Burden of proof (Vermont 1907)
It is an established principle that the burden of proof in a criminal prosecution lies on the prosecution. A defendant may remain silent and be acquitted if the case against him is insufficient.
There is something a reversal of burden, however, in a quo warranto case, one in which the government, after meeting a threshold of likelihood, challenges the right of someone to hold office; the burden of proof lies with the office holder. Courts have ruled, however, that only the government may bring a quo warranto suit, and those made by private individuals have been summarily rejected by the courts.
That said, should some part of the government bring a quo warranto action against President Obama, would he be obliged to prove his eligibility? Perhaps not. I refer here to a case of the State of Vermont v. S. Hollister Jackson from the Supreme Court of Vermont in 1907, where the eligibility of the states attorney of Washington County was challenged because, it was claimed, he was not a citizen at the time of his election to office.
This is a petition for a writ of quo warranto to test the right of the respondent to hold the office of state’s attorney of Washington county. As the case is presented, the only question for our determination is: Was Mr. Jackson a citizen of the United States at the time of his election to the office in 1904? It is said that we were not in harmony with the authorities when we held, in State ex rel. Danforth v. Hunton, 28 Vt. 594. that in these proceedings persons in possession of an office are presumed to be regularly elected and entitled to hold until the contrary appears; and that the true rule is that in such cases the burden is on the respondent to show legal title to the office [see source for citations]…
However this may be, we regard it of no importance in this case as the citizenship of the respondent is presumed. This presumption arises from the mere fact of his residence here [see source for citations]… It was this rule which Judge Redfield had in mind when he said in Blood v Crandall 28 Vt at page 400 that the general presumption is in favor of citizenship.
The details of the case (which was dismissed) are not of particular interest to the Obama question since Mr. Jackson was not born in the United States.
Calais v Marshfield
The a US Circuit Court in the case of US v. Rhodes defined natural born citizenship as birth within the allegiance of the United States [cited approvingly by the Supreme Court in US v. Wong Kim Ark]. Some have said that because President Obama, through his father, was born also a Citizen of the UK and Colonies, that he has a dual allegiance to Britain, and that this defect renders him not a natural born citizen of the United States.
It has always seemed to me profoundly unfair that some second country could impose an allegiance upon someone against their will, or that somehow a second country could dictate who could and who could not be President of the United States. Apparently, the court agreed with me in this decision from the case of Calais v. Marshfield (1844):
“Although the government of one country may grant to persons owing allegiance to that of another, the rights and privileges of citizenship, it is not intended to intimate that the government making such grant would thereby, and without their consent or change of domicil, become entitled to their allegiance in respect to any of their political duties or relations.” Calais v Marshfield 30 Maine Rep 520. [As cited in Field Int. Code.]
Supreme Court Justice Ginsburg rejects de Vattel formulation
Justice Ginsburg
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 Ginsburg made it clear that her view is that natural born citizenship can be conveyed by parentage alone and doesn’t necessarily require birth in the United States. She rejected the formulation of de Vattel, in The Law of Nations, that birth in the country of citizen parents is necessary for naturels.
Here is the relevant section from the transcript:
Justice Ginsburg: …My grandson was born in Paris of U.S. citizen parents. I had never considered him a naturalized citizen of the United States….
Justice Ginsburg: There is a debate over whether my grandson is a natural born citizen. I think he is.
Listening to the transcript points out how detached from reality are the denialist lawyers like Apuzzo and Donofrio, trying to rewrite American history and citizenship law.
Supreme Court Justice Scalia believes natural born citizenship is jus soli
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!
International law and citizenship in the United States
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…)
Is racism the new “cool”?
Conservative intellectual theorist Irving Kristol when derisively called a “neoconservative” said: “the sensible course, therefore, is to take your label, claim it as your own and run with it”.
On one side, the Obama Conspiracy debunkers have embraced “Obot” (see Obots.org) and Birthers have embraced “Birther” (See TheBirthers.org).
Is “racist” the next negative label to be adopted and worn proudly?
When Jimmy Carter called opposition to Obama “racist”, he opened the door for those who automatically ridicule anything they can label with “Jimmy Carter”. (Certainly Carter has long embraced the label “Jimmy Carter”.)
Leo C. Donofrio has published reference to a racist anti-Chinese article, calling it the “Holy Grail”, Mario Apuzzo is fond of citing the Supreme Court’s decision sayings slaves cannot be citizens in Dred Scott v. Sanford, and to top it off a truly amazing article was just published by J. R. Dieckmann in The Great American Journal, Embracing Racism.
Dieckmann tries to set up a straw man attack, and then says roughly, “if this is racism, then I’m a racist.” Nevertheless, are we looking for a new political theme from the far right: “hey what’s so bad about racism anyway?” (more…)
Searching for “natural born citizen”
US Constitution
Not many folks have spent more time than I searching the Internet and WestLaw for keywords including “natural born citizen”. You can see the results of such activity on pages like my The Great Mother of All Natural Born Citizen Quotation Pages and Tes’s SCOTUS & “Natural Born Citizen” – A Compendium. While that’s useful, finding short paragraphs with keywords is not the way to understand the subject in depth. Even those who disagree with me fall into the same pattern, for example, citing E. de Vattel without reading the chapters that follow.
To really understand what’s going on one must read those works where the subject is developed: this happens in some scholarly works, and in some imp0rtant court decisions. Here are some useful texts, by far not all.
- The United States Constitution
- The Congressional Debates on the 14th Amendment
- Lynch v Clarke (Supreme Court of New York)
- US v Wong Kim Ark (Supreme Court of the US)
- Afroyim v. Rusk, 387 U.S. 253
- Rogers v Bellei (Supreme Court of the US)
- The Development of American Citizenship, 1608-1870
- The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty – Yale Law Journal 1988
- The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born Adoptees?
- Defining “American” Birthright Citizenship and the Original Understanding of the 14th Amendment, James C. Ho.
- Rawle’s View of the Constitution
- Citizenship in the United States, Frederick Van Dyne (1904)
- The Justiciability of Eligibility: May Courts Decide Who Can Be President? [HTML] [PDF] Daniel P. Tokaji, The Ohio State University, Moritz College of Law
- Originalism and the Natural Born Citizen Clause [HTML] [PDF] Lawrence B. Solum, University of Illinois Law School
- Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1852).
Commenters here may suggest additions to the list.
