion, the Court said a great many things of importance, specifically:

  1. Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
  2. The Court cited English Common law, saying that those born in England are natural born subjects of England, without regard for the citizenship of their parents
  3. The Court asserted the equivalence of “citizen” and “subject”.

While US v. Wong did not decide the natural born citizen question, the majority opinion leads inevitably to the conclusion that those born within the United States (except the children of ambassadors) are our natural born citizens, without regard to the citizenship of their parents. (more…)

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Response to Eligibility Primer (Part 1)

by Dr. Conspiracy on 20. Jun, 2009 in Citizenship, Featured Articles

I have come to realize that there are two debates on the question of presidential eligibility and the definition of “natural born citizenship”, and some of the more thoughtful people on each side are debating different things. One debate thesis may be summed up this way:

The Constitution does not define “natural born citizen”, nor is it defined in legislation. The U. S. Supreme Court has never decided the question of the relationship of parentage to natural born citizenship. The uncertainty should be resolved.

The second debate thesis might be summed up this way:

Based on common law principles, and supported by numerous authorities, one may conclude with a high degree of certainty that natural born citizens of the United States are those born within its borders except the children of ambassadors.

Folks like Ken Dunbar and Stephen Tonchen (the author of the piece to be discussed here) are debating the former, and this web site is largely geared towards investigating the latter. If debating the first question, then one might say that Barack Obama’s eligibility is “unproven”, but when debating second one will conclude that it is “proven”.

I have no strong objection to the first thesis, but because I affirm the second, I don’t find that there is any urgency towards a judicial resolution of a question that has already been decided by force of argument, the same argument that would be made to the Court and that would certainly prevail. Whichever the case, I find language like “usurper” to be totally irresponsible. (more…)

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