Many of you are familiar with long treatises on the subject who is a natural born citizen of the United States, a requirement to become the US President, written by those who doubt that Barack Obama qualifies. Articles on this subject seem to garner more comments on this site than on most any other topic. Well, here we go again.
The Birthers (referring to the web site by that name) have published a lengthy treatise by Mikhail (Mike) Godkin, titled “And Nothing but the Truth: Original v. Modern Meaning of the Natural Born Citizenship.” Godkin is a Soviet émigré with a 1976 Ph. D. in Electrical Engineering from the Novosibirsk Institute of Electrical Engineering. He came to the US in 1977 and earned a MBA from the University of Chicago Business School in 1984. He became interested in the natural born citizenship clause in September of 2008.
Mr. Godkin would like your views on his paper. I have already written up some of mine and sent them to him; I’ll share some of those below in comments. Always, the optimist, I hope the discussion will proceed civilly. The paper follows:
It is interesting that Mr. Godkin cites Professor Lawrence Solum to support his arguments. Here is what Professor Solum had to say in his 2010 paper, “Originalism and the Natural Born Citizen Clause”:
As a matter of inclusion, anyone born on American soil with an American parent is clearly a “natural born citizen.”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263885
Notice that he did not say “parents.” He said “parent.”
A pervasive problem with Godkin’s article is that it’s not explained those journal articles are generally not talking about the eligibility of the children of aliens born in the US, but the children of citizens of citizens born abroad. The article is highly misleading when it cites questions about one as evidence of doubts about the other. This flaw is woven throughout the article time and time again. Professor Chin makes this clear in his Michigan Law Review article:
One is controversial. One is not. A fair reading of most of the article’s sources say the same thing.
The article has an error of fact in the section on Jill Pryor. It says, “…Hamilton’s draft was rejected… ” In fact, contrary to Pryor’s scholarly error, the Hamilton Draft was never submitted to the Convention for discussion and was never “rejected.” Max Farrand in his indispensable 3-volume Records of the Federal Convention 1787 is the original source for Hamilton’s Draft, and Farrand says:
The argument based on a rejection of Hamilton’s proposal falls.
See:
http://www.obamaconspiracy.org/2012/02/alexander-hamilton-on-presidential-eligibility-2/
One of the arguments Godkin (and his citations) make strikes me as distinctly odd, namely that legislation cannot change the Constitution. I would point out that Senators must be citizens of the United States. Congress can pass a law making anyone a citizen. The Constitution mentions felonies. The Congress can create a new felony any time they and the President want to. In 1790, they passed an Act declaring the children of US citizens born overseas “natural born citizens.” These are some of the same folks who drafted the Constitution.
While legislation cannot overrule the Constitution, in those cases where the Constitution relies on terms dependent on legislation, the effect of the Constitution is changed. If it is true, as I believe it is, that anyone born a citizen of the United States is a natural born citizen, then Congress has changed numerous times precisely who was born a citizen (outside of the United States).
Rickey,
I am quoting the same paper written by the same Professor Solum. At the beginning of his 2008 version of this paper, Professor Solum did talk about two parents. (Please take a look again at the section “Evolving views of professor Solum.) Almost two years later he changed his tune and mentioned one parent. But in the body of his paper he is still talking about two American parents.
Ironically, it doesn’t matter because the majority of the commentators assert that ANYBODY born on American soil is a natural born Citizen. So he is not on the same wave length as everybody else.
Solum later commented on that statement, to make it clear that he was coming up with the absolute smallest indisputable criterion that nobody nowhere nohow has ever objected to. He is not saying that US Presidents must have one citizen parent.
He perpetuates Jill Pryor’s earlier mistake that Alexander Hamilton’s June 18th, 1787 had a “born a citizen” clause. That always bugs me.
And he ignores the early references to the President needing to be a native born citizen. And the interchangeable use of the term “natural born citizen” and “natural born subject”.
And he ignored Chief Justice Fuller’s dissenting opinion.
But other that his article was real long.
The paper says: “Wong Kim Ark would have been pleasantly surprised, had he learned that he, according to Christina Lohman, was indeed eligible.”
Wong, in his original suit against the United States asserted that he was a “natural-born” citizen. The government in its appellate brief to the Supreme Court said that the District Court had erred declaring him a natural born citizen. The government brief went on to ask:
Certainly the government understood the implications of their losing the case. As to the issue of racism. The government brief in Wong used distinctly racist language describing the offspring of the Chinese as “obnoxious” and their alienage “foul and corrupt.”
Dr. Conspiracy,
You quoted Professor Chin as saying:
“Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens.”
This is just an opinion of another professor. Why should we assign more weight to his opinion than, say, that of Professor Solum or anybody else’s?
The Constitution doesn’t give a definition of a natural born Citizen when it comes to presidential eligibility.
The SCOTUS never considered the case in which it was supposed to decide whether a particular person is eligible to become and be President.
So we are left with opinions, which range from an emotional and highly partisan declaration to a conclusion based on analysis of historic documents (if any) and a political situation in 1787 when the Constitution was drafted.
Gorefan,
You made a statement:
“And he ignores the early references to the President needing to be a native born citizen. And the interchangeable use of the term ‘natural born citizen’ and ‘natural born subject.’
You probably missed my section “Natural born or native-born?” in which I discuss the issue.
“And he ignored Chief Justice Fuller’s dissenting opinion.”
I didn’t ignore his opinion. You just complained that my “article was real long.” It would have been much longer had I included everything related to this topic.
In any case, what Justice Fuller said was a DICTUM, in other words, he just expressed his opinion for the record.
Since Solum says that being born with a single American parent is sufficient, at least for the case at hand – this election – it doesn’t seem like Professor Chin and Professor Solum’s interpretations would differ on the eligibility of President Obama.
The SCOTUS knows very well who the President is and what his father’s situation was. Numerous birther cases have reached their desks and they have declined to hear any of them. So they are much less worried about this than you are apparently.
I’m sorry perhaps you misunderstood me when I wrote, “early references to the President needing to be a native born citizen”. I was referring to statements by Founders like St. George Tucker, James Iredell and James Kent.
Chief justice Fuller wrote,
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Would you say that he believed the majority’s opinion made Wong Kim Ark eligible to be President?
BTW, if you are going to discuss the derivation of the term “natural born citizen” and its relationship to “natural born subject”, you are almost required to explain why the Massachusett legislature in their naturalization acts used both terms interchangeably between 1785 and 1791.
1. You treat WKA as dictum because it wasn’t a case of Presidential eligibility, but Minor as holding why, again? Neither case was an eligibility case, so if WKA is mere dictum, so is Minor.
2. American society has never been closed. To suggest changing the definition soley based on a fallacious premise makes the rest of the paper just as fallacious.
Mr Godkin has also ignored the many courts that have ruled specifically on Obama’s eligibility and in particular have considered the 2-parent citizen argument and soundly rejected it. He should read Ankeny vs Governor of Indiana, as most of the others have followed the same logic. The law is not made only by the Supreme Court, and judgements by other federal and state courts are the law of the land unless and until the Supreme Court says otherwise, which, in this case, they have not.
Now you are welcome to argue that all these judges are wrong, but frankly, they make the law and you don’t. I apologize if that sounds harsh, but it iis the truth..
And yet you felt compelled to add,
“It is a very interesting interpretation [Christina Lohman’s interpetation of Wong]. The U.S. Supreme Court was supposed to decide whether Wong Kim Ark was an American citizen and not whether he was eligible to become a U.S. President. Wong Kim Ark would have been pleasantly surprised, had he learned that he, according to Christina Lohman, was indeed eligible.”
Do you think Wong Kim Ark would have been equally surprised to find that the Chief Justice of the Supreme Court also considered him eligible to be President?
That is precisely my point. Even if you accept Professor Solum’s more narrow opinion, Obama still is indisputably a natural born citizen.
Did Mr. Godkin consult with former Supreme Court Justice Sandra Day O’Connor?
“President Obama was born in the state of Hawaii, and so is clearly a natural born citizen.”
I see a couple of problems with your interpretation of the Wong Kim Ark case. First of all, the opinion that Justice Fuller expressed for the record unquestionably implies that Mr. Wong (assuming he met the other requirements) would have been eligible for the presidency. Second, since the case was about citizenship, the reasoning by which Mr. Wong was found to be a citizen is part of the holding rather than dicta (the ruling would not be supported were said reasoning removed). On the other hand, Minor is a voting rights case and it is irrelevant how the court determined Virginia Minor’s citizenship—the holding was that citizenship (from whatever source) does not convey the right to vote. However, in my view, the biggest problem you have is that Mr. Wong was held to be a citizen (you can’t argue that wasn’t part of the holding…) and, by law, he could not have been naturalized. Assuming that the 14th Amendment was declarative of existing law rather than defining new law (something that seems well-established), the Constitution only recognizes two classes of citizens: naturalized and natural born—therefore Mr. Wong was necessarily either a natural born citizen or an alien and we know that he wasn’t an alien.
Good point—he cites the many cases that were dismissed for lack of standing, but doesn’t note that there are now several cases in which the court found President Obama to be natural born. Also, he comes to conclusions regarding Rebekka Bonner’s motivations based on the assumption that President Obama was ineligible—thus committing the logical fallacy of “begging the question”.
Really? He had NO idea what NBC meant? Not the first clue?
Immigrants taking a nativist viewpoint on the NBCship. He’s not the first. What’s up with that?
Perhaps NBCs take this place for granted.
Dr. Conspiracy,
You wrote:
“One of the arguments Godkin (and his citations) make strikes me as distinctly odd, namely that legislation cannot change the Constitution. I would point out that Senators must be citizens of the United States. Congress can pass a law making anyone a citizen. The Constitution mentions felonies. The Congress can create a new felony any time they and the President want to. In 1790, they passed an Act declaring the children of US citizens born overseas ‘natural born citizens.’ These are some of the same folks who drafted the Constitution.”
Let me express my opinion again:
It is not up to the U.S. Congress to change the Constitution. There is only one way to change it –by going through the amendment process.
For example, there were several attempts to make naturalized citizens eligible for presidency. One of such attempts was a proposal by Senator Orin Hatch.
Who was against it? The Senate Democrats (please see ref. [38]).How could that possibly happen? Most of liberal commentators that I quoted in my paper are – theoretically – against the “Natural born citizen” presidential eligibility clause.
The answer is very simple: They were afraid that Republican Arnold Schwarzenegger would become eligible to run for President, and nobody, given his level of popularity at that time, could stop him. So sadly enough, the partisanship prevailed over common sense.
As far as the 1790 Act passed by the Congress, it was repealed in 1795. Perhaps, “some of the same folks who drafted the Constitution” realized that it may have been unconstitutional.
I love it. When I first began anti-birthing, I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders. But arguing that it isn’t what it currently is, is. Birthers ignored this fine distinction generally, but I tried.
So this thread is sort of a delight. Godkin is wrong, of course, but his intellectual integrity deserves, and has so far been largely afforded, polite refutation.
Tarrant:
“Since Solum says that being born with a single American parent is sufficient, at least for the case at hand – this election – it doesn’t seem like Professor Chin and Professor Solum’s interpretations would differ on the eligibility of President Obama.”
You missed my point. One may agree or disagree with Professor Chin’s opinion, but at least it was ONE opinion. On the other hand, in September, 2008, Professor Solum wrote about two parents. But then lawsuits challenging Obama’s eligibility sprang like mushrooms, and, in my opinion, Solum realized that his assertion about presence of two American parents as a requirement to become President would not help Obama at all.
He disappeared from the “radar” screen for two years, and when the political dust settled
he made a ”correction” to his 2008 version.
Again, his political preference prevailed over his scholarship.
The major “weapon” of all the commentators asserting that anybody born on American soil is eligible for presidency is that there is a consensus among constitutional scholars and legal experts with regard to this issue. I think that I have demonstrated that there is no such consensus. Most of these scholars contradict each other. For example, if anybody born here regardless of the parents can become President, then there is no point to talk about Obama’s American mother. She could have been born in Kenya, Mongolia, or Russia, and it would be irrelevant to Obama’s eligibility. However, many of my opponents over the last four years had presented the same argument: “Obama’s mother was an American, and he was born in Hawaii. Leave him alone!”
People were confused in 2008, and they are still confused now.
Rickey,
You quoted me:
“Ironically, it doesn’t matter because the majority of the commentators assert that ANYBODY born on American soil is a natural born Citizen. So he is not on the same wave length as everybody else.”
Then you said:
“That is precisely my point. Even if you accept Professor Solum’s more narrow opinion, Obama still is indisputably a natural born citizen.”
It may very well be your point, but it isn’t mine.
Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency. And of course there is no Supreme Court holding with regard to presidential eligibility of any particular candidate. The State courts don’t count: their opinions are not binding for other courts and people.
I completely agree—he’s wrong, but he’s arguing his case in the right way and should be afforded respect for that.
Thomas Brown:
“I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders. But arguing that it isn’t what it currently is, is. Birthers ignored this fine distinction generally, but I tried.”
I am not going to give you my opinion on you comment. Instead, I am going to quote Christina Lohman (ref. [16]):
“Her [Ms. Pryor’s] position allows the Natural-Born Citizen Clause to mean one thing today, and something quite different tomorrow. This possibility does not reflect bright-line guidance, but rather suggests that the meaning of the Constitution is alterable at the whim of Congress. In light of Article V, this may not be a reliable method of interpreting the Natural-Born Citizen Clause.”
For your information, Ms. Lohman is a quite liberal Professor of Law.
Scientist:
“The SCOTUS knows very well who the President is and what his father’s situation was. Numerous birther cases have reached their desks and they have declined to hear any of them. So they are much less worried about this than you are apparently.”
It has nothing to do with who is worried more or less. Please see the Section “Lack of standing” of my paper.
Andy,
1) Both WKA and Minor are Dicta.
2) I used the John Rawls’ basic structure of society as a model (References [40], [41], and [42]) as an additional argument. His model is an approximation of the nation state.
Between 1780 and 1790, about 60,000 people came to America. By 1790, the total population of the USA was about 4 million. Please do the math.
Although decisions like Ankeny v Daniels are only binding in the jurisdiction of the court they are rendered by people whose job it is to interpret the law. Akeny has been cited now multiple times because judges in other jurisdictions have found it to be persuasive.
Also, any search of the literature prior to a pollution by Birthers beginning in late 2008 will show that the overwhelming opinion by historians and authors of anything pertaining to the subject of presidential eligibility agree that anyone born on US soil regardless of parentage is eligible. There are contemporary articles written after the Wong Kim Ark decision that note that it would confer eligibility on Chinese Americans of like circumstances. See my article titled Funk & Wagnalls: President Obama is Eligible for a couple of examples. On the other hand I found exactly zero articles in the late 1800’s saying that Minor v Happersett in any way defined the term natural born citizen.
My conclusion is that the Supreme Court will never accept any case imaginable concerning the eligibility of Barack Obama. Every court that has even touched upon the question of his eligibility has ruled that the term natural born citizen is defined inclusively such that all those born as a citizen are eligible. You state “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” then proceed to provide no evidence at all to support that assertion.
You also ignore such sources as simple and direct as the dictionaries including Blacks Law that define “natural born” as a condition acquired at birth. To propose any other definition would require explicit and direct proof that the framers clearly had something else in mind than the meaning derived from English common law that they were all familiar. No such evidence exists.
Cases dismissed for lack of standing do not support (or necessarily refute) your argument, but all of the cases which have passed the standing hurdle have disagreed with your position. The simple fact is that if we are correct, the SCOTUS will never grant cert on this subject (because there is no Constitutional question in their opinion), which means that if the only proof you will accept is a SCOTUS ruling, then your hypothesis is not scientific (i.e. it cannot be falsified).
Slartibartfast::
“Which Constitutional scholars think that being born on the soil (except for the usual qualifiers) does not make a person natural born?”
Please see Section “Who is a natural born Citizen of the United States?” of my paper.
By the way, what about “native-born” children of illegal aliens?’ Are they also qualified to become President?
Yes. What is your point? If they grew up and are found to be worthy of our votes based on their record as good citizens and in public service then what is the problem?
Mike,
As illegal aliens did not exist in the Founder’s day (any immigrants were welcome), they would not have considered this, so they would not have made any laws distinguishing between legal and illegal immigrants. According to James Madison:
So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.
That is an absurd statement—all rulings have holdings (and may or may not have dicta), otherwise they wouldn’t be rulings.
The holding in Minor was that the right to vote was not guaranteed by citizenship—the court’s musings on how to establish Virginia Minor’s citizenship were not relevant to this (i.e. they were dicta).
The holding in Wong Kim Ark was that Mr. Wong was a citizen. The court’s reasoning which led to this conclusion cannot be dicta—they could not have reached the decision without it. Furthermore, we know that the court could not have ruled that Mr. Wong was a naturalized citizen, therefore he must have been natural born (which, in fact, they said in the holding).
I think this is clear from reading Mr. Drumm’s article which you cited, but just to make sure, I’ll email him a link to this comment and ask him.
Reality Check:
“My conclusion is that the Supreme Court will never accept any case imaginable concerning the eligibility of Barack Obama. Every court that has even touched upon the question of his eligibility has ruled that the term natural born citizen is defined inclusively such that all those born as a citizen are eligible. You state ‘There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.’ then proceed to provide no evidence at all to support that assertion.”
Please go back to my paper and read Section “Who is a natural born Citizen of the United States?” You will find the evidence.
In my opinion, the SCOTUS may never accept the case related to Obama’s eligibility, but for the different reason than you stated. It would be the “Lack of Standing.”
There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?
But even this is not the point. The point is this: Barack Obama was a lecturer on the Constitutional law. He must have been aware that having the father who was a British subject when Barack Obama Jr. was born was not exactly a usual situation for a presidential candidate. He was born with dual citizenship. What about the sole allegiance to one country.
Let me go one step further. Imagine this picture: Founding Fathers are informed that a person, who was born on American soil to two British (or any other) subjects, is running for presidency. What, in your opinion, would be their reaction? Let’s keep in mind that this person is a native-born citizen.
Very few people are confused at all. From reading your paper, I suspect some of your problem in understanding the purpose and nature of our system and some of the context of our language comes from your own quite different foreign experience and unfamiliarity with english as a native tongue. I do not fault you for this, but think that it colors your perspective.
In general, yes, a legal consensus is fairly solid on the matter of jus soli NBC status. In reading your paper, I did not see any sustained case law in which jus soli was refuted or challenged. You try to argue that it isn’t set in stone; yet provide no decisions that point to any other conclusion.
Yes, whether you or I like the concept or not, “anchor babies” are citizens at birth, by mere virtue of being born on US soil. (Hence they are NBC).
In reading your paper, I simply did not detect a serious legal set of “contradictions” that you allude.
Nor do I see much sense in your taking issue of pointing out that Obama’s mother is BOTH an American citizen AND the fact that his birth took place on US soil. Both of those happen to be true. Nothing about stating those two true facts contradicts each other or causes problems with his NBC status. Nor are both a requirement for his citizenship.
Your messed up argument here is as problematic as those who read a case, which just happened to involve two citizen parents AND a birth on US soil, and who misconstrue all of those elements to be a combined requirement, instead of a set of mere conditions, of which one or more on their own can lead to NBC. Such constrained conclusions are not supported by the actual language used in those rulings.
Therefore, in pointing out that jus soli alone (his birth on US soil) gives him his NBC status does not in any way conflict with also pointing out that his mother happens to be an NBC herself.
Where you seem to be most confused on this issue of parentage (and go off to issues of other countries instead of focusing on the American structure of governance) is that the body of US law on the matter pretty much only delves into being concerned about the parentage when the birth takes place OUTSIDE of US soil. It is only under those circumstances that the principle of jus sanguinis becomes an alternative path to US citizenship via birth.
Bottom line in making this real simple for you to hopefully finally grasp – there are ZERO instances of someone born on US soil who derived their citizenship here via any form of naturalization process. That only leaves citizenship via birth, which is synonomous with the term NBC in this country. The converse also holds true here – there are ZERO instances of someone born on US soil (regardless of parentage), who has been found to be anything BUT a citizen, as a result of their birth. So your arguments against jus soli are just silly and don’t hold up. The only areas of where there are any real scholarly doubts are in a few permutations of those eligible for US citizenship via birth, who are NOT born on US soil.
What.G says.
That is absolute silly nonsense and a completely incorrect understanding of how our laws work.
Simply put, there is NO “magic reset button” – period. If Obama or any other President was deemed ineligible at some point DURING or after a presidency and removed from office, it would NOT invalidate any actions, laws or executive orders of that administration at all. A future administration could recind an executive order, but that is the extent of it.
The very fact that you say make such a ludicrous statement, demonstrates that you do not properly grasp how our governance structure actually functions.
Slartibartfast :
“So, yes, the native-born children of illegal aliens are natural born—this might not be a good idea (personally, I think it is), but it is the current law.”
According to the current laws on the books, they are citizens, but nobody proclaimed them to be natural born Citizens.
Let me remind you that on February 25, 2004, Senator NIckles etc. introduced the Bill S.2128, which was entitled “Natural Born Citizen Act.”
In the first paragraph, they proposed that the term “natural born Citizen” be applied to “any person born in the United States and subject to the jurisdiction thereof.”
In other words, they proposed that any 14th Amendment citizen would be eligible for presidency.
But this bill never became a law, however unconstitutional it might have been.
Doesn’t it mean to you that as of now not every 14th Amendment citizen is qualified to become President?
Slartibartfast:
“That is an absurd statement—all rulings have holdings (and may or may not have dicta), otherwise they wouldn’t be rulings.”
You know quite well that I meant that in both cases Court was not supposed to decide whether a person was or wasn’t a natural born Citizen. So all talk about natural born citizen in each case was a dictum.
No. They were not trying to change the definition. They were trying to clarify and reaffirm it so there wouldn’t be any confusion by people such as yourself.
First of all, there is nothing in US law that precludes one from having dual citizenship, nor that states such a conditiion would be a barrier to holding any office.
US law is supreme over its own jurisdiction and therefore its own citizens. Therefore, US law doesn’t care that some other nation might also impart or offer citizenship to someone who already was born with US citizenship. In the view of US law, our own citizenship rights would be supreme over any others.
Further, it doesn’t even matter that Obama once had access to dual citizenship either. He never took any action to claim those citizen rights and they have long expired. He was born with US citizenship and that is all that he currently retains.
Your worries about “sole allegience to one’s country” are lacking any foundation.
Mike,
You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this. If the 2004 bill was intended to redefine the term “natural born citizen”, then it would need to include both the classes of citizens which were previously and would remain NBC and the classes of citizens which were to become NBC, otherwise it would be incomplete. Under your interpretation, this would imply that there are no natural born citizens—something that is clearly absurd on its face.
Would it really matter if some hypothetical candidate had claimed dual citizenship at some point in their life as long as they never lost their US citizenship (and of course they are a natural born citizen)?
Mike,
This is a very important point—for the US to consider the laws of other countries when determining who is or isn’t a citizen would be to surrender a portion of their sovereignity. Do you seriously mean to imply that Cuba, for instance, could make anyone born in the US to US parents ineligible for the presidency just by declaring them to be Cuban citizens from birth? (something that Cuba clearly has the right to do)
There is no need for a hypothetical here, Matt. Thomas Jefferson is unquestionably guilty of “presidenting while French” and Spiro Agnew was a Greek citizen for his entire life.
They clearly were not worried by that, as that very circumstance would have applied to many who lived during that time period. In fact, the Founding Fathers added a whole additional path to the Presidency that would have included a number of folks who happened to be born on what became US soil (formerly British Colonies), yet who could easily have had their parents still be British subjects. Those folks would have been quite eligible under the portion of the clause that states “or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”
The worry during the Founder’s time of “foreign influence” was in reference to the concerns of foreign royalty and similar types of heads of state trying to come here and re-install a form of monarchy, as those structures were very driven by bloodline and could retain claims to other thrones. Hence why there are specific exclusions in terms of both citizenship and jurisdiction against such things, as well as ambassadors or invading armies. But they were not anti-immigrant.
G,
I would add that, in addition to ambassadors, foreign royalty would not be “subject to the jurisdiction” of the US government as they would be accorded diplomatic immunity.
Yes.
Thanks. That is what I thought. I kinda assumed G took into account that a birther might not accept that definition and wanted to show that even under their stricter definition Obama is still eligible, but I wanted to be sure and am glad to know I am still eligible for a job I have zero interest in.
Agreed! You are both correct. I really am sick of hearing people try to invent some sort of mythical “3rd type of citizen” called a “14th Amendment citizen”. No such creature. The 14th Amendment did NOT create any new type of citizen, it merely was, as you both pointed out, declaratory of the existing structure and crystal clear that there are ONLY two overall paths to US citizenship – you are either BORN one (which is what a NBC is) or you obtain such citizenship at some later point, via a naturalization process.
There were a gazillion comments on the Jonathan Turley article. I was there, as was Slarti, Ballantine, and even Leo Donofrio, before he slunk off in shame. The dicta was issue was discussed in detail.
Problem 1 with this paper is confusion over “dicta.” WKA was nearly 20,000 words long, and divided into 7 sections. There were findings and holdings throughout the case that were necessary and relevant to the determination Wong was a citizen. These findings were NOT dicta.
For example, in trying to figure out whether or not the 14th Amendment was brand new law, or declaratory of previous law, the WKA Court had to determine what the old law (common law on natural born citizenship) was. It did, and this became vital to the final decision.
WKA found the old law was basically “born in the U.S. and not a child of a foreign diplomat or invading soldier. That was also part of determining what “subject to the jurisdiction” meant. The Court specifically stated that the 14th Amendment AFFIRMED this old law, and since it did, Wong the Chinaman was born in the jurisdiction.
You can not separate the common law nbc stuff from out of that holding,or you have no basis for the holding. Therefore, all the natural born subject and natural born citizenship findings were NOT dicta.
Different people have different ideas on what constitutes dicta and what doesn’t. However, in Ankeny, a three judge panel reviewed WKA. These are not Small Claims Court judges, but appellate level jurists. They know their business, and all three of them were quite comfortable citing these findings and none of them were concerned that it was “dicta.”
My BFF Fabia Sheen, Esq., a lawyer, has a much blunter take on it. She says when you see words like this:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [ kids of diplomats or invading soldiers] The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;
IT AIN’T DICTA. It’s the Court telling you what it’s CONCLUSIONS are on a relevant issue of law.
Further, since this is a CONCLUSION, from the highest court in the land, it is highly unlikely its descendants are going to classify it as “dicta” based on the opinions of a few law professors and scattered lawyers here and there. There may still be some open collateral issues about natural born citizenship, but as far as people born in U.S., and not the kids of diplomats, or invading soldier, there aren’t any valid questions.
This paper fails at the practical level of practicing law. There isn’t a lawyer in the country who wouldn’t use that “money quote” above from WKA in a brief, or fail to argue it before a court. Because it isn’t dicta. It’s what you find in every case you use in support of your position: a judicial statement of the relevant law.
With this gaping hole, the entire paper becomes an exercise in futility. Interesting, but futile.
Squeeky Fromm
Girl Reporter
No, it would not. Nothing in our laws prevents, precludes, nor even discourages such a scenario at all.
Yes, you are correct. A very important point.
Mr. Godkin,
As i recently mentioned here (Dr. C can provide you with links if you need to review the evidence), in August 1792 the French Assembly conferred French citizenship upon George Washington, Alexander Hamilton and James Madison. (It may also be that Thomas Jefferson was also granted French citizen at another time.)
This means that James Madison, for instance, was elected President while holding dual citizenship. Judging from this enthusiastic letter of acceptance to the French Assembly, he also not only accepted the citizenship, but wasn’t shy about bragging about it. One can only infer that such dual citizenship played no role whatsoever in his being elected and serving as President.
I don’t know what these two — three if you include Jefferson — precedents do to you thesis, but if I were you, I would certainly refrain from stating that dual citizenship is an impediment to being President.
Yes, in fact they were.. To wit: Amendment 14 Section 1:
G,
I think it is also very telling that they almost always try to slip the 3rd class of citizenship in under the radar by “begging the question”—usually a necessity since any overt attempt to do this results in a tangle of logical inconsistencies (like most everything written on the subject by Mario Appuzo).
Mike,
Why wont you respond to or even acknowledge this quote?
Excellent explanation, Squeeky!
Everything in your post was well said, but for the sake of space, I’ve just restated some of what I feel are the most important excerpts that need to be driven home for poor confused Mike. Maybe it will finally sink in and make sense to him.
Lupin,
I once came up with a historical reference to this, but I can’t find it now (the first two hits for “Thomas Jefferson French citizenship” are this blog and the next several are blogs, forums or links where the terms are unrelated). Remember, you may be able to claim three Presidents as French (and you might have had four if not for Aaron Burr…), but the Marquis de Lafayette and all of his male descendants are Yankees! 😛
Mr Godkin:
I find your baseless comment at the end of the document:
“So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”
utterly contemptible. It turns what might have been scholarly (if mistaken) research into a screed.
Any credibility you might have had go straight out of the window.
Squeeky,
Thanks for making the point I was trying to (only better and more thoroughly).
If I recall correctly, though, Leo’s stated reason for fleeing the thread at JT’s blog was that I was mean to him…
The US source Dr. C found is indeed compelling. I am simply disturbed by the fact I can;’t seem to find a French source.
Re the Lafayette you are indeed correct; I wonder if the Marquis’ descendents have made use of this and asked for US passports?
(I can well imagine how the average Homeland Security employee at JFK would deal with this. :-))
René de Chambrun successfully sued to be allowed to take the New York state Bar exam based on his hereditary citizenship through Lafayette. 😉 I’m curious whether or not he would have been considered natural born—and would it matter if his descent was through his mother or his father?
G and Slarti:
Thank you both. I hope this helps him understand dicta better. For some reason, people ignore the bulk of the WKA case, and what it was there for.
But, if a naturalized citizen tried to accept the Presidency under the 14th’s privileges and immunities clause, and it made it to the SCOTUS, they would start right back where the WKA Court did, and go right back through the same analysis:
Where did “natural born citizen” come from, what did it mean, did the 14th replace it or affirm it, etc. etc.
Squeeky Fromm
Girl Reporter
Squeeky Fromm
Girl Reporter
Squeeky,
You’re welcome. We’ll see if he comes back, but we both know that no one can argue the birther point of view in good faith for very long. Once the facts are presented to someone, their ignorance becomes willful and that is that. It takes a very rare person to accept it when they are shown to be wrong—most birthers just move the goalposts and keep on going—and an even rarer one to stick around and admit it. Let’s face it, Mike is no Squeeky Fromm. Tee Hee 😉
Very interesting; thank you! I was aware of him (mostly because of his Quixotic defense of Pierre Laval), but not of the many additional details mentioned on the wiki page. I was amazed to discover that he was instrumental in getting Franz Werfel safely out of occupied France.
http://en.wikipedia.org/wiki/Honorary_Citizen_of_the_United_States
says:
Lafayette did not receive honorary citizenship of the United States until 2002, but did become a natural born citizen during his lifetime. On 28 December 1784, the Maryland General Assembly passed a resolution stating that Lafayette and his male heirs “forever shall be…natural born Citizens” of the state. This made him a natural born citizen of the United States under the Articles of Confederation and as defined in Section 1 of Article Two of the United States Constitution. In 1803 and 1804, President Jefferson offered to make him Governor of Louisiana, and in 1932, descendant René de Chambrun established his American citizenship based on the Maryland resolution. For the others, what rights honorary citizenship bestows, if any, is unclear; it does not grant eligibility for United States passports.
Interesting that:
(a) the Maryland Resolution used the term “NBC”
(b) but limited the grant to male heirs only
(c) and gets only a strange, hybrid passport (image on wiki) that shows there there is indeed, after all, a THIRD CATEGORY of US citizens (granted, limited to a handful of people) — but still.
So technically when we all say there’s only two kinds of US citizens: NBC and Naturalized, we’re incorrect.
More on foreigners granted Honorary French Citizenship during the French Revolution:
Joel Barlow
Ludwig van Beethoven
Jeremy Bentham
Robert Burns
Johann Heinrich Campe
Thomas Clarkson
Anacharsis Cloots
Cornelius de Pauw
Giuseppe Gorani
Alexander Hamilton
Friedrich Gottlieb Klopstock
Tadeusz Kościuszko
James Mackintosh
James Madison
Thomas Paine
Johann Heinrich Pestalozzi
Joseph Priestley
Friedrich Schiller
George Washington
William Wilberforce
David Williams
Thomas Muir
http://en.wikipedia.org/wiki/List_of_people_granted_honorary_French_citizenship_during_the_French_Revolution
However the article does not quote sources and includes at least one “spam” entry (which the editors haven’t removed); that said, Thomas Jefferson is not on that list. Madison, Washington, Paine and Hamilton are.
FWIW here is a pdf copy of Lafayette’s Maryland Act from the NYT archives:
http://query.nytimes.com/mem/archive-free/pdf?res=9E00EFDE1F3BEE3ABC4F53DFBF668382609EDE
Of interest to those who like to trace the usage of the term NBC throughout American legal history.
Mr Godkin,
As I have regularly asked The Second Worst Lawyer in the Western World, Falio the Putz, First of His Name, Supreme Muppet, Duke Of Delusional Thought and Lying of Birferstan….
1. Name a single, solitary, unchallenged, winning Supreme Court case that states and defines that there is a “magical” 3rd category of Citizen, what the racist bigots usually drool and call 14th Amendment or “statuatory” citizenship
2. Name, prior to 2008 and Berg the Failing PUMA, a single case that argued successfully that the ciizenship of the parent or parents had ANY bearing on the citizenship status of a child born on the soil.
The answer of course is that there are none for either above .
Without these the question is settled, full stop, end of story.
The only ones who have any voice in the matter are the Supreme Court or Congress via a Constitutional Amendment.
Don’t like it, tough titty.
> Conclusions
> 7) Whether the term “native-born” or “natural born” was used, its original meaning
> was that this person born on American soil had both parents who were the U.S. citizens.
just the author’s opinion or is there some general agreement on this ?
he presents the (other) points as agreement, not just his opinion
That would describe every single one of the Founding Fathers.
In fact, you are simply guessing at what YOU think their reaction might be. More importantly, we are not bound by the feellngs or reactions of the Founding Fathers. Most of them would probaly not have been ready to accept a black or female President. Maybe not a Catholic or Jewish one, let alone Moslem or Hindu or Buddhist. That doesn’t matter. Every one of those is eligible, no matter how much that might shock or annoy some or all of the Founders.
Several cases that were dismissed on grounds other than standing have been petitioned to SCOTUS for review and none have been accepted. The SCOTUS swore Obama in and has dealt with dozens of cases involving the President and the Executive Branch exactly as cases involving previous Presidents were dealt with. The 4 Justices that wanted to overturn the ACA did not cite Obama’s birth as a reason. There is not even an iota of evidence, not a molecule, to suggest that they consider him ineligible (though I am pretty sure 5 didn’t vote for him and won’t this year).
The fact is that your presumptions as to the motives of the Court have no legal validity. Only their actions do. But the rulings of Ankeny and all the other state courts and bodies that have followed Ankeny are the law of the land. You are free to speculate as to why and what if, but they remain the law.
Well, that’s not all we are left with. We also have the hundred or so modern courts who have rejected birther challenges to President Obama’s eligibility, including at least one appellate court in Indiana specifically rejecting the argument that the citizenship of either parent has anything to do with the question. And then there is the fact that President Obama was sworn into office (twice) by the Chief Justice of the United States Supreme Court.
Even if you did have substantial serious legal scholarship supporting the two citizens parent theory (which you don’t, you don’t even have any), legal scholarship means nothing when the courts aren’t buying it.
The Supreme Court would be surprised to know that state court opinions “don’t count” as Lynch v Clarke is cited many, many times by SCOTUS.
Respectfully, you lose me when you state, for instance, that neither Dred Scott nor Wong Kim Ark were running for president and (I assume) based on your reasoning they can’t be held as precedent for the definition of natural born citizen. That, in my opinion, is faulty reasoning. To think that a case must involve a presidential candidate to be precedent for what is a natural born citizen is a faulty premise.
The Wong court did indeed hold that Kim Ark was a citizen. There are only two paths to citizenship, birth and naturalization. Kim Ark was certainly not naturalized nor did he need to be. He is, therefore, a “born citizen”. The government certainly understood (from their brief) that if they lost the case Kim Ark would be eligible to the presidency, as did the dissenting opinion.
The Supreme Court of the United States has never, not once, differentiated between “natural born”, “native born” and “born citizen”.
Virginia Minor’s citizenship was not in question and in fact it was conceded she was not only a citizen but a natural born citizen. Her citizenship, however, was immaterial to the holding in Minor. The Court did not have to determine her citizenship and therefore the oft-quoted paragraph by “birthers” as declarative of the definition of natural born citizenship is mere dictum. Minor has also never, not once, been cited by SCOTUS on the principle of citizenship. The Court in Wong Kim Ark, however, went in to great detail in settling the question, and determining Kim Ark’s citizenship was necessary and is therefore not dictum.
What this paper really is all about and what becomes even more clear from the questions posed by Mike Godkin is to ponder whether WKA was wrongly decided. To claim otherwise is to claim the existence of a third class of “born citizen” that no one except overt racists and fringe groups like sovereign citizens openly argue exists. Mario Apuzzo tries to tap dance around this by inventing a class of citizens called “Citizen of the United States” which is supposed to include all the second class citizens who are not “natural born” via BIrther standards. The argument is so silly it is not really even worthy of serious discussion. It also helps explain why courts have used words like “frivolous” and “without legal merit” in their denials of his cases where he presented this.
Since the founding fathers didn’t see the need to define the term the obvious conclusion is that there was a consensus definition already in place. What both Minor and WKA concluded was that when there is no definition for a term in the Constitution then English common law was to be used as a guide. The court in Minor commented in dicta that there was certainly no doubt that Virgina was a citizen. In WKA the court had to delve into the definition of NBC to arrive at a decision on Ark’s citizenship status. Until the court decides to directly over-turn the holding WKA it is law that those children of Ark’s status are eligible for the US presidency.
I don’t think they disagree either. They are just approaching the same material from a different direction.
You stated that “Solum changed his tune” but that is not consistent with what he said. What he said is that people misunderstood him, and so he reworded it. That is very different from “changing his tune.” It would be confirmation bias to take the uncorrected statement as authoritative and reject the correction. No responsible scholar would do that.
The problem is that you cannot fairly represent the state of controversy by picking and choosing sources. Chin is not saying who is eligible; he is stating an expert opinion on the state of the controversy. He says the question you argue is not settled is settled. The seven courts who have ruled on the question since 2008 have in one way or another said that this is already settled, and that there is no controversy.
When the Supreme Court wishes to reach the merits of a case, it doesn’t let standing ..um..stand in the way. See, for example, Bush v. Gore.
Okay, I’ll bite:
“Between 1780 and 1790, about 60,000 people came to America. By 1790, the total population of the USA was about 4 million. Please do the math.”
Considering that 1/4 of those before the revolution were not British citizens to begin with, I’m still not sure your numbers add up.
Let’s look:
1790
Population: 3,918,000
Immigrants: 60,000 (for past decade)
% Population: 2.1%
2011
Population: 311,800,000
Immigrants: 10,500,000 (for past decade)
% of Population: 3.3%
Is 1.2% really the difference between an “open” and a “closed” society at this level, really?
Mr. Godkin makes the comment in his paper:
I can find no sense in that remark. First the United States in 1789 was being fueled by immigration. At least in some states the population would have collapsed if not for immigration because of the high death rate from malaria and yellow fever.
Prominent Americans, including John Jay, traveled to Europe and their children were born there. Talking about “open,” we didn’t even have immigration laws in the 18th century. No passports, no visas — you just showed up.
Just the author’s opinion and that of a few online Birthers. There are no official sources he can cite that agree with that opinion.
Well, any conspiracy theorist must always come back to some variation of this line of reasoning. Anyone who disagrees with them must, obviously, be bought off, blackmailed, threatened or for some other unspecified reason part of the conspiracy to allow Barack Obama to be president.
Here is a reference.
Bush had standing.
In the late 19th century, there was a legitimate debate on whether Congress had the power to make the children of aliens born in the United States not citizens. Congress tried this in the Chinese Exclusion Act, saying that the Chinese could not become citizens. However, that question was decided by the US Supreme Court in 1898 and it has now been settled law for over 100 years.
The United States is a nation of immigrants, and we probably better than any other Country do a good job of welcoming immigrants and integrating them into our society. It is one of our great strengths. But with with so many immigrants it is understandable that some would feel threatened by the competition. We see this played out in anti-immigration activism.
“Racist” is a dirty word today, and I could not conceive of the government filing a legal brief calling the Chinese “obnoxious” today, as they did 100 years ago. The human emotions that were once expressed in racist language are channeled in other ways. They can’t call someone a “nigger” any more, so they have to find some other way to delegitimize the President.
And this was made clear by Minor v. Happersett as well. One is either a natural born citizen or one is naturalized. The Supreme Court in Dred Scott said that no one born in the United States can be naturalized.
I don’t quite agree there. Persons born citizens outside of the United States have a special status because the 14th Amendment doesn’t apply to them (being neither born in the United States nor naturalized in the United States).
See Rogers v. Bellei.
Where did you come up with that idea? Can you cite a credible source?
What is a political disaster of biblical proportions?
Is that your creative concoction of ominous, fear mongering hyperbole or do you actually measure in palms, spans and cubits?
Here’s what I found:
The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.
http://www.law.cornell.edu/supct/html/94-431.ZO.html
I do not think the conclusion that the SCOTUS is “afraid” to take an eligibility case is founded in fact. The more logical conclusion is that the cases that have been submitted for certification to date were dismissed for entirely proper reasons by the lower courts and in fact most of the cases were just based on nonsense. To embrace the “two parent citizen” exclusive theory for NBC the court would have to reopen WKA. There is zero evidence the court has any desire to do that.
Venkman v. Peck, heard in extraordinary circumstances in New York City mayoral chambers, 1984.
A stupid point, particularly after the reading you’ve done, Mr. Godkin.
You found scholar after scholar agreeing with what you claim is no consensus, so you imputed motives and added your own sophistry.
On the other side, you found what? Breckinridge Long’s 1916 hit piece on Republican nominee Charles Evans Hughes, in which Long noted, “Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution, so the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” Long is best known for his obstruction of refugee visas as Assistant Secretary of State in the early 1940’s.
Then there’s a long gap, until a November 2008 brief in Wrotnowski Bysiewicz, in which birthers Cort Wrotnowski and Leo Donofrio argue that Barack Obama cannot be president. Donofrio was licensed to practice law at the time, though after staggering court defeats in birther pursuits he decided to give up his license.
There is a consensus among the constitutional scholars that those born in the United States (and not exempt from U.S. law) are natural-born citizens. A broad consensus. A universal consensus. The consensus dates from before President Obama was born. Mr. Godkin, your own evidence demonstrates it, desperately as you want to spin otherwise.
Vattel-birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.
Indeed.
“Human sacrifice, dogs and cats living together… mass hysteria!”
I believe the holding in this one was that Mr. Peck was, in fact,… um… phallically deficient.
So much for being cocksure.
As an indication of Mr. Godkin’s intellectual dishonesty, there are these items from various sources:
“Long waged a political battle in Missouri for the League of Nations and Wilsonian Democracy for five years. At the Democratic National Convention in St. Louis in 1916 he aided in drafting the foreign policy plank which favored a league of nations and provided the basis for the “he kept us out of war” slogan that was credited with winning re-election for Woodrow Wilson (q.v.). Following the election, Long was appointed in 1917 by Wilson as third assistant U.S. secretary of state in charge of all Far Eastern matters, a post he filled until 1920.” Breckinridge Long Biograohy from Breckinridge Family website
http://breckinridgefamily.com/breckbio.htm
“Assistant Secretary Breckinridge Long, a former student of Wilson’s at Princeton, believed this exchange of letters would hurt the president and went to the White House and talked with Grayson, who evidently got Wilson to send a brief note simply accepting Lansing’s resignation.” From John Milton Cooper, Jr., “Woodrow Wilson”
Biographical Note
1916 Active in organizing the “St. Louis Democrats for Woodrow Wilson” from “Breckinridge Long Papers A Finding Aid to the Collection in the Library of Congress”
“The situation was ameliorated by a gift from Breckinridge Long of $5000 and a loan of $30,000 to keep the McCormick’s Campaign office functioning.” from “The Presidential election of 1916” by S. D. Lovell 1980.
Vance McCormick was Woodrow Wilson’s campaign manager.
Mike Godkin: Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.
Allow me to fix it for you:
There is no absolute consensus among the constitutional scholars whether being born on American soil should be enough to run for presidency.
There is, however, an overwhelming consensus that that is the way NBCship is currently interpreted and applied.
I will mention for the umpteenth time Tom Vilsack. He is currently in line of emergency succession to the Presidency. He was a foundling. Nobody knows who his parents were, whether they were Russian spies, or if he was born with dual citizenship, or his parents were aliens— nothing is known except that he was born in Philadelphia. And yet he is considered a NBC, eligible to be President.
His example completely destroys the Vattelist argument, and any other jus sanguinis argument. Born on soil to anyone, or to a citizen overseas=NBC. That’s just the way it is.
Now, you can argue that it SHOULDN’T be that way, but no sane person us going to respect your integrity if you rather argue that it ISN’T that way now.
On December 4, 208, Jonathan Turley published an article on his blog entitled “Eligibility Questions: Can Clinton Serve Obama and Can Obama Serve the Country?”
http://jonathanturley.org/2008/12/04/eligibility-questions-can-clinton-serve-obama-and-can-obama-serve-the-country/
Among other things, he wrote this:
“It was inevitable that we would deal with this controversy since both John McCain and Barack Obama had people challenging their eligibility. However, still stinging from the Bush v. Gore controversy, this is not the type of case that either conservatives or liberals on the Court will likely embrace — absent the strongest possible evidence.”
Isn’t it the same thing as saying that the Supreme Court doesn’t want to touch this subject with aten-foot pole?
But the most interesting to me was a comments section.
This is what one of the participants, Vince Treacy, a lawyer himself, said on December 4, 2008 at 9:20 pm:
“The 14th Amendment had nothing to do with the Presidency. It reversed the Dred Scott case’s definition of US citizen. It applied to all citizens, not just the President.
The 14th Amendment did not amend the eligibility clause.
It said all persons, born or naturalized in the US, and subject to the jurisdiction therof, are citizens of the US. That is the rule for citizens.
So. One. Obama was born in Hawaii, part of the US, so he is a citizen under the 14th.
Obama is a citizen because he was born in the US.
Two. He is eligible for President because, like every President elected since van Buren, he was born in the USA.”
Of course he fogot to mention that every president elected since Van Buren had both parents who were American citizens when the future presidents were born. Except for Chester Arthur, but this another story.
You see, quite a liberal lawyer acknowledged that Obama is a citizen under the 14th Amendment. So I did not create a “third category” of citizens.
On December 5, 2008 at 1:25 am, Vince Treacy wrote:
“Obama is eligible for President because he is a natural born citizen, not a naturalized citizen, is over 35, and a resident for the requisite number of years. That is all the Constitution provides. The rest of the things you and your friends are reading into it are nothing but personal predelictions that you would like to see in the Constitution, but that were not written in there.”
Isn’t it an example of circular logic? The topic of discussion is whether or not Obama is a natural born Citizen eligible to be President., but toVince Treacy Obama is eligible because he IS a natural born Citizen.
But the most remakable to me was an exchange between Vince treacy and Jonathan Turley (quote):
Vince Treacy 1, December 7, 2008 at 5:26 pm
“A natural born citizen is one who was born within the United States and its territories and possessions. It is someone who is born under the American flag.” Jerome Barron, Law Professor, GW Law School, quoted by Afro:
http://www.afro.com/tabid/456/itemid/2273/Obamas-Eligibility-Challenged.aspx
The newspaper The Afro asked Professor Barron, an esteemed colleague of Professor Turley, his opinion. Barron has studied and taught the Constitution for his entire professional life. He was my con law teacher nearly 40 years ago, and on of my best teachers ever.
For arguments from authority, this is as strong as it gets.
jonathanturley 1, December 7, 2008 at 6:21 pm
Vince:
If you had Jerry, you need no advice from the likes of me. Whatever Jerry taught you 40 years ago is still twice as good as what I could teach you today.
JT (unquote)
So, in absence of a Supreme Court decision whether or not Obama is qualified to be President, the highest authority is an opinion of a Professor of Law. And a few of my oponents argued against my thesis that all we have now is opinions of the Constitutional scholars and some supposedly legal experts.
Nonsense. I have in my possession textbooks by conservative Constitutionalists who say that there is no difference between a native-born citizen and a natural-born citizen. Of course, it may be that your definition of “consensus” is “100% agreement.” By that standard, there is no consensus that the earth is not flat.
Your statement that “State courts don’t count” is proof positive that people who have no legal training have no business writing papers on legal issues. In fact, state courts rulings can be binding upon other courts in the same state. And even though state court rulings are not binding upon other states, state court rulings are often cited by courts in other states as precedent. Such citations are not binding precedent, but they are persuasive precedent.
.
This is what William D. Guthrie said shortly after the decision in Wong Kim Ark was handed down:
Guthrie was one of the most successful young attorneys around and went on to become the a chaired professor of constitutional law at Columbia College just a few years after writing his lectures on citizenship from which the quote above was taken.
http://rcradioblog.wordpress.com/2012/06/28/funk-wagnalls-president-obama-is-eligible/
Brygenon,
This is what I wrote:
“Let me repeat what my point was and still is: There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.”
This was your reaction:
“A stupid point, particularly after the reading you’ve done, Mr. Godkin.”
Then you wrote this:
“There is a consensus among the constitutional scholars that those born in the United States (and not exempt from U.S. law) are natural-born citizens. A broad consensus. A universal consensus. The consensus dates from before President Obama was born. Mr. Godkin, your own evidence demonstrates it, desperately as you want to spin otherwise.”
Rebekka Bonner made a statement that “There is near-universal agreement that all persons born within the United States are natural born.”
What do you know Ms. Bonner didn’t know? I spent a lot of time studying this “broad and universal” consensus and provided quite a few quotes from the constitutional scholars. It’s your turn now. Emotions aside, could you provide such a document (documents) proving such a consensus? I would be happy to learn something I didn’t know before. Please do it, and I will publicly acknowledge my “stupid point.”
You concluded your comment with this:
“Vattel-birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.”
Did I ever mention Vattel?
Yes. Every president born since it has been passed has been a citizen under it. Bush is a citizen under the 14th Amendment.
Had it not been passed, I would have been anyway, because I’m white and was born here.
You seem to work under the assumption that the 14th Amendment created citizens. It didn’t. It recognized an previous principle that was withheld from some who weren’t white males. It put it into the highest law, so that racist and bigoted people who didn’t like that their former property wanted rights could not continue to deny them their rights.
“So, in absence of a Supreme Court decision…”
Except we aren’t in absence of a decision. Read the words of Wong Kim Ark. Read them again.
Courts often make very narrow opinions on broad principles. In the case of WKA, they laid out very, very clearly where American law is when it comes to citizenship at birth.
Tell me the discussion of natural born subjectship isn’t convincing, and then actually back up your argument.
Reality Check,
I have no doubt that William D. Guthrie was “one of the most successful young attorneys around” and his view was that “a male child born here of alien Chinese subjects is now eligible to the office of President.”
But you just proved my point: It was HIS OPINION. Nothing less, nothing more.
Andy,
You quoted me:
“So, in absence of a Supreme Court decision…”
And then asserted this:
“Except we aren’t in absence of a decision. Read the words of Wong Kim Ark. Read them again. “
Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.
By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.
Umm… how about a Supreme Court justice? At least one of whom has stated that President Obama is natural born.
Weird! So was the Supreme Court at the time. Good thing they are smarter than us, eh?
Did you read what I said? A narrow decision can have broad grounds. What you cite as dictum, has been held as precedent by the Supreme Court itself. Read some of their citizenship cases. See if you don’t see that reference to WKA there.
Why not cite William Rawle’s definition of natural born?
You also cite A. P. Morse’s 1904 letter but ignore his 1888 treaties on citizenship. Why? Could it be because of this:
” In the law of nations, ” citizen” is a term applicable to every member of the civil society, every individual who belongs to the nation.
This character is acquired in various ways, according to the laws of each state. In many states birth is sufficient to confer it; so that the child of an alien is a citizen from the fact of having been born within the territorial limits and the jurisdiction.2″
And in footnote 2: ” It is so in England and in the United States [but the births must be ” within the jurisdiction”‘].”
or this
“The Constitution does not make the citizens (it is, in fact, made by them) ; it only recognizes such of them as are natural, home-born, and provides for the naturalization of such of them as are alien, foreign-born, making the latter, as far as nature will allow, like the former.”
Yes and no. The ruling found WKA to be a citizen because he was natural born. While not discussing presidential eligibility, the conclusion is simple.
That is what the Court did as well, as had previous courts before. They did an excellent job that set the precedent.
Mike:
You said:
“Andy, WKA case was NOT about his presidential eligibility. So whatever was said on a subject of “natural born Citizen” was dictum, not holding.
By the way, we (at least I) are trying to interpret an ORIGINAL meaning of the this term in 1787, not in 1898.”
Then what you need to do is contact a law school, and see if they would like to publish whatever you discover on your personal quest for knowledge about dicta and original meanings in a law review article. You will, of course, have to provide massive footnoting and show some competence in your piece.
What you do not need to do is attempt to go into any court room and attempt to tell REAL WORLD judges what is dicta, and what is not. You would NOT be successful. You do not have a clue how REAL law is practiced.
If I may be so bold as to suggest a course of study for you, might I suggest that you attempt to do is a short legal analysis of Wong Kim Ark BY SECTION. For example, briefly recap the reason for Section II, and what the WKA Court concluded about whatever the section is about.
Then, move on to Section III, and do the same and so forth and so on. This may help you understand the case better, and you will not keep making the same mistake about what is dicta, and what is not.
Squeeky Fromm
Girl Reporter
So your point is that because the Supreme Court has never rendered a decision on a specific case that involved Presidential eligibility of a person born in the United States with a citizen mother and an alien father that the question is not settled? If so, you have a very poor understanding of the way the law works.
In fact, by his reasoning, we will never know if ANY of our presidents have been eligible! I’m getting nervous now!
That means every law pased in history is null and void! Oh noes!!
Reality Check:
You know, not having a SCOTUS case about presidential eligibilty is just killing us in this argument. What we need is a Supreme Court case that discusses natural born citizenship and tells us what that is. If there was such a case, we might be able to work around not having the eligibility case. Is there a case out there where the SCOTUS discusses natural born citizenship???
Squeeky Fromm
Girl Reporter
Your attempt to use logical fallacies to twist the words of someone who has clearly and thoroughly destroyed your position many times over, like your baseless accusations against Ms. Bonner, is contemptible. You should be ashamed of yourself.
FESTIVAL!
Unfortunately the only mention of “natural born citizen” anywhere in US law is the Article II section on presidential eligibility. That means that one can’t have a case trying a controversy about “natural born citizen” apart from presidential eligibility.
What the courts have said as precedent is that the terms in the Constitution are to be understood in the context of the English Common Law. While the Common Law makes it clear that the children of aliens in England are natural born subjects, it is not clear whether the provisions for the children of subjects born overseas is part of the common law or a statute. This leaves a small area for controversy about folks like John McCain.
Seven courts over the past 4 years have made it abundantly clear that the precedent in US v. Wong makes Barack Obama a natural born citizen. It is well-settled. However, starting with Ankeny, they have not ruled on whether foreign-born citizens at birth are eligible. This point of controversy is why the Senate passed SR 511 on behalf of John McCain.
HA! Go suck a trout, GRAVITY! I don’t have to take your crap any more! Awwwwwww yeah!
With all due respect, you have no qualifications as an authority (not to mention being biased), and you present a false dichotomy between “holding” and “dictum” when the correct dichotomy is between “ratio decidendi” and “dictum.” In order to arrive at the holding that Wong Kim Ark was born a citizen is was necessary to argue that he was a citizen by the English Common Law definition of natural born subject and that subject and citizen were convertible terms.
Remember that the Constitution only specifies two sources of citizenship “natural born” and “naturalized” (see Minor v. Happersett et al). For Wong Kim Ark to be a citizen, he must be one or the other.
Dr. C:
I don’t entirely agree with this statement:
“That means that one can’t have a case trying a controversy about “natural born citizen” apart from presidential eligibility.”
While the president must be a natural born citizen, there is a pretty large pool of people to choose from. Hundreds of millions of us are natural born citizens at this very moment. Should any of us become involved in a citizenship case, then at least some of the issues relating to natural born citizenship will be involved, whether we are running for the Presidency or not.
This is what happened with Wong Kim Ark. He was a natural born citizen. That is still a good term, and it is NOT restricted in usage to presidents. I am a natural born citizen, and can truthfully put “I am a natural born citizen” on a tee shirt and wear it.
With Wong, most issues relating to natural born citizenship were solved en route to determining his citizenship. They were necessary findings because the 14th Amendment phraseology was in question, and since the 14th amendment was declaratory and affirming of previous common law, the court had to first determine what a natural born citizen was.
Frankly, unless some person runs for office who has one parent who is a diplomat, or someone is a child of rape by an invading soldier, there aren’t a whole lot of nbc issues to be resolved. I guess Congress could over-reach or under-reach in declaring foreign born persons to be natural born citizens, or someone could raise the “aliens in amity” argument, but outside of that, WKA is dispositive of what a natural born citizen is.
Squeeky Fromm
Girl Reporter
Slartibartfast,
You wrote to me:
“Mike,
You have created a third class of citizenship (i.e. “14th Amendment citizen”) which has no basis in law as the 14th Amendment was merely declaratory of existing law—if this were not the case, then you (or someone else) would be able to exhibit a person (of white European descent) who’s status was changed by the 14th Amendment. No one has been able to do this.”
On the other hand, here is Andy’s opinion:
“Yes. Every president born since it has been passed has been a citizen under it. Bush is a citizen under the 14th Amendment.”
You two should have a round table discussion to come to a consensus.
Mike:
Under and by are two different words.
The 14th Amendment doesn’t create anything. It recognizes what is already law.
You misstate my thesis, like you did with others’ in your writing.
Shame, shame.
Or you should try to understand the arguments?
The 14th Amendment merely restated that one is either born on soil or naturalized to become a citizen of the United States. On Rogers v Bellei, the court ruled however that children born abroad to US citizens, are not protected by the 14th Amendment.
The same logic was followed by the Court in US v WKA where the Court found that the term natural born remained undefined in the Constitution. Realizing that WKA could not be a citizen through naturalization, they recognized that the only logical path to citizenship would be for WKA to be natural born.
The Court looked at the history of the meaning of the word and found that it consistently referred to the location of birth, regardless of the status of the parents.
There are only two categories of citizens although some of these citizens are not protected by the 14th Amendment due to the formulation of who are citizens.
Mike,
That’s a false dichotomy (you’re really racking up the logical fallacies, aren’t you…). There is no conflict between our positions—that the 14th Amendment was simply declaratory of existing law. You, on the other hand, seem to be trying to argue that Andy is asserting that President Bush would not have been a citizen absent the 14th Amendment—in other words, you are constructing a straw man out of his argument.
The use of logical fallacies in a discussion is rude and unbecoming for someone with a PhD in a technical field. You really should know better, but maybe that’s just my personal bias. However, when you take to distorting the words of people like Mr. Treacy who have demonstrated true scholarship and understanding your behavior is nothing short of reprehensible.
I know Vince Treacy, and you, sir, are no Vince Treacy.
Yes this was also observed by the judges in US v WKA, and the dissenting judge was upset as he believed that under the ruling children born to US citizens abroad would not be able to run as President while children born on US soil to alien parents, would.
British Common Law indeed did not include children born abroad as such were governed through statute. The fact that the Founders saw it necessary to care for the citizenship of children born abroad to US citizens supports such an interpretation, although the initial act unfortunately copied the English Act too literally and made them natural born, an oversight cured in a later version of the act.
Imprecise and missing the point. The Constitutional meaning was to be found in Common Law as it existed at the time of the signing. The Court in US v WKA explored the meaning of the term natural born in quite some detail finding that it used to and had continued to refer to birth on soil, regardless of the citizenship of the parents.
So, when properly read within the understanding reached by US v WKA, the comments make sense.
Of course, as long as the birth takes place outside the United States. Since such children are not born on US soil, their citizenship status should follow from our statutes.
It would also include bills which redefine citizenship by excluding children born to alien parents.
A better question would be: Has there been any court which has ruled that such children become natural born citizens? Logic then takes on to the next step as eligibility is determined by three factors.
The case in question is US v Wong Kim Ark, and although the detractors are correctly observing that the Court never pronounced WKA to be natural born, there is no logical way for one not to reach this conclusion from the arguments. In fact, the Government, arguing against WKA’s citizenship presented the issue as: Did the lower court err in finding Wong Kim Ark to be a natural born citizen.
Similarly, the dissenting judge also observed that it was unfair that under the ruling, children like WKA could run for the office of the President, but children born abroad to US parents would not be able to do so.
So yes, I would say that US v WKA is ‘spot on’
She is correct, she pointed out that in Minor the court observed that some had doubts, but those doubts were laid to rest in US v WKA where the court observed how other courts before it had appealed to common law in defining citizenship of those born on US soil. Most scholars held to such beliefs, many courts had found the same, and since US v WKA, the courts have only strengthened this interpretation.
Again, you are nit picking at details without seeing the full picture of the arguments involved.
That is poor logic. Natural born has nothing to do with running for president. It defines a class of citizens who if they meet two additional requirements may run for the office of the President.
Ruling someone to be Natural Born is the first step in establishing eligibility, as there are two other requirements that need to be met.
A court can rule on whether or not someone is a natural born citizen without the case involving one running for President.
Once you remove this fallacy, things fall in place so nicely.
You may also have missed the following reference
Kip Wainscott (Perkins Coie) provides the following citations in reply to Kobach:
U.S. v. Marguet-Pillado, 560 F.3d 1078 (9th Cir., 2009)
U.S. v. Marguet-Pillado, 648 F.3d 1001 (2011)
Again missing the point. We do know who are natural born citizens but we are not certain about certain classes, and those born abroad would count in such a class
Remember what Ms Bonner actually said?
That is however logically speaking, not necessarily at odds with: We may not know who are natural born citizens.
Perhaps you should have read Medina as he admits
As to Medina’s quote, it too needs to be understood and presented in its proper context
Again misunderstanding the issues. The Presidential Eligibility Clause defines three requirements, one of which is that the person needs to be natural born. Thus, even if the court does not hear a case involving presidential eligibility, it can still rule on whether someone is a natural born citizen and that is what the US v WKA effective has done.
You are conflating two separate principles here.
Pure logic based on historical rulings, and scholarly understanding. It is clear that persons naturalized in the United States are not natural born, and based on the US v WKA ruling, as well as other court rulings, those born on soil are definitely natural born. There is a question as to the status of children born abroad to US citizens may or may not be so.
But that has no impact on Donner’s statement that it is nearly universally recognized that birth on soil creates natural born citizenship or the observations of others, that there is lack of clarity.
I find the logic quite straightforward and well reasoned.
Again missing the point. You are confusing common law and nationality law, the latter is statute, the former, well common law. So there may indeed not have been a common understanding and yet universal acceptance that those born on soil were indeed natural born.
There is a severe logical problem with you arguments, in addition to a failure to understand common law versus statutory law.
So far I conclude that this is an impressive effort to unravel the meaning of the term natural born but it fails so far as it confuses common and statutory law, as well as invokes a logical fallacy.
Still, lots of good things to think about.
Dr. Conspiracy,
Did I try to fool you into believing that I do have qualifications as an authority on Law.
Whatever I wrote so far, was my opinion. If we have an authority among the commentators, I wouldn’t mind at all to be corrected by them.
You wrote:
“Remember that the Constitution only specifies two sources of citizenship ‘natural born’ and ‘naturalized’ (see Minor v. Happersett et al). For Wong Kim Ark to be a citizen, he must be one or the other.”
I don’t remember that because the Constitution, as I remember, talks about a “citizen” and a “natural born Citizen” (once). Therefore, the second sentence of the above-mentioned paragraph doesn’t make much sense, does it? On the other hand, WKA was pronounced a citizen by the Court, but not a natural born Citizen.
You really need to read US v WKA. The court observed only two source, birth and naturalization. Since the court observed that WKA could not be naturalized under the laws of the US, the court had to look at the other source of citizenship, called natural born citizenship.
The court observed that the word natural born was left undefined in the Constitution so its meaning had to be found in common law. The court then showed how Common Law considered anyone born on soil, a natural born citizen, with some minor exceptions.
Note that the government’s appeal brief raised the issue as follows:
“Did the lower court err in finding Wong Kim Ark to be a natural born citizen”
The dissenting judge similarly observed that under the majority ruling, it was unfair that children born to alien parent on US soil could run for president but children born to US citizens abroad, could not.
I have quite an extensive resource on the lower court case, the Supreme Court case and the briefs filed in WKA. Check out nativeborncitizen.wordpress.com
The Doc makes an excellent observation which you ignore
Do you understand the difference? Do you understand the distinction between common law and statutory law?
We know for sure that it is native-born and that it excludes naturalized but are not sure about those born abroad to US citizens.
It’s logically simple and I am somewhat confused why you keep making this fallacy?
Mike, that line, “What do you know [that so-and-so] didn’t?” That’s for when you find a good citation on *your* side. Your point was, “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” Your own citations show otherwise.
You spent time trying to convince yourself of what you wanted to believe, and on that front, you succeeded. ‘Twas not easy to convince yourself of something so stupid, but you rose to the challenge.
Been there. Done that.
Contrary to what you now state, Mr. Godkin, your reaction was not to “publicly acknowledge” your errors. You simply snipped. I”m not anti-snipping — I wish people would snip more in the laudable cause of brevity — but snipping in denial of reality deserves to be called out.
Now you say, “It’s your turn”. O.K. Same as my previous turn: It’s not like you had any counter to my observation: “You found scholar after scholar agreeing with what you claim is no consensus”. That’s just plain true. I noted the non-scholars you quoted who actually disagreed with the consensus: Breckinridge Long in 1916, then Cort Wrotnowski and Leo Donforio in 2008. Those are not *my* sources, Mike. They’re yours.
Discredited as Long and the birthers stand, the bigger issue is the century in between. In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.
The two-citizen-parent birthers are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.
I have yet to find this quote in the article in question.
My point exactly
Sure it does. He is quoting Minor:
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”
I just love the duplicity of Birthers. I have now mentioned the case of Tom Vilsack to David Farrar, Mario Apuzzo, Jerry Collette, Tracy Fair, Scott Erlandson, and now Mike Godkin. Not one has ever responded. They just ignored me and changed the subject (see above), because the example of Vilsack PROVES that jus soli is the relevant (to BHO) basis of NBCship currently, and every jus sanguinis argument is dead… game over, checkmate, QED, end of story.
Little wonder not a single Birther has yet dared to addressed this fact.
Yes, but it helps understand what everyone else understood as well. So it put to rest your argument that WKA has nothing to do with natural born or the eligibility requirement.
His opinion was based on a fair reading of the majority opinion…
Mike,
Who would you accept as an authority?
Mike is wrong, I am the highest authority.
I could have used Minor as the authority for my remark, but actually I had in mind the Supreme Court decision in Elk v. Wilkins (1884):
As an additional authority, I add this from Congressman Hiram Bingham (1862):
Oops! Sorry!
Actually, there are three kinds of natural born citizens:
1. The Birther natural born citizens, born inside the United States, to two citizen parents, based on French law, and checked-out library books;
2. Natural born citizens born outside the United States as declared by Congress; and
3. The WKA natural born citizens, born inside the United States, to parents who are neither foreign diplomats, nor invading soldiers, based on English common law, American common law, and a long line of legal cases.
Snark.
Squeeky Fromm
Girl Reporter
I agree with you assumptions and reasoning here.
You’re violating context, equating a bit of the conversation to the whole argument.
Obviously I agree that anyone who is born on American soil is eligible to be President, but your Vilsack argument makes no sense. Vilsack is cabinet secretary — there is absolutely now requirement that a person be a natural-born (Presidential-eligible) citizen to be appointed to the Cabinet or elected to Congress.
Former Secretary State Madeline Albright was a naturalized citizen, born in Czechoslovakia. Born in 1937, she became a US citizen in 1957, at age 20.
Former Secretary of State Henry Kissinger was a naturalized citizen, born in Germany in 1923. He also became a citizen at age 20, after entering the US army in 1943.
I am sure there are many other examples. Those are just the ones that leap immediately to mind for me.
The Presidential Succession Act — http://www.law.cornell.edu/uscode/text/3/19 – specifies the order in which a Presidential vacancy is filled in the event of “death, resignation, removal from office, inability, or failure to qualify” of everyone who is up the ladder of succession. If the person holding office — whether as President of the Senate, Speaker of the House, or as cabinet member — is ineligible due to the citizenship clause, then that person would “fail to qualify” and next person down the list would become acting President.
Thomas Vilsack would be deemed a natural born citizen — foundlings are presumed by law to be born in the place where they were found — but his status as Secretary of Agriculture is irrelevant to that determination.
Expelliarmus,
All of the other times (and there were several) that Thomas Brown mentioned Vilsack, he pointed out that he was a presidential candidate (and thus his relevancy to this discussion). Personally, as someone who’s birth certificate doesn’t list his parents (it lists my adoptive parents), I think that the question of Vilsack’s eligibility (and mine) is something every birther should be made to answer.
Róger Calero was a candidate, and managed to get his name listed on the ballot in 5 states.
I don’t believe Vilsack ever got as far as having his name listed even on any primary ballot. He announced his candidacy at the end of November in 2007, but withdrew three months later, more than 10 months before the Iowa primary. http://www.nytimes.com/2007/02/23/us/politics/23cnd-vilsack.html
Again — I have no doubt that he would have qualified — but the fact that he once considered running for the office is not proof of that.
Certainly there were more significant question raised about John McCain’s eligibility, and that never stopped him from running.
Expelliarmus,
That’s not the point—the point is that the birthers should be made to answer as to what they believe his status is as it is a case where their version of NBC cannot possibly be established even though he is, in all likelihood, the child of citizen parents.
Doc,
Mike’s use of cherry picking, straw men, and other logical fallacies in reference to Vince’s writing in particular annoys me. My first exposure to anti-birthing was Vince’s posts at Turley’s site and I know that in the face of the impeccably researched, flawlessly reasoned, meticulously supported (not to mention ever polite) legal arguments that Vince used to tirelessly unload on birthers of every ilk Mike wouldn’t last for a femtosecond. Mike’s twisting of Vince’s words—probably confident in the knowledge that Vince isn’t likely to notice something on a blog unrelated to Professor Turley’s and possibly aware that he hasn’t been filleting birthers for quite some time—seems pretty cowardly to me. I’m a big believer that people’s words should be held against them, which implies that dishonestly distorting someone’s words is, in essence, accusing them of something they did not do. I really wish that something like this would happen…
Hello? Hello?
We now know that is not true, since that very same term is employed in the law making Lafayette a NBC.
I just posted that above.
I note with interest that Mr Godkin who felt the need to answer minute quibbles about his arguments did not answer my comment regarding his baseless and contemptible accusation:
“So the constitutional scholar has been rewarded for her efforts to prove to the world that Obama was eligible to become President.”
I’ll grant you that it is irrelevant to the present debate, and only concerned a few handful of persons in all of US history, but we have now established that this is FALSE.
There is a third category: Honorary Citizens, who are NOT naturalized citizens.
Lupin,
You’re absolutely right—his baseless smear of Ms. Bonner, as well as his distortion of the writings of Mr. Treacy show that his polite, pseudo-scholarly facade is merely a flimsy cover for another shameless and dishonest birther.
I guess he couldn’t contain his bile any longer and when he reached the end of his document, it erupted. The mask dropped.
Nbc,
You’ve stated;
1) The 14th Amendment merely restated that one is either born on soil or naturalized to become a citizen of the United States.
2) The same logic was followed by the Court in US v WKA where the Court found that the term natural born remained undefined in the Constitution. Realizing that WKA could not be a citizen through naturalization, they recognized that the only logical path to citizenship would be for WKA to be natural born.
The Court looked at the history of the meaning of the word and found that it consistently referred to the location of birth, regardless of the status of the parents.
I have a question for you and for everybody else: Why did the Court in the WKA case have to use common law to prove that WKA was a U.S. citizen?
Why didn’t they just use Section 1 of the 14th Amendment?
As we know, it says, “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.”
WKA was born on American soil. What was the problem?
Mike,
Since the 14th Amendment was simply declaratory of existing law, they (being thorough) explored the basis of that law. Their job isn’t to get to the point quickly—it’s to provide a complete rationale for their decision.
Will you answer my question about who you would accept as an authority? How about apologizing to Ms. Bonner for your unfounded accusations or Mr. Treacy for your distortions of his position?
Squeeky Fromm, Girl Reporter,
Dr. Conspiracy wrote this:
“That means that one can’t have a case trying a controversy about ‘natural born citizen’ apart from presidential eligibility.”
You didn’t “entirely agree with this statement” and you wrote:
“While the president must be a natural born citizen, there is a pretty large pool of people to choose from. Hundreds of millions of us are natural born citizens at this very moment. Should any of us become involved in a citizenship case, then at least some of the issues relating to natural born citizenship will be involved, whether we are running for the Presidency or not.”
Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?
Mike,
US v. Wong Kim Ark. Since Mr. Wong could not, by law, have been naturalized, the court needed to find him natural born (or an alien).
Are you going to answer my questions?
Brygenon,
This is what you said:
“In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”
You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the “natural born Citizen” because all the presidents “in our time” were born on American soil to the parents who were at that time American citizens.
Mr Godkin:
You keep repeating the same things & twisting or playing on words, but you have pointedly ignored the points made here (including by me) that blatantly contradict your weird theories regarding NB and dual citizens.
It’s hard to take you seriously; you’re not debating, you’re parroting.
Thomas’s point might help if it looks into the Designated Survivor tradition. In 2000 and 2003 designated survivors both were born of one or two non-citizen parents. Loren did an article about a while ago.
http://barackryphal.blogspot.com/2011/10/presidential-succession-and-designated.html
Yet, there is a previous President born on American soil, after the Constitution, whose father was not an American citizen. This President was sworn in (the second time, to be safe) by the same Justice who wrote the the Minor decision. That would be Justice Waite who swore in President Chester Arthur.
When I have mentioned this previously, the response, when it was not crickets, was that Waite did not really have much of a choice and it had to be done. However, Chester Arthur had already been sworn in by a state judge after Garfield died and Waite’s administration of the was done out of an abundance of caution since the first one was not a federal judge. Waite did not need to do it himself.
I guess we have a tradition of Presidents with a non-citizen father being sworn in twice for their first term.
You know that for a fact? You’ve seen the birth records of all of those parents of every President we’ve had “in your time?” I doubt it.
As well as all presidential and vice-presidential candidates.
Mike,
Wong Kim Ark. He was not a naturalized citizen.
That also answers your question why the first line of the 14th Amendment wasn’t sufficient to find WKA a citizen. The problem was the “subject to the jurisdiction thereof” language. Everyone admitted he was born in the U.S.
That is why the court determined the meaning of natural born citizenship. That common law concept was what the 14th Amendment was declarative of. And what the 14th Amendment affirmed.
This is also why all the natural born citizenship analysis was not just gratuitous dicta, but essential to the decision.
Squeeky Fromm
Girl Reporter
Since this thread is about Mr. Godwin’s interpretation of nbc, I’ll not get into it here except to say that i disagree that Rogers v Bellei does any such thing and distinguish between those three terms. Perhaps for a later discussion.
Ha, ha. There’s a fourth kind, sort of, we can argue about it!
A person of unknown parentage found in the United States while under the age of five years who is not shown, before reaching the age of twenty-one, to have been born elsewhere.
Yes, it’s one of the circumstances as declared by Congress, but what makes it a fourth kind is that we don’t know where the person was born.
I do not know if Mike Godkin is a Birther or not but he certainly seems to be devolving towards the classic Birther arguments. Eventually, they all hit a stone wall at WKA and have to start lying and tap dancing to get around this simple truth. They can never get around this simple set of questions:
1. The SC has stated multiple times (and even in WKA) that there are only two ways to make citizens and therefore two classes of citizens, natural or native born and naturalized. Correct?
2. The court said WKA could not be a naturalized citizen. So what kind of citizen was WKA? (HINT: see #1).
Birthers, apparently devoid of any ability to use deductive reasoning at the most basic level say WKA is a citizen, period. Then they wonder why every judge laughs at their arguments.
I think an honorary citizen would likely fall under the category of naturalization, a kind of naturalization fitting under the constitutional authority of Congress to naturalize. Otherwise, where is the authority to make honorary citizens?
Not according to the wikipage I linked to above, Honorary Citizenship is something quite different; being a Honorary Citizen, for example, does not entitle you to a US passport (which I find incomprehensible).
So you’re less than a Naturalized citizen; to me it does look like a third, distinct category of citizenship.
Now, clearly, we’re talking the equivalent of a footnote to a footnote, since it concerned seven people in the entire US history –and in some cases their male descendents.
This is likely why this rare and special category is routinely ignored when discussing the matter of US citizenship.
But i was extremely punctilious about details and meanings when I translated Vattel here, and I can’t help but feel that I — perhaps, we — should be equally meticulous here.
Before we turn to this other matter, are you retracting your false claim: “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency”? That was what you said was your point, even as your own citations soundly refuted it.
Clearly we also need a big red X through your line, “nothing but the truth.”
That was exactly my point: numerous people have been put in the line of succession to take over as President in an emergency who didn’t have two citizen parents, and numerous others have been run, by both parties, as candidates. I contend that this proves that until the scary black guy with the foreign-sounding name became President, the definition of NBC as “born on US soil to anyone (with minor exceptions), or off-soil to a citizen” was never in doubt, and the only reason it is being argued now is partisan animus. It’s a lynching attempt with no rope, and it stinks to high heaven.
Arguing otherwise is insane. Period. You can argue that the currently accepted definition is wrong, but not that it isn’t what it is.
Or there was no requirement for one to be born of Citizen parents. Like for instance Chester A Arthur whose father wasn’t naturalized when he was born. Or VP Charles Curtis whose mother wasn’t.
Because the Government had claimed that it was international law not common law, and certainly not English common law which guided the interpretation and meaning of the term natural born.
If you had read the 1) lower court ruling 2) the appeal briefs, you would not have to ask these questions.
The court in WKA explains
Did you read the case?
What I find also fascinating is his focus on Ms Bonner who wrote a minor contribution on a blog. He starts with insinuating that she was working on behalf of the Obama campaign, then he pretends that her arguments are somehow illogical when it is his own logic that has failed him.
So far I am not very impressed as at the foundation of his article lie some assumptions which are fallacious. Time to rewrite I guess.
PS: You quoted from Ms Bonner’s blog contribution a reference which you claimed was similar to Pryor’s but I have yet to find it?
I agree about being meticulous, and I’m not much invested here. I do like exploring fine distinctions.
Regarding the limits of honorary citizenship, I don’t find that much strange. An honorary degree, for example, doesn’t make Stephen Colbert a doctor no matter how much he has fun with it.
My question was about where Congress gets the authority to pass such acts in the first place. The Wikipedia page you reference just says these citizenships result from acts of Congress, but the Congress gets its authority from the constitution (it cannot just pass any act it desires), and in the constitution Congress is given authority over naturalization, or making citizens of those not born here. That authority, as I read it, lets them set limits, of any nature they decide.
Even a regular naturalized citizen is not 100% unlimited in their citizenship, beyond the presidency, as they can be stripped of their citizenship in certain extreme circumstances in a way that natural born citizens cannot. So from that 99.9999999% limit to something much less in an honorary citizenship.
So for me, that reads as a subset of naturalization. I would not be put off by some other legal showing or result, but I don’t as yet see that as a separate category of citizenship.
Yes there is also citizenship by “private bill”
Which of course means that one should be careful not to confuse necessary with sufficient. Surely you would not engage in such a logical fallacy?
it’s pretty much like an honorary doctorate – you know it actually means squat apart from a `we give you thumbs up’ from the place that issued it. if you actually tried to use it, you’d end up in the crap.
in the world that i move in, there was a time when some MC’s would honour freinds of the club who were serving military, and therefore unable to fulfil their obligations to the club. an honourary full patch would be granted including the right to wear full colours. but as far as vote and voice was concerned, there was none within the club for an honourary member, just simply the right to wear the colours.
Slartibartfast ,
“Are you going to answer my questions?”
Yes.
Can’t wait for your much revised version of your paper. Let’s see if you have learned.
As I noted to Lupin upthread:
It appears that it means more than “squat”… 😉
Thank you.
Brygenon,
Let’s try to put two and two together.
1) You said: “In our time, the two-citizen-parent-theory had no advocates. Not even the birther cranks. It simply did not exist. That changed late in 2008, when Barack Obama’s campaign was clearly poised to win.”
2) I said: “You are absolutely correct. There was no need to go back to 1787 and interpret the meaning of the ‘natural born Citizen’ because all the presidents ‘in our time’ were born on American soil to the parents who were at that time American citizens.”
3) You said: “Before we turn to this other matter, are you retracting your false claim: ‘There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency’? That was what you said was your point, even as your own citations soundly refuted it.
Clearly we also need a big red X through your line, ‘nothing but the truth.’”
Do you see the difference between just “being born on American soil” and being born on American soil to two American citizens when it comes to presidential eligibility?
As far as “nothing but the truth,” you’ve missed my point entirely. And you missed the irony of it. In my “Final remarks” I mentioned that Professor Seymore made a disclaimer:
“This article was not written to advance the political candidacy of anyone currently on the political scene.”
I suggested that Ms. Bonner, Jack Maskell, or really anybody else writing on such a politically sensitive subject should have made this statement, which would be a substitute for the oath to tell “nothing but the truth.”
Its like getting the “Keys to the City”. Its an honor but it doesn’t get you anything tangible.
Probably because in our time no one cared about two citizen parents until a black man came close to being nominated. There isn’t a general consensus of when VP Agnew’s father naturalized. According to the 12th amendment in order to be VP you need to qualify to be President. Also VP Charles Curtis’ mother wasn’t a citizen at his birth
I have a question for everyone.
All of you are talking about the WKA case. That’s great!
When did it take place? In 1898, right”
The Constitution was adopted in 1787.
Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
Somehow, all those Courts reached conclusions without a reference to the WKA case.
Let me remind to everybody that I am not a lawyer.
Can one or a few of you calmly explain in a couple of sentences why what was written in Section 1 of the 14th Amendment was not enough to proclaim WKA a citizen of the United States? Was he born here? Yes. Was he “subject to the jurisdiction thereof?” If he was, that should have been the end of the story.
After all, the U.S. Constitution is the Supreme Law of the land.
Except it does:
Mike,
The 14th Amendment, being merely declaratory of existing law, does not provide the rationale as to why Mr. Wong would have been a citizen had he been born in the country in 1787 (or 1760, for that matter). They were being thorough—as is appropriate for the highest judicial body in our nation.
From Wikipedia on Honorary Citizenship:
de Chambrun didn’t sue for NBC under the Honorary Citizenship granted in 2002; he sued under the NBC granted in 1784.
Nope, they are the same as the eligibility requirement includes that such a person must have been “natural-born”, a concept which was well understood in common law to mean “born on soil, subject to jurisdiction”, the latter to exclude the well known common law exceptions of children born to foreign dignitaries or invading military, and in the US, Indians not paying taxes as they were not born under our jurisdiction.
I am still confused as to what causes your confusions here.
No. There is no distinction (except for those not under jurisdiction of the United States).
End of story.
Why is this so hard for you?
I already attempted to explain this, as did the Court in US v Wong Kim Ark.
If you had familiarized yourself with the case, the briefs filed and the ruling, you would not have had to make such a foolish request.
Please Mike show at least some familiarity with the case… There is no excuse for not having read the lower court opinion, the briefs, and the ruling (and dissent) as well as the law article written soon thereafter.
So what is preventing you from doing so?
I stand corrected. Sorry. Thank you for pointing out the nuance that I was missing.
That is different. The honorary citizenship given in 2002 is not what helped de Chambrun. His case was based on Maryland’s 1784 resolution that Lafayette and his male heirs would forever be natural born citizens. That is its own fine wine of distinctions.
I would also note that it has been pointed out to me here in the past that the language of the Maryland law is typical “naturalization” language and doesn’t necessarily make Mr. de Chambrun (or Lafayette) natural born—hence my question about his presidential eligibility depending on the parent his descent from Lafayette was through (if it was his father, then he would have been the child of a US citizen as well as a citizen by the Maryland law).
Only one was significant to the matter at hand. Scott v. Sanford – the “Dred Scott decision”. Universally acknowledged as the worst, most wrongheaded decision in the history of the SCOTUS.
The universal condemnation of the Dred Scott decision led directly to the 14th Amendment the 1st sentence of the 1st section of which specifically overturns the Dred Scott Decision (the 2nd sentence in the 1st section overturned Barron v Baltimore, another wrongheaded SCOTUS decision which held that the Bill of Rights did not apply to State Governments).
Keep in mind that in 1784 we were operating under the Articles of Confederation, in which states, such as Maryland, had much more autonomy and power. This is a classic case of being grandfathered in, before the Constitution was adopted.
This is just beyond belief. You are basically calling us and others to be ‘liars’? Confirming that which already was clear from the onset with your poor treatment of Ms Bonner’s paper and the mysterious reference.
Telling the truth my friend does not mean telling the ‘truth as you believe it to be’.
So I am looking forward to you revising the many flaws in your paper.
Mike,
I done told you why, above. I also gave you a natural born citizen case. Here it is again:
That also answers your question why the first line of the 14th Amendment wasn’t sufficient to find WKA a citizen. The problem was the “subject to the jurisdiction thereof” language. Everyone admitted he was born in the U.S.
That is why the court determined the meaning of natural born citizenship. That common law concept was what the 14th Amendment was declarative of. And what the 14th Amendment affirmed.
This is also why all the natural born citizenship analysis was not just gratuitous dicta, but essential to the decision.
—————–
Now, for something new. You seem to be surprised that there is an Arrow of Time, and it moves in one direction. The judges in cases prior to 1898 did not yet know about WKA. That is why they didn’t reference it.
Moving along to the next point, Courts had to decide whether the 14th Amendment was a brand spanking new law, or simply declarative of the old common law concept of natural born citizenship. This was because the 14th Amendment also had the “Privileges and Immunities” and “Equal Protection” clauses built into it, where every citizen was supposed to have the same rights.
Did the 14th Amendment therefore expand the individual rights of citizens???This is what Virginia Minor sued under in 1875 in the Minor case. She said, “Gee, if I have the same rights as every other citizen”, then when can’t I vote like the men can???
The Minor court found that “voting” was NOT an inherent right of citizenship PRIOR to the 14th Amendment, and therefore was not an inherent right after. Because the 14th Amendment did not create any new rights. Here is what the Minor Court said:
“The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.”
See, the 14th Amendment did not create new classes of citizens. If you study the history of natural born citizenship, you find that the Dred Scott decision made exception to the old common law rule, and held blacks were not natural born citizens. The 14th Amendment got things back on course.
And, if the concept of “jurisdiction” was already present in the concept of natural born citizenship, then it was obvious that the 14th Amendment, being declarative in nature, and NOT brand spanking new law, had the same definition. This is why 14th Amendment “born in the U.S.” citizens are the same as the old natural born citizens.
Both are born here, and both are under the jurisdiction. And neither requires two citizen parents.
Squeeky Fromm
Girl Reporter
Just more reason why I find the question of Mr. de Chambrun’s eligibility for the presidency fascinating…
It was quite sufficient as the Supreme Court ruled. If you are asking why a govenment official attempted to deny his citizenship, the simple answer is that they were wrong (which is what the court said). it has to do with the Chinese Exclusion Acts, a sad chapter in American history, which you ought to read about before shooting your mouth off.
Now that I have answered your question, please answer mine: Why do you disregard state courts and lower federal courts, which have ruled that Obama is eligible? The way the system works is that they are assumed not to be idiots and their decisions are law unless and until the Supreme Court decides to overturn them, which is frankly a rather uncommon event. At least 99% of appeals to the SCOTUS from state and lower federal courts are not heard and of the <1% that are heard the majority are upheld. So Ankeny is the law unless and until the SCOTUS says otherwise. Don't hold your breath. Or do. They are your lungs, not mine.
You pretend that the only opinions are from scholars, But that isn't so. Courts have spoken. That you block your ears to what they say doesn't change the fcs.
As Squeeky pointed out upthread, “subject to jurisdiction” is the whole point of WKA.
And, to address your concern, it *was* the end of the story. Thus, there are no serious questions about Obama’s eligibility based on the invention of a parental requirement. People bring it up and get pointed right back to WKA. Simple. Done. No one has made a dent in WKA. Time for an after dinner stroll.
It is fascinating, but I think it doesn’t change much. I do not think a state could do this today.
Let me repeat again for Mr Godkin- State and lower federal courts ARE NOT CHOPPED LIVER. They are real actual courts whose judgements are fully valid. When they say Mr Obama is eligible, whether he had 2,1 or 0 citizen parents, then HE IS ELIGIBLE. If SCOTUS disagrees then they can overturn one of the decisions, but up until the very instant they do so, the lower court rulings are the LAW. Since SCOTUS has not overturned a single one of the decisons stating Mr Obama is eligible, HE IS ELIGIBLE.
So what scholars say or don’t say is all very well, but the law is what courts say. And in case Mr Godkin missed it, COURTS SAY YOU DON’T NEED CITIZEN PARENTS.
Did you get that? Should I say it again?
As Scientist points out, it is the end of the story unless and until it isn’t. So you can try and change the story going forward, if you so desire, but you’re not going to succeed by misinterpreting the past.
Although Ankeny was not appealed to SCOTUS, I expect that some of the other state court decisions that have followed the logic of Ankeny will be once all other appeals are denied. I would bet a considerable amount of money that SCOTUS declines to hear the appeals.
What does that mean Mr Godkin? That OBAMA IS ELIGIBLE. Whether or not you agree is irrelevant, since you are not a judge (sorry to be so blunt, but your opinions are not law unless you are a judge).
Wonderful.
Godkin appears to be under the false impression that the only precedent which counts is binding precedent. Of course, the reality is that courts will consider any relevant precedent, whether binding or not. That is why the defendants keep bringing up the Ankeny decision and why courts outside of Indiana have referenced Ankeny.
Godkin has no discernible legal training or experience, so it is not surprising that he does not understand such things.
If you read the Wong Kim Ark case, as well as the brief filed by the government, you will find the answer for yourself.
The government argued that WKA was not subject to the jurisdiction of the United States because he was subject to the jurisdiction of China. The Supreme Court rejected that argument.
As others have pointed out, the government’s brief also stated that the Court of Appeals ruled that WKA was a natural-born citizen AND that if WKA was a citizen, it meant that he was eligible to be President.
http://nativeborncitizen.wordpress.com/2012/05/26/us-v-wong-kim-ark-brief-on-behalf-of-the-appellant-government/
Mike hasn’t considered the Chinese Exclusion Act.
Northland10
Squeeky Fromm, Girl Reporter:
“Now, for something new. You seem to be surprised that there is an Arrow of Time, and it moves in one direction. The judges in cases prior to 1898 did not yet know about WKA. That is why they didn’t reference it.”
Northland10:
“Wonderful.”
Neither you, nor Squeeky has a sense of humor. I’ve learned my lesson.
This is what I wrote:
“Over about 110 years, a lot of cases were decided by the Courts with regard to citizenship of different persons.
Somehow, all those Courts reached conclusions without a reference to the WKA case.”
Let me re-phrase myself:
Somehow, all these Courts were getting by without using the reasons stated by the Supreme Court to arrive at the well-known decision.
Did you really think that I am disoriented in time?
Your reasoning and points are often hard to follow.
Because I’m still not sure what exactly your point is, in regards to the 14th Amendment at all…
I just want to add a point of clarification here that the 14th Amendment was ratified in 1868 and was one of the post Civil War Reconstruction Amendments. Much of the 14th Amendment was in direct response and opposition to the travesty of the Dred Scott case in 1857, which was trying to prevent black people from being citizens.
Did you see my answer to your statement? I understood you perfectly. Do you understand my reply?
That’s easy. The Supreme Court never before had to address the same issues which were raised in the WKA case, and it never before had to respond to the same legal arguments.
Minor v. Happersett, for example, was not about Minor’s citizenship. It was about whether Minor’s citizenship meant that she had the right to vote.
Just confused as to the reason the Court in WKA followed precedent and why it looked at the meaning of the term natural born.
Have you even read the case?
Perhaps you could list some of these cases you are thinking of, so that they could be considered here. We wouldn’t want anyone to think you are just assuming the existence of such cases, correct?
Which shows that the 14th amendment is irrelevant to WKA being a citizen.
There was pretty well known one around 160 years ago, I think. Maybe he was referring to that one.
Ok. That does help better translate what you intended to say.
In regards to what you have just said, the answer is what many have already pointed out – because a common law understanding of citizenship already existed. As repeatedly mentioned, neither the 14th Amendment nor any of these other cases created new types of citizenship, they merely reiterated and reinforced the general understanding that was already there, which was:
There are two general paths to citizenship – obtaining it via birth or via a naturalization process. Simple as that.
Before turning to your tangents, how about your point that I disputed:
Your own citations show your point to be false. You found scholar after scholar agreeing with what you claim is no consensus. On the other side, you had to go back to a 1916 hit piece against Charles Evans Hughes, and it argued, “Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution, so the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” Are you aware whether Barack Obama was born before or after the adoption of the 14’th Amendment?
Then there’s a long gap, then you cite a November 2008 brief by the *losers* of Wrotnowski v. Bysiewicz. Those are not constitutional scholars; they’re birthers and they only started with their two-citizen-parent nonsense when Barack Obama was winning.
Do you know what a consensus is? What you found — scholars agreeing that birth on American soil is sufficient and none saying it’s not — that’s a consensus. I can find more disagreement with the laws of thermodynamics.
It would have been the end of the story except for the Chinese Exclusion Act. I suggest you read Mr. Collins brief in support of the government position. He argues that a nation has the right to determine who its citizens are, and that the Congress has the right to exclude someone from citizenship if it wants to, and therefore the Chinese Exclusion Act that made Wonk Kim Ark not a citizen by birth is, according to him, constitutional.
The Constitution never goes into any detail as to who the citizens of the United States are except that some are “natural born citizens” which is a citizenship obtained by the situation of someone’s birth and not the same as naturalization. If someone is a citizen by the common law, then a statute can be passed to change that law.
In the case of Wong Kim Ark, I think the 14th amendment is important in the decision. While Wong was clearly a citizen at birth under the common law definition of natural born citizen, the 14th Amendment made it impossible to legislate against the citizenship of someone born in the United States and subject to its jurisdiction.
Wong Kim Ark was the first case where the Supreme Court addressed the question of whether Congress could exclude someone born in the US as a citizen. Prior to Wong, the Circuit Court in California had made a similar determination in the case of Look Tin Sing (but it was not appealed to the Supreme Court for some reason).
That is a really excellent point.
Agreed. Yes.
Does someone have a reference for the “successfully sued” part? René de Chambrun doesn’t show up in reported NY cases that I can access online. That doesn’t necessarily mean much; a trial court decision is not likely to show up in the reporters, and it would be understandable that there wasn’t an appeal.
Mike,
You asked, “Do you really think I am disoriented in time?”
Perhaps I misunderstood your question. Having said that..you might be surprised to learn how much “Time Disorientation” enters into legal discussions about natural born citizenship. Many of the people we deal with are quite comfortable with the concept of earlier cases trumping subsequent ones. How else could Minor v. Happersett (1875) assume such importance for Article II experts like Mario Apuzzo and Larry Klayman over the WKA (1898)???
Heck, around this topic, old newspaper articles from 1811 can trump 1898 SCOTUS cases.
Please re-ask your question in a different fashion, because I can’t figure out what you are wanting to know.
Squeeky Fromm
Girl Reporter
A few words about the14th Amendment and the WKA case.
Just to clarify the issue: not my words, but the words of the constitutional scholars.
I will refer to my paper now.
Page 7.
Bonner:
“Although facially clear, the ‘natural-born citizen’ provision of Article II’s
presidential eligibility clause has never been definitively interpreted by the courts.” [8]
Page 8.
Bonner:
“Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”
Medina:
“Professor Morse, in a ground-breaking article on the issue, defined the natural born citizen as: ‘one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.’ The definition would include the born-abroad American and clearly constitutes the better view.”
Page 14.
Lohman:
“Thus, this begs the question whether Wong Kim Ark is determinative with
regard to who may or may not be considered ‘natural-born’ United States
citizens for purposes of presidential eligibility. While clearly not dispositive, as
the case primarily discusses the Fourteenth Amendment and does not
specifically address the presidential eligibility requirement, Wong Kim Ark is
influential in that it purports to exhaustively examine the sources by which the
Constitutional Framers derived citizenship terminology-the English common
law.”
Page 24.
Gordon:
“On its face, the fourteenth amendment did not purport to define or limit the presidential qualifications or the naturalization clauses of the Constitution.”
Gordon (again):
“It seems to me, therefore, that the fourteenth amendment has little significant relevance to the appraisal of the presidential qualification clause…”
Han:
“One can argue that the Reconstruction Congress could have used the phrase ‘natural born citizen’ but chose not to, and therefore while Congress cannot abridge citizenship rights under the Fourteenth Amendment, it can enact a statute declaring that while all persons born within the United States are citizens, only a subset of those are natural born citizens.”
Page 25-26.
Justice Samuel Miller:
“To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
‘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.’
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” [28]
Van Dyne, criticizing Justice Miller for an inaccuracy:
“The classing together of foreign ministers and consuls, when it was at that time well-settled law that consuls, as such, and unless expressly invested with a diplomatic character, are not entitled, by the law of nations, to the privileges and immunities of ambassadors, shows that the statement was not formulated with the same care and exactness as if the case before the court has called for a precise definition of the phrase.”
They didn’t have to be deemed NBCs, but they were. Here are a a couple cases, other than WKA:
Perkins v Elg, 307 u.s. 325
Lynch v Clarke (NY 1844)
Diaz-Salazar v INS., 700 F.2d 1156 (1983) The court refers to the American born children of Diaz-Salazar, an illegal alien, as NBCs.
Subsequent to the time in 2008 when Bonner wrote those words, the Ankeny court did definitively interpret the presidential eligibility clause for the case of everyone born in the United States (THEY ARE ELIGIBLE).
Your continuing to ignore this FACT ;leads me, as a scientist to question your integrity. In science one cannot write a paper in 2012 and pretend that science stopped in 2008 or at some earlier date before a paper of whose conclusion one disapproves appeared.
In 2012, we know that anyone born in the US is eligible to be President. If you doubt this, do the following:
1. Read Ankeny
2. Read it agan.
3. Read it again until you get that it was decided by real judges and is the law in 2012..
4. Read it one more time for good luck.
5.. Stop pretending it doesn’t exist
The Ankeny court disagreed wth Bonner.
Who prevails in that disagreement? The Ankeny court. Why? Because they are judges. When a baseball manager argues with the umpires who wins? The umpires. Why? Because they are umpires.
You need to accept that scholars argue and courts decide.
Squeeky Fromm, Girl Reporter,
In one of my previous post, I asked you a question:
“Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”
Did I miss your answer?
I assume that YOU have missed this:
Does that answer YOUR question?
Yes.
I don’t know what the standards for a PhD in Electrical Engineering were in Novosibirsk, but where I got my PhD, we were not allowed to just ignore findings that didn’t support our pet theories.
To paraphrase a famous line from a candidate for US Vice President: I am a scientist, I have known scientists, scientists are friends of mine and sir, you are no scientist.
Now we have a random set of quotes with no context. I have already shown how such quote mining is to be avoided.
Yet you insist.
Are you interested in scoring some points or finding the truth? You show little interest in the latter but rather appear to resort to quote mining without being willing to explain your logical fallacies.
Is that your intent?
Julia Lynch in Lynch v Clarke comes to mind but I am sure you must have heard of that case.
Or more recently
Just a few examples.
I understand why you are reluctant to explain your logical fallacies and provide explanations for your follies…
Mike you still appear to be lacking understanding that while birth on soil was almost universally accepted as making one a natural born citizen, it was less clear as to the status of children born abroad to US citizens.
Once you come to realize this, you may want to significantly revise your contribution.
The question is: Will you abide by logic and reason?
Scientist ,
Let’s stay cool and do a quick analysis.
According to Bonner, the U.S. Supreme Court case, Wong Kim Ark, “is not determinative with respect who may or may not be considered ‘natural-born’ for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the ‘natural born’ eligibility clause.”
According to you, a State Court decision does determine that.
Let me use your terminology now.
Who prevails in that disagreement? Ms.Bonner does. Why? Because, if she is right, then a State court ruling, which is not binding for other State courts and for the U.S. Supreme Court, is in essence irrelevant. President of the United States is a federal position. Barack Obama is not president of Indiana. His eligibility must be decided by the SCOTUS.
You need to accept that the State courts may decide whatever they want, but the last word is up to the SCOTUS.
Mike appears to be ‘missing’ many rebuttals of his follies.
I am not sure why you rely on a minor blog posting by Ms Bonner, but you do assign to her some quotes which I have been unable to find in her posting. Furthermore, you seem to be confused by some of her arguments, leading you to make some logically inconsistent conclusions.
Have you yet to realize that birth on soil has been accepted by most to result in natural born citizenship while there is some confusion as to other cases?
Understanding requires a willingness to appreciate the arguments, not ridicule them.
PS: I checked out her article, where does she make these claims? Ah I see you are referring to her SSRN paper, not her blog posting. More in the next posting.
Well, several other state courts have agreed with Ankeny and cited it, as well as a number of federal district courts. Lower court decisions are the law of the land unless and until SCOTUS says otherwise. When SCOTUS is silent, the lower courts prevail. If you were found guilty of a crime by a state court and you appealed to SCOTUS, you are considered guilty unless and until they overturn your conviction. If they decide not to hear your case, what are you? Guilty.
Barack Obama, like everyone else who has held the office, is eligible unless and until SCOTUS were to say he isn’t (even assuming that they, rather than Congress, have any authority in this area, which is very debatable). You have the presumption 180 degrees backwards.
As for what SCOTUS “must decide”, they are not taking advice from you. They have decided not to hear any of the appeals of eligibility cases regarding Obama. Therefore Obama is eligible whether Mike Godkin likes it or not.
As I expected Ms Bonner observes
Hope this help clarify.
Where SCOTUS is silent State court’s word is final. And they certainly prevail over blog postings even by much more reknowned scholars than Ms Bonner.
Sure but the State Courts are bound by SCOTUS precedent and Wong Kim Ark is quite relevant in their findings. Nothing earth shattering here.
While such rulings may not be precedential, we have seen that they are not irrelevant as other courts are similarly convinced by the soundness of the finding.
Indeed. But they are appealing to a SCOTUS ruling which is quite relevant so I doubt that SCOTUS would disagree with the well reasoned ruling. In fact, other courts have come to accept Ankeny even though not bound by its precedent.
And the 9th Circuit Court has now set a much more precedential ruling. What now?
I do hope that Mike will eventually address the shortcomings in his logic and reasoning. So far he appears to be mostly avoiding them.
Too bad, I had hoped for a more intellectually stimulating discussion, but Mike appears to have turned into another Mario.
Well, the losers can appeal to SCOTUS, which will decline to hear arguments. Godkin and Apuzzo can argue until they are blue in the face that that leaves the matter undecided, but legally speaking, when SCOTUS stays silent, lower court rulings are the law.
Especially when the lower courts base their rulings on Supreme Court precedent.
Let me attempt to clarify further…
Bonner is saying that:
1) WKA did not address every possible path to “Natural Born Citizen”.
2) There may be other ways to become a “Natural Born Citizen” than just being born on American Soil.
3) WKA is very clear: if you are born on American Soil you are a “Natural Born Citizen”.
4) WKA is silent on whether you can be born overseas and still be considered a Natural Born Citizen. It is in this respect that Bonner says that WKA is not determinative.
Therefore:
1) WKA is very clear: if Obama was born in Hawaii, he is a “Natural Born Citizen”
2) WKA is silent on whether John McCain, born overseas, can be considered a Natural Born Citizen.
3) The Obama example shows that we do not need to look anywhere beyond WKA to decide if he is eligible; his NBC status is absolutely certain. There is no scholarly controversy about it.
4) The McCain example shows that we need to look elsewhere than WKA to decide if he is eligible, his NBC status is uncertain. There is an actual scholarly controversy about it.
In McCain’s case, Congress decided, correctly in my opinion, to preempt any such unworthy debate by informing the American electorate that they would not consider an objection based on this uncertainty.
Mike:
You are hitting all around the edges of WKA, when you should just do what lawyers and judges do, and read Wong Kim Ark and then pull the meanings from the case. Let’s use an analogy. You are an electrical engineer. Someone asks you how much juice is flowing through a certain gizmo. You pull out your little machine, hook it up, and tell him the answer.
Your client seems upset. He asks you why you didn’t go outside during a thunderstorm, and send a key up on a kite string. He asks if you have read the latest M.I.T. report on “What Is An Electron??? Does Anybody Really Know???” He tells you the company that made your measuring device, also provided electrical supplies to concentration camps during World War II, and then tried to cover that up.
Meanwhile, you look on in amazement. That is the situation the non-Birther world finds itself in. Ask yourself, did the WKA court define natural born citizenship as “being born in the United States, and having parents who were neither foreign diplomats or invading soldiers, regardless of their citizenship? Did that same court state that Congress could also declare certain persons born overseas to be natural born citizens???
The answer to both questions is YES. Is everybody going to agree with that answer? Of course not. 25% of the Supreme Court judges in the room disagreed with it. (2 out of 8) Those two justices realized a Chino-American could become president, because this decision was finding Wong to be, in effect, a natural born citizen.
Could a legal pundit disagree? Yes. Could a legal pundit invent different scenarios which would test the boundaries of the decision? Of course. Law professors do that all the time, particularly on their exams. I have seen some of the questions and they are devious.
But does any of this change the holding? Real World lawyers and judges approach the law the same way you approach measuring current. They go to case law, pull out a definition, and then compare that to subsequent decisions to see if anything has changed. They do not go to Africa, and study lion prides to see if any of them have alpha male rhinoceri for pack leaders.
All those things you quoted above, while interesting, do not defeat the central holding in WKA, to wit:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [exceptions omitted]. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
Squeeky Fromm
Girl Reporter
A good suggestion but perhaps lost on Mike? Too bad that he shows little familiarity with US v Wong Kim Ark although he tries to minimize the impact by continuously claiming he is not a lawyer.
Fascinating. Has Mike read the original case, the appeal briefs, the ruling and dissent? Contemporaneous articles?
Well Mike?
Scientist,
At the end of your post you wrote:
“As for what SCOTUS ‘must decide’, they are not taking advice from you. They have decided not to hear any of the appeals of eligibility cases regarding Obama. Therefore Obama is eligible whether Mike Godkin likes it or not.”
Finally, you have shown your real colors. This is not a scientific approach; this is a partisan approach. It is very typical: When somebody runs out of arguments, he or she uses different means like questioning the opponent’s credentials or trying to ridicule him. Congratulations!
I read it in the Wikipedia article maybe a year or so ago—all it says now is that he was a lawyer with the New York Bar (I believe that requires US citizenship, but I don’t know for sure).
I answered you—US v. Wong Kim Ark. The Chinese Exclusion Act meant that Mr. Wong could not possibly be a naturalized citizen, therefore he was alien or natural born.
I see, so when you ridicule Ms Bonner, you were doing exactly what? But Scientist is correct, when SCOTUS refuses to hear a case relevant to Obama’s eligibilty, their ruling stands.
When such cases are based on solid SCOTUS precedent, such as US v Wong Kim Ark, the court may very well be not inclined to further address the issue.
So when it comes to motives or ridicule, your own ‘paper’ does exactly that with Ms Bonner. Ironic is it not?
As I said, you may want to significantly revise your poorly formulated paper. Can we expect any updates any time soon which correct some of the more obvious flaws?
Yes but Mike is still getting ready to read the case and the relevant documents, or so it appears. No need to pressure him,he has already a lot to deal with.
Mike,
You just got caught cherry picking—what do you have to say for yourself?
It’s hard to call it cherry picking when Mike appears to be so reluctant to make his argument. All he appears to be doing is to show what he believes to be inconsistencies both internal and external. But simple logic would have resolved many of what he believed to be telltale signs of inconsistent, or worse, failure to tel the truth.
Mike takes the following claim by Bonner
and then quotes
But he fails to present the full context.
Fascinating..
Mike:
Did you miss my earlier answer to this???
Could you please give an example of a citizenship case, in which a person NOT running for presidency has to be identified as a natural born Citizen, and not just as a U.S. citizen?”
An answer is Wong Kim Ark. Another answer is Julia Lynch.
Wong has to be identified as an NBC to determine the meaning of the term “subject to the jurisdiction.” This is because the 14th Amendment was not brand spanking new law, but only declarative of the common law concept of natural born citizenship and its jurisdiction requirements.
Julia Lynch has to be identified as an NBC because she was never “naturalized”, and if she wasn’t an NBC, then she wasn’t a citizen and would lose her inheritance.
Squeeky Fromm
Girl Reporter
You still haven’t answered who you would accept as an authority or apologized to Ms. Bonner (for your baseless allegation—or the “cherry picking” of her words that nbc caught you at) or Mr. Treacy (for distorting his words using several logical fallacies).
I don’t quite get the fixation on what the case was or should’ve been about. (Of course I understand it from the viewpoint of “desperately seeking for an argument why we can ignore WKA”.)
*If* WKA ruled that being born in the US is enough to be NBC, it does not matter if it was an eligibility case or not.
If I sue you for breach of contract and the court finds you are a US citizen, this ruling stands regardless of the fact that it was not a citizenship case to begin with.
For the same reason, WKA stands even if it was not a presidential eligiblity case to begin with.
The fixation on “(part of) a ruling does not hold if the case was about something else entirely” is both totally stupid (as any lawyer in the world will tell you) and childish (because it shows no argument is too dumb for you to believe in if it only helps your case).
Do you really think SCOTUS would’ve made a ruling that makes Wong an NBC and then go “hey, but we really don’t mean NBC in the Constitutional sense”?
That’s about as sane as the birthers believing “Obama’s original BC may say ‘born in Hawaii’, but it definitely has a footnote saying ‘just kidding, we really meant Kenya'”.
Wow, more than just Bonner. I had my suspicions and will be checking more of his ‘quotes/
Yes, that;s one of mike’s logical fallacies..
What usually seems to happen, is that the person already has an opinion that there is a difference between a natural born citizen, and a 14th Amendment “Born in the USA” citizen. Then, they read the case trying to find support for that proposition. And when they can’t find much of anything, they ignore WKA, and turn to outside sources, like Vattel, for the support they need. That was true in Ankeny, and it is true today.
Squeeky Fromm
Girl Reporter
Hmm, somewhat of a poor analogy. That the Court found WKA to be natural born was necessary to find him to be a citizen. Of course, that it also made him eligible to be a president was incidental
The sources referenced by Wikipedia are the Time magazine Letters section behind a pay wall and an obituary where the link fails.
At first glance, it seems he did not “sue.”
I did find this reference:
“Count Rene de Chambrun, direct descendant of LaFayette was among the notables. In this connection it is interesting to note that recently a young Frenchman made application for admis- sion to the bar in New York. He was well qualified but not a citizen. One re- quirement of admittance to the bar is citizenship. It looked hopeless for him. Suddenly, he presented a certificate showing that he was a direct descendant
of the Marquis de LaFayette. Then he presented a resolution passed in one of the original thirteen states almost a I00 years ago, conferring citizenship
upon the Marquis de LaFayette and all his male descendants. The young French- man received his certificate.”
http://www.dirksencenter.org/guides_emd/Dirksen_Newsletters/Congressional%20Front%2005.19.34.pdf
And this reference in Americans in Paris: Life and Death under Nazi Occupation, which states that: “The paper [New York Herald Tribune] called his dual citizenship ‘nebulous’, although both his parents were American-born and he had demonstrated his right to American citizenship in court when The New York Bar Association admitted him in 1930.”
http://books.google.com/books?id=SInGHEUZx64C&pg=PT275&lpg=PT275&dq=rene+de+chambrun+citizenship&source=bl&ots=6iRLaJ_sU2&sig=QYL_CoiEmy3BjaUdU_AydOoTeNI&hl=en#v=onepage&q=rene%20de%20chambrun%20citizenship&f=false
It’s often too tempting and fraught with problems.
So far Mike has shown himself to be woefully ignorant of the US v Wong Kim Ark case or the lower court case, the appeal briefs etc etc.
WKA even explains why they explore common law before the 14th Amendment and if Mike had read the briefs, he would have understood.
Poor Mike… He and Mario should get together and exchange notes.
On second thought, that may be somewhat cruel 😉
nbc,
Lupin pointed out his false accusation against Ms. Bonner (a standard birther tactic—it speaks very poorly of him that he doesn’t apologize or even acknowledge it…) and I found at least three logical fallacies in a comment that referenced Vince Treacy’s comments at Jonathan Turley’s site and he has also misinterpreted David Drumm’s guest post on Professor Turley’s blog. I’m guessing that you could find logical fallacies easily in all of his quotes if you care to look…
Thanks Paper!
Yes, things do not look too promising for our friend. But I will let him explain himself. What I find fascinating how Mike objects to what he perceives to be attempts to undermine his credibility and yet his unfounded accusations in his paper show no such restraint on his part.
Technically, it’s not false but rather purely speculative and unsupported. Either way, I find Mike’s approach highly unscientific and yet he seems to accuse others of such.
Truly fascinating.
Yes, hypocrisy is never a good sign… I’m doubting that he will ever even acknowledge his fallacies, let alone answer my questions, but hopefully he’ll surprise me.
Ha! Because it is well-known that African lion prides would never accept alpha male rhinoceri. Only a female rhinocerous or a beta male are ever accepted.
Well put post, otherwise!
Sorry, I should have said “baseless” rather than false. (See how easy it is to admit when you make a mistake Mike? You should try it some time—you’ll feel better)
I found his attack on Scientist to be a particularly good example of the sort of projection that you are fascinated by…
But, it is you who fail the scientific approach. When I write a scientific paper today, September 2012, I must acknowledge and cite ALL publications as of the date I write my paper, both those that support my position and those that contradict it. Yet, in your paper, published in 2012, you ignore Ankeny, a highly relevant court ruling from 2009, as well as several others from earlier this year that cited Ankeny. In fact, all of these were real courts that clearly said that all those born in the US were natural born citizens and specifically held-not dicta, but the central holding-that Barack Obama is eligible to be President.
I can’t speak to legal ethics, but in my opinion you have violated scientifc ethics. You have cherry picked statements you liked by scholars, but ignored legal decisions by judges that you don’t agree with. That makes you a justifiable object of ridicule, as you are ridiculous.
As for the, “Those courts aren’t SCOTUS”, go to any law text and you will see many, if not most of the citations are of state and lower federal court decisions. Why would they do that? Because those cases are the law, as Ankeny and the other related cases are the law. Because all courts make law, not just SCOTUS. If you cannot understand that, you ought not to pretend you have anything worthwhile to say regarding the law.
A failure of “biblical proportions” . . . whatever that means.
(“There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?” http://www.obamaconspiracy.org/2012/09/paper-on-natural-born-citizenship/#comment-212181)
Baseless fear mongering is real scientific, right?
Generally, SCOTUS only gets involved where different lower courts disagree. In this case, every single court that has spoken has said the same thing; that being born in the US makes you a natural born citizen. Also, that Obama is eligible. End of story. No role for SCOTUS.
I also would like to address Godkin’s speculative scenario. Let’s say courts were asked to rule in a way that would cause enormous harm to the interests of the country. Even if that ruling were legally correct, a wise court would have to consider the implications very, very carefully. As Justice Jackson, said, paraphrasing Lincoln, “The Constitution is not a suicide pact.”
My analogy was to illustrate that it is stupid to claim that a ruling concerning a certain fact (or legal issue) is only valid if it is under the parenthetical “this is the core of the issue at hand”.
That birthers claim such is best illustrated by such a “poor” example.
It’s in line with other crackpot “legal arguments” like Orly’s “WKA isn’t binding because it wasn’t unanimous” or Mario’s “WKA isn’t binding because Judge X misrepresented something in his argument”.
But birthers somehow believe that either
(a) SCOTUS did not really want to rule what they ruled in WKA, so it is “void” (“if they had known their ruling made Wong eligible for presidency, they would’ve ruled otherwise, so their intent clearly never was to rule native-born children of aliens are NBC, so they aren’t”, another variant of “this actually means the opposite of what it says”) or
(b) SCOTUS was part of a conspiracy to “sneak in” a “wrong” meaning of NBC by putting it in a case where it really didn’t belong (a notion probably motivated by some modern-day political tactics of pushing controversial issues through in a committee that is supposed to handle different things, or exchanging entire bills with a totally different content).
My favorite is Leo Donofrio’s claim that Justice Gray “forced” the court to rule in favor of WKA because he was appointed by an illegal President Arthur so he was somehow protecting his job. When you think about it that was a tacit admission by Leo that WKA determined a definition of natural born citizen.
And it is also typical when a birther is losing badly, and has been caught in all manner of dishonesty and fallacy, to find some slight or insult and focus on it, as if it were the substance of the discussion, whose very presence invalidates all that came before.
Thanks you for catching that. It is now abundantly clear that Godkin quoted Bonner out of context to give the impression that she had doubts that Wong Kim Ark settled the issue of jus soli citizens being natural born citizens But she wasn’t expressing any doubts about that – she was questioning whether jus soli is the only way to be a natural born citizen, and she correctly pointed out that WKA does not resolve the issue of children born abroad to U.S. citizens.
Now that we know that Godkin is skilled at taking quotations out of context, every quotation which he has provided deserves to be greeted with skepticism.
I am still waiting for Mr. Godkin to respond to the error in his paper regarding Hamilton’s draft constitution. In fact, I do don’t seem much substantive response to any of the criticisms of his factual errors and contextual misrepresentations.
Well said! I would like to see an honest discussion from Mike Godkin on these issues, but as you mentioned, his peculiar selectiveness to ignore all the well-reasoned serious questions on the flaws in his paper; yet pounce to reply on some minor quibble of a barely tangential slight; is quite revealing of his own disingenuous intent.
He fails any scientific scholarly test of behavior – period. His intent is not to learn nor discuss, but merely to cast spurious accusations and then distract and dodge from any critical analysis. He wishes to play the part of a scholar, yet behaves as nothing more than a closed-minded and confirmation-bias driven sham provocateur.
Nor do I. I had hoped that this was someone who was trying to have a serious discussion and gain a serious understanding of the issue.
However, his conversation behavior has so far revealed that his motives are both biased and quite incincere.
Doc,
Something we’ve all seen play out time and again on your blog—the only real suspense is whether he will become more and more confrontational about it until you are forced to ban him or if he will just play the aggrieved victim and decide that interacting with all of us meanies is beneath him—I’d bet on the latter with a small chance he’ll just cut his losses and slink away silently…
Mike,
Please—prove me wrong and show that you have integrity after all. The only thing you have to lose is your confirmation bias.
Agreed—and very disappointing, if not in any way surprising…
I agree but perhaps Mike may have a change of heart and address the many shortcomings in his article? After all Mike was so insisting on what he called the truth. Was it all a ruse?
There are only two classes of citizen; Natural Born and Naturalized.
Just because you refuse to accept that Obama IS NBC does not give you license to invent a third class of citizen.
Deal with it!
This is disingenuous though – no matter what the topic, no matter how non controversial, you can always find somebody that will take a contrary position. That does not mean there is a controversy.
There are people out there that say the moon landing never happened. That does not mean there is any legitimate controversy on the whole “Man on the moon: Yes or No?” question. It happened, there is no controversy. The mere presence of someone who disagrees does not mean their opinion has value or is correct. If 99.9% of people agree 1+1=2 and the remaining ones say 1+1=3, you don’t have to give those people the benefit of the doubt, or split the difference and say “Well let’s just make it 2.01 to settle the controversy.” One is right, the other is wrong. And if your teacher marks you off for it you don’t get to say “Well until the International Math Council rules, your opinion is really only binding at this school.”
Regardless of whether you believe about state courts, they are cited all the time by other states and even by federal courts at times because while not binding they can be persuasive. In this case, well over half a dozen have affirmatively said what the NBC definition is with respect to Presidential eligibility and all have agreed with one another. Some of the federal courts have also cited cases like Ankeny, such as the Tennessee federal court. Herb Titus and Mario Apuzzo may say the definition used by all those courts is wrong and it should be defined in a way that excludes President Obama, but that does not a controversy make, any more than the existence of moon landing deniers makes one.
SCOTUS won’t get involved because every court in the country so far has agreed on the outcome of these cases and they think those answers are correct.
Ball your fists and declare “There’s a controversy!” all you want, much like the moon landing deniers, that does not mean there is one.
Well said! Comments like these really make me wish for a thumbs up button.
Hear, hear.
And you know something else that really bothers me??? The Birthers are always whining that Ankeny isn’t binding outside of Indiana. But the reasoning in Ankeny is something that other courts can accept, and many now have accepted and openly say so in their decisons.
But why aren’t the Birthers whining about Vattel not being binding outside of France???And actually, not even there because all he did was write a book??? Courts could accept his reasoning, and on some issues they do, and they openly say so in the decision. But they never accept his view of citizenship as requiring two citizen parents.
Squeeky Fromm
Girl Reporter
And your attempt at quote mining to support this overlooked how all agreed that a child born on soil, under our jurisdiction is a natural born citizen.
While the Supreme Court never has ruled on Presidential eligibility, it has ruled on what it takes to be a natural born citizen. Since it was essential to WKA’s claim that he was a citizen that he was found to be a natural born citizen, the ruling is highly relevant and precedential.
What happened? Are you going to update your poorly argued ‘paper’?
There is a lot in this paragraph that is, er, economical with the truth. Vattel was born in a Prussian enclave in what is now French-speaking Switzerland. His view of citizenship rights based on descent through the father was not French, it was German. France at the time was not a legally unified country. Areas that had once belonged to the German Empire, but also some areas in the South based land inheritance rights on descent through the father, while the important courts of Paris based citizenship rights on birth on the soil and restricted land inheritance to French citizens. After 1789. when the King was still alive, the revolutionaries settled the issue by a citizenship right law based on ius soli, with a notable exception: descendants of the French protestants who had had to leave France to keep their protestant religion were giving the right to claim French citizenship as if they had been born in France as “francais naturels”. It is not Vattel’s fault that the revolutionaries turned his word into a term of art. Napoleon, of course, would change French citizenship laws to base them on blood lines.
My other objection is that Vattel never said that a naturel (the word he used to describe a native of the land, it was not a term of art but became one because of the acclaim of his book) needs two citizen parents. The word deux is not in the text, and it would have to be because of the pecularities of French grammar, and to top it all, Vattel always used the French word parent in its official meaning of “relative”,
Your point, that Vattel wrote a book, explaining his own view of the law of nations, and not a legal codex that defines the law of nations is of course a very valid one – Vattel expressly said they do things differently in England and we (meaning the international community) have to respect that AND a lot of Vattel’s other tenets would be anathema to many right-wing birthers or appeasers of birtherism (like his view on the right to carry arms).
NBC:
He CAN’T update it. Think a minute about who is audience is. It sure isn’t the sane people who can read the 6 pages of so of Ankeny and understand what is going on. Why do we need his paper? We aren’t confused.
This paper is written for Birthers who will use it for two reasons:
1. To convince themselves they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable;
2. To convince their future victims they really aren’t crazy, because gee whiz, a dang Russian Electrical Engineer wrote this long legal paper chugging full of footnotes, which says the issue is debatable.
If he does update it, it will be to wrap some more bullsh*t around the weaker parts to make more difficult for the sun shine to penetrate.
Squeeky Fromm
Girl Reporter
As for Ankeny, the question remains: why was it not appealed to SCOTUS? If I remember well, some birther lawyers (Donofrio and Apuzzo?) suggested doing it, but dropped the idea because they knew the court would not take it under consideration.
Damning, I would say. And until another court decides otherwise, but why would they, Ankeny is the law of the land. Because it basically has the silent assent of SCOTUS.
Or even worse (for the birthers), they knew the Supreme Court would affirm the ruling, thus making it binding precedent on every state and federal court in the land. If that were to happen, the birther fleecing would come to a quick and sudden end.
In that case, his title “And Nothing but the Truth” appears to be highly ironic.
I have asked Mario that question directly (either here or at nbc’s site) and got no real response.
I think they hoped if they kept it quiet that somehow judges in other cases wouldn’t find it. Of course, the judges who have all cited Ankeny would have all independently arrived at the same conclusion as it is the only one possible in the light of the last 100 years or so of jurisprudence. That is why “It’s only valid in Indiana” is b.s. While strictly true, I told Mario right away that any other court would reach the same conclusion, a statement which has proven correct.
There is little point in Godkin modifying his “paper”. First of all it is a meaningless document that no one who matters is going to read. Second, the issue is settled legally, as far as judges are concerned and that is all that matters. Finding some lawyer or` even a law professor who feels differently is irrelevant, since judges, not bloggers, make the law (sorry Doc). Third, Obama has, by his serving his term, whether re-elected or not, shown that someone with one citizen parent can be President. That would imply that someone with no citizen parents can do likewise, The precedent for Presidents is now established beyond any doubt,
So, Godkin is mere entertainment. A feast of intellectual dishonesty. Those who hoped for an honest discussion are bound to be disappointed, because it is impossible to make the birther case through honest argument. It can only be argued by twisting words, pulling phrases out of context, dismissing inconvenient facts, personal slurs and similar gymnastics.
I thought that paper would be most at home in a place where the sun don’t shine!
PaulP:
What you said is all true, but I wasn’t trying to over-write my point, which is Birthers choking on Indiana, and swallowing France, Switzerland, and Germany whatever. Plus, like you said, in paragraph 214 Vattel comes right out and tells them England does things differently.
I was just “taking five” from being too detailed, or like they say in France:
C’est la vee!
Squeeky Fromm
Girl Reporter
AGREED!
Well said!
And, not only but also…
Your description of his paper is EXACTLY the description of the ‘psuedo-Science’ babble that characterizes stuff like the ‘free energy’ magnetic motor perpetual motion machines that pop up periodically.
The ‘inventors’ really try to make it sound like they know what they are talking about to the careless reader who already has a bias toward believing that over-unity devices just might be possible. I really like the part when they say that the Government (FBI, CIA, KGB, or Mossad usually) is suppressing their idea and to get in with your “investment” quickly and get a copy of their plans so they can get it into as many hands as possible. Then you do the most trivial search possible and come up with 23 million hits on kits and plans and discussion forums, all pushing the same set of plans and kits. That’s a very successful suppression campaign the ‘Government’ runs.
Just for giggles, I looked up to see if there were any traces on the internet about Mr. Godkin’s electrical engineering exploits. I am happy to report that the evidence I could find indicates that he is probably legitimate.
There is a dozen or so patents mostly relating to ‘linear motors’ that are probably his. What say you, Mikhail? Are you the patent holder? Congratulations if so.
It would be cool if it came out of perpetual motion machine research, but I doubt it.
Oh, hey! Mikhail… I’m looking for a power board, with about 10 remotely controlled, separately switchable power outlets. I’d like to use it with a Logitech Harmony One remote control to power up only the devices used for a specific activity. i.e. To watch TV I need the TV, SetTop box, Amp, and Subwoofer; I don’t need the CD, BluRay, or digital radio tuner. A lot of commercial power boards can power up everything when a master device goes from standby to active, but nobody seems to be ‘doing it right’. You guys could come up with a design and market it through Logitech, I bet. There might even be a patent for you in there somewhere.
There is also the hidden motive of fear mongering.
Note the similarities between Godkin’s following statement and the familiar birther troll, john:
Godkin: “There may be another practical reason for the SCOTUS not to touch this subject with a ten-foot pole. If – strictly theoretically – the SCOTUS decides that Obama is not eligible, they will create a political disaster of biblical proportions because every law and every executive order Obama signed over four years would be invalid. Who is going to take this responsibility?”
john: “The courts can never make a ruling that Obama is somehow ineligible. The ramifications of such a ruling the courts believe would too much for this country. For this reason, no court is willing to seriously consider Obama’s eligiblity.”
It’s a meme that pervades birtherism – – spread fear through the specter of lawlessness and riots by the “others” and the implication that our law makers and law enforcers are all gutless cowards.
Mr. Godkin, if you are trying to show that you are confused by the legal literature, I agree; you are. If someone told you that constitutional scholars generally explain the WKA case the same way, please cite the person telling you such; I missed where anyone made that claim.
I remember what *you* claimed, and so clearly stated to be your point. How come you cower away from the actual point in contention, neither defending nor retracting your assertion? You now cite scholars arguably disagreeing on other points, but none supporting *your* point. Why is that?
A few more words about the14th Amendment and the WKA case.
I am just reminding to everybody what Rebekka Bonner said on this subject:
“Indeed, Wong Kim Ark is not determinative with respect who may or may not be considered “natural-born” for purposes of presidential eligibility, as the case primarily discusses the Fourteenth Amendment and English common law and does not address the Amendment impact upon the “natural born” eligibility clause.”
And this is Professor Lohman’ opinion:
“Thus, this begs the question whether Wong Kim Ark is determinative with
regard to who may or may not be considered ‘natural-born’ United States
citizens for purposes of presidential eligibility. While clearly not dispositive, as
the case primarily discusses the Fourteenth Amendment and does not
specifically address the presidential eligibility requirement, Wong Kim Ark is
influential in that it purports to exhaustively examine the sources by which the
Constitutional Framers derived citizenship terminology-the English common
law.”
Charles Gordon:
“The fact is that the ‘natural-born’ designation was eliminated in the 1795 statute and has not since reappeared in any legislation dealing with citizenship. Indeed, the only American uses of this term are in the constitutional qualification and the1790 act. Modern nationality usage, in the United States and elsewhere, does not include any provision for natural-born citizens. The accepted modern designations, which will be discussed later, refer only to citizenship at birth and by naturalization, with the former group divided into native-born citizens and citizens at birth abroad. Therefore the designation of natural-born citizens is virtually obsolete and is relevant only because this antiquated term in inscribed in our Constitution.”
I would add that it is relevant only because it is related to the presidential eligibility. The rest of the U.S. population not running for presidency shouldn’t even care about this term.
This is a Gordon’s view on the 14th Amendment:
“The fourteenth amendment was an aftermath of the Civil War and the language in question was fashioned to safeguard the citizenship rights of Negroes which previously had been questioned.” Charles Gordon acknowledged that “The purpose was to protect existing citizenship rights, not to curtail benefits which previously were recognized.”
According to Gordon, “On its face, the fourteenth amendment did not purport to define or limit the presidential qualifications or the naturalization clauses of the Constitution.”
He concludes this discussion by saying:
“It seems to me, therefore, that the fourteenth amendment has little significant relevance to the appraisal of the presidential qualification clause…”
Justice Samuel Miller:
That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” [28]
Van Dyne didn’t dispute Justice Miller’s reading of the 14th Amendment but criticized him for an inaccuracy:
“The classing together of foreign ministers and consuls, when it was at that time well-settled law that consuls, as such, and unless expressly invested with a diplomatic character, are not entitled, by the law of nations, to the privileges and immunities of ambassadors, shows that the statement was not formulated with the same care and exactness as if the case before the court has called for a precise definition of the phrase.”
As to the Wong Kim Ark case, Gordon stated:
“In any event, the majority’s opinion did not discuss the presidential qualification clause of the Constitution and not necessarily relevant to its interpretation, except possibly by interference.”
Gordon briefly talked about Lynch v. Clarke, which was mentioned in Wong Kim Ark and was decided in 1844, fifty four years before the WKA case:
“The court ruled that a child born in the United States to British parents during their temporary sojourn acquired United States citizenship at birth under the “original and ancient” common law rule…”
As we have noticed, neither WKA nor Lynch v. Clarke was supposed to answer a specific question about anybody’s presidential eligibility. Any talks about the NBC were, in the Gordon’s terminology, “dicta, pure and simple.”
Let’s come back to WKA.
Here is the District Judge William W. Morrow’s decision:
“From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.”
Justice Gray delivered the opinion of the U.S. Supreme Court:
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”
http://supreme.justia.com/cases/federal/us/169/649/case.html
In both cases the Judges pronounced WKA a citizen, not natural born Citizen. In both cases the above-mentioned opinions were holdings, were they not?
Am I supposed to read between the lines that he was indeed a natural born Citizen eligible to become President? I call it a wishful thinking.
Some of you (maybe most of you) insisted that a child of illegal aliens born on American soil is also eligible to become president of this country.
Following this logic, this is how we can visualize an opinion of the Supreme Court in 2012:
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of XYZ descent, who, at the time of his birth, are citizens of the XYZ country, have no permanent domicil and residence in the United States and have no business to be here in the first place, and have violated our law by entering this country illegally, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”
You can’t possibly accuse me of being anti-immigrant. I am against illegal immigration. It is insult to the people who came here through the front gates instead of the back door.
Now you should understand why the second half of the title of my paper is this: Original vs. Modern Meaning of the Natural Born Citizenship. The original meaning, in my opinion, was that a person who wanted to become President of this country had the maximum possible attachment to this land, first of all, through his parents. The modern meaning, on the other hand, is that ANYBODY born here can theoretically become President.
As the famous Virginia Slims Commercials said: You’ve Come a Long Way Baby!
Mr. Godkin, you like to lecture about scholars holding mere opinions, court holdings versus dicta, or state versus federal court jurisdiction, what’s binding and such. That can be tricky stuff for learned professionals. What about *your* stuff? Let’s check your citations on your side, the ones that actually argued that birth in the United States is not sufficient.
As you cited, 96 years ago historically infamous xenophobe Breckinridge Long held that since Charles Evans Hughes was born before the adoption of the 14’th Amendment, “the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.” There’s no record of legal scholars agreeing with Long on any of it, but that aside: Mike, on your scale of legal relevance, where fall arguments explicitly not considering the current law?
You had one other citation doubting the eligibility of a native-born child of a foreign parent. It was from the case of Wrotnowski v. Bysiewicz. What if, Mike, we apply your own standards to your own citation? Was what you cited a “holding” of the Court, or mere “dicta”? You made a thing of the distinction when considering other people’s citations, so what about yours? Yours was neither a holding nor dicta. Was it, perhaps, at least worth noting a winning argument? No. Mike, what you have on your side is a brief by the *losers* of Wrotnowski v. Bysiewicz.
On this issue the SCOTUS has said: “denied”, “denied”, “Congratulations Mr. President”, “denied”, “dismissed”, “dismissed”, “Welcome to the Court Madam Justice”, “dismissed”, “dismissed”, “Welcome to the Court Madam Justice”, “dismissed”, “denied”, “dismissed”, “dismissed”.
I might be missing a “denied” or “dismissed” or two, or have something out of order, but that’s what they’ve said. If it’s too subtle, I can explain.
Do you even attempt to understand? You quote mine, you use logical fallacies, quote out of context and you make little attempt to understand.
You my friend need to significantly revise you ‘paper’ but somehow I doubt that you have the strength of mind and soul to do so.
I’d call it “reading the ruling”. As long as you are too lazy to read the ruling and the relevant documents, you should not blame the Court for your confusions.
Do you understand the concept of ratio decidendi? Are you so intellectually lazy as to not pursue the logic that led to the ruling?
Sorry Mike for being so blunt but you have shown no evidence of having learned from your mistakes, and instead hide behind your ignorance.
It provides a large shield but one should not be proud to hide behind it. Instead one should pursue ways to resolve one’s lack of understanding.
You my friend have a lot to learn. And your inability to correct your errors indicts you more than anything else.
Which of course is a foolish opinion and a strawman. Congratulations my friend you have come a long way exploring ‘the truth’. Sadly your idea of the latter is somewhat tainted.
Are you sure you are describing Gordon correctly? Given your quote mining of Bonner and others, I sincerely doubt it as I have read Gordon.
Neither ruling ruled on presidential eligibility which depends on three requirements. These ruling merely decided who are natural born citizens,
Are you still that confused about the logic here? Shameful, you make no attempt to address these issue, pretend they were never raised, and continue to repeat your foolish arguments.
And you tried to pretend that you were interested in the truth? So far I have seen little to support this. Perhaps you might want to address why you ignore these rebuttals and instead continue to repeat the same nonsense? Am I to conclude that you lack the ability to defend yourself?
You are so not fooling anyone. Long-windiness is not going to work either. Not here; not this crowd. We’ve read Apuzzo’s briefs all the way through. Taitz too.
[… snip …]
Gee, how subtle and clever. Let’s see who that reference sets off.
Mike, you are not even a good troll.
It seems you have a problem properly understanding what “determinative” means here.
Those statements you quoted are accurate assessments; however you’re understanding of what they said is what is flawed.
Both of them are mentioning the simple fact that not EVERY permutation of obtaining natural born citizenship are addressed under WKA. Of course not. WKA is only going to address the pertinent permutation of the situation that is before the courts to rule upon. As is true with ANY legal case – only specific relevant scenarios will be addressed – not every possible speculative combination and permutation out there.
What you continue to fail to grasp is that the particular permutations that remain “unsettled” are all elements of jus sanguinis. Jus soli (NBC via birth on US soil) is a fairly long-settled issue.
You have your head in the sand, seemingly because you take issue with illegal aliens. However, that doesn’t change the reality that there is ZERO legal evidence contradicting NBC via birth on US soil.
All you can do is grasp at straws and twist delusionally, on the mere non-related scope of unresolved speculative NBC designations for childrens born OFF of US soil, to one or more US citizen parents.
But NO, you have shown nothing to support your ficticious argument that contradicts the reality of automatic NBC status via birth within the US.
Dr. Conspiracy,
As far as the “Hamilton Draft issue,” I have two choices;
1) to check the information or
2) to believe you.
I am going to believe you.
OK, Hamilton was not rejected; he was ignored. If I’m wrong, I’m wrong.
Now, if you don’t mind, let’s switch the subject.
This is what you wrote:
“You stated that ‘Solum changed his tune’ but that is not consistent with what he said. What he said is that people misunderstood him, and so he reworded it. That is very different from ‘changing his tune.’ It would be confirmation bias to take the uncorrected statement as authoritative and reject the correction. No responsible scholar would do that.”
Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
I gave you an honest answer, and I expect an honest answer from you.
I agree with the portion of your commentary stated in bold. However, that doesn’t change the reality that birth on US soil makes those children NBC, regardless of the immigration status of their parents. That simply is what it is.
I don’t know enough about your positions to weigh in yet on whether they are “anti-immigrant”…although the disingenuous arguments you make certainly smack of such an attitude.
As I said, I am against “illegal immigration”. But by that, I mean that I want a broken system fixed, so that any level of necessary or valuable immigration is properly managed, regulated and protective of human rights and fair minimum workplace compensation.
I see part of the biggest problem in our broken system being on the shady employer’s side – folks who wish to simply pad their profits by skirting around fair labor laws and who are the main impetus for encouraging a stream of illegal labor flowing over our borders.
I think our INS department has always been underfunded and understaffed. If the workforce needs end up needing more temporary seasonal visa workers, then let’s do it via a proper and official system and NOT via illegal immigration, which I agree is cheating and is unfair both to citizens of this country and all the legal immigrants who’ve been in line and waiting and who obeyed the rules.
So in summary, if our immigration system is inadequate, bogged down and too slow, then that is what needs to be revised and fixed. That would be better for ALL legal immigrants too, who often have a similar list of legitimate gripes about being stuck in a long queue of an inadequately staffed and overburdened, inefficient system.
This blog has been around since 2009. During that time, like all humans, Dr. C has made mistakes. Whenever they have been brought to his attention, he has been very quick to both correct the mistake, openly admit the mistake, and also blog about his notice of correction.
So NO, he doesn’t take two years to correct it, he addresses these things fairly quickly.
There is an honest answer for you.
Why not check the information? How hard can that be? One should never rely on a single source of information.
A very common occurrence.
Oh my god that is the pot calling the kettle black… Mike, why not address the major short comings in your article rather that make foolish accusations?
Makes sense? So far your contributions have shown yourself to be foolish at a minimum when representing statements made by for instance Bonner and now Gordon/
G,
Did you read the Section “The ‘effect’ of the 14th Amendment?”
Nobody commented on it so far.
G,
I asked Dr. Conspiracy:
“Let’s say that you wrote an article and made a mistake. Hundreds of people right away brought this mistake to your attention. Would it take you two years to correct it?
I gave you an honest answer, and I expect an honest answer from you.”
You answered for him:
“So NO, he doesn’t take two years to correct it, he addresses these things fairly quickly.
There is an honest answer for you.”
I rest my case (almost).
I’d like to see the answer from Dr. C., if possible, though.
Did you read the parts that had comments? Care to explain why you ignore them. Do not confuse lack of response with your arguments having any relevance. Let’s start from the beginning and work our way through this mediocre paper.
Deal?
You ask that of our our host, Dr. Conspiracy? He has an exemplary record. Remarkably few errors, and within those rare occasions, a self correction rate approaching perfection.
That said, Dr. C. has the blogger’s advantage in speed. Contrast it with the academic literature, which moves at a pace oft described by insiders as “glacial”.
What about you, Mike Godkin? You challenge Dr. C. on what he might do if he published a mistake. We know that already: it’s rare, but when Dr. C. makes a mistake he corrects. He’s never said anything so profoundly and obviously wrong as your assertion, Mike, “There is no consensus among the constitutional scholars whether being born on American soil is enough to run for presidency.” Your own citations prove otherwise. How long is it going to take you to retract?
While we’re on this topic, I would make note of a related topic: Original Immigration Practices vs. Modern immigration Practices. Originally, anyone could just come, no restrictions. As Dr. C noted recently (was it upthread in this post? I don’t recall exactly.)
While I am against illegal immigration (I have legal immigrant friends and yes they too do not like illegal immigration), if we were to go with Original Practices, we wouldn’t have to worry about illegal immigrants as there wouldn’t be any.
Moreover, as illegal immigration is a modern concern, not an original concern, it’s a little hard to imagine or find original concern with the idea of natural born citizenship including every single person born on American soil, subject to American jurisdiction, no matter how they are so born, based on whether or not the parents are legal immigrants.
Mike quotes Gordon
and
Note that Gordon is trying to establish if children born abroad to US citizens are natural born citizens
Read his introduction
Quote mining again Mike? Please read these papers before looking totally foolish.
See also my rebuttal of Mr Apuzzo’s similar follies regarding Charles Gordon
I don’t know if you are supposed to read between the lines, but courts, when faced with a case involving presidential eligibility, are supposed to take previous decisions and apply them to the circumstances in front of them. That is what the Ankeny court did, and they did so in a matter that has been seen as sound by numerous other state and federal courts, which have cited Ankeny.
You have the legal process completely backwards. You believe only the US Supreme Court counts and all other courts are worthless. But that is not how things work. Laws passed by legislatures are presumed constitutional unless ruled otherwise; lower court decisions are presumed correct unless overturned and elected officials in office are presumed eligible unless ruled otherwise.
So, courts are perfectly entitled to take Wong (even though the Supreme Court didn’t explicitly say Wong was eligiible to be President) and apply the logic of the Wong case to say Obama or Rubio or Jindal are eligible. If the Supreme Court believes they are wrong, they can take one of those cases and overturn it. Since they have not done so, Ankeny and all the other cases stand and are the law. Most laws have never been formally reviewed by the US Supreme Court-however, they are fully valid and are applied by courts every day. Go break one and you will find out.
It is simply an incontrovertible fact that the law in 2012, as applied by the courts, says that if you are born in the US you are eligible to be President. Period. Now, if you want to argue that that wasn’t the law in 1788, feel free. In my opinion, it was also the law in 1788. But I actually don’t care. Laws can and must evolve as conditions change. Courts take previious laws and apply them to situations that have never arisen before. That is how it works, in the US and everywhere else. Sorry if that upsets you.
Then why only 14 years of residence? Why not demand the person spent his entire life in the US, or at least his forming years (childhood, school)? How does that fit in with your “maximum attachment” argument?
And why only naturalized parents? Why not demand the parents be NBC as well?
Why was it allegedly enough for the Founders if the parents naturalized one day before the child was born, but not if they naturalized one day after? How does the former create “more attachment”, let alone “maximum attachment”?
You are not making sense even outside any legal argument.
Perhaps you have not fully grasped the language of the 14th Amendment. Let me refresh your memory:
Note that it only apples to those born in the United States or those naturalized in the United States. It does not apply to persons who become citizens at birth OUTSIDE of the United States, such as those who are born abroad to US citizen parents. That is why the 14th Amendment is not definitive on who can be president because there are persons who are citizens at birth, but not protected by the 14th Amendment.
The doubts and questions in your citations relate to the foreign born, not those born in the US, and therefore they are useless to forward any argument about the US born Barack Obama.
And yet after all is said and done, you haven’t demonstrated your premise that there is no consensus. That is a hard premise to demonstrate in the first place because consensus does not mean 100% agreement. That is a loose, broad, imprecise measurement. But you don’t even get close regardless. As others have pointed out, you are misrepresenting these individuals’ opinions.
Furthermore, your fifteen minutes of “for the sake of the argument” are up. Forget about your premise. Where are the authoritative, explicit, outright, affirmative statements through the centuries that citizen parents are required even if you are born on American soil? Where are these original statements to support your opinion that such was the original meaning?
It appears to me that you are imposing your own views on the framers and not letting them talk for themselves. The one framer who did comment on the rationale for the qualifications of the President, Charles Pinckney (himself a delegate to the Federal Convention), said:
He said “attachment to the country,” not “maximum possible attachment.”
If you honestly want to understand what the Framers thought, and at this point I have grave doubts that you do, let me suggest you read Bancroft’s account of the debate, as found in his History of the United States, from the Discovery of the American Continent, Volume 6. pp 326-347. Where is the concern about parentage mentioned ever in the debate of the Federal Convention?
I find this whole issue of “attachment” to be quite perplexing. Here is Mike Godkin, a guy born and educated in the USSR. Let me ask, is Mike (who is presumably a naturalized US citizen) attached to the US? Supposing Mike could become President, would he serve the citizens who elected him or sell the country out to Putin? Is Mike’s paper the honest work of a loyal, if misguided, American or is it an attempt by the Russian intelligence services to undermine the US by sowing discord and suspicion?
I will be a charitable fellow and say that I assume Mike is as attached to the US as the average person born here or even the average person born here with 2 citiizen parents. Perhaps even more so. So, then, really, what is all the fuss about? Pehaps it’s time to acknowledge that the Founders wrote not only poorly drafted eligibility criteria, forcing people to guess what they meant, but also ones whose very basis lacks logic and coherence.
So when Mike says that scolars disagree on the meaning of the phrase “natural born citizen”, what he is realy saying is that it is unconstitutionally vague, and thus, essentially unenforcable. And the only solution, really, is to have a national debate and decide whether such restrictions are even necessary, and, if they are, to draft crystal clear language. You want 2 citizen parents? Then say so in the Constitution. You think the voters are the proper folks to judge someone’s attachment to the country (as I do)? Then get rid of these arbitrary restrictions and let the voters choose. But let’s stop trying to guess what dead people meant. It’s frankly disrespectful and a bit macabre. When I am dead, I really hope no one twists anything I wrote while I was alive. And if I do want people to pay attention to what I wrote, then it is my job to write clearly and not use code words that will have to be decipherd by using double secret code breaking.
That is a straw man question.
Solum didn’t make a mistake, his essay was not in error. His comments in the essay were misunderstood.
(I’m assuming you are referring to a 2 year lag between Solum’s first article and his reworking of it – I’m don’t have time to check right now).
This “mistake” was not brought to his attention by hundreds of people right away, because it wasn’t a mistake. I would guess that he eventually got tired of explaining that he was being misread. Maybe that took a 18 months, and another 6 to get it into the journal print cycle. That would explain the 2 year lag if that is what it was.
And, just FYI, the answer to your straw man question is that Doc does correct errors quickly and advertises those corrections when they crop up from time to time. Doc is not, however, publishing through an academic publication schedule in which the issue content is selected months in advance. He is publishing via his own blog and can choose his content at whim.
Also please learn how to use the “quote” function. It will make it a lot easier to read what is your comment and what is the comment you are replying to. Thanks in advance.
I think that was part of Doc’s remark, not Mike’s.
Mike:
Might I suggest an experiment for you. Go to Wong Kim Ark, and determine the definition of a natural born citizen who is born inside the United States.
Now, determine the definition of a 14th Amendment “citizen at birth” born inside the United States.
Now, don’t read any further, because I am going to provide the answers for everybody else, but I don’t want to spoil your homework assignment.
NBC = born in the U.S. and in the allegiance of the U.S.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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 [p663] 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.
1 Abbott (U.S.) 28, 40, 41.
And, from the bottom of Section V:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions []
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
Therefore NBC = being born here and within the allegiance, which means NOT falling within the 2 exceptions.
What about the 14th Amendment for people born here?:
Being born here and “subject to the jurisdiction of the U.S”
What does “subject to the jurisdiction mean”
NOT being within the two exceptions.
Therefore 14th Citizen at birth = being born here and not falling within the 2 exceptions.
From above,
Therefore NBC = being born here and not falling within the 2 exceptions.
The two things are the same. This is about as simple as you can get. “Being born here and not falling within the 2 exceptions.
That one sentence above which is BOLDED, says it all. “Within the allegiance” is the same thing as “subject to the jurisdiction” – Both mean NOT falling within the 2 exceptions.
Being born here is being born here.
The friggin’ damn WKA court did not have to specify Wong was a NBC because when they analyzed his status under the 14th Amendment, it was the same thing. That 14th Amendment citizen at birth is a NATURAL BORN CITIZEN
Plus, they done told him right above that, at the end of Section V, that the two were the same thing:
PLUS, the darn dissent done told him that if Wong was a citizen then he was a natural born citizen:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
So, I wonder if he will do the exercise or not.
Squeeky Fromm
Girl Reporter
It ultimately hearkens back to the notion of “he’s not one of us”. If you read birther cesspools, the general consensus behind “attachment” is “a guy like me”.
So no atheists, no-one who loves Canada or think the national anthem is a dissonant piece of crap, no-one who would rather save the lives of 300 Jamaicans than of one American etc.
Some even want some Iranian-style Council of Guardians that “evaluates” the “patriotism” of every candidate (hopefully coming out with “scary black people don’t qualify”).
Because in the end, when they talk about allegiance, they’re talking about thoughts and feelings, not legal issues. And that’s the dissonance, that’s the point where their “how I like it to be” turns into “what I think the law says”.
I still think there are some forces who would love to open the can of worms labelled “what the Founders really meant” because they hope it would revert most of the things that happened since 1776, with women’s and non-whites’ rights on the forefront, but possibly more, and even against clear SCOTUS rulings. Because, y’know, the Founders were gods and their intents trump anything, even the clear wording of the Constitution if necessary.
I wouldn’t subscribe to that. I always tell the birthers that that is what *their* point of view amounts to – the Founders using some secret code language that was supposed to mean something (“needs two citizen parents”) different than what the people on the streets understood it to mean (“born on the soil, except American Indians and foreign diplomats”). Some birthers even go so far that they acknowledge that only the Founders could’ve understood that term since there was no edition of Vattel that said “natural born citizen” when the Constitution was written. They tell you with a straight face “the Founders understood French” and don’t understand that the people on the streets didn’t, so the Founders must’ve written the Constitution for bilingual legal experts, not the people.
When the Founders wrote “natural born citizen”, people certainly understood what it meant (analogous to “natural born subject”), though I don’t know if really *everyone* did.
As for “illogical/incoherent”, I don’t think that holds. True, they may have left some cases open (born to one citizen parent abroad, for example) and they *could* have made it easier to understand (though typically legal people prefer to use terms of art instead of making a grocery list, for the same reason the 14th Amendment does not clearly define what “subject to the jurisdiction” means).
However, just because some laymen try to twist up into down doesn’t mean the Founders wrote poor regulations. I’d say anything short of a phonebook of a Constitution would leave wiggle room for wingnut interpretations of things that no scholar and no sane person would disagree on.
What is the stated goal of the restictions on eligibility? Preventing “foreign influence”. But how would a foreign country obtain influence? Send someone to father a child in the US (making sure to naturalize before the child is born to please Mike Godkin) and wait 50 years for that child to have a 1 in 100 million chance of getting elected President? Hardly. No, they would select several of the top contenders and hire them as agents. Much more certain to work and more immediate. No Constitutional provision forbids a paid agent of China, Russia, Iran or any other country from being President. No, we rely on the common sense of the voters and the vigilance of the press and the opposing candidates to point out the interests that the candidate may serve.
So we trust the voters not to elect natural born citizens working for foreign governnments, like Alger Hiss, John Walker, or Aldrich Ames, yet the Constitution must save us from the grave threat to the nation of electing Bob Hope, Arnold Schwarzenegger or Jennifer Granholm. That, my frend is illogical and incoherent.
Mike, let me propose a thought experiment for you.
You have 2 people here.
1. Person 1 was born in the United States, to two citizen parents. One day that after he was born, he was taken to a foreign country, where he and his parents naturalized. He never set foot on American Soil until his 21st birthday, when he returned to the United States, lived there ever since.
2. Person 2 was born in the United States to one citizen parent, one foreigner. One day after he was born, his foreigner parent naturalized. He never set foot outside the United States.
On their 35th birthday, which one has the “Maximum attachment” to the country? According to you, the person who spent 21 of his 35 years outside the United States, and not the one who spent his entire life in the United States.
AFAIK, the only motivation of the Founders was to prevent a member of the royal family to come to the US, naturalize and run for President.
I don’t think it ever was about some abstract “foreign influence” (after all, most of the Founders were “foreigners” to begin with).
(Of course I didn’t read as many sources as many on this site did during those long NBC discussions.)
Since Obama is not foreign royalty, there should be no problem then.
Agreed. Well said.
Agreed! Well said!
The problem for the birthers is there are no statements from any framers supporting the two parent theory. Hence all they can do is exaggerate Vattel’s influence or the framers fear of foreign influence and then speculate that the framers must have agreed with them. Such is not legal argument. In any event, their exaggerations are not based in reality
There are no real statements from the framers themselves on the reason for the NBC clause. Jay wasn’t there and his letter talks of a “strong check” against appointment of foreigners, not the strongest possible check. There is no evidence that Jay wasn’t referring to the English rule requiring native birth to hold office as the “strong check” and his use of an English legal term of art only re-enforces such conclusion. It is also unclear what impact Jay’s letter had on the Convention.
In the Convention, only eligilbity of Congress was discussed (at a time when the President was to be appointed by Congress). Some people did raise concerns about foreign attachements but they meant of the foreign born as the only things discussed but requiring native birth or requiring the foreign born to be here for long periods before being eligible. But the debates show there was no great concern as some of the most important framers didn’t want any restrictions on eligibility at all. Mr. Madison:
“There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people wd. prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected; and among natives having full Confidence of the people not among strangers who would be regarded with a jeoulous eye.”
Not much concern there. Notice, he is clearly distinguishing natives of this country versus natives of a foreign country. Notice he also says if foreign nations were to engage in bribery, they would do so with natives who had the confidence of the people, not strangers would be regarded with a jeoulous eye.
Simply put, there is not evidence there wa any great fear of foreign influence or that even a single person thought parentage should be relevant.
Agreed!
They are however not dicta on the subject of natural born citizenship. You are arguing a strawman. Presidential eligibility is determined by three factors
1. Age
2. Residence on US soil
3. Natural Born
There are no doubts in Obama’s case that he meets 1 and 2. As to 3, it is sufficient to show that President Obama is a natural born citizen to show that he indeed is eligible. Your understanding of dicta versus ratio decidendi versus precedent are quite poorly developed.
As someone who is actually a constitutional law attorney for a living, who has taught legal writing and research, and who has drafted judicial opinions, all I can say is:
Mr. Godkin’s “reasoning” is so convoluted and unpersuasive that it gives me a headache. There are at least 20 reasons why it would not pass muster in any court in the land (and of course, HASN’T passed muster in over 100 courts to date).
It kind of reminds me of pro per briefs I have read from “sovereign citizen” tax protestors, where they make up an entire body of law out of whole cloth, and then try to shoehorn everything into their bizarre prexisting meritless legal construct.
This may sound like a stupid question, but what is a “constitutional law attorney”? Isn’t all law in the United States derived from the Constitution, being the supreme law of the land?
Dear Predicto:
Please accept this comment as official notification that I intend to exercise adverse possession over your words, to wit:
” bizarre prexisting meritless legal construct”
I do so openly and visibly and in a manner inconsistent with your rights. They are sooo much better than Ankeny’s:
“we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true.”
Squeeky Fromm
Girl Reporter
Predicto,
Maybe, you can help me.
As we know, the Founding Fathers did not specifically require a presidential candidate to have two citizen parents. I admit that without any problem. But what they did require was an attachment to the land. How, in your opinion, could that attachment be achieved back in 1787 and, for that matter, now? And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way. Isn’t it why the Founding Fathers approved the “natural born Citizen” clause without any discussion? Putting aside our political affiliations, do you think it is a plausible explanation without going into natural born subject vs. natural born citizen issue?
Quite a few commentators on this thread insist that a child, born on American soil to illegal aliens, is also eligible to become President. What attachment to what land are we talking about in this case? What kind of “jurisdiction thereof” can we talk about, when the potential President’s parents have already broken the law by being illegally in this country?
Did you have a chance to read the Section “Who is the Sovereign in the United States” of my paper? It’s only two-page long. If you did, what do you think of it?
It’s a rare occasion to get a professional opinion.
And the last question I have for you (for now): Did the 14th Amendment and the WKA case affect in any way the NBC presidential requirement and if it did, why?
Thank you very much in advance.
To Whom It May Concern
Let me repeat what I have already said before: On October 23, 2011, David Drumm posted an article entitled “Holdings, Dicta, And Stare Decisis” on Jonathan Turlley’s blog.
Among other things, he said the following:
“Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.
…While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold””.
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/
So my question to the public is:
By what magic did the dicta in the WKA case turn into the holding to be used by generations to come?
As I know, there was no precedent on the Supreme Court level as far as consideration whether a person with an American mother and a father who was a British subject, when his child was born, is indeed qualified to become an be President.
I’d like to make a few comments now about the Ankeny case and particularly about the Section B:
“Natural Born Citizen.”
It was an “equal opportunity” for both candidates:
“Second, the Plaintiffs argue that both President Barack Obama and Senator John McCain are not ‘natural born Citizens’ as required for qualification to be President under Article II, Section 1, Clause 49 of the U.S. Constitution, and that therefore because neither person was constitutionally eligible to become President…”
Note 10:
“The United States Senate passed a resolution on April 30, 2008 which explicitly recognized Senator John McCain as a natural born citizen. S.J. Res. 511, 110th Cong. (2008).”
The court forgot to mention that this Resolution was non-binding and totally useless. (See the Section “U.S. Senate to the rescue” of my paper.)
Note 12:
“Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.”
Remember, the Court said:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”
The key word here id “doubt.” In case of two parents, there is no doubt. In case of two aliens, there is a doubt. In case of one citizen and one alien, I would say, there is still a doubt, but apparently not in your minds.
Note 16:
“We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS C. REEVES, GENTLEMAN BOSS, THE LIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a rumor “that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible to become the Chief Executive.” Id. at 3. Although President Arthur’s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur’s father was an Irish citizen he was constitutionally ineligible to be President.”
The last argument was not made because people didn’t know about it:
New evidence came to light on December 6, 2008 which revealed that the naturalization records for President Chester Arthur’s father, William Arthur, had been located in the “Chester A. Arthur Papers” at the Library of Congress. The New York State record proved William Arthur wasn’t naturalized as a United States citizen until August 1843, fourteen years after Chester Arthur was born in 1829. The fact of Chester Arthur’s having been born a British subject was published for the first time on Dec. 6, 2008 and is therefore an “intervening matter not available at the time of the party’s last filing.” The twenty-first President of the United States, Chester Arthur, was a British subject at the time of his birth, and it is respectfully submitted that he was therefore not a “natural born citizen” of the United States.”
http://www.scribd.com/doc/8830185/Wrotnowski-v-Bysiewicz-Supplemental-Brief#archive_trial#archive_trial
To make the long story short, I’d like to conclude that had Barack Obama run for president of Indiana, the case would have been closed.
But he is running again for President of the United States.
As you have been repeatedly told, the holding was that Mr. Wong was a natural born citizen. Once again you show that while you may have read Mr. Drumm’s article, you IN NO WAY UNDERSTAND IT.
Do you honestly (I realize the irony of using that word in reference to you) believe that the child of two aliens prevented by law from ever becoming citizens is natural born, but the child of a US citizen is not?
The argument made in the Ankeny decision must be addressed (and refuted) as a necessary condition for any pro-birther ruling to occur in any court. It is a precedent which, in the absence of a valid argument to the contrary, would likely sway any court in the country. It has already been cited in multiple decisions, which only raises the bar for a contrary argument even higher (I would also note that the birthers have demonstrated that an empty chair is a far more formidable opponent than they can overcome).
The key word is dicta. The court in Minor specifically declined to address these “doubts”. The court in Wong resolved all doubt in the case of two alien parents in its holding. Your argument may have flown between 1874 and 1898, but it is now 2012 and merely demonstrates the depth of your lack of understanding.
It never did. You presume that it was dicta when in fact it was essential to the ration decidendi
Under US v WKA such a person is a natural born citizen. If he meets the other 2 requirements then indeed he would be eligible
You’re still arguing this foolish position?
Your quote mining, your logical fallacies and your unwillingness to address them all are strong indictments of your position.
When can we expect an up date to your ‘paper’ which will result in it better reflecting the cited papers, and which avoids the various logical fallacies and misunderstandings of issues of law.
Since you implied that various of the people you quoted may have been less than truthful, it behooves you to either update your foolish accusations or be known for promoting misrepresentations, misunderstandings and fallacies.
I presume that you are interested in the truth. Now follow that to its logical conclusion.
US v WKA laid that question to rest. It’s not just our minds my friend.
Let’s again move away from the legal perspective and look at the practical one (and this has been said here many times before):
From the point of view how you *prove* that “attachment”, especially back in 1787, it is way better to affix that to “place of birth”.
First, proving place of birth is quite easy, you usually even have neutral witnesses to the birth.
Proving who the father is is extremely difficult, even for the mother (if she slept with an American and a Canadian during the time of conception, how can you, or *anyone*, be sure the child was the American’s son and not the Canadian’s?).
And don’t reply with “it only matters who educated the child” because the Constitution does not prevent giving the child up for adoption to a Mexican couple right after birth, it would still be considered an NBC even by Vattelist standards.
Second, giving birth abroad was quite unusual in a time when international travel was few and far between (except for people already living near the Canadian or Mexican border). So the chances for an mother to give birth to a child abroad were already slim, and if corroborated by a neutral witness, it’s nearly impossible to mask foreign birth as local birth.
OTOH it’s the easiest thing in the world to claim an American father when there actually was none.
So summing up, “born on the soil” was a more reliable and thus better check than “born to citizen parents” in a time where things like DNA tests were unheard of.
Again for the stupid: SCOTUS ruled that Wong was a citizen at birth. He did not have to naturalize, nor was he “naturalized at birth” (a pure birther invention with no precedent in law). Since there are only two types of citizen (NBC and naturalized) and Wong was not naturalized, he was an NBC. q.e.d.
Any different interpretation (that there is a third kind of citizen, that people can be “naturalized at birth” etc.) has no basis in law or SCOTUS rulings.
Also, the ruling did not “make” Wong a citizen at birth, it stated the fact that he was a citizen at birth.
Are you punishing the child for the follies of his parents? Quite foolish.
Have you ever considered taking a class in logic?
I’m not disappointed—I’m disgusted by Mr. Godkin and his complete lack of integrity.
It should also be pointed out that Mr. Wong was prevented by law from ever becoming a naturalized citizen.
Mike a few things.
1. It’s not dicta in U.S. v. Wong Kim Ark because it is essential to the decision. Here’s a breakdown of the argument in Wong.
I. The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
IV. At the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and “mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;” (this section was to refute the argument that the citizenship law of the United States was based upon the Roman System).
V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.
They can’t get to their conclusion and the core of their argument without the essential subsection II and III.
The Supreme Court directly said in U.S. v. Wong Kim Ark that our citizenship law comes directly from English Common Law, and they directly said in the decision that English Common Law said that anybody (with a few well-known exceptions) born in the realm was Natural Born. There is absolutely no debate as to whether this case is binding, and would be considered extremely persuasive as to what the definition of “Natural Born” comes from English Common Law.
FIFY
The Supreme Court has never actually ruled anyone eligible or ineligible to be President. Not a single President has had such a ruling. From Washington to Obama they have all sat in the White House without the Supreme Court having said they were eligible. However, Obama has actually had something none of his predecessors had-courts, not just Ankeny, by the way, but courts in several states as well as federal district courts and appeals courts- say that he was eligible. So actually, we can be more sure of Obama’s eligibility than any of his predecessors.
Federal district and appeals courts have also ruled Obama is eligible. Their rulings stand as the law of the land, as the Supreme Court has denied cert. Obama has thus been ruled eligible. He is the most eligible of all the Presidents.
To Mike and Others:
For what it is worth, I was there on that long Jonathan Turley blog thread. On the dicta issue I think we made some points with the post author, David Drumm, aka “nal.”
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/#comment-290878
===================
Nal
1, November 16, 2011 at 3:37 pm
I am still digesting Ballantine’s argument about the ratio decidendi of WKA being broader than the holding. My post starts off by equating ratio decidendi and holdings, I’m not so sure this is true anymore.
The best papers on ratio decidendi (especially one by Goodhart) are not available to those of us who don’t have access. The first page, which can be viewed on JSTOR) looks like it’s just what I’m looking for.
Also, ratio decidendi is binding, so I need to reread WKA focusing on the ratio decidendi aspects.
I also need to determine the difference, if any, between native-born and natural-born citizens, WKA uses both terms.
Thinking about an analysis of WKA post.
=====================
Squeeky Fromm
Girl Reporter
Plus this:
“While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.”
Which if you copy and paste into your search line, will take you back to the 1898ish ALR eight page analysis of the Wong Kim Ark decision. I would post the link but it is extremely long.
Squeeky Fromm
Girl Reporter
Mr. Godkin,
To understand jurisdiction, I recommend reading Yick Wo v Hopkins. I am on mobile right now so I cannot easily give a link. Do a search on the case and you will get many results.
The parents did. The child didn’t. One key American cultural phenomenon, sometimes flawed in realization but also deeply ingrained in our psychology, is we do not blame the child for the parents.
Are you telling us you do not understand the phrase “subject to jurisdiction”? And yet you feel free to proceed in publishing a paper on the subject of natural born citizenship?
With the election coming up, it might be a good idea to review the eligibility of the 2 candidates.
Birth certificate verified by state officials: Obama, yes; Romney, no
Ruled eligible by multiple courts: Obama, yes; Romney, no
Found qualifiied by Congress: Obama, yes; Romney, no
The choice, Mr Godkin, is very clear.
Would Bonnie and Clyde’s child have been ineligible because the parents broke the law?
While the framers did not debate the “natural born citizenship” terminology, they debated the qualifications of the President at considerable length and you seem to be ignorant of that discussion.
What people who argue your side seem to be saying is that the Constitution must unerringly decide a President’s attachment to the country. Of course that is impossible. There will always be scenarios where even someone born in the US of US citizen parents lacks an attachment to the country. This is why we have elections, so that individual choices can be made.
In the debates over qualifications for the Presidency, all of the discussion was about the length of time one must be a citizen, and not a word about parentage. If this was a concern, given the length of the debate, it seems inconceivable to me that it wasn’t even mentioned.
Birth. Birth is easier and simpler.
There is an eternal tradition of children going against or far afield of their parents. I myself am a case in point, coming as I do from a fairly large birther family.
So, at least when it is applicable, when someone is born here, it is much easier and simpler to leave it at that, and not get into the parents’ allegiances.
And relying upon birthplace is even more natural, in the basic sense of that word.
Relying upon the parents’ allegiances is more cultural than natural, more about nurture rather than nature. Thus, Congress allows most but not all children born abroad of American parents to be born American. In that case, we allow Congress to base it’s decisions upon the culture of the day, which has changed dramatically in the last couple centuries. Parenthood as a determining factor has been subject to culture. Birth has not. And the 14th Amendment is a direct result of a segment of culture (think Dred Scott) trying to undo that natural presumption.
That is a silly and nonsensical statement on its face. The various states are NOT separate countries. We are not just a mere federation of associated states. We are one nation, comprised of various jurisdictions.
Our office of President ONLY applies at that federal level. While ballots and voting take place within the state, issues of citizenship and eligibility for the office of President are matters of federal jurisdiction.
One cannot be ruled a citizen of a single state within the US and not be a US citizen. It just doesn’t work that way. If you have state citizeship, you have US citizenhip.
That’s a lie. It was known that his father was not naturalized at his birth and it did not matter as there has never been a two citizen parent requirement. New evidence for birthers not for people in the reality based community. His father’s naturalization papers have been in the Library of Congress for over a 100 years all one had to do was look. It was not published for the first time on Dec. 6 2008. Good lord are you dishonest. How can you publish a paper without even doing an ounce of real research?
So you are saying illegal aliens, or their children, are not subject to the jurisdiction of the US?
So you are saying illegal aliens, or their children, may commit any crime in the US and cannot be held accountable?
Do you have *any* idea what “subject to the jurisdiction thereof” actually means? Or are you just substituting your own wishful thinking for actual law, as almost every birther does?
Mike just doesn’t understand holding and dicta. He mentions ratio decidendi, but doesn’t seem to understand what that means. I also suspect you don’t understand the difference between judicial dicta and oriter dicta. If you read Turley’s blog, these things were discussed in great detail the seminal paper on holding form Abramowicz and Stearns. One problem is the inconsistent use of terms. Some people call the “holding” only the actual disposition of the case. Some include ratio decidendi as part of the holding. Really doesn’t matter as they both are considered precedent at least for any lower court. Abramowicz and Stearns count ratio decidendi as part of the holding and say it includes any proposition necessary for the dispositition of the case or another necessary proposition in the case. Hence, in their article they identified 10 different holdings in the famous Bakke case. Many people don’t do the ratio decidendi analysis and simply would say Bakke held what the disposition said but such is obviouisly only a partial analysis of what is considered precedent in the case.
There is no way one could arrive at the disposition of Wong Kim Ark without looking at the court’s definition of “natural born citizen.” Any scholars that say the court didn’t address such definition need to re-read the case, as it clearly says the term must be defined by the common law rule and spent 21 pages defining such rule making as clear as can be that native born children of aliens were natural born subjects or citizens. It then said the 14th Amendment was simply declaratory of pre-existing law under the original Constittuion and hence governed by the same rule. Thus, obviously the 14th Amendment could not be defined without first defining pre-existing law. No court spends 21 pages defining the law under the original Constitution if such was unnecessary for the case. Sorry, those who say it is dicta never make any case that it is dicta because they have either not done the analysis or cannot make the case. Now Minor’s citizenship language you cite is dicta and simply stating that some unknown person had doubts without examining such doubts or saying they had merit.
Are you at least honest enough to admit that Wong Kim Ark defined what a natural born citizen was and Minor didn’t, or do you fall into the category of birthers who simply refuse to read plain English?
Since Wong Kim Ark said the first clause of the 14th Amendment and the NBC clause meant the same thing no subsequent court has every questioned such conclusion. Rather, it is pretty obvious that the 14th Amendment language is just another way of writing the English rule. We see scholars like Tribe, Olson and Maskell recognize this point. I suggest you read the debates of the 39th Congress where the persons who drafted the 14th Amendment made clear they were restating the common law rule most thought was in the original Constitution. For example, here are the heads of the respective judiciary committee:
“This provision is simply declaratory of what the law now is… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1115-(1866).
“in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
Here is the person who introduced the final language of the 14th Amendment on what the law was under the original Constitution and what he was codifying with the 14th Amendment which he state re-stated existing law:
“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black. Nativity imparts citizenship in all countries and that is sufficient for my purpose.” Senator Howard, Gong. Globe, 41st Congress, 2nd Sess., pg. 1543 (1870).
Uh, sounds like the common law. And:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…..They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
Gee, doesn’t “subject to the jurisdiction” literally mean being “subject to the legal authority and laws.” That couldn’t be what he meant, could it? Notice he not only thought the common law jus soli rule to be our law, but the universal rule.
The Supreme Court has said in dicta that the “subject to the juridiction” language applies to children of illegal aliens. However, the ratio decidendi of Wong Kim Ark also makes this very clear. Since it found the 14th Amendment to be declaratory of the common law, it said the phrase must be understand as excluding persons who have the privilege of Extra-Territoriality, or immunity from the Civil Law of the Territory, as decribed by Justice Marshall in the famous case of the Schooner Exchange. Such case, and all 19th century treatises on public law, maintained that, as a matter of public law, anyone within the territory of a nation were under or subject to its absolute jurisdiction, a justisdiction that was subject no limitation not imposed by the nation itself. The except to this rule was the concept of Extra-Territoriality which provided immunity for a very limited group of people. Such concept was embedded in the English common law and indeed the laws of all nations and was undisputed by the writers on the law of nations or public international law at such time. No educated lawyer in 1866 would not understand this, though we did see some dishonest attempts to gut the amendment prior to 1898 by trying to re-write the language by cherry picking out-of-context quote from Congress that are contrary to the clear intent of such Congress. Fortunately, these dishonest attempts were dismissed by the Court.
If the Court today wanted to distinquish between legal and illegal parents, it could not do so on the basis of text or original intent. However, that doesn’t mean it wouldn’t find some rationale as they often do when politics come into play.
Hoover?
But compare Hoover to an imaginary, but historically quite possible case of two German-American twins born in 1917. Both parents, who came from quite different parts of the German Empire, but met in the USA and married there, have acquired US citizenship long before their birth. Both parents die in a freak accident in 1918. An uncle decides to send the kids back to the old country, to be raised by the grandparents.
Twin brother A goes to his father’s parents in Malmedy. One year later the town is annexed to Belgium. A grows up in a French-speaking but Germany-loving family (Vattel, anyone?). In 1939 he is drafted into the Belgain army, but when Eupen-Malmedy is again annexed to Germany after Hitler’s victory in the West, he happily joins the Waffen SS. Sees duty as a warden at various concentration camps. In 1945 he escapes to America via Argentina. In 1952, Franciscan monks (ask Mr Levy) manage to get him to the USA. Eligible for US president in 1968.
Twin brother B goes to his maternal grandparents in Klein Lobenstein in Eastern Prussia. After the East Prussian plebiscite of 1920, during which a small majority of the village population voted for Poland, Klein Lobenstein becomes part of Poland as Lubstynek. B grows up as a Volksdeutscher in Poland. In 1939, he is drafted into the Polish army, but as his allegiance to Poland is dubious, he does not see service but is sent in reserve to the east of Poland, where he is taken prisoner by the Soviet Army. As the Russians notice he was born in the USA, they do not include him in the exchange of war prisoners (Germans for Ukrainians, Belarussians and Russians) with the nazis. After 1941. B ends up fighting in a Polish brigade of the Red Army (the story does not say whether he ever faced his twin brother). After the war, he “returns” to the USA. Eligible for US presidency in 1956.
Point is: everybody knows A would never stand a chance of being elected US president. But what about B? While A lost Belgian citizenship due to joining the Waffen SS, and probably does not have potential German citizenship (Walloon family in Malmedy, so NOT ethnically German) – B, however, is a triune citizen: USA, Germany and Poland.
In other words: whether someone really has an attachment to the USA, will always have to be determined by the voters. You will have to trust the electorate.
(Of course, for the sake of the argument I forgot to say that one of the reasons why someone from Malmedy may easily marry someone from Klein Lobenstein while in America, would be religion, both being Roman Catholics. So, 1956 would have been four years too early for B anyway.)
Stupid me, Forgot to use German instead of naughty. And Schicklgrueber also makes an innocent appearance.
I maintain that it has not even been established that the Supreme Court has jurisdiction to make this determination. The Congress has the Constitutional duty and power to certify the results of the Electoral College and “qualify” the president. It is also the only body empowered to remove a president once in office. The Supreme Court might be able to determine if an individual candidate can be removed from a ballot in a specific state according to the laws of that state and federal election codes. This would happen only after a case had been appealed up from the lower state and/or federal courts. The Supreme Court has no power to remove a sitting president so I believe they would decline any case against a sitting president based upon lack of jurisdiction and lack of authority to grant relief. I think any notion that SCOTUS would buy into a two citizen parent theory that is so clearly unsupported by the facts, history, and case law is balderdash.
I agree. And, of course, Congress ruled Obama qualified. So, Mr Godkin, the question of whether someone with a non-ctiizen father is qualified to be President is of course completely settled now, by both Congess and the courts, which are in full agreement. You really owe it to yourself to update your paper to reflect the actions of the Congress and courts since 2008. They are what matter, not blog postings..
For the record, Mitt Romney has not been found qualified by Congress, nor found eligible by any court, so we can’t be sure that he is eligible as we can with Obama. It’s a crap shoot with Mitt.
His research method must be, Leo said it, I believe it, that settles it.
Leo Donofrio may never have said that Arthur burnt his papers to hide the fact that his father was not naturalized at the time of his birth, but he certainly insinuated it.
Of course, Arthur’s father’s naturalization papers were never at Arthur’s disposal to burn in the first place.
But I am sure there are a lot of birfers who actually think that Arthur, the son, was naturalized along with his father and that there were naturalization papers among the papers burnt.
Of course, President Arthur was not naturalized. Because he was NBC.
Because there are only two types of US citizens.
To Mikhail Godkin, birther (you deserve no other title nor honorific besides the label of contempt that you have so well and truly earned):
I was once in an online debate with a lawyer who refused to accept that work transformed energy from one form (or location) to another. No matter how many explanations of the physics I gave, no matter how many basic texts I quoted and linked to he would not accept a simple fact which he must have learned to pass any physics course. I linked the seminal work in the field On the Mechanical Equivalent of Heat and described the straightforward experiment by which James Joule demonstrated this relationship in 1854, yet this person would not accept this simple fact without which much of physics would be rendered incomprehensible, even though his own field of expertise was completely unrelated. While I’m sure you find the idea of denying such a basic physical law to be ridiculous, you are doing exactly the same thing.
You have written this despicable travesty of a scholarly paper on the meaning of a legal term of art even though you admittedly have no expertise in the law, while at the same time attempting to lend your words credibility and authority by referring to your PhD in Electrical Engineering. In your paper you show little to no understanding of the nuances of law while making liberal use of multiple logical fallacies including cherry picking, begging the question, and straw men (as has been thoroughly documented in this thread) in a failed attempt to throw a thin veneer of legitimacy over a thoroughly debunked and discredited argument. This, while speaking poorly of your intellect and integrity, is merely standard birther fare which doesn’t distinguish you from others supporting or participating in the many frivolous legal actions aimed at smearing President Obama with lies. However, you go a step further and turn your dishonest tactics and baseless smears to at least four people who have in no way invited your attacks without (as far as I can see) making any attempt to let them know about or respond to your hack piece.
In scholarly scientific writing (as I assume you well know), it is certainly the case that people reference the published arguments of other authors, either to establish claims which they intend to rebut or to support their own argument. In academia, however, not only are there databases which let researchers know when their work is cited in published papers, but most are aware of the literature published in their field as well as having colleagues who would bring any such reference to their notice. In addition, the misrepresentation of another’s academic work would be unlikely to pass the peer review process and even if it did, it would quickly discredit the author and likely result in retraction and apology. In my own published works, I have been eager to inform those who’s work or ideas I have incorporated into my research, whether it be an acknowledgement (in which case I have informed them personally) or a citation (which I would assume they would become aware of in due course). I have never had the need to disagree with someone’s published argument, but if I did, I would first insure that my rebuttal met the highest standards and would invite criticism from not just said author, but from all sides (truly, any scientific publication is an implicit invitation to criticism—that’s how science works). You, on the other hand, in pursuit of nothing but a baseless political smear, seem completely unconcerned with regard to the people you are dishonestly misrepresenting.
Following are four people who you have, in my opinion, libeled—although I’m sure this isn’t actionable since your pathetic little screed didn’t cause them quantifiable damage, I believe that you still owe all four a public apology (as well as a retraction of your work).
Rebekka Bonner
After establishing that Ms. Bonner turned down a promotion in order to volunteer for the Obama campaign for seven months in 2008, you wrote:
Your naive assumption notwithstanding (the Obama campaign didn’t suddenly cease to exist on Nov. 4, 2008), we don’t know whether or not Ms. Bonner was working for the campaign when the blog post in question was made, but it is clear that there is no reference to such nor any indication that said post was made under the color of the campaign. However, from the facts you have given, Ms. Bonner was clearly passionate about politics in general and President Obama’s campaign in particular. It seems to me to be painfully obvious why such a person—acting merely on their own behalf—might want to publish an article identifying hypocrisy in the position of President Obama’s opponent, which makes your snide speculation disingenuous at best.
You go on to an extended attempt to take Ms. Bonner’s writing out of context in order to cast it in a sinister light and support your fallacious arguments—as has been well established in many of the responses seen above. Finally, after noting that Ms. Bonner had been given a political appointment in the defense department, you wrote:
Ms. Bonner nowhere claimed or implied that she was a “Constitutional scholar” nor tried to hide the fact that she was pointing out John McCain’s hypocrisy (which is clearly an attempt to advance President Obama’s candidacy—something not just permitted, but encouraged and celebrated in a nation that values free speech), so your hypocritical disparagements—as we will see below—ring hollow. Even worse, you baselessly accuse Ms. Bonner of receiving her position as a reward for a short article on an unremarkable blog that dealt with a minor topic. Every successful presidential campaign has hundreds, if not thousands of jobs that must be filled to handle the business of running the nation and given her success on Wall Street and her dedication to President Obama’s campaign, the position to which she was appointed seems perfectly reasonable. Furthermore, given this letter to the editor of Time magazine from October 2008:
we can see that your hypocrisy in this regard is obvious and blatant (not to mention your incorrect and baseless characterization of President Obama as “socialist”).
Jack Maskell
Mr. Maskell is first introduced in your diatribe in the following passage (my comments in bold:
Later, you write:
Well, I am a mathematician, and the answer seems perfectly obvious to me: In any division of citizens into disjoint subsets, “native-born citizens” will unquestionably be the largest group. Once again, your reasoning is seen to be petty and childish.
You continue with your dishonest, naive and biased look at Mr. Maskell’s work before saying:
and
Mr. Maskell was doing his job: giving a complete and well-researched answer to a question that was presumably asked of his office by a member or members of the US Congress. It was his responsibility to provide an answer that was objective and through and that is exactly what he did—he produced a well researched and impeccably referenced document which describes and explains the relevant SCOTUS precedent (Wong Kim Ark) and its reasoning and is completely consistent with both the consensus of Constitutional scholars and several recent court rulings regarding President Obama’s eligibility. One could easily argue that, had he written what you imply he should have, he would have been egregiously failing in his duty to Congress. For you to say that his intent was an agenda to “cover” for President Obama and accuse him of being unable to sign a disclaimer regarding advocacy—one which you yourself could not truthfully sign—for merely doing his job is reprehensible. Mr. Maskell did not take this upon himself, nor did he in any way attempt to publicize the results of his research—two more points which cannot be truthfully argued in your case.
David Drumm and Vince Treacy
In your article, you referenced the article Holdings, Dicta, And Stare Decisis which Mr. Drumm wrote as a guest blogger on Professor Jonathan Turley’s website. In this thread, you have also referenced comments made by Mr. Treacy on that thread and others on the Turley blog. After briefly summarizing Mr. Drumm’s article, you show your complete lack of understanding (or dishonesty) by quoting the following from an article by John W. Dean:
and writing: “What John W. Dean calls holdings are not indeed holdings at all. Instead, they are dicta.”
If the holdings in the two cases were, in fact, in conflict, then the latter would have overturned the former (and almost certainly done so explicitly), however that is not the case here. US v. Wong was about the child of aliens born in the US, so any speculation regarding the children of citizens born abroad is not required and thus dicta—dicta, as it turns out, that is shown to be incorrect by the holding in Weedin v. Chin. Had you understood Mr. Drumm’s article, this would be clear to you. Lest you think that my untrained legal opinion is no better than yours, I would note that I sent my post upthread on the topic (which is consistent with the apparent understanding of ever single commenter on this thread besides yourself) to Mr. Drumm and he agreed that I was correct. Now misinterpreting something someone wrote on the internet happens all the time, but I was struck by something you didn’t do: post a comment to the article with a link to your article. If you honestly believed that Mr. Drumm’s article supported your argument, why wouldn’t you have tried to let him know with a comment on his article so that he might voice his support and the readers of his article might see the quality of your claims?
Earlier on this thread I detailed how you referenced Mr. Treacy’s comments at the Turley blog and, through the liberal use of multiple logical fallacies, tried to show his positions to be contradictory or in agreement with you. I have been in email contact with Mr. Treacy as well, and he does not approve of your misunderstanding and distortion of his work, either. I find your actions with regard to Mr. Treacy particularly odious as he has a long history of debunking birther nonsense in a myriad of comments which are all impeccably reasoned and referenced, thorough, and polite.
While some of your remarks could have been the result of ignorance (although your claim of researching this for 4 years suggests that you just aren’t capable of understanding), given all of the (valid) criticism directed your way by posters here, any remaining ignorance on your part is completely willful. Furthermore, ignorance does not excuse your dishonest misrepresentation and hypocritical slander of four people who did nothing to invite your lies. As a professional, an American, and a human being, you should be ashamed of yourself. It is my opinion that you owe all four of these people a sincere apology and a public retraction of your lies regarding each of them.
As an immigrant yourself, you may not be aware of all of your rights in this country, but, in my opinion, the right that you should begin exercising is the right to remain silent. It is my fondest hope that, should you choose to continue to ignore this right, that all of your words will be held against you. If you wish to continue building a reputation for intellectual dishonesty and hypocrisy while continuing your baseless attacks against unsuspecting people who are undeserving of being the targets of your lies, that is your choice, but you should remember that anyone searching the web for your name will find it all over this thread—along with plenty of evidence as to your lack of character.
I will be posting a link to this comment on the blog with Ms. Bonner’s article as well as Mr. Drumm’s article on Professor Turley’s blog. In addition, I have emailed a draft of this comment to Mr. Drumm and Mr. Treacy. It is my opinion that the penalty for uttering frivolous birther crap should be becoming known for uttering frivolous birther crap so I hope that you are comfortable lying in the bed you made.
Lest you think that I am an anonymous poster making an attack that I am unwilling to stand behind, let me end this with…
Sincerely,
Kevin Kesseler
Well put Kevin. Mike insinuating that scholars who disagree with birther nonsense are biased is pretty sad. It is also sad he misinterprets articles that clearly state there was no controversy about the native born being eligible to be President and pretends he is an expert on holding and dicta when he clearly has no clue. On bias, was Ted Olson biased as he made clear he and Tribe agreed with Maskell. What about all the republican senators who agree with him. Maskell’s work stands on its own as the most comprehensive paper on the subject citing a mountain of authority. I do not agree with everything he said but he cites more legal authority that all the other articles Mike mentions. It is simply a fact that native and natural born citizen have been equated by our courts and scholars for 200 years and one could cite hundreds of authorities to back such up including pretty much every significant scholar of the early republic.
Why not compare Maskell to Morse. Morse’s article pretty much cites no authority at all. In fact, it doesn’t even make sense as he appears to acknowledge that “natural born citizen” comes from English law but somehow argues that such supports his jus sanguinis interpretation. It is hard to tell if he is totally ignorant or just dishonest. The argument that the framers would have said “native born” if they intended jus soli is an argument worther of a freeper. Obviously, one could just as easily say they could have said citizen parents if that is what they meant. The facts are the English conflated “native and natural born” as did a mountain of early authority in this countary. While “native” or “native born” were commonly used, “natural born” was the term of art because even in England not all natives were “natural born.” Look at the Convention. In discussions, they used the term “native” but the Constitution has the term “natural born” as that is the actual legal term of art. In the end, Morse is just repeating the argument already rejected in Wong Kim Ark and simply ignoring the fact he cannot cite any actual legal authority saying he was right and ignoring the mountain of legal authorities that said he was wrong.
Now Mike, why not do some research and see how many legal authorities you can find that say “native and natural born” mean the same thing. If you can’t find 50, you arn’t trying.
You are saying no one brought it up therefore no one knew about it, when it is just as likely that no one brought it up because no one cared about it.
That deserves a standing ovation!
Kevin, you’re the man of the hour. Kudos.
Before the 14th Amendment there was a question whether negro’s could be President. After the 14th Amendment there wasn’t.
Before WKA, there was a question whether a Chinese could be President. After WKA there wasn’t.
Neither changed the law- both just made it clear who were citizens, by extension that they were eligible as natural born citizens to be President.
Agreed. Kudos, Slarti.
Well said! Very succinct and to the point!
Lets break that question down a little bit shall we? Just to see if it contains any interesting content or not.
“jurisdiction” means “subject to the laws”. But you are begging the question of whether or not an illegal immigrant is “subject to the laws” when they have broken the law to enter the country.
Well what law have they broken then? Mexican law? That is just nonsensical.
So, we must be talking about American law that they have broken. So if they have broken American Law, then they must be subject to that law, right? But if they are not subject to the American Law because they have broken that law, then there is no law for them to have broken. If there is no law for them to have broken, then they are not illegal. But if they are not illegal then they haven’t broken any law so they are therefor subject to the law and they are therefore here illegally.
Is your head spinning yet?
You need to understand that every person physically present in America, whether they are here legally or illegally, are subject to American law – in formal language, they are subject to the “jurisdiction thereof”.
That is Every person – with exactly two exceptions: members of an invading army (and there hasn’t been one of those on American soil since WWII) and officially accredited foreign diplomats (and even they are subject to some American laws according to international treaties).
So, the answer to your question
Is that we can talk about “normal, everyday, stock standard, complete,” jurisdiction.
Jurisdiction is jurisdiction, period.
American law applies to people on American soil, that is what “jurisdiction” means. Illegal Immigrants are on American soil, and are therefor subject to the “jurisdiction thereof”. Children born to Illegal Immigrants on American soil are “Natural Born Citizens” of America. End of story.
Interesting topic that. For the crime of Treason, the Constitution specifies that Congress shall fix the punishment, but forbids “corruption of blood” or forfeiture beyond the lifetime of the attainted traitor.
Does the restriction apply to other crimes. Where in the Constitution is “corruption of blood” penalty banned for, say, fraud? Could Madoff’s sons be barred from executive positions in financial institutions because of their father’s crimes? Is it implied from the Bill of Rights?
I need to check that out. I’m sure the answer is ‘out there’.
Keith: In my view the Constitution is not the totality of rights that people have. It is a floor, not a ceiling. Judges must look at equity and legal precedent, including the common law. The law gives people all kinds of rights not directly specified in the Constiitution. For example, implicit in the laws against sexual assault is the right of any person to say no to non-consensual sexual contact. Such a right is not specified in the Constiitution, but is certainly as real and important as anything in the Bill of Rights. So, I can’t imagine any court approving sanctions against someone because of what their parents did.
That is one
heck of ahelluva smack down.Good job, Slarti.
I agree fully. A lot of people talk about the 10th Amendment, but few talk about the 9th Amendment.
Sure, there are going to be ‘political’ and ‘social’ restrictions on “corruption of blood” punishments. Australia doesn’t have a “bill of rights” but people enjoy pretty much the same rights as Americans anyway – enforced almost totally by political reality.
I suspect, however, that “corruption of blood” would be Constitutionally banned implicitly by a reading of the 5th amendment (due process) and the 8th Amendment (cruel and unusual punishment). But I could be wrong.
The Bill of Rights isn’t granting rights, but rather limiting the federal government. The amendments since …. well, they’re all over the place.
Well said. Godkin seems to suffer the same affliction which other birthers have, namely the inability to comprehend what “jurisdiction” means. There was a birther here some time back who insisted that Americans traveling abroad are not subject to the jurisdiction of the countries they visit. He should try telling that to the estimated 1500-2000 American citizens who are imprisoned in foreign countries each year.
Looks like it is the 14th Amendment (equal protection) that is used as the rationale in SCOTUS, but, in general, it is ‘a general, unstated principle’; (perhaps a 9th Amendment unspecified right?). I don’t have access to LexisNexis articles, but the introductory excerpt from ‘NOTE: Corruption of Blood and Equal Protection: Why the Sins of the Parents Should Not Matter.‘ by Max Stier in the Stanford Law Review reads, in part:
Jurisdiction is pretty easy to test:
Have the person in question (hypothetically) walk up to a cop and slap him or her really, really hard.
Is he or she going to jail? That’s the test.
When arrested, he invading enemy shoots the cop and anyone else attempting to escape, and if apprehended would be a military prisoner. Or worse. But it would no longer be a matter for civilian courts, prosecutors or local law enforcement.
The diplomat says “You can’t arrest me; I have immunity.” He or she might be escorted back to the embassy. A complaint might be lodged. But that’s all.
Everyone else (like, say, Barack Obama Sr., or an illegal alien, or an exchange student– anybody else) is goin’ to the pokey, you betcha. They gonna be jurisdictified. Count on it.
Am I wrong about this, actual lawyers? Or is it pretty much that easy?
Correct, it doesn’t grant rights, it protects rights from infringment by the Federal Government, and the 14th amendment extends that to include protection from infringement by State (and local) governments.
The 9th Amendment explicitly states that there may be found to be other rights retained by the people, and nothing about the list of protected rights explicitly listed in the previous 8 Amendments or the body of the Constitution should be construed as exhaustive and therefore, by implication, a denial of these newly ‘found’ rights.
The diplomat might go to jail long enough for the Embassy to verify the claim.
The follow up would be either the US kicks the diplomat out of the country, or the country order them home. In some cases, for some crimes, the foreign country may withdraw diplomatic protection, placing the accused back under the jurisdiction.
Then depending on the crime and the prosecutor, there may be an attempt at extradition for a trial. Punching a cop? Probably not. Killing a cop? Almost certainly. Extradition will almost certainly be denied if a guilty verdict could result in a death penalty.
I guess you did not read the case I gave you. Diaz-Salazar v INS. The US Court of Appeals, 7th District, referred to the children of Diaz-Salazar, an illegal alien, as NBCs.
http://scholar.google.ca/scholar_case?case=9500596911999938819&hl=en&as_sdt=2&as_vis=1&oi=scholarr&sa=X&ei=C5BaUI2-B4qorQGmlIHICA&sqi=2&ved=0CBsQgAMoADAA
Bravo on your entire post! Well said, in particular, your excellent summary:
There was a time when I didn’t know what a natural born citizen was. So I researched it, and among the things I did was to read every reference to “natural born citizen” on WestLaw. Of course Salazar was one of the cases I found and it’s been on the Great Mother of All Natural Born Citizen Quotation Pages probably since the beginning of that page.
I don’t know how to make this stuff any more accessible. If people would just read this site, they could avoid lots of mistakes.
You have provided an excellent source of information here. Unfortunately, you can’t make people read it, understand it, or in the case of most birthers, believe it. Thankfully, word still gets out. You are to be commended.
Convince Google to keep Great Mother of All Natural Born Citizen Quotation Pages as the #1 hit for all permutations (and misspellings! 😛 ) of “natural born citizen”
Could add it to relevant Wiki pages …. but that would be of no assistance to those susceptible to birferism.
Those disinclined to find never will. Even if you wallpaper their spectacles with it.
About difference of opinions.
Tonight, instead of expressing my opinion, I would like to present you with another one, which you may not agree with. However, his view of the WKA case may – just may – make you look at it at different angle.
Here it is:
http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/
For those of you who are not going to read the P.A. Madison’s article, its conclusion follows:
“The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of ‘subject to the jurisdiction’ since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born subject to its jurisdiction.”
Justice Gray made no attempt to hide this fact when he wrote: “Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.”
Justice Antonin Scalia,
“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended” (A Matter of Interpretation, Federal Courts and the Law, 1997)
So he would approve of Justice Gray’s approach.
Just a reminder.
Here are two excerpts from U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs 7 FAM 1110:
1) 7 FAM 1100 ACQUISITION AND RETENTION OF U.S. CITIZENSHIP AND NATIONALITY
7 FAM 1110 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES
(CT:CON-407; 06-29-2012) (Office of Origin: CA/OCS/L)
http://www.state.gov/documents/organization/86755.pdf
This section doesn’t even mention the “natural born Citizen” term.
2) 7 FAM 1131.6 Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents
7 FAM 1131.6-1 Status Generally
(TL:CON-68; 04-01-1998)
Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. One exception is that they may be subject to citizenship retention requirements.
7 FAM 1131.6-2 Eligibility for Presidency
(TL:CON-68; 04-01-1998)
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that ―No Person except a natural born Citizen…shall be eligible for the Office of President.
c. The Constitution does not define “natural born”. The ―Act to establish an Uniform Rule of Naturalization‖, enacted March 26, 1790, (1 Stat. 103,104) provided that, ―…the children of citizens of the United States, that may be born … out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.
d. This statute is no longer operative, 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.
http://www.state.gov/documents/organization/86757.pdf
Please pay attention to paragraph “d.”
If I may translate it into the plain English for housewives and me, it looks like this term (NBC) may be used by quite a few commentators, but when it comes to presidential eligibility, a more serious institution than a public opinion should resolve this issue.
It also seems these days that the term “Natural born Citizen” makes only sense when it is used in conjunction with presidential eligibility.
gorefan,
“So he [Justice Scalia) would approve of Justice Gray’s approach.”
Not really. Justice Gray did not want to admit debates in congress as evidence because they did not support his view at all.
WKA is silent on the birth of aliens. It addresses the birth of citizens.
WKA said explicitly, in no uncertain terms, that a child born on American soil is a Citizen even if both parents are alien. Since that is so, such a Citizen is a Natural Born Citizen.
The 14th amend says “ALL PERSONS BORN”, it doesn’t say “SOME PERSONS BORN”.
This is not a difficult concept.
You have a PhD. in an engineering discipline. You must have a good understanding of Boolean logic and at least a passing acquaintance with set theory.
Why are you having such a hard time understanding this?
That is a COMPLETE red herring.
Which part of “BORN ABROAD” do you not understand?
a) WKA was BORN IN AMERICA to alien parents.
b) Obama was BORN IN AMERICA to 1 citizen and 1 alien.
c) 7 FAM 1110 is discussing people BORN ABROAD to citizen parents.
a and b are covered by the 14th amendment. They are “BORN IN AMERICA”.
c is not covered by the 14th amendment. They are “BORN OVERSEAS”.
Please pay attention to the words in the excerpts you yourself post, such as the heading of excerpt 2. Please pay attention to the fact that paragraph D is talking about the circumstances listed in that heading: “Nature of Citizenship Acquired by Birth Abroad to U.S. Citizen Parents.”
Once you have attended to the words you yourself post, please note that the doubt expressed regarding eligibility is about citizens born abroad.. While it is likely that they would be considered eligible, and in my opinion should be, it is not certain. It is certain, however, that any one born here is eligible. That has been settled, by a “more serious instuition than a public opinion.” If you do not want to accept that fact, you will have to spend your life disappointed.
Please pay attention as well to the other paragraph D, contained in the link given as your first excerpt, which even helpfully emphasizes that “Subject to the Jurisdiction of the United States” includes “All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth.”
You note that this referenced excerpt does not mention the term “natural born citizen.” So? (I typed out an explanation why that is irrelevant, but decided to cut it because if you can’t figure that out by yourself, you should give back your PhD. Bluntly speaking, it is that basic.)
So, just a reminder, please pay attention to your own misrepresentations.
Earlier I suggested you read Yick Wo v. Hopkins (118 U.S. 356). By quoting the PA Madison as you have, It would appear you have not, which would also mean that you have likely not even read WKA. In the opinion from Yick Wo:
Justice Gray cites Yick wo in the US v WKA and discusses its application in detail, saying, among other things:
The ruling appears quite clear about whether aliens in this country can be subject to the jurisdiction and whether their children are born subject to its jurisdiction.
BTW, did you say that Justice Gray did not want to admit the debates in congress? How does that square with:
His discussion of the debates goes on for a while.
The problem with admitting debates in Congress is that generally only a few members speak on a particular bill or amendment. In the House, 220 votes are required to pass a law, but perhaps only 10 or so of the members, mainly those in leadership positions, might have spoken in favor of the bill during the debates. We cannot presume that everyone voting yea agreed with any particular point made by any of the speakers or even that they followed the debate at all. All we can presume is that the members consented to the actual language in the resolution. Which is why the actual language in the text is what matters.
I am seriously beginning to wonder if Mr. Godkin really does have a PhD. I would like to see his dissertation and the long-form original of his diploma, with a court-certified English translation. No pdf.
What court does PA Madison sit on?
Agreed. I am baffled by why Mr. Godkin keeps referencing situations of BORN ABROAD, when discussing the issue of BORN ON US SOIL…
Is he really that dishonest or, as someone who was foreign born himself, have a difficulty with reading comprehension in the english language?
His selection and presentation of quotes looks deliberate to me. Whether because he cannot see what he is doing, or because he is willfully misrepresenting. But as his misrepresentation has been pointed out multiple times throughout this very thread, it is clear that either way he doesn’t care. And thus his research and opinion on this matter is irrelevant. And always will be.
That is the basic flaw in his article. He assumes that prior controversy about the eligibility of children born abroad to one or two parents implies that the question of eligibility of children born on US soil is not settled. There is no controversy about the latter unless you count that invented by the Birthers since 2008.
I strongly suspect that a lot of these Birthers just do lazy search routine “quote-mining”, to merely find and cut/paste selections that have particular phrases they are looking for.
I doubt that many of them ever bother to read the fuller and broader context of the court cases and other historical or referencial sources that they are quote-mining from.
Then again, I could be too kind in merely viewing most of them as lazy and intellectually incurious folk, with nothing more driving them than a desperate need of confirmation bias for their preconceived emotional worldviews….
…Because if they are actually reading those sources and STILL coming up with such contextually wrongheaded conclusions, then they are from the very start, either willfully intending to be dishonest or severely lacking in reading comprehension abilities…or both.
Well said! I completely agree.
Simply wrong. He, and most classical jurists, didn’t think legislative history should be relevant. To say the debates did not support his view is simply wrong. By saying so you are making clear that you have never read the debates of the 39th Congress. Nearly every persos who participated in the citizenship debate said children of aliens were citizens or natural born citizens. I count 10 in all and one member of the judiciary committee, Sen. Edmunds send a noate to Gray saying he got the case right. Indeed, one reason President Johnson vetoed the Civil Rights Act is that it would make citizens of the children of Chinese aliens. No one such Congress disputed that was the case. At least 9 members of such Congress said the the English rule was the universal rule and no one disputed such notion. No one said citizen parents were necessary. Bingham came the closet early in the debates, but his later statement conform to the general jus soli view. You clearly are talking about something you know nothing about. Oh, and 9 members of such Congress said that the President must be a “native born citizen” while several others said native born children of aliens were eligible to be President. Sorry, Gray’s interpretation is overwelmingly supported by the debates and the people with an anti-anchor baby agenda are simply dishonest claiming otherwise.
Why would you think PA Madison is an authority? Just another amatuer with an agenda on anchor babies. If he doesn’t think the definition of “subject to the jurisdiction” was before the court he is a complete idiot. It was and was thoroughly defined in a manner that clarified all who was covered under it. In Elk Gray only looked to its application to indians born in what was considered a quisi-foreign nation and said nothing about its application to aliens other than to compare children of indians born in an indian nation ato aliens born in a foreign country. Any inference one might try to draw from Elk on the application of the rule to aliens is superseded by Wong Kim Ark the entire case of which dealt with the application of such language to children of aliens. One could argue it didn’t address children of illegal aliens which is true. However, based upon its definition of “subject to the jurisdiction” it would be difficult or impossible to exclude them as the Court said in Pylor v. Doe. Sorry if you can’t accept the truth.
Not sure what point you are trying to make. No statute has ever defined what persons born on our soil were natural born. The naturalization statutes only spoke to the foreign born and it application only relevant to the foreign born. In fact, the Court has ruled that naturalization could not apply at all to the native born at all. You really don’t seem to get this. Regardless, the term “natural born citizen” has often been used outside the context of Presidential eligiblity. Prior to 1866, there was no statute regarding citizenship for the native born. The native born were presumed to be citizens based upon the common law and were called native, natural born or sometimes citizenship by birth in the United States. “Native born” was probably the more popular term even when talking about Presidential eligiblity as you would see if you looked at Tucker, Kent, Story, Bouvier and most other early authorities. However, despite sometimes using different terminology, prior to 1866, there were always two kinds of citizens, one by birth under the common law and one by naturalization. The 14th Amendment restated these two types of citizens. Here is one of the most famous pre-Amendment papers on the common law adopted in this country prior to 1866:
“the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.”
This writer also told us that persons “born within the limits and under the jurisdiction of the United States” were natural born citizens but in this sentence he spells out what “natural born citizen” means in language almost identical to the 14th Amendment which would be adopted 11 years later.
Since you seem to be avoiding any response to the many and devastating criticisms of your article, I guess you might want to change the subject.
P. A. Madison, like you is a hack writer who misrepresents his sources. I obliterated any credibility he might have had in my article three years ago, Madison v. Madison.
Like most of what P. A. Madison says, it is nonsense. The question of jurisdiction is central to the understanding of the 14th Amendment, and the question of who is a citizen or not. The Court cited Chief Justice John Marshall in the case of The Exchange concluding:
And that is only a little bit of the treatment of the issue. Have you even read the decision in US v Wong? You’ve been asked that several times, but I have yet to year a reply.
It’s clear to me that you really have not read the congressional debates either.
You are avoiding dealing with any of the significant criticisms, you continue on your confusion about logic and reason, you have yet to explain your quote mining and now you switch to another ‘expert’ whose contributions may explain your own confusion as they overlap in ignorance.
I see that in the end ‘and nothing but the truth’ was meant as an ironic reference?
Yes.. the ‘truth’ is too tough to accept for our dear friend. Fascinating Doc..
It’s worth noting that nowhere on his blog does P.A. Madison assert that he has any credentials (as you have noted, we do not even know if “P.A. Madison” is his real name).
And of course P.A. Madison’s opinions on jurisdiction, even if they had any validity, would not apply to Barack Obama, whose father was in the United States legally and whose mother was a U.S. citizen.
Here is an interesting question. Suppose that a U.S. citizen woman gives birth in the United States and the father is a foreign diplomat or a soldier in an invading Army. Is the child a natural-born citizen?
Next, Godkin will be quoting I. P. Freely.
I have a bit of a little logic problem that I can’t solve…
Is he now arguing that U.S. v. Wong Kim Ark didn’t decide it based upon “subject to the jurisdiction thereof”? Well, if that’s true, then the court in Wong must have decided not based upon the 14th amendment, but based upon the law before the 14th Amendment.
Doesn’t this completely destroy his entire argument that somehow the children of aliens are some super-secret class of citizens that were created by the 14th Amendment, and therefore not “Natural Born Citizens” which were those born to the citizen definition before the 14th amendment?
Maybe he’s reading that as “Born a Broad” as in the female persuasion.
In addition to not having read the ruling in WKA, it also shows his lack of logic and reason here.
“And nothing but the truth”… Whose ‘truth’ I wonder?..
Wow. It was instructive and depressing to read that thread and see that the same exact arguments were being made three years ago (with the same claims of impending judicial victory) with only the names of the commenters having changed
Paper,
Thanks for the references on René de Chambrun. Interesting guy. The law firm he founded has a web site; it doesn’t sound like a typical corporate firm.
http://www.dechambrun.com/dechambrun.com/Welcome.html
I have a suggestion
On September 18, 2012 at 7:11 pm, predicto wrote this:
“As someone who is actually a constitutional law attorney for a living, who has taught legal writing and research, and who has drafted judicial opinions, all I can say is:
Mr. Godkin’s ‘reasoning’ is so convoluted and unpersuasive that it gives me a headache. There are at least 20 reasons why it would not pass muster in any court in the land (and of course, HASN’T passed muster in over 100 courts to date).”
A few hours later, on September 19, 2012 at 1:50 am, I responded to predicto, who introduced himself as a constitutional law attorney, hoping to get some specific criticism from him. Using a rare opportunity to get a professional opinion, I also asked him a few questions.
Unless I missed his response, it seems to me that I didn’t get it yet.
So here is my suggestion to all of my critics:
Why don’t you wait for a day or two until a real constitutional lawyer completely destroys my paper and proves my ignorance and stupidity? I can take any devastating criticisms of my article and my personality, although none of you have any idea what my personality is.
If, on the other hand, predicto doesn’t respond at all, what would it tell you?
Please don’t jump to any conclusion yet.
Sorry, your paper has already been destroyed here. We don’t need to wait for someone who calls themselves a real Constitutional attorney. You have no idea what the qualifications of the people on this thread. Some of us let our arguments speak for themselves and you have done nothing to refute them from what I have seen. People who work for top law firms with connections to both parties understand such firms do not want to be associated with political controversy. That doesn’t mean you are not talking with people with real qualifications as you should be able to tell from the level of discourse here.
That is a question I have been wondering myself. Even tried to research it awhile back. Never found any discrete parsing of those scenarios.
The invading soldier as father scenario would seem to be the more likely scenario as originally conceived, and I find the diplimatic scenario more intriguing, and perhaps more likely these days. And if the sexes ate reversed, re who is the American?
That certainly is true of my old firm, a very well-known, major firm.
I don’t think anyone cares about your personality. Some if us may wonder at times what causes, or is behind, such obtuseness as you demonstrate in your arguments, and lack thereof. Different question.
Mike,
Insofar as your arguments contradict the actual decisions of state, federal, and Supreme Court judges, your paper has already been destroyed by constitutional authorities. Nevertheless, if you really want an acknowledged expert to review your thesis, why not send it out to constitutional scholars or law journals? I don’t know if they would respond, but you might get better results than waiting for an anonymous poster on an anti-birther blog to get back to you.
Your obtuseness here is undeniable. Doesn’t matter much why. Idle speculation, sure. But the bottom line is your arguments here, and as I say, lack thereof, will never amount to anything. There are few as certain situations as that. It is a busman’s holiday for lawyers or anyone interested in ambiguities, uncertainties, fine distinctions and real conundrums. So thanks for making it so easy.
That he’s busy.
Actually he has already given you the most important reason your paper is nonsense The arguments in it have been made in courts throughout the country and have been rejected. The fact that you refuse to acknowledge that speaks volumes about you.
The opinions of well qualified lawyers are interesting and worth considering, but, in the final analysis, it is the rulings made by actual judges that decide the matter.
In this case, it means that I am an attorney who works for a state Supreme Court, where I am called upon to do in depth constitutional analysis much more often than the typical attorney. Yes, all American law is subject to the Constitution, but that does not mean that the average legal dispute is decided on constitutional issues. Most cases are decided on the words of a contract, or the application of lower level statutes or regulations to events. The cutting edge constitutional issues, however – those end up in the court where I work.
Since you refuse to respond to any criticism, what would it tell you? Poor Mike your arguments have been totally destroyed and you pretend that if Predicto does not respond, you can claim victory>
Have you no shame? You behavior has become an affront to research, and honesty, I believe. And you inability and unwillingness to respond to much any criticism shows that you are not even interested in pursuing the truth, just your version thereof.
Are you saying that I’m not succinct? 🙁
Seriously, thanks (and thank you ballantine, Sudoku, Thomas Brown, and Keith as well). One of the traits of birthers that I find most contemptible is the way that they blithely slander people with baseless allegations. It’s bad enough when they direct this at Dr. Dunham, her mother, or Hawai’ian officials, but for someone, like the birther Mikhail Godkin, to fallaciously smear unsuspecting people who are not public figures involved in the matter in such a blatantly dishonest and hypocritical way seems even more despicable to me.
After leveling such serious criticism at the birther Mikhail Godkin, I felt that it was only appropriate to give him a chance to respond before I posted again on this thread (it can’t be fun to be on the receiving end of such invective—my only defense is the the birther Mikhail Godkin invited everything I directed his way with his actions). It seems with his latest comments that the tactic he has chosen is to ignore what I wrote completely (which, had I thought about it, is probably what I would have expected—really, the only way the birther Mikhail Godkin could have surprised me would have been if he apologized to those he defamed and admitted his mistakes and lies). That’s fine (though it speaks very poorly of his integrity)—it has become crystal clear to all of those reading this thread that the birther Mikhail Godkin has no intention of giving up his long held confirmation biases, accepting any authority whatsoever, or responding in good faith to any of the criticism of his arguments. That being the case, I will turn my attention to what we might deduce regarding the birther Mikhail Godkin (yes, I plan on associating the word “birther” and the name “Mikhail Godkin” as much as I possibly can) from his fallacy filled pseudo-study and his comments here.
First off, I said some pretty harsh things about the birther Mikhail Godkin. I know that if someone had said such things about me, I would be eager to rebut as much of it as possible (I would also admit and apologize for that which I couldn’t rebut, but I certainly don’t expect that sort of honesty from a birther—they’ve already demonstrated that they put their prejudice before their integrity). We can presume that, for the most part, the birther Mikhail Godkin is unable to refute my thesis (that he is a hypocritical liar who is willing to dishonestly defame anyone in his Quixotic attempt to defend the lies with which he wishes to baselessly smear President Obama). I would expect a PhD in EE to have sufficient critical thinking skills to be able to point out any errors of fact or reasoning which I made in my analysis—this forces us to conclude that the birther Mikhail Godkin is incompetent (i.e. he lacks the critical thinking ability one would reasonably expect from someone of his education) or that my criticism was substantially correct (there is, of course, a third possibility—that both assertions are true).
Having a reasonable understanding of why the birther Mikhail Godkin chose the response he did, let’s look at a some of the authorities that Mikey (I got bored 😉 ) is ignoring (presumably because he is completely incapable of refuting them):
Doc C—while the good Doc is not a lawyer, nearly four years of running this site in which he has demonstrated integrity, scholarship, and a dogged dedication to the truth certainly makes him a lay expert in the issues pertaining to Presidential eligibility.
NBC, ballantine, Keith, G, Thomas Brown, Sudoku, Paul P, Lupin, Scientist, Paper, Squeeky Fromm, Rickey, Northland10, and others—I don’t know how many of these people are lawyers, but several have a habit of making comments that have nuanced legal thinking and are impeccably referenced (it is, after all, the argument which is important, not the source), but all of them have something in common… they have made reasonable arguments that Mikey has failed to respond to or generally even acknowledge.
James Madison—“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.” ’nuff said.
predicto—Mikey was so eager to ask a self-avowed Constitutional lawyer his stupid questions that he completely ignored this analysis (emphasis on the phrase Squeeky likes—and so do I):
SCOTUS—Both US v. Wong Kim Ark as well as current and former justices who have stated that President Obama is natural born.
various state and federal courts—the court in Ankeny and others which have ruled President Obama to be eligible for his office. These decisions may not be binding, but they are most certainly precedent which can be cited and would then be given significant weight in any US court.
The Congressional Research Service—Mikey offers us baseless smears of Mr. Maskell, juvenile speculation regarding the meaning of the word “would” and pretty much nothing in the way of a credible rebuttal to any of the reasoning in the CRS report. While Mikey has implied that Mr. Maskell’s report was partisan, here is how the CRS describes itself:
Everyone can decide for themselves whether or not to believe this or someone who has demonstrated his blind partisanship and dishonesty many times over.
The consensus of Constitutional scholars—Every credible Constitutional scholar seems to agree that those born on the soil are natural born (diplomats, invading armies, yada, yada, yada…). The best Mikey seems to be able to come up with is to cherry pick arguments as to children born outside the country to citizens—arguments irrelevant to President Obama’s eligibility.
David Drumm—Mikey holds up Mr. Drumm as an expert by using his blog post to establish the difference between the holding and the dicta in a judicial ruling. He then proceeds to demonstrate that he has absolutely no understanding of the terms by referring to the dicta in Minor as part of the holding and the holding in Wong as part of the dicta. Now, I could just assume that I understand this (having read Mr. Drumm’s article and participated in the discussion of it) or assume that because my interpretation is consistent with that of every other commenter here save one that it is overwhelmingly likely that Mikey is in the wrong, but I went one better—I emailed Mr. Drumm my interpretation (below) and asked him if I got it right. Mr. Drumm’s answer: “I think your comment is spot-on.”
Vince Treacy—Since Mikey tries to both distort Mr. Treacy’s words to make them appear contradictory as well as to make them appear to support his position, it is unclear whether or not he considers Mr. Treacy an expert and, as I have already admitted that he is a friend, I wouldn’t expect him to take my word, but the quality and quantity of his comments on the subject at Professor Turley’s blog and elsewhere suggest a great deal of expertise (google his name and read some of the comments on blogs that you find and I believe you will agree). What does he think of Mikey’s work? This was in an email I received from Vince:
“I printed out and read the 47 pages of that guy’s dump,and it is completely incoherent and barely intelligible.”
The weight of all of this authority (with nothing but baseless smears, quotes taken out of context, misunderstandings, and faulty analysis to balance it) notwithstanding, Mikey comes back with this:
Finally Mikey, regarding your tripe about jurisdiction, I suggest that you perform the simple experiment Thomas Brown mentioned—renounce your citizenship, leave the country, return illegally, find a police officer, and slap him really hard. If you are not arrested (or, if arrested, cannot be successfully prosecuted), then you will have proven that illegal aliens are not subject to US jurisdiction.
Looking a nbc’s latest remark (which makes pretty much the same point in under 50 words), I am forced to conclude that my comments may, in fact, not be succinct. I withdraw my objection to G’s implication 😉
It would tell you that I was busy doing my real work for a real court. This is just a message board, and I’m not a retired man of leisure.
Anyhow, as to your request, I don’t see why I should bother.
I have read the entire thread, and watched as you change the subject every time your arguments have been debunked and refuted, very ably, by multiple people. Nothing seems to deter you, because you have already decided what the result must be in your mind. I have better things to do than to jump on the merry go round and go over the same ground.
Of course, if you really want to know the answers, they pretty much all are found in Mr. Maskell’s excellent and objective analysis for the Congressional Research Service. It is a fine piece of legal scholarship and I have never seen any birther make any argument that seriously called it into question in any way.
As an aside: the fact that the United States Supreme Court has not ruled on this issue does not mean that it is an open question of law. The court only accepts controversies that actually need to be decided. Where the correct result is obvious (as here), they do not bother.
Ultimately, the problem you are facing is this: there is absolutely no legal authority for your two parent theory. Zero, none, nil. It was made up out of whole cloth by disgruntled birthers who switched gears after the original claim (that Obama was born in Kenya) turned out to be a false internet rumor. That should be a clue to you – they wanted Obama to be ineligible, and when the first method failed, this new “legal theory” suddenly appeared. For someone who likes to read ulterior motives into everything, you seem remarkably immune to this one.
Simply put, for the 10,000th time – there are two types of American citizens – natural-born and naturalized. If you were an American at the moment you took your first breath, you are natural born. If you became an American later in life, you are naturalized. If you are born on American soil, you are a citizen at birth unless you are the child of a foreign diplomat or an occupying army. Native born and natural born mean the same thing.
It’s really a very simple and straightforward legal construct, and it has worked fine for two hundred years. It was only when a black Democrat was elected President that it suddenly became complicated and difficult for some people to accept. There is a reason that the tiny handful of birther attorneys are all such clowns as Orly Taitz, Leo Donofrio, Mario Apuzzo, Van Irion and Phil Berg. Actual real attorneys (even very politically conservative ones) know what a stinker this argument is after about 2 minutes of work and they don’t want to ruin their reputations getting involved with it.
I know you have invested a lot of time in your treatise, and I feel badly about that. But it does not change the fact that you built an entire gigantic complicated structure out of preconceptions, misunderstandings and deliberate misrepresentations. You have invested too much, and I don’t think you will be able to abandon it now, but I have hope for you that someday you will look back and wonder what the heck you were thinking.
The irony is thick here. You who are not a constitutional lawyer, a lawyer or an authority of any kind is unwilling to accept criticism from people who are not constitutional lawyers. (This is really just an example of moving the goal posts. You had no reasonable expectations of receiving critiques from constitutional lawyers by submitting your paper to me, so I can only conclude that your new requirement is nothing more than evasion.)
By your standards, I shouldn’t have published your paper in the first place, because you are not a real constitutional lawyer. Your paper, since you have no credentials, is of no value, no worth, nor any note.
When Mr. Godkin first started responding here, I was pleased and hoped for a real intellectual discussion and honest debate on his paper and its inherent areas of weakness and misunderstanding.
I’ve tried to give him the benefit of the doubt and assume that part of his difficulty in grasping these concepts was due to being “lost in translation” as certain phraseology within our english language can be confusing to those who were born in another land and with another language.
However, his pattern of behavior here has quickly devolved into one we’ve unfortunately now seen hundreds of times before. So yes, I am left to agree with Slarti and conclude that he is just another dug-in Birther and only motivated by trying to spread propaganda, not actually learn or debate honestly.
I find it quite interesting how he was willing to respond in a lot more detail in the beginning and try to pass himself and his references off as being “scholarly”. But once the posters here identified his obvious quote mining and displayed a deeper indepth knowledge of the subjects at hand, he quickly switched to pithy and dodging responses… You see that happen when a “faux intellectual” is trying to peddle sh*t to folks he assumes are too ignorant to realize what he’s doing.
It is a form of con game. It is the same type of cr@p that Mario, Leo (and even David Farrar) try to pull – thinking that if they just sling together a lengthy diatribe of big words, mixed with a bunch of legal and historical references, that no one will bother to check their work and will just assume their smoke and mirrors act is “scholarly” and of merit. But its not – it is all a scam and sham; an intential attempt to reconstruct a false history and false reality in order to push a propaganda agenda meme on those who don’t know better.
An actual honest scholar would welcome and invite external feedback and criticism to tear apart the weak parts of his work, in order for him to revise and improve any aspects or points that he originally overlooked.
Well, that has certainly turned out to be true.
But still, I strongly applaud you for finding it and putting this blog post together, to offer a forum to analyze and debate it.
It may have turned out to be a dud and a bit of sham quackery, but the worthy effort was in investigating it and the author, in order to reasonably make that determination.
Mike:
Yeah, what Dr. C said! Plus, I asked you a very simple question,. How does the Wong Kim Ark Court define a natural born citizen??? If Predicto does get back to you, I bet she or he will ask you the same thing, sooo why don’t you get to working on an answer to that question so you will be one step ahead.
Squeeky Fromm
Girl Reporter
Well Mike, you got your answer from predicto—the question now is, do you have the integrity to accept it? I’m guessing that the answer is no and I think predicto’s last paragraph has some insight into why:
Michael Shermer in his book, The Believing Brain wrote:
I didn’t see your comment quickly enough to join in the chorus of positive responses, but I will add my voice late. Your comment was a powerful indictment of Mr. Godkin’s paper. The moral aspect of birtherism concerns me as well. Some birthers at least will say anything to trash the President. If they hate gays, Obama is gay. If they hate Muslims, Obama is Muslim. If they hate socialism, Obama is a socialist. If they hate affirmative action, then Obama is the poster child for affirmative action gone wrong. It’s all so predictable, and so squalid.
Mr. Godkin contacted me and asked for criticism. When I told him I didn’t debate in email, he suggested putting it on the blog, and that is why you see it here embedded.
I knew that it was a dud, having read it before publication, but this is a popular topic and it’s not like there are any “good” papers supporting his thesis.
It worked for Mr. Woodman. But then again, he valued his own integrity and honesty too much to hold onto his biases. After investing all that time and effort, he realized that the Birther claims were without merit, even though he went into the endeavor hoping to prove them valid and find something against Obama, who he doesn’t care for and does not support.
However, he brilliantly turned lemons into lemonade and still got value for his efforts – by realizing his own very scholarly efforts made him an excellent Birther debunker!
Wow… you are SO right about how they project their own internal hatreds and fears onto him…
…in other words, the accusations that these RWNJ sling are nothing but a mirror of their own soul and beyond the “Invisible Chair” version of Obama they’ve created in their own minds, their rants tell us nothing about the actual Obama, but reveal a lot about the RWNJ spewing that particular slur…
Squalid is definitely the word for it. Gutter-level reprehensible too.
It seems to me that the key is to be found in the plain language of the 14th Amendment: “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.” Notice that it does not say “born of parents who are subject to the jurisdiction.” As long as the person who was born here is subject to the jurisdiction, that is sufficient for citizenship at birth.
There is general agreement that when both parents have diplomatic immunity, a child born here to such parents also has diplomatic immunity and therefore is not “subject to the jurisdiction.” However, I don’t know what the status would be if a foreign diplomat were to be stationed in the U.S. and happened to marry an American citizen. Would that American citizen then have diplomatic immunity by virtue of the marriage? My gut instinct is probably not, but it is not something that I have researched.
I agree that the “invading army” scenario is pretty much an anachronism. There hasn’t been an invading army in the U.S. since the War of 1812. I suspect that if a female foreign diplomat became pregnant by an American citizen the child, if born here, would be treated the same as if the sexes of the parents were reversed. Of course, a female diplomat might be recalled to her home country and give birth there, which would raise some interesting citizenship questions.
So you think that may become an idiom now…like strawman? as in: “Oh, that’s an invisible chair argument?”. An interesting linguistic turn, that, too, as the chair was not invisible. But the phrase still makes sense.
And what if out of wedlock?
Well, my gut seems to match yours, particularly about the point that it refers to the child, but I was trying to find something other than my gut that addresses this fine distinction.
Sorry. Wrong.
The Japanese held several Aleutian Islands during WWII.
However, I doubt they did much begetting while they were here.
That is a good question…and only time will tell!
It is funny that you should mention “idiom”. My wife and I just had a hilarious discussion yesterday in regards to idioms and how new slang will either survive to become an idiom or get stale and become “trite”. …trust me, it was really funny, but one of those you had to be there moments (my wife thinks the phrase “idiom” is trite…lol).
But yes, I’ve seen “Invisible Chair” and “Invisible Obama” used all over various poltiical sites (and they were quite the “trending” terms on twitter too), ever since Clint pulled that crazy performance art stunt at the RNC. And yes, the term is being used as a synonym for “straw man”. It left quite an indelible impression and seems so apt; so maybe it will survive long enough to become an idiom. Let’s see if people still say that once the election is over.
On that note – another funny political anecdote has become quite the surviving idiomatic expression from last cycle: “that’s good news for John McCain!” is still a very popular punch line for when something goes horribly wrong. It is fairly synonymous with saying “EPIC FAIL”…now that too is a slang expression I would say has a good chance of surviving to become an idiom.
Perhaps he did not expect that the educated people visiting Dr C’s blog would tear the paper to shreds?
And it was not even that hard…
I am glad you responded. When there were no bows to his supposed scholarly pursuit, you seemed to be the only one Godkin might listen to. I am not going to hold my breath that he will change his opinion or anything in his paper but following his ridiculous comment (“If, on the other hand, predicto doesn’t respond at all, what would it tell you?”), I hoped you would reply.
Another excellent post! I especially appreciate the defense of, and confirmation by, Vince Treacy and David Drumm.
It was like watching a 7’2″ center swatting away the shot of the visiting team’s substitute point guard.
predicto,
Thank you so much for taking some time to respond to my post.
You have read the entire thread, but the question is: Did you read my entire article, however unprofessional it might be? After all, this thread has been generated by my paper.
“Anyhow, as to your request, I don’t see why I should bother. “
No, there is no reason to bother, except for one thing: You have already made a comment that my article gave you a headache. I just wanted to know some details.
“Of course, if you really want to know the answers, they pretty much all are found in Mr. Maskell’s excellent and objective analysis for the Congressional Research Service. It is a fine piece of legal scholarship and I have never seen any birther make any argument that seriously called it into question in any way.”
This suggestion tells me that you have not read all of my paper. I have devoted more than three pages in the Section “Nothing but the truth?” discussing Mr. Maskell’s report.
This is what I wrote about his report:
On page 1 of his memorandum, Jack Maskell reiterates:
‘The standing qualifications to be president of the United States are set out in the Constitution, at Article II, Section 1, Clause 5, and state three specific requirements:
One must be at least 35 years old, a resident ‘within the United States’ for 14 years, and a ‘natural born citizen.’”
The title of his memorandum reads:
“Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement.”
But Jack Maskell just reminded us “three specific requirements,” one of which is a “natural born citizen.”
So even the title of his Memo doesn’t make much sense, does it?
Qualifications for President can’t be separated from “natural born” citizenship eligibility requirement because it is one of the above-mentioned qualifications.”
None of my critics noticed that major inconsistency and didn’t comment on it.
There is another thing about Mr. Maskell which I wrote about in my paper:
“In his Report for Congress, at least eight times, Mr. Maskell quoted presidential historian Michael Nelson, who wrote a paper entitled “Constitutional Qualifications for President.”
To me, it means that Mr. Maskell values Mr. Nelson’s opinion. Why, then, didn’t he quote another article written by Michael Nelson, entitled “Natural Born Nonsense” and published on November 3, 2008:
“There aren’t many stupid things in the Constitution, but one of them is the requirement that the president be a ‘natural born Citizen’ of the United States. It’s stupid because we are a nation of immigrants that, in all other respects, draws no invidious distinction between the rights of natural-born and naturalized citizens. It’s stupid because it restricts the presidential talent pool in ways that bear no relationship to presidential talent. (If you think that being a two-term governor of California or Michigan is reasonable preparation for the presidency, forget it: the governors of both states are not citizens by birth.) And it’s stupid because no one can be sure what ‘natural born Citizen’ means. The term’s English common law roots suggest two contrasting definitions: natural born as in born of parents who are citizens, and natural born as in born on the nation’s soil.
John McCain falls afoul of the ‘soil’ definition, some cranks argue, because he was born in Panama, where his father was stationed in the service of his country as a naval officer. And now Politico reports that a new set of cranks has emerged to claim that Barack Obama is really a native Kenyan. Not true, but go figure.
Here’s a suggestion for the new Congress: amend the Constitution to replace the natural-born citizen provision with one requiring that the president be a citizen for at least 20 years. State legislators: Get ready to ratify this amendment in time for the next election.
Of the 27 amendments that have been added to the Constitution, 17 have expanded the bounds of liberty and democracy. Raising the number to 18 by allowing naturalized citizens to be constitutionally eligible for president would fulfill, not undo, the non-stupid intentions and aspirations of the Constitution’s framers.”
Unlike rigid view of Jack Maskell, Michael Nelson states that the phrase “natural born citizen” according to common law may have two opposite meanings.”
Almost all the commentators on this thread called me intellectually dishonest. What do you think about intellectual honesty of Jack Maskell?
“As an aside: the fact that the United States Supreme Court has not ruled on this issue does not mean that it is an open question of law. The court only accepts controversies that actually need to be decided. Where the correct result is obvious (as here), they do not bother. “
Most of l the liberal lawyers I quoted in my paper are of a different opinion. They stated that “presidential eligibility clause has never been definitively interpreted by courts,” “quite simply, we don’t know” what a Natural Born Citizen is, “it is questionable whether English common law in existence at the time of the adoption of the constitution provides definitive guidance as to meaning of the phrase ‘natural born citizen,’” “the natural born citizen clause has never been completely understood,’ etc.
“Ultimately, the problem you are facing is this: there is absolutely no legal authority for your two parent theory. Zero, none, nil. It was made up out of whole cloth by disgruntled birthers who switched gears after the original claim (that Obama was born in Kenya) turned out to be a false internet rumor. That should be a clue to you – they wanted Obama to be ineligible, and when the first method failed, this new ‘legal theory’ suddenly appeared. For someone who likes to read ulterior motives into everything, you seem remarkably immune to this one. “
Are you sure about the history of this issue? What are you going to say about white Republican presidential candidate Chester Arthur, who all his life was hiding the fact that his father was not a citizen of the United States when Chester was born? Instead, he was a British subject.
What about a prominent Democrat B. Long, who questioned presidential eligibility of another white Republican presidential candidate, Charles Evans Hughes? Hughes had parents who were not American citizens when their son was born. Would you like to call B. Long a birther as well?
“Simply put, for the 10,000th time – there are two types of American citizens – natural-born and naturalized. If you were an American at the moment you took your first breath, you are natural born. If you became an American later in life, you are naturalized. If you are born on American soil, you are a citizen at birth unless you are the child of a foreign diplomat or an occupying army.” The same Breckinridge Long, who may not be an authority to you, had a different opinion:
“The word “natural” means “of the nature of”; “naturally a part of”; “by the laws of nature an integral part of” a system. Following that line of thought, a “natural born” citizen would be one who was naturally, at his birth, a member of the political society; naturally, a part of the political system into which he was born; by the laws of nature a citizen of the society into which he was born. It would mean, further, that no other government had any claim upon him; that his sole allegiance was to the government into which he had been born and that that government was solely, at the time, responsible for his protection. “Native born” does not mean quite the same thing. He might be born in a country under conditions similar to the conditions under which Mr. Hughes was born, and subsequently become a citizen of that Country. In that case, after he became a citizen, he would be a ‘native born” citizen, but he would not have been a ‘natural born’ citizen. From the instant of his birth his government would not be solely responsible for his protection.”
In your opinion, did he also “made it up out of whole cloth?”
“Native born and natural born mean the same thing.” If this is the case, would you like to use a definition of Justice Waite? Here it is:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.”
I know, I know that all th doubts have been removed by the 14th Amendment. Have they been?
“It’s really a very simple and straightforward legal construct, and it has worked fine for two hundred years. It was only when a black Democrat was elected President that it suddenly became complicated and difficult for some people to accept. There is a reason that the tiny handful of birther attorneys are all such clowns as Orly Taitz, Leo Donofrio, Mario Apuzzo, Van Irion and Phil Berg. Actual real attorneys (even very politically conservative ones) know what a stinker this argument is after about 2 minutes of work and they don’t want to ruin their reputations getting involved with it.”
Yes, it is “a very simple and straightforward legal construct, and it has worked fine for two hundred years” because all the presidential candidates who were born here after adoption of the Constitution had both citizen parents. Call it coincidence, but it is a fact. Only two people deviated from this pattern: Chester Arthur and Barack Obama. The fundamental difference between the two situations is this: Arthur was all his life hiding the fact that his father wasn’t an American citizen when he (Chester) was born, but Obama announced this fact to the whole world, which tell me about quite different political climates at the end of the 19th century and now. In all honesty, did you have to play a racial card? If you are so sure about your arguments, you shouldn’t have done that. As I wrote before, in this case scholarship is replaced with partisanship.
“I know you have invested a lot of time in your treatise, and I feel badly about that. But it does not change the fact that you built an entire gigantic complicated structure out of preconceptions, misunderstandings and deliberate misrepresentations. You have invested too much, and I don’t think you will be able to abandon it now, but I have hope for you that someday you will look back and wonder what the heck you were thinking.”
I don’t feel badly about it. I know now what I would do differently, if I had time to it.
I have one last comment. Neither you nor anybody else paid any attention to the Section “Who is a Sovereign in the United States?” It contains my little theory, but everybody was busy proving that anybody born here may become President.
Next time, if I’m given a chance, I’d like to discuss the 14th Amendment’s “subject to the jurisdiction thereof” phrase.
I find it absolutely incredible that you questions people’s agendas and yet bring up Breckinridge Long.
Did you miss this previous post?
“Long waged a political battle in Missouri for the League of Nations and Wilsonian Democracy for five years. At the Democratic National Convention in St. Louis in 1916 he aided in drafting the foreign policy plank which favored a league of nations and provided the basis for the “he kept us out of war” slogan that was credited with winning re-election for Woodrow Wilson (q.v.). Following the election, Long was appointed in 1917 by Wilson as third assistant U.S. secretary of state in charge of all Far Eastern matters, a post he filled until 1920.” Breckinridge Long Biograohy from Breckinridge Family website
http://breckinridgefamily.com/breckbio.htm
“Assistant Secretary Breckinridge Long, a former student of Wilson’s at Princeton, believed this exchange of letters would hurt the president and went to the White House and talked with Grayson, who evidently got Wilson to send a brief note simply accepting Lansing’s resignation.” From John Milton Cooper, Jr., “Woodrow Wilson”
Biographical Note
1916 Active in organizing the “St. Louis Democrats for Woodrow Wilson” from “Breckinridge Long Papers A Finding Aid to the Collection in the Library of Congress”
“The situation was ameliorated by a gift from Breckinridge Long of $5000 and a loan of $30,000 to keep the McCormick’s Campaign office functioning.” from “The Presidential election of 1916” by S. D. Lovell 1980.
Vance McCormick was Woodrow Wilson’s campaign manager.
Long while at the State Department falsified documents and ignored the law to prevent tens of thousands of Jews from escaping the Nazis. Nasty character all around.
Thus is a particularly stupid misreading of what Maskell is saying. This was detailed to you earlier in the thread.
There is no historical evidence whatever that Arthur hid his fathers naturalization status. None. Zero. In fact, there is strong circumstantial evidence that it was known, at least to his political opponents who never made an issue of it. In fact Teddy Roosevelt alluded to it in a speech he made, when he noted that Arthur could have been conscripted into the British Army had he visited England.
You might say: “Arthur burned his papers.” He had some of them burned the day before he died; however, how do we know that Arthur’s father wasn’t naturalized when the President was born? It’s in the Arthur papers!
And why should Arthur hide his fathers naturalization status in the first place? Arthur was a New York Lawyer. The Chancery Court of New York not too many years before commented in the case of Lynch v. Clarke that the children of aliens could run for President. Not only that, but the New York court said that this was the view both of the people and the legal community.
So don’t give me any of that “Arthur hid…” crap. It’s a bald-faced lie and you are a slanderer.
It was more like this…
Thanks Doc, that means a lot. Honestly, the moral aspect of birtherism is pretty much all that concerns me (that and hanging the birthers around the neck of any politician unwise enough to pander or dog whistle to them)—the details of the law or the technical aspects of document analysis bores* me to tears. The question of what motives these people and what can be reasonably concluded from their behavior, on the other hand, fascinates me (I think your quote above is going to force me to read The Believing Mind).
Of the many reprehensible (good word, G) birther traits, I think their constant leveling of baseless accusations and slurs—along with their complete lack of shame for or even awareness of their perfidy—is the worst. They dehumanize the targets of their prejudice (as your comment illustrates) which suffices to justify whatever means they choose to advance their delusions. I have also found that, personally, the birthers that tend to bother me most are the ones with PhDs—it’s not exactly hard to understand why, nor is it a trait unique to myself (witness the many lawyers who are aghast at Orly Taitz dishonoring their profession). Be it drk(H)ate and her flock of conspiracy-addled, racist hatriots, or the [standard Fogbow epithet] “Polarik” , or a certain political scientist with two first names who can’t shut up about the “major award” he won before (which is to say, after) “affirmative action”** destroyed his career, nothing gets my blood boiling quite so quickly as someone with a title which should, at the minimum, imply a certain amount of critical thinking ability (I realize that this is a part of my own prejudice) completely abandoning their objectivity in favor of an industrial-sized cognitive dissonance. Finally, of course, I take a dim view of anyone who misrepresents the words of my friends (as, I think, most people do). Mike hit the trifecta and my comment was the payoff.
Even though this episode (like nearly every one before it) has followed the script that we’ve all come to expect, I have to commend you for providing a place where birthers are treated like they wish to debate in good faith—at least until they prove otherwise. Maybe one day you’ll find a birther with the integrity to admit that their arguments don’t stand up to critical scrutiny. I certainly hope you do.
Excuse me, I’d say more, but I thought that I would pitch in and help you clean up the most recent mess that was left on your doorstep…
* There is one exception—some website owner (something about muddy gold coins…) came up with a hypothetical work flow which is completely consistent with the numbering of known Hawai’ian birth certificates contemporary to President Obama’s. Unfortunately, no birthers seem to understand how the inability to come up with a similar hypothetical which supports their contention of forgery completely undermines their arguments—but I do. 😉
** “affirmative action” in this case being his rationalization to avoid facing his own lack of talent.
I would prefer that you answer the myriad charges of dishonesty, slander and misrepresenting your sources before we move on. You say you have limited time, but you seem to have plenty of time for more evasion.
No, he wasn’t ignored. He never presented his draft. The more substantive question is whether you are going to update your paper, or leave the false information in there.
There are claims that Arthur destroyed all his papers to hide his eligiblity issue. All except the one piece of paper that proves his father naturalized after Arthur was born. That piece of paper he sent to the Library of Congress for safekeeping.
Thanks.
I first encountered birthers over at Texas Darlin’s blog (the PUMA litterbox where drk(H)ate was spawned) and was worried that President Obama might not be eligible. So I looked for the arguments on the other side of the issue and found my doubt completely eliminated by Vince’s writings on Professor Turley’s blog. Defending him against the birther Mikhail Godkin’s intellectually dishonest twisting of his words seems the least I can do to thank him for the peace of mind he gave me.
There is of course a perfectly good reason for Arthur to burn his papers, something not unusual in his time. It was to protect the privacy and reputations of his correspondents.
It is certainly an excellent book about why people believe strange things, and I understand it just came out in paperback (and of course there is the Kindle edition).
Thanks, I had forgotten about that.
Yes, it very much followed the script, and I have no hope of it ever being otherwise. But even though all that garbage collectors ever collect is garbage, still collecting it is a public good.
Again, I don’t understand this silly part of your argument. I would like to give you the benefit of the doubt and assume that you are just having difficulty in English comprehension again. Otherwise, it looks like you are just picking at immaterial and irrelevant nits, for no other reason than to be pointlessly petty.
Here is a “critics” response to your sense of “major inconsistency” in the title’s header – there is NONE.
The title specifies what the report will be focused on – Presidential eligibility qualifications and in specific – the Citizenship Eligibility requirement.
Yes, that is an equivalent English phrasing for what Mr. Maskell’s formal report title format means. Our English language has a lot of peculiar ways that we phrase things, with many different ways to pretty much say the same thing.
There is nothing unusual about a formal paper stating a general premise, followed by use of “and” to identify a specific focus for the topic of the report. Heck, that is basic English Composition 101.
The general premise here is obviously “Qualifications for President”.
The specific topic focus of the paper under that premise is “Natural Born’ Citizenship Eligibility Requirement”.
So of course the report is going to focus on the NBC clause. It stated such in the title.
In any proper paper or essay, the opening should provide a broad overview of the general premise and then transition towards the specific topic focus. Mr. Maskell’s report does that.
So I fail to grasp why you are complaining about what he plainly stated in his opening. YES, there are 3 specific requirements for Presidential eligibility within Article II, Section 1:
1. Must be at least 35 years old
2. A resident ‘within the United States’ for 14 years
3. Natural born citizen
Then his paper goes on to properly focus on exactly what he said the title would do – Natural Born Citizen.
There is no need to further examine the other two conditions in this paper. Neither of those other two conditions were a topic of concern.
So I completely fail to grasp what you are complaining about here and how it is in any way relevant to the issue of NBC. Because those other two conditions are completely separate and irrelevant to the topic of exploring NBC eligibility.
Again, NOTHING inconsistent here at all. More importantly, there is nothing in your particular complaint here that has ANY relevance to the NBC condition of eligibility at all. Nor that impugns Mr. Maskell in any way.
So the only criticism here to you is that such irrelevant spurious musings serve no purpose in your paper and they don’t simply don’t belong, nor do they make any meaningful point.
NO they are not. NONE of your relevant citations ever state that the aspect of jus soli (NBC via being born on US soil) are in doubt at all. The ONLY aspects of NBC in where there isn’t a “definitive” interpretation are contained solely within the subset of potential permutations of the jus sanguinis applications for children BORN ABROAD TO ONE OR MORE US CITIZENS.
But again, NO – in terms of mere birth on US soil (regardless of parentage)– there is NOTHING in your citations that puts those sets of NBC scenarios in doubt at all.
Chester Arthur was NBC and served as President. There is no serious questions or doubt about those two facts at all.
I think your head has been filled with a lot of misleading misconceptions about Chester Arthur and any legitimate “controversy” over his Presidency.
This is another area in which a lot of research, analysis and discussion has been done on this site, especially by Doc C. himself. I highly suggest you read up on the findings. The articles can be found here:
http://www.obamaconspiracy.org/category/whoswho/arthur-whoswho/
Have you ignored ALL of the posts on this thread that have already addressed the specific issue of “subject to the jurisdiction thereof”?
Re-read what has already been said. This question HAS been addressed already on this thread. REPEATEDLY and in detail. Then you can respond to what has ALREADY been answered to you by the posters here, in regards to this specific “concern” of yours…
*sigh* here we go again…
Well said!!! That really offends me too.
Oh, and right back at ya, for your good use of “perfidy” 😉
G,
Fixed it for you—the answer is “yes”, by the way…
And we appreciate your tireless service!
I don’t think John Woodman is a good example here because he was never a true birther—he was birther-curious but his integrity inoculated him from the disease. A better example is Squeeky, who was actually a birther here—although she never lied or argued against the facts—she just made birther-friendly interpretations and analyses while speculating that the long form held something embarrassing. Of course, I consider it an open question of whether Squeeky was an honest birther (which seems an oxymoron) or a performance artist. Unfortunately, that’s one question we can’t ask her because if she is a performance artist, her answer would be in character as an honest ex-birther. Tee Hee.
(Squeeky, either I love your work or I respect your integrity—possibly both 😉 )
I agree with you about John becoming an excellent debunker, though.
Actually, no it’s not “questionable”. It is certain. The Supreme Court has ruled time and time again that the Constitution was written in the terms of English Common Law, and has directly said that our citizenship rules come from English Common Law. What is questionable is whether someone born outside the United States, but still born a citizen is a Natural Born Citizen. Someone like John McCain, who was born in the Panama Canal Zone, which does not count as “inside the United States”.
There is no doubt that anybody born inside the United States (with the minor exceptions of foreign diplomats, Native Americans not taxed born on reservations, and invading armies) are Natural Born Citizens. There is some doubt whether or not someone who isn’t born inside the United States is a Natural Born Citizens.
Though I would bet every last cent I own that no court, especially not SCOTUS, would deny NBC status to someone born abroad of (one? or two) citizen parents.
First, it’s obvious for the military. The Founders did not want to punish soldiers for serving abroad by disenfranchising their children of the opportunity to become President.
Second, I think it won’t be an issue of much debate for every one else, either. What’s so bad about being born 5 meters this side or that side of the Canadian border?
The only thing the Founders would’ve been cautious of would be to extend NBC status to people born abroad of parents who both were not (permanent?) residents of the US.
I myself didn’t really embrace the idea that you are intellectually dishonest until this moment, until reading this your latest. It was an option to explain your massive silliness, but there are other options: you might not have a PhD, you may have the equivalent of a worthless PhD, someone gave you a PhD just to get rid of you, etc. But, when all is said and done, Jerome Cori has a PhD, and he’s not stupid, just extremely intellectually dishonest, uses his brainpower for ill.
So, which would you rather realize, that you are intellectually failing or that you are an intellectual apprentice of Jerome Corsi?
Because the quotes you refer to were written BEFORE Ankeny amd the many other decisions that have followed the logic laid out by the court in that decision. You, however, are writing after those rulings, and pretending that nothing relevant happened in the last 4 years is simply lying. If I, in a scientific paper written in 2012, ignored all the papers written after 2008 because they contradicted my pet theory, I would be guilty of scientific misconduct. I hereby indict you on a charge of intellectual misconduct. I ask the jury of readers of this blog to find you guilty.
Ladies and gentlemen of the jury-how do you find in the case of Truth vs Godkin?
Mike Godkin — fool, failure or fiend? Or are you a special blend? Failed fiend? You tell us.
At least regarding this topic. Have no idea about the rest of your life. Just what you present here.
All I did was go to sleep. I wake up and somebody has made a mess. Then I have to spend time scoping out the mess, cleaning up the mess. I tell you, these newborns…
Fortunately, G handled a lot of it this time. What G said. What everybody else said, too.
He was worse. Birthers are ineffective. He had an effect.
One of FDR’s failings was interning Japanese Americans, and Long’s related obstruction of immigration adds some perspective to this failure. But at the very least they had the excuse of a World War. Doesn’t make it less of a failing, but Birthers merely have untethered fear, distorted thinking, and perfidy. Yes, I said it, perfidy.
I’ll see your perfidy and raise you one squalid.
(Squalid definition 2: “Showing a contemptible lack of moral standards.”)
Ah well, I was riding on Slartibartfast’s coattails, placing chips on his use of that word. So, I’ll ride on your hand, too. Then I would say, untethered fear, squalid thinking, and perfidy.
The reviews are in:
“Hogwash!”
“Nonsense!”
“Make-believe at its worst!”
Your problem is all you do is appeal to supposed authority, which is the weakest form of legal argument. You need to show what the courts, framers and contempory scholars actually said, not what somebody else said they said. And some of the people you cite are students, non-lawyers and persons no one would consider Constitutional scholars. And when you do cite someone who clearly states that there is no controvercy about the native born being natural born, your childish attempts to discredit them or twist their words to pretend they didn’t mean what they said is simply amatuerish.
Here you are citing an ambigous sentence by someone named Nelson are I guess trying to say that he thinks there is a dispute over which is the realEnglish meaning of natural born subject. Unless Nelson is an idiot, he obviousluy means there are two types of natural born subjects with contrasting defintitions, each definition being sufficient to confer such status. No one, I repeat no one, with any legal knowledge would ever argue that one needed citizen parents to be a natural born subject under the English common law. You could search forever and not find any court or writer on English law that would say such a thing. The question was always whether statutory natural born subject born of citizen parent oversees were also natural born subjects in addition to the native born. So, you are either not understanding him, or he is an idiot. To me, he doesn’t make himself clear so I could give him the benefit of the doubt. But you should be embarrassed to make such a citation as it merely shows you are ignorant of English law or too lazy to look up the hundred if not thousands of authorities saying such is wrong.
If you want to post about the English common law or the common law adopted in this country I suggest you go to the actual courts or definative early authorities the courts have relied upon such as Blackstone, Chitty, Cochburn, Dicey, the Royal Commission on Narualization and Alienage in England and persons like Kent, Story, Rawle, Binney, Pashel, Swift, Tucker, Dane in the United States. These are considered primary authorities by our courts.
Yes, you just made something up that you can’t cite any authority to support. Speculating what the framers might have meant might be fun but it is not legal argument. Can you find anyone in the founding person who agreed with this theory? Have you done any research on such period? It is simply an historical fact that “natural born citizen” and “natural born subject” were conflated for decades after Independance and there is no evidence anyone in the early republic thought parentage to be relevant. Again, I suggest you try reading the legal authority of the period.
Self-styled “sovereigns” can generally be found at the business end of a taser.
You can’t simply assert sovereignty in these United States. You have to buy it, just like everyone else.
Again, you are simply speculating, The evidence from the Convention itself and nearly unanimous early authority on the use of the term points to the English meaning. And I don’t think anyone said its purpose of “attachment to the land” whatever than means. I suggest you read Doc’s article on the Convention and how people used the term at the time.
It is dishonest to say Waite defined the term as he expressly declined to address the status of chldren of aliens. Such point was not argued and briefed and the court didn’t address it. No on in US history has ever said “native born” citizens require citizen parents. I suggest you look at 19th centiry dictionaires and treatises. Wong Kim Ark specifically defined “native born citizen” as well in accordance with the common law and is the only definative definiation by the Court. Like Justice Gray, Justice Waite said to look to the common law and if he actually looked at the common law he would have found that no legal authority in England or the US said the common law required citizen parents.
Can we get to some closure here after over 500 posts? As I understand it, Mr Godkin started this by requesting critiques on his paper. He now has them, by the bushel. So, I must ask Mr Godkin what he intends to do now. Will he modify his paper in light of the criticisms we have all made? Or, does he still consider it to be without flaw and in need of not even the slightest modification?
It would seem that Mr Godkin at least owes us an answer to that.
“Mike Godkin: And what is the easier and simpler way to achieve it through one’s parents? It is the most natural way.”
What on earth makes you think this?
Place of birth is easily established. One of the reasons I oppose a change from our current policy is because place of birth works.
Parents? Much, much harder to prove who both of your parents were. Without DNA testing of the child and both parents it is essentially impossible. What Birthers propose would mean DNA testing would have to be done for all Presidential candidates- and their families.
Big government is calling to Birthers and they are embracing it.
I think the trouble people like Mike has is their position seems so logical to them, they just can’t imagine that people from a long ago era thought differently than them. The framers were generally English lawyers educated on Blackstone and other English writers. The framers of the 14th Amendment were still being educated on Blackstone and American writers such as Kent and Story who based much of their writings on Blackstone. It didn’t seem to occur to these people that there was another rule other than the English rule. For example, pretty much every significant participant in the citizenship debates in the 14 Amendment Congress said jus soli was not only our rule, but the universal rule. Wasn’t true but shows the influence of English law. The same is true of our State Department during such period which agreed with England that jus soli was the rule of public international law as well. That meant that in a conflict between nations between jus soli and jus sanguinis claims of allegiance, jus soli won. Accordingly, children of citizens born oversees were told they would not be treated as US citizens when they were in the nation of their birth if such nation was jus soli. For example:
England followed the same rule. Accordingly, people born outside the US who gained their citizenship solely thorugh their parents under our naturalization statutes were second class citizens that would not be treated or protected as citizens when in the country of their birth. England followed the same rule and hence someone like Woodrow Wilson, born on US soil but a British subject under English statutes, would not be deemed by England to be a British Subject or owe allegiance to England unless he went to England, and even then, the US would protest such treatment. The notion that anyone born on US soil other than children of ambassadors and the other exceptions to the common law, was completely foreign to American legal authorities as even England didn’t claim such people owed them allegiance. The notion that parentage trumped place of birth simply has no historical foundation in such period.
Mr Godkin, your attacks on Mr. Maskell and his analysis are remarkably weak and petty, and would convince no one who did not already agree with you.
Giving you the benefit of the doubt, the best way I can describe your situation is as follows: you have chosen to place distorting prisms over your own eyes, so that everything you look at has a birther slant. Simple legal concepts become complicated and unreliable to you, while convoluted chains of reasoning suddenly look as though they are undeniable. You fill in empty gaps in your thesis with baseless speculation, while completely ignoring massive roadblocks of evidence that clearly destroy your entire argument.
This is all because of one simple fact. You decided what result you wanted to reach in advance, and have done everything you can to get to that result and dismiss everything that shows your result is incorrect. You may be an honest man, but this is not honest legal analysis and it does not lead to the correct result.
As an aside, there is a birther character on the internet who calls herself butterdezillion who does the same thing, but even more so. Her logic is so bizarre and results oriented that you almost can’t believe what you are reading. Don’t go down that road – that way lies madness.
Well said Predicto! Great advice you gave – every word. Bravo!!
1. Whether or not Maskell is intellectually dishonest is of no relevance to why people believe you are such.
2. Maskell’s ‘dishonesty’ appears to be based on, yet again, your poor understanding of his arguments
Speaking of intellectual dishonesty, why are you still refusing to address what many mas see as some of the more outrageous examples of poor scholarship on your part?
Mr. Godkin, you seem to think that constitutional scholars and courts are in the business of debunking cranks. It happens from time to time, but no, that’s not their job. It’s ours.
Mike,
As someone who claims to be an applied scientist (i.e. an engineer), you should be aware of the one crucial element for any scientific theory—falsifiability. You have made the hypothesis that the founders intended that natural born citizenship require two citizen parents, so I would like to know what criteria you would accept to falsify this hypothesis. I suspect (and I’m sure that most if not all of the other posters here would agree) that the answer to that question is that there is no evidence which will convince you that your hypothesis is wrong.
Now, I’m sure you’ll say that you would accept a SCOTUS ruling, but that is either disingenuous or an example of your lack of understanding of the legal system (likely both). First off, the SCOTUS has already made a clear ruling on the subject in US v. Wong Kim Ark—you can argue that it was wrongly decided or should be overturned, but only a dishonest idiot would argue that it isn’t the law (or that it didn’t make Mr. Wong—and President Obama—a natural born citizen). This being the case, the fact of the matter is that the SCOTUS will never have cause to take up the issue. We already know that lower courts are making rulings that are consistent with (and, in fact, based on) Wong Kim Ark, which means that there will never be a reason for the SCOTUS to take up the matter if they feel that WKA was correct. In other words, if your hypothesis is wrong, then what we would expect to see is the SCOTUS denying cert to any case that came their way and, perhaps, a justice or two commenting regarding President Obama’s natural born status—in other words, exactly what we have seen. In fact, if we look at the totality of the response to the “birther” movement, nothing which has happened is inconsistent with the hypothesis that they are totally and completely wrong, while, in order explain the inconsistencies in any birther theory requires massive conspiracies which require extraordinary things like monolithic bipartisan participation or to have been conceived over 50 years ago.
I understand that you’ve got a lot invested in your cognitive dissonance and the confirmation biases it has spawned, but do you have enough integrity to look at things objectively and see how your experiences (and GOP propaganda) have shaped you into a person trying to spread nonsense theories?
After you ignore this comment, I’ll spin a hypothetical about how I think you ended up this way (I’ll bet you a cookie that you wont be able to refute it, either 😉 ).
Exactly!
In fact, as shown on the Birther Scorecard, these Birther Cases have been put in front of SCOTUS and rejected by them in that very manner, TWENTY-TWO TIMES already!!!
So yeah, SCOTUS has been “loud and clear” with their “silence” on this issue – they do NOT see any “Constitutional Crisis” here and as you pointed out, will never have cause to take up this issue, because the issue is nonsensical and frivolous in the first place.
http://tesibria.typepad.com/whats_your_evidence/BIRTHER%20CASE%20LIST.pdf
THIS!!!
This is the true test of integrity and capability of objective self-reflection that determines if someone is capable of being able to retain critical thinking abilities, despite their inherent biases.
Mr. Godkin needs to demonstrate some legitimate attempts at expressing this here, if he wishes to be viewed as an honest broker and not just another propagandist con man.
Scientist,
You wrote:
“Can we get to some closure here after over 500 posts? As I understand it, Mr Godkin started this by requesting critiques on his paper. He now has them, by the bushel. So, I must ask Mr Godkin what he intends to do now. Will he modify his paper in light of the criticisms we have all made? Or, does he still consider it to be without flaw and in need of not even the slightest modification?
It would seem that Mr Godkin at least owes us an answer to that.”
You personally refused to consider me a scientist. Everybody else refused to say even one good word about my work. I am devastated, humiliated and embarrassed.
What do I intend to do? I intend to commit suicide. And before that, I will write a note blaming this blog for my untimely death.
On a slightly more serious note, I’ve got what I expected, not what I hoped to get.
When I asked Dr. Conspiracy to post my paper on this blog, I expected to cause a firestorm and the name-calling. It’s easy. What is more difficult, in my opinion, is to analyze my work – however briefly – Section by Section. You could still come up with the same conclusion, but with some short comments showing why and where I am wrong. But it was a dream.
I quoted some liberal constitutional scholars, but you, as a group, didn’t recognize their authority. I’ve proposed a tiny new idea, and I’ve received comments like this:
“Hogwash!”
“Nonsense!”
“Make-believe at its worst!”
You are supposed to be creative people, but I didn’t find much creativity. No matter what I said, you steered me in the direction of WKA case as if nothing else ever existed.
Have I learned anything from this discussion? Absolutely. I deliberately quoted different opinions of only liberal scholars hoping that it would generate some doubts in your collective mind. It didn’t happen. I should have included many more references at the expense of the size of my paper and the additional time I would have to spend doing this.
Now you know all my “secrets,” which I didn’t really have to begin with. I gave you my real name, although I could have been hiding behind an assumed one.
I realize it may not be the answer that you all were looking for, but is my answer, nevertheless.
I’d like to thank everybody for participating in this discussion. I hope nobody was snoring while reading my paper.
I am not running away; I am still here with intention to provide some more comments.
Cheers!
It will be twenty-three next week, when SCOTUS will formalize that it has declined to grant cert in the Weldon case.
I have misquoted some liberal constitutional scholars,…
FIFY
Don’t forget:
“Squalid!”
Ballantine,
You wrote:
“England followed the same rule and hence someone like Woodrow Wilson, born on US soil but a British subject under English statutes, would not be deemed by England to be a British Subject or owe allegiance to England unless he went to England, and even then, the US would protest such treatment.”
Why was Woodrow Wilson a British subject? His father was an American. His mother came from England, but didn’t she acquire an American citizenship when she married Woodrow’s father? If this was the case, then the future president was born to two American citizens.
Taking their quotes out of context does not constitute “authority.”
Because WKA is the controlling case. It answered the questions left unanswered by Minor v. Happersett and confirmed beyond any doubt that anyone born in the United States and subject to its jurisdiction is a natural born citizen.
Predicto,
Thanks for your response and your advice.
However, instead of guessing why I wrote my paper, you could have spent about the same time on giving me your feedback on specifics.
I know you didn’t have to do it. All I am saying that it would have been more beneficial for me and maybe for a few commentators on this thread if you could have pointed out my erroneous views I expressed in various sections of my paper.
But thanks, anyway.
Mikey,
The laws of America have nothing to do with who is and isn’t a British citizen (and vice versa)—a small amount of rational thought will make this clear (think of North Korea declaring everyone born on the planet to be citizens of North Korea—would this affect who any other country considered its citizens to be?)
I fail to see the point of specifically quoting “liberal” scholars unless you think you might make “points” with those you consider liberal. You obviously have trouble understanding that, for many of us, the political persuasion of the scholar is of little importance. What matters is not the “side” they are on but their legal scholarship and do they make and defend a persuasive argument with facts. This is not a conservative or liberal issue, it is an issue of eligibility.
We all have biases, but if we are to engage in true scholarship, we need to recognize our own biases so as to avoid, as much as possible, their influence upon our work. It is our biases that can blind us to the facts and history staring back at us.
Hi Mike,
I don’t know if this mirrors Woodrow Wilson’s case, but a friend of mine was born to a American father and a mother who was an American citizen, but who had retained her British citizenship, too. Their son (my friend) was born with American citizenship, but was able to acquire British citizenship through his mother when he became an adult. He went to drama school in England and spent about twenty years working there as an actor. Now, however, he lives and works primarily in the U.S. He’s got dual citizenship. I was always jealous of him.
Mikey,
Read this. Read it again. Read it over and over until you finally understand the point being made here. It doesn’t matter if Thomas Jefferson made the arguments you did—they would still be wrong for the very reasons that have been explained to you over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over…
To the birther Mikhail Godkin,
What do you think should be an appropriate response to an idea that is hogwash, nonsense, and make-believe at its worst?
You would do well to consider that your paper is unworthy of such analysis. On the other hand, you have ignored the actual analysis provided, including the analysis of you *misquoting* or misrepresenting the quotes you selected. You have *ignored* where commenters here have specifically demonstrated your errors, whether inadvertent or purposeful.
As for steering you to WKA, that is because that is the roadblock to all your “dreams,” as it was intended to be by that Supreme Court.
You state you hoped to generate doubt in *our* minds. Why? You can’t even get your own quotes right. You misrepresent what they mean. You ignore people pointing out that doubt about citizens born abroad has nothing to do with the certainty of citizens born here.
You want creativity at the expense of people’s rights as citizens? Creativity is not a virtue unto itself. Creativity is shaped by its purpose.
You seem to take the wrong lesson. You need not provide*more* quotes. You need to face the actual meaning of the ones you do provide.
If this were a paper in a university, it would deserve a full-throated F. A paper like this would stop you from getting a PhD. As you must actually know. Which is why in the end I personally have come to see you as intellectually dishonest, at least here in this forum, if to yourself first and foremost. The main reason for such an opinion is that even now you refuse to acknowledge the analysis you have received.
You want to cry you haven’t received your due?! You have received far more than your due.
You want to play around with the rights of citizens because you want to be “creative” with what people actually said? Please.
You should be concerned about your own failings demonstrated here. The only doubt relevant to your paper is your motivation. And mostly, who cares why you are being so irresponsible?
You want to invent a new theory of citizenship based on parents as sovereigns? Who cares? It’s a stupid idea. It never existed here, and has no basis in American history or even our constitutional values. We start with jus soli as inalienable citizenship. We supplement with jus sanguinis as provided by Congress for those born abroad. You want your idea to become accepted as the better way of doing things despite our actual history? Well, you will get absolutely nowhere by misrepresenting other people’s quotes. That’s the bottom line.
Before Barack Obama, plenty of people wanted to change the eligibility requirement to allow naturalized citizens to become president. They didn’t start their endeavor by making stuff up. They started with the actuality of how things are and have been, and used their creativity not to tell lies about other people’s statements but to promote their idea. Someday their idea may come to pass. Whether or not it does, it has far more chance of seeing realization than your idea. It has the primary advantage of starting with the truth.
If you were to start with the truth, and just honestly say you think it would be better, and that we should change from what we have done, without trying to pretend your idea was the original way, then you might have a distant chance. Probably a hard road but more honest, more truthful, more probable if still extremely unlikely. The way you are proceeding now leads nowhere. There are few things as certain. Again, thank you for the holiday from dealing with actual uncertainties and conundrums.
That is not true. I don’t know anything about your work in electrical engineering. I know that your “paper” is not based on any scientific process in which you examine all relevant data.
You are wrong to ignore Ankeny and other recent court decisions that rule specifically on presidential eligibility and parental citizenship.
That was a short comment that shows why and where you are wrong.
I steered you multiple times in the direction of Ankeny. Ankeny exists. Pretending it doesn’t will not make it go away. All the other courts have cited it and agree with it. Your goose is cooked unless you can overcome it. Do you care what courts say or do only blogs count for you?
Since you have ignored criticism from others, why would Predicto be under the impression that you will benefit from any specific criticisms?
You just run and hide.
Problem is that even though you have been humiliated, you have shown no evidence of being embarrassed.
That’s the truly shameful part.
But instead of name calling you got a lot of specific criticism which you decided to ignore.
Why is that? Instead you pretend that hall that was happened was ‘name calling’. Pointing out that your work is shoddy is hardly name calling.
By the way, Godkin, you didn’t answer my question. Are you going to make any changes at all in your paper? Will you continue to pretend that Ankeny and multiple other courts did not rule? And whether you do or don’t modify the paper, what exactly are you going to do with it anyway? The matter has been resolved in numerous courts and they are not interested in your opinion. So you have reached a dead-end. Judges disagree with you. Where to now?
I doubt it. But Dr C’s page will serve as a reminder to the follies of the birthers.
Sigh. This just shows you have not done your research and don’t understand the law of the time. English law when Wilson was born provided he was an English subject if his grandfather was a natural born subject whether or not his parents were citizens at such time. England would later change this rule but it likely applied to President Johnson as well as many reports said his father was born in England which means he was born a British subject. The United States of course neve recognized such rule as binding on its ciizens. for example, in 1868, one of the most famous Congressional reports said that as many as 2/3rds of our citizens were dual citizens. Congress reponded by declaring that we did not recognize any claims of foreign allegiance on any of our citizens.
However, even England didn’t claim that children of their subjects born on US soil were their subjects or owed allegiance for public law purposes, but would rather only be treated as subjects if they returned to England. You indeed have a good deal of work to do as you clearly do not understand English or american law of the period or the difference between municipal and public law. Why do so many amateurs pretend to be experts on this subject?
That is becuase WKA is precedent on the issue. There really is no argument though many people have not done the analysis. You have not tried to make the case that is it dicta and seriously do not seem to understand the entire concept of holding and dicta. All you can do is say some 3rd party said this or that. The fact is that if you want to make an argument you need to actually make an argument. Take a look at the Turley thread where people who tried to argue WKA was not precedent clearly saw their arguments had no merit and ran away. If you have an argument, you can make it but I think we all know you do not.
And, of course, a mountain of other authority has been cited on this blog including Doc showing the Framers were clearly only concerned about the foreign born in their debates. If guess you didn’t read that thread. Exactly how many authorities would you like us to cite. How about this link:
http://naturalborncitizenshipresearch.blogspot.com/2010_02_01_archive.html
Or this one:
http://naturalborncitizenshipresearch.blogspot.com/2010/10/view-of-constitution-of-united-states.html
You are interested in the 14th Amendment, what about this one:
http://naturalborncitizenshipresearch.blogspot.com/2010/10/quotations-from-39th-congress-relevant.html
Seriously, you have a great deal of research to do if you want to be honest in your conclusions. So far, I see no evidence you want to be honest.
Birther Mikhail Godkin is the poster child for the Dunning-Kruger effect.
Indeed, Godkin may want to start by reading the full opinion of the Judge in WKA, the lower court’s opinion and the briefs submitted by the two parties.
But I doubt that Godkin is interested in finding the ‘truth’
You selectively quoted experts in a manner not really supporting your position. Most of us have read these many opinions.
You’re late to the game and a dollar or two short. Of course, most of us understood what you were trying to do, quite ineffectively, and have come to realize that your interests are not necessarily in finding the ‘truth’.
As to the collective mind, I find that another one of your horrible concepts. We are individuals here and we disagree on many topics, something which you would undoubtedly confuse with us disagreeing on the simple fact that a child born on US soil is, with minor exceptions, a natural born citizen.
Dr. Conspiracy,
On November 6, 2010 at 6:50 pm, with regard to the Congressional Research Service memo, Qualifications for Office of President of the United States and Legal Challenges to the Eligibility of a Candidate, written by Jack Maskell in 2009, you wrote the following:
“I understand this was an internal memo to some members of Congress. I do not know much about how it came to light except that Mario Apuzzo seems to be an early actor in the story.
Notes say that the document first surfaced on the Post & Email blog by a poster named Bob1943. While there has been some speculation that the document is not authentic, I have it on good authority that it is. I think the quality of the work speaks for itself.”
Before I proceed, I’d like to make sure that today you still think that this document is authentic.
Thank you.
Your role here, Mr. Godkin, is that of specimen.
Well, here is what WND itself has to say about this point:
http://www.wnd.com/2010/11/225561/
“Maskell confirmed to WND that the document is authentic.
“He explained he wrote it only for distribution to congressional offices, not for public distribution, and it was not posted on any of the CRS report sites where the public might have been able to find it.
“He suggested one of the congressional offices that got the report facilitated its release, and it ended up posted on the Internet.
“Maskell told WND he wrote it because so many members of Congress were getting questions from constituents about the issue, and they wanted to know how to respond. It would explain why so many mailed and e-mailed responses to constituents on the issue of eligibility sound just alike.”
Really???? I don’t get that at all. IMHO, you have learned absolutely nothing.
Honest folks here are still waiting for you to take back your defamatory comment regarding Ms Bonner. Until you do, you deserve only contempt.
You may also want to review this more recent Congressional Research Service Memo by Maskell on November 14, 2011:
Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
http://www.obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/#comment-138598
About which Dr. C notes that:
“I got the document from a congressional source. You can obtain a copy from your congressman too. I don’t have any information about who requested it be prepared.”
I said many good words about you. I specifically congratulated you on your Engineering expertise and the several patents you hold. I even suggested a line of useful commercial products you could with which you could expand your business.
I am offended that you would suggest otherwise.
In my profession (music, with a specialization in choral and organ), we try to consider ourselves creative people. Despite this, if were to discuss or debate the construction of a fugue we would be expected to discuss it in light of the output of Johann Sebastian Bach. To discuss fugues without discussing Bach fugues would be outright silly, in part because all of the ones who followed also studied Bach fugues (Mendelssohn, Brahms, etc.). Fugal style music existed before and after Bach, but when it comes to a seminal style in fugues, Bach is precedent. You can be more creative and take it in new directions, but to do so still requires going through Bach.
Paper,
You quoted WND as saying:
“Maskell confirmed to WND that the document is authentic.”
Thank you.
You also suggested that review this more recent Congressional Research Service Memo by Maskell on November 14, 2011.
Thanks again, but I am familiar with his report and devoted a Section “Nothing but the truth?” of my paper to it.
This paragraph alone sums up what Mike fails to grasp…
Agreed! I was thinking the same thing…
Mike Godkin,
If I made the argument that:
1. The Constitution nowhere defines the words “Natural Born Citizen”, and as a result, we look first to English Common Law, which the Constitution was written in the language of.
2. English Common Law rule of citizenship was jus soli
3. This rule was in effect in the colonies before and after the revolution.
4. This rule was reaffirmed in the passing of the 14th Amendment.
(I left out section IV of the argument in Wong Kim Ark, because it isn’t essential to the rationale of the decision).
Tell me, since you’re a scientist, how could I make this essential argument, and leave out any reference to English Common Law? The entire argument is predecated on the fact that our citizenship law is based upon English Common Law.
What you’re actually arguing is the same that says that a decision that says that the police can’t break down your door with their foot, doesn’t mean that the police couldn’t use a battering ram to break down your door, with everything else being the same fact pattern. You’re arguing that since the decision doesn’t mention the word “battering ram” that police are still free to use it to break down your door without a warrant, even though the police said that they couldn’t do it in a case that involved the police kicking down a door.
I know. Reread it.
I believe I may have referenced it above somewhere, or maybe just in my mind because I may have seen someone else already dealing with it. Probably G, if I remember correctly.
Your question about his title is nonsense. I think G pulled out why. But I will add that the quote you reference immediately before you fuss meaninglessly about the title holds an answer to your irrelevant puzzle:
“The standing qualifications to be president of the United States are set out in the Constitution, at Article II, Section 1, Clause 5, and state three specific requirements…”
You will notice he speaks of qualifications as the subject of his sentence as detailed by the predicate “three specific requirements.” There is no separation of qualifications from requirements.
The other part of your consideration is also nonsense. There is no reference to citizen parents as a requirement. You acknowledge it yourself. you try to say that is because it hadn’t been tested. But there is no basis for testing it because there s no history of it being embraced by anyone in our history at all. Not with regards to people born here, which is the point.
To demonstrate the silliness here: it also hasn’t been tested, there is no precedent stating that that if both your patents are citizens you are immune to being prosecuted for any crimes. Because no one has thought to test that point in court. Therefore, obviously there is doubt, right? I may be able to break all the laws I want. Who knew?
Your point here simply boils diwn to the desire to invent a NEW requirement.
As for your insight about the word “would,” please Reread the dictionary and not fixate on one use of a word. I’ll skip the English lesson for now.
Your discussion abot native viz. natural is just tedious, and silly. Case in point: are you sure you know mathematics?
You state: “If the group of natural born citizens includes native-born ones, how can native-born citizens constitute ‘the largest group of U.S. citizens?'”
Hello?! Because it is the biggest subset!!!
Natural born includes native born and most citizens are born here. But natural born *may* also include those born citizens at birth but abroad. Look up the word “includes,” while you are reading the definition of “would.”
Your concern about Mr. Nelson has already been answered up thread.
These points you make are beyond shoddy.
So, again, reread both of Maskell’s reports.
In other words, *re*-view them.
I think it more accurate to say that you devoted a section of your paper to raising specious objections and misinterpreting it. I’m the process of reading Maskell’s paper again because I haven’t read it all since it came out last November.
Modern interpretation of the 14th Amendment.
Section 1 of the Fourteenth Amendment says:
“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.”
Based on what I’ve learned on this thread and the simple arithmetical operations,
I’d like to modify this part of the Amendment.
Let’s assume that America is still strong enough and it is time of peace, so we can subtract the soldiers of an invading army.
We don’t have to worry about children of the foreign diplomats because international law takes care of them. So we subtract them as well.
All my opponents tried to convince me that even children of the illegal aliens born here are American citizens by birth. Therefore, there is no need to keep the phrase “subject to the jurisdiction thereof.” We subtract this phrase, too.
Finally, the children of illegal aliens are also natural born citizens eligible for presidency of this country. So I am going to add the words “natural born” to the Section 1.
It’s time to perform a division and present a two-part modern interpretation of the 14th Amendment:
All persons born in the United States are natural born citizens of the United States and of the State wherein they reside.”
All persons naturalized in the United States are citizens of the United States and of the State wherein they reside.”
Any comments?
You want to amend the Constitution to specifically eliminate protection from foreign influence to solve a problem that only exists in the addled minds of a few conspiracy theorists? And you are asking for comments? How about this one:
Your idea is dumb.
Sorry Mike, but it is clear that on this issue you are a dilettante with no understanding of the Constitution or the law. What would you think of a person who wrote a study in electrical engineering who misrepresented the consequences of Maxwell’s laws and argued that they needed to be “fixed” because they were unclear due to these misrepresentations?
Pointless and wordy. It is just repeating what the 14th already says minus the part about subject to the jurisdiction.
Here is the modern version in a more succinct form:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.
It says exactly the same thing your amendment says but with half the words.
Yes. I want you to withdraw your defamatory comment regarding Ms Bonner publicly and unreservedly.
I agree 100% with everything you said here. So my response on this issue is “ditto”.
Silliness.
First of all, international law has no relevance to our citizenship status. Countries determine who their own citizens are. If we wanted, we could make Queen Elizabeth a citizen.
And in your formulation the children of diplomats would become citizens at birth, as would (notice the word “would”) any children of future invading soldiers (despite your inclination to focus on only one point in time when no such soldiers exist).
So we put “subject to the jurisdiction thereof” right back where it belongs. If you take it out, the amendment does not mean the same thing.
If you want to change something to make it clear for yourself, add a new amendment that simply clarifies that natural born citizen means citizen at birth. Or if you want, try to get people to pass an amendment that says natural born citizen means only born on American soil. Or born on American soil with two citizen parents. Heck, make it citizen parents and citizen grandparents. Let’s do it right! You’ll have to argue it out with the people who want to let naturalized citizens become president. They have a much better chance, but you can argue for what you want.
But your current suggestion and rationale are just silly.
That’s not just a modern interpretation. It always was how things were in the US, since the original colonies were founded (with the exception of diplomats and invading armies). Any free person born in the colonies was a natural born citizen while those born elsewhere were naturalized citizens. That is why there are no examples from colonial times or the early US of anyone born in the territory ever being naturalized.
The only exception in the pre-Civil War era was slaves, who could not become citizens. The 14th Amendment simply restated the policy dating back to the earliest days and ensured that it applied to everyone, including former slaves who had been freed by the 13th Amendment and the Emancipation Proclamation.
So whydid the Wong case arise? Well, in the late 19th century, people, especially in the West, feared an influx of Chinese, so Congress passed the exclusion acts, which forbade Chinese from becoming citizens. The government attempted to apply that act to those of Chinese descent born in the US. The courts decided that Congress did not have the power to deny citizenship to those born here, regardless of their race. They applied the ancient rules that pre-dated the US, but were contiinued after the Revolutiion and re-stated in the 14tth Amendment. Note, however, that Congress did have the power over naturalization, so they could refuse to naturalize people born in China and continued to do so for about 20 years after Wong. But Congress could not deny citizenship to those born here.
I really don’t know why you have such trouble with these concepts. Let’s try expressing it as a series of equations:
born in the US – diplomats – children of invading armies = natural born citizen
born outside the US to one or more US citizen parents = natural born citizen
born outside the US to 2 non-citizen parents = naturalized citizen
A child could understand it.
I’m going to run with Scientist’s suggestion and put the options in notation of probability. The probabilities in decimals are approximate, because I didn’t do the math using actual population tallies. 1.0 and 0.0, however, are exact. For fun, I’ve expanded the list, which should also clarify the nuances Mr. Godkin frets about.
P(natural born citizen \ born in the US subject to jurisdiction thereof) = 1.0
P(natural born citizen \ born in the US) = 0.99999
(may be born not subject to jurisdiction)
P(natural born citizen \ born outside the US to one or more US citizen parents) = [0.8, 0.99999]
(likely but some uncertainty exists, plus per statute some are not born as US citizens)
P(natural born citizen \ born outside the US to zero citizen parents) = 0.0
P(natural born citizen \ born outside the US) = .00001
(most people in the world are not born US citizens)
P(natural born citizen \ born as US citizen) = 0.99999
(because most US citizens are born in the US, the effect of uncertainty linked to foreign born US citizens is ameliorated in the larger set)
P(natural born citizen \ unknown parentage but found in the US*) = 0.99999
(* before age five with no evidence of foreign birth before the age of twenty-one)
Perhaps a child couldn’t readily understand my list of equations, but Mr. Godkin has a PhD.
I’m glad you are starting to understand that American born children of aliens are natural born citizens.
However, you continue to demonstrate your apparent complete misunderstanding of the word jurisdiction.
Jurisdiction means: the power, right, or authority to interpret and apply the law
from the same root:
Jurisprudence means: the science or philosophy of law
Every person physically present in the United States is “subject to the laws of” the United States while they remain physically present in the United States (not counting the well understood exceptions). That is, they are subject to the jurisdiction of the United States. It doesn’t matter if they are United States Citizens, or alien tourists, legally permanent residents, or illegal immigrants. If they are physically present in the United States they are under the jurisdiction of the United States. If they give birth while physically present in the United States, the child is a born citizen – a natural born citizen – and the parent’s citizenship status, citizen, alien, dual, or mixed, has absolutely nothing to do with it (except for etc).
This is not a difficult concept, Mike, and i and several other people have tried to explain it to you several times now. You have been working on these ideas for 4 years now, you say. Please spend some time to learn about the concept of jurisdiction.
There is nothing in the 14 Amendment that says anything about the parents of the child.
You cannot take the ‘under the Jurisdiction’ qualifier out of the statement, because that would result in putting back in those ‘well understood exceptions” we just mentioned.
Illegal Immigrants are subject to the laws, the jurisdiction, of the United States. If they run a red light, rob a bank, shoot somebody, they are subject to the same laws and liable for the same penalties as any other person present in the United States, whether citizen or legal alien. If an illegal alien couple have a child while physically present in the United States, that child is born a citizen – a natural born citizen. It is that simple.
On the other hand, Foreign Diplomats are not subject to the laws, the jurisdiction, of the United States. If Foreign Diplomats have children while physically present in the United States, those children are not citizens – they fail the ‘under the jurisdiction’ qualifier..
If you remove the ‘subject to the jurisdiction’ qualifier, then the amendment reads “All persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside.” which then specifically includes “Foreign Diplomats” and “Invading Armies” and “Tribal Indians, not taxed”.
I’ve said the same thing 3 or 4 different ways now. One of them must register with you a little bit. You say you have studied the stuff in your paper for years. Please spend just a little bit longer studying the meaning of the word jurisdiction.
No it doesn’t.
Citizenship law is ‘metropolitan law.’ not ‘international law’.
Every country decides for itself who and who is not considered a citizen.
Any country is perfectly within its rights to declare that children of Foreign Diplomats, born in their country are Citizens. Or not. The United States declares that they are not.
Furthermore the county that the Diplomat represents may also choose whether children born at foreign postings are Citizens of their country or not.
Where International laws do come into it is to ensure that no child is born stateless. So if a Foreign Diplomat has a child in the United States, the US declares that child is not a US Citizen. If by some chance the country that diplomat represents says children born at overseas postings are not Citizens, then the child is potentially stateless, and International law decides the issue.
Mr. Godkin, please try to show that you have read the cases from the 19th century dealing with “subject to jurisdiction.” By not reading the, you are showing that you have no real interest in our history and laws. How do you argue against an interpretation if you do not even know what it says?
I would add that the amendment says “subject to the jurisdiction therof” for a reason. It doesn’t say except for x, y or z groups. For similar reasons, the amendent doesn’t restrict itself to clarifying only the status of freed slaves. The key, critical principle is the jurisdiction, not the presence or absence of any particular group at any given moment in time. The constitution often doesn’t not bother tryng to predict the future, but to frame the principles to stand the test of time as much as possible, while letting the government do its job of operating within and applying those principles to changing circumstances.
Reminds me of the story of the man who approached Charles Lamb saying, “I understand sir, that you can make a pun on any subject. How about the Queen?” Lamb responded, “the Queen is not a subject.”
I think we have a communications gap.
Mr. Godkin wonders why we don’t engage his paper more substantively.
We wonder why Mr. Godkin thinks his paper has substance.
I don’t mean that just to sound clever. He put a lot of time into his paper and it’s long. From my viewpoint, the problem is the lack of a valid argument and misinterpretation of the sources. With the overarching fallacy of confusing debate over the eligibility of foreign-born persons with debate over the eligibility of US-born persons, the whole paper ruined, and if Mr. Godkin wants to have something that can be debated, he needs to start over from the beginning and build on a sound logical premise, representing his sources fairly, and addressing the most important and authoritative sources rather than quote mining secondary sources.
Yes, I do.
Nice.
You seem to assume that jurisdiction implies consent. It does not. An illegal alien cannot “opt out” of the jurisdiction of the United States just because they choose to come here illegally.
Simple example. Someone is speeding and is arrested.
Illegal alien: gets ticket, under the jurisdiction
Foreign ambassador: doesn’t get ticket, not under the jurisdiction
This is really pretty simple stuff, and you should be able to understand it without repeated explanations.
Well summarized. Kudos.
Mike Godkin:
“It’s time to perform a division and present a two-part modern interpretation of the 14th Amendment:”
No it isn’t. The underlying law on natural born citizenship goes back to around 1350, and the 14th Amendment was ratified in 1868. The 14th Amendment AFFIRMED the old law of natural born citizenship, by birth within the dominion while not falling within the exceptions. Period.
If you don’t like that law, and such is certainly a matter of opinion, then you do not need to try to re-write Wong Kim Ark. First, you need to have a “Come to Jesus” moment and admit what the current status of the law is, and Second, work to change the law by passing a new Amendment, where the qualification for the Presidency is changed to require two citizen parents or whatever.
But, you Birthers can’t do that because it would require you to admit that Obama is eligible for the office, and you guys would rather walk barefoot through broken glass and snakes than do that.
Nice try, Skippy.
Squeeky Fromm
Girl Reporter
Plus: Why have you not answered that simple question that I asked you twice already, to wit: How does the Wong Kim Ark Court define a natural born citizen, either English or American or both? That ought to be no problem for a stepper like you, who is sooo intimately acquainted with the case.
No need to convince you. It is what already happens, and is the law of our land. That is precisely why some people are upset about “anchor babies.”
If this is how you see the commenters here, your problem is obvious. This is not a chess match. There are no winners or losers in this issue; with the possible exception of conspiracy theorists who once had integrity. You seem to have presented an argument that is riddled with inaccuracies ( I say seem because I did not read your paper. I have read you try to defend the themes contained in it. You have done so poorly.). Instead of owning up to your possible errors, you double down like a petulant child. Sticking your fingers in your ears, and pleading ” what if?!?”, does not make your points valid.
This blog operates on the principle of honesty. The President of the United States is legitimate by every standard ( hint: there are 3 Constitutional ones.). There are some interesting scenarios having the possibility of making him ineligible, but those possibilities only exist in the minds of people who don’t understand the rules.These same people maintain their willful ignorance. Why are you so willing to do the same? Every argument you put on this thread has been dealt with. Multiple times. Your contention, that all the papers signed by the President would be invalidated by his being found ineligible, is ludicrious; on many levels.
Any one born in the United States, who is not part of an invading army or the offspring of a foreign diplomat, is a natural born citizen. Barack Hussein Obama was born in Hawaii, which was a state in the United States at the time of his birth. His father was not a diplomat, nor was he a member of an invading army. If you can find evidence to the contrary, then you would have a paper worth reading.
Seriously?
International law has nothing to do with who is a citizen of the United States.
You really should stick to engineering.
A child is born in California to two undocumented alien parents. The family manages to remain in California for 18 years.
On his or her 18th birthday, the child takes his or her birth certificate to the Board of Elections and registers to vote. Do you believe for a minute that the Board of Elections is going to make an inquiry about what the immigration status of the parents was 18 years earlier?
Of course not, because the status of the parents is irrelevant. The birth certificate and whatever other identification the State of California requires is going to be sufficient, because the birth certificate is proof of citizenship. Except for specific exceptions, born in the U.S.A. = citizen at birth.
You have been given a tremendous number of substantive and accurate critiques in this thread. You have not responded honestly to any of them. Why would it be any different if the same words were coming from me? These people have given you a tremendous amount of time and effort, and you never respond to their points.
You now appear to have retreated into a passive aggressive mode, where you don’t respond to anything of substance, while at the same time complaining that everyone is being mean to you and bringing up as many new points as you can think of to obscure the discussion.
I’m sorry, but this subject matter isn’t that complicated. It is only made so by the massive amounts of extraneous and speculative stuff you are throwing out there (again, because the simple and correct answer is not the one you want to reach).
I think I may see the problem here.
The Law is not about “being creative.” The Law is about being correct. It is about being clear, and predictable, and generally applicable.
If you are discussing, say, the First Amendment and Freedom of Speech vis a vis defamation claims by public figures and officials, you MUST start with the leading case of New York Times v. Sullivan (1964) 376 U.S. 254, which sets forth the “actual malice” standard and the test for applying it.
A Highly Creative person might make his or her own interpretation of the First Amendment, suggest his or her own test for how it should be applied, and for what the Founders’ motives might have been in enacting it, and so forth.
And that creative person would be wrong about the law, and he or she would lose in court every single time.
Your treatise is 100 percent creativity toward a predetermined goal, and 0 percent objective law based on actual authority. That is what is wrong with it.
Mike,
This sentence summarizes the entire thread. I hope you take it to heart.
predicto,
I would also point out that much of Mr. Godkin’s “creativity” is dishonestly smearing innocent people—something Lupin and myself (and others) have been mentioning repeatedly.
Lupin,
I could not agree with you more regarding Ms. Bonner (as well as Mr. Maskell and to a lesser extent Mr. Drumm and Mr. Treacy). It really disturbs me that Mikhail can’t seem to understand that distorting people’s words and smearing them with baseless allegations is not acceptable behavior in any debate (despite that describing the vast majority of current Republican tactics…)
I agree that creativity really is not part of law, particularly when there are clear legal precedents. It is certainly not something judges want to hear. Previous courts have ruled as they ruled. The framers said what they said. There is no creativity reading what they ruled or said. Perhaps if one believes in an evolving Consitution, one could employ creativity in how the law should evolve. However, if one believes in an historical approach, creativity without historical support is generally going to be bad history.
Okay that makes sense. Thanks for the clarification. It reminds me of an episode of Law and Order I saw recently (the episode itself is like 16 years old but I just recently got into the show). In this episode, Jerry Stiller had a cameo as a real estate attorney who was a cousin of the defendant, who was charged with murder. Being a real-estate attorney, he was comically out of his element in criminal court, to the point where the assistant district attorney took pity on him and recommended he get the co-counsel of a better lawyer. He did, and the more experienced lawyer took over for the rest of the episode.
Missing the point again. Anyone on our soil is subject to our jurisdiction, with minor exceptions.
Read US v WKA… I dare you to show any attempts to educate yourself properly as to the arguments, rather than pursue your own strawmen.
You’re missing the point
Subject to jurisdiction ‘subtracts’ children born to invading military and foreign dignitaries as they are not subject to our jurisdiction.
It’s so simple.
Children born to aliens are born fully subject to our jurisdiction.
Wong Kim Ark explains but you may not have read it yet?
We have been going on and on to him about reading WKA or the cases WKA cites (including Yick Wo v. Hopkins… have you read this yet Michael?). Yet, it is obvious, he has done neither. So, it was to my amusement when the reports from the Mississippi case mentioned the Judge asking Orly if she had read the cases cited by the defense (answer: it is an issue of national security… translation: NO).
Apparently, Orly and Mr. Godkin share another trait besides being from the former Soviet Union.
Forgetting whether his is misquoting among other things, what I would really like to know is why Mr. Godkin will not even read the cases mentioned. Michael, can you give an answer, any answer on why you appear to not even review those cases that have a bearing on your paper? Honestly, I would really like to know why.
Orly sounded quite clueless. I can’t wait for the transcripts
That they’re both the sort who would cheat, to gain entry into the Special Olympics, only to end up placing dead last in all events?
On September 24, 2012 at 1:18 am, I posted some comments:
Modern interpretation of the 14th Amendment.
At the end of my post, I presented a two-part modern interpretation of the 14th Amendment:
1) All persons born in the United States are natural born citizens of the United States and of the State wherein they reside.
2) All persons naturalized in the United States are citizens of the United States and of the State wherein they reside.
I was waiting the whole day for somebody to get very suspicious about the first statement. But nobody did, and I got serious responses correcting my “point of view.”
I am sure that all of you are quite familiar with a hyperbole, an exaggeration or overstatement intended to produce an effect without being taken literally.
But everybody missed my sarcasm. I have deliberately thrown away the phrase “and subject to the jurisdiction thereof” to make a “new definition” sound absurd. Under my assumption about the peace time, there is no need to consider enemy soldiers. Status of children of diplomats is determined not by the U.S. law, but by the international law.
Therefore, following your logic, anybody born here, is not only a citizen, but a natural born citizen. If you all agree with the spirit of my first definition, why did you argue against it?
I normally don’t use Wikipedia as a serious source of information, but this time it was very informative to see the “Natural-born-citizen clause” section. As the first authority, it presents a 2011 Congressional Research Service report, written by Jack Maskell.
I hope it has been established “without reasonable doubt” what the purpose of this report was: to prove that Barack Obama is eligible to be President.
Because of this, how objective can it be?
I have to admit that the tone of the first page of this section is moderate:
“The natural-born-citizen clause has been mentioned in passing in several decisions of the United States Supreme Court and lower courts dealing with the question of eligibility for citizenship by birth, but the Supreme Court has never directly addressed the question of a specific presidential and vice-presidential candidate’s eligibility as a natural-born citizen.”
This is what Jack Maskell himself wrote in the report:
“Although the English common law is not ‘binding’ on federal courts in interpreting the meaning of words or phrases within the Constitution, nor is it necessarily to be consider the “law” of the United States (as it is for the individual states specifically incorporating it), it can be employed to shed light on the concepts and percepts within the document that are not defined here, but which are reflected in the corpus of British law and jurisprudence of the time.”
Speaking of concepts and percepts, I’d like to quote now (for the millionth time) John Bingham, who stated in the House of Representatives during discussion on the Civil Rights Act in 1866:
“Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…”
Not only did John Bingham bring parents into the picture, but he also emphasized that those parents must not own allegiance to any foreign power.
As I wrote in my paper, Senator Howard, who was the author of the Citizenship Clause, stated in 1868 that “the amendment would ‘not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.’”
Some commentators insist that Howard meant “foreigners, aliens” as belonging to the families of foreign diplomats. But I think he really meant foreigners to whom children are born on American soil.
So, what we have is a difference of opinions. On the one hand, the Fathers of the 14th Amendment wanted to exclude children of foreigners from the natural-born citizen group.
On the other hand, we have modern progressives in 2012, who insist that anybody born here is a natural born citizen.
With all due respect, I’ll take the side of the Framers of the 14th Amendment.
It looks like Justice Gray had a problem with using the 14th Amendment to justify the Court’s decision. This is probably why it took about 53 pages for him to go around the 14th Amendment.
I was asked the question about effect of the WKA case and the14th Amendment on the presidential eligibility clause. I have already answered this question in my paper: NONE.
I have to go now, but I’ll be back as the naturalized citizen Arnold once said.
Maskell is a 20-year veteran of the Congressional Research Service. He doesn’t work for the Administration; he works for Congress. Why should he write a paper for the purpose of proving Barack Obama is eligible when his job is to provide objective non-partisan research?
You are saying that Maskell must have started out to prove Obama eligible because that was his result.That is begging the question. Are you saying that the seven judges and the 5 appeals courts that also found Obama eligible started out trying to prove he was? That is nonsense.
Maskell wrote what he did because that is where the research led. I’ve been down that road myself long before I read Maskell’s paper. I should further point out that if Maskell’s purpose was to prove Obama eligible, then why did he spend so much time discussing the children of Americans born overseas?
Your paper is logical gobbledygook, and your only defense is to slander someone else. Despicable.
How can you explain away Justice Taft’s decision in Ex Parte Grossman?
With all due disrespect, you wouldn’t know a Framer if one bit you.
You have just lost whatever tenuous grip you may have had on integrity. You claim Mskell’s report could not possibly be independent, factual, etc., because it found Obama eligible and Wikipedia quotes it? So, if he found him ineligible, would you find it unbiased? What if Wikipedia didn’t quote it?
You know what, just do as is your custom. Don’t answer. Just post more crap. I will remind myself to ignore excrement online.
Mike,
This is what comes of not doing your homework.
If you had read what Lord Coke said about Calvin’s case then you would know that friendly aliens visiting a country (i.e. anyone not making war against it) have an allegiance to that country which, while only temporary and local, is enough to make a natural born citizen. In other words, the parent’s allegiance makes their child a citizen.
This is the allegiance that Bingham was talking about and you would know that if you understood the language the law is written in (like Bingham did). Now, I have paraphrased Calvin’s Case and I’m not going to provide you with a reference, so you’ve got a couple of options:
1. Say that I don’t know what I’m talking about—this will last until one of the many people on this site who have more legal scholarship in their little fingers than I do in my whole body gives the appropriate quotes and references and tells you that my paraphrasing is essentially correct (if they tell me I’m wrong, I’ll acknowledge it, by the way—why wont you?).
2. Say that I’m misinterpreting Lord Coke (this would be hard for you since you can’t even be bothered to read Wong Kim Ark…). In other words “In the legiance of the king” isn’t the same as “having allegiance to a country” (both of which are equivalent to being in the jurisdiction). There used to be an Australian birther here who argued that endlessly (he’s banned now for endlessly repeating the same dishonest arguments no matter how many times they were debunked—just sayin’)
3. Complain that I’m being mean to you. This is a sort of reverse ad hominem fallacy (or “playing the victim card”)—it works something like this: people here said bad things about you, so they were making ad hominem attacks therefore you must be right. The problem with this is that any names or labels which are justified are not ad hominem attacks, they are just facts. Once you’ve proved that a person intentionally and with premeditation killed someone beyond a shadow of a doubt, it is okay to call that person a murderer, and, similarly, it is perfectly okay to call you dishonest and to say that you have slandered people.
4. Ignore this comment—after all, I’m not a Constitutional Scholar, nor even a lawyer, and besides, I’ve been mean to you. Which is probably what you will continue to do since you are incapable of refuting a single argument which I’ve made in this thread (or anyone else, for that matter).
OK. That is a simple, outright, willful, lie.
There are more than a dozen replies, including a fairly long winded one from me, that directly calls you out on the deletion of this phrase and explaining why it cannot be deleted.
You have crossed the line into serious troll mode. While many have been willing to give you the benefit of the doubt, and honor you with substantive replies, you have now lost any claim to respect or trustworthiness to carry on a civil discourse.
Good Day Sir!
I can’t explain (or even describe) Justice Taft’s decision in Ex Parte Grossman and now I’m afraid that a zombie Framer is going to return and bite me.
Mercifully, the thread only has 3 more days to run.
Doc,
At first I was worried about that, but now I crave sweet oblivion… Commie Mikhail really has been a disappointing troll.
birther Mikhail Godkin,
Both Sudoku and Doc C already addressed this, but it bears repeating because making baseless accusations against people is very shameful behavior and apparently you didn’t learn this in your upbringing in the USSR. You probably were the one that told lies about your neighbors to the KGB—when did you stop working for them? Or are you still a KGB agent? After all, it would explain your evident hatred for the founding principles of this country and your attempt to undermine its legitimate leader. Well, I think I found a new name for you comrade Mikhail. How do you say “mole” in Russian?
The only thing that you have established “beyond a reasonable doubt” as not being objective here is yourself. No one who has been reading this thread has any doubt whatsoever that you completely lack objectivity.
Only 3 more days until you become totally irrelevant to everyone here, Commie Mikhail. The sad part is this will probably be the high point of your pathetic life.
Because the number of exceptions are minor. Your silly games have allowed you to ignore valid criticism in favor of foolish ‘arguments’ which have no relevance to finding the truth.
You are truly unable to accept that your paper was shoddily researched, if at all, that your ‘arguments’ lacked support and/or logic.
Look Mike, you failed… Now go lick your wounds.
With minor exceptions. Your claim that the fathers of the 14th Amendment wanted to exclude children of foreigners, is not supported by any evidence.
Poor Mike.
And, in the law, where there is a difference of opinion, who decides? Hint: Think black robes.
And what have those judges decided in multiple cases in state and federal courts? Hint: They did not agree with Mike Godkin. In fact, they rejected Mike Godkin’s position decisively.
So, in what sense does Mike Godkin’s opinion matter? Hint: None.
Again, you make a claim and show you have not even read Gray’s opinion. Here is just a couple of paragraphs from the opinion where he discusses the 14th and how it is applied to this case:
And after a more lengthy discussion of the 14th, and especially, jurisdiction he comes to the money quote:
Doesn’t look like he had a problem at all. You sir, are either completely ignoring it, or outright lying.
I specifically rejected the premise, in spirit and otherwise, of your first definition. So I argued against it because I think it is silliness. It is not modern, it isn’t even nineteenth century. it also is inaccurate. It isn’t very creative either. Your invented definition is not absurd; it is just silliness. Not to repeat the word too much, but I started my response upthread with it: silliness. Apparently, you spent the whole day waiting but not actually reading?
More importantly, “subject to the jurisdiction thereof” is the *rationale* for why most people born here are born citizens. Your damaged version reads merely like a whim.
Senator Jim Fake: “Oh yeah, from now on, let’s just say everybody born here is automatically a citizen, if that’s all right with you. Let’s stop giving American natural born citizenship to everybody born in Ceylon. It was a good joke on the British while it lasted, but you know what, today I feel like drawing the line; let’s just say everybody born here is a natural born citizen. Sound good to everybody?”
The reason the children of illegal aliens are born citizens, natural born citizens, is because they are born subject to our jurisdiction. The rationale for where to draw the line is right there in the amendment. You take out that phrase and it’s not what we do here. It’s not even listed as an exception in the amendment. The amendment doesn’t read “except for those not born subject to our jurisdiction.” It says born here AND subject to our jurisdiction. Jurisdiction is an integral part of who the amendment addresses.
You suggest removing it, as an experiment in silliness, as if it is akin to a whim, a mere way of saying oh yeah, not invading soldiers and not diplomats. That may be part of its practical effect, but it first and foremost is asserting an affirmative rationale right in front of your face.
Senator Mark Polo: “I don’t know, Jim. I’ve been around the block a time or two, and I gotta tell you, we need to base this on something. I’m just spit-balling here, but hear me out. We got the Indians, we got the freed slaves, you joke about the British but come on, have you seen *their* ambassadors? They drink tea. You know we have no jurisdiction over tea-drinkers. Come on, come on, no fisticuffs. I didn’t call *you* a joke, Jim. I get your point. We want people born here to have inalienable rights. I get it, jus soli, no problem. But everybody? I think we should stick with the old-fashioned notion of just those people we have a say over. You know, subject to our jurisdiction. And let’s throw the word “person” in there while we’re at it. No squirrel citizens. We all agreed?”
You want to make reality look absurd, so you erase its “nose” and giggle at the picture you drew. Have any extra crayons? The kids are bored.
On the third hand, as my good friend Charlie liked to say: there are the judges. And they have ruled. Next!
Trying to debate someone who quote mines and refuses to acknowledge the the context of sources is very annoying,
And let’s face it, this is not a minor smear either: he claimed Ms Bonner received her present position as quid-pro-quo for lying or committing fraud in a report paper he is circulating widely. I’m not an expert, but this strikes me as major libel.
That is patently absurd. The debate in Congress makes it clear that they wanted to include just about anybody except the Indian tribes, occupying armies and the children of diplomats. The racists in Congress didn’t like the Civil Rights Act of 1866 and the 14th Amendment because it would give citizenship to the gypsies and the Chinese (the Chinese at least were excluded from citizenship by law). It was also abundantly clear that the framers of the 14th Amendment believed that what they wrote was merely declarative of the law in 1789, which was based on the English Common Law, the legal language that the framers spoke (See Ex Parte Grossman) , which makes exactly the same class of people natural born subjects in England.
In Re Look Tin Sing was decided by the Circuit Court of Appeals in California in 1884, framing the case of a Chinese man born in the United States of “subjects of the Emperor of China” this way: “…[Look Tin Sing] seeks to land, claiming the right to do so as a natural-born citizen of the United States.” The Court described “under the jurisdiction this way”:
The Court went on to say that this was, except for the situation of enslaved Africans, the way things had always been:
The difference of opinion is largely between well-informed and intellectually honest students of the questions and intellectually dishonest cranks with an agenda.
This might be the silliest thing you have said. Many Court decisions are long since they want to make a compelling case by citing a mountain of legal authority. I suspect it is correct that you have not read the opinion. He didn’t go around the 14th Amendment. Rather he spent the first half of the decision making clear the common law was always our law and the second half making clear the 14th Amendment simply re-stated pre-existing law. Is it possible you still don’t get it. Thet 14th Amendment had to effect on the NBC clause as it simply re-stated the same rule. They mean the same thing. Seriously, Ddo you have a rading comprehension problem? It the Gray’s opinion is too difficult for you, try reading the dissent’s summary of the majority as it is very eary to understand.
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule “was in force in all [p706] the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;” and “that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.” Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.
If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 8, 1868, when the amendment was declared ratified, were, and are, aliens, unless they have, or shall on attaining majority, become citizens by naturalization in the United States, and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court, an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.
The English common law rule, which it is insisted was in force after the Declaration of Independence, was that “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.”… And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”
That is an accurate summary of what Gray said. So what don’t you understand?
You either have not read the debates or are simply lying now. You are simply citing quotes that others who have not read the debates have cherry-picked. You cite Howard:
“the amendment would ‘not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.’”
Do you have a reading problem. Such quote does not say children of foreigners it says people born foreigners and doesn’t specify who they are other thatn families of ambasadors. Howard, however, did make clearer statements. For example:
“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black. Nativity imparts citizenship in all countries and that is sufficient for my purpose.” Senator Howard, Gong. Globe, 41st Congress, 2nd Sess., pg. 1543 (1870).
No ambiguoity there. Looks like what Justice Gary said. Feel stupid yet? And Howard said he was restating pre-existing law which was:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…..They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
Gee, why didn’t you cite these quotes. And for Bingham, he did make such quote early in the Civil Rights Debates, his only statement in the debates, but such statement didn’t say one needed citizen parents. For example, many believed that allegiance was determined by domicile even domiciled aliens. This would appear to be his original position as:
“Who, sir, are citizens of the United States? First, all free persons born and domiciled within the United States – not all free withe persons, but all free persons….The fact is notorious that, at the formation of the Constitution, but few of the states made color the basis of sufferage; and all of them, by the words or construction of their constitutions, affirmed the fact that all native free persons were citizens.” John Bingham, 35th Congress, Congressional Globe, 2nd Session 1859, pp 984-85
However, if appears Bingham paid attention to all the legal authority cited in the debates and learned something as he would later say:
“Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen.” Rep. Bingham, The congressional globe, Volume 61, Part 2. pg. 2212 (1869)
“That article of Amendment is substantially that all persons born in this land, within the jurisdiction of the United States, without regard to complexion or previous condition are citizens of the Republic.” John Bingham, Congressional Globe, 2nd Session, 39th Congress, pg. 500 (1867)
Why didn’t you cite these quotes? The fact is that not a single person in the 14th Amendment Congress said children of aliens or foreigners were to be excluded. To claim otherwise is simply lying.
I don’t see where you can derive “foreigners to whom children are born” (or “parents,” as we might call them) anywhere from that clause. It refers to “persons born,” not persons giving birth.
The only people in the scope of that clause who would be parents would have to be in “the families of ambassadors or foreign ministers,” but these putative parents are not directly referred to. The only people directly referred to are the “persons born,” not the persons who are their parents.
Since you appear too lazy to read what the framers of the 14th Amendment said, here are some examples for you. Prepare to feel stupid. I hope you understand that children of the Chinese were children of aliens since they could not be naturalized.
“”I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States…The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States.” Senator Wade, Cong. Globe, 39th Cong., lst Sess.2768-69 (1866).
“The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. Senator Conness, Cong. Globe, 39th Cong. 1st Sess. 2890 (1866).
“This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it. This has been sufficiently demonstrated by the by the distinguished chairman of the judiciary committee and by the authorities he has cited ….. In the great case of Lynch vs. Clarke, it was conclusively shown that in the absence of all constitutional provision or congressional law declaring citizenship by birth, “it must be regulated by some rule of national law coeval with the existence of the Union” it was and is that “all children born here, are citizens, without any regard to the political condition or allegiance of their parents.” Rep. Lawrence, Cong. Globe, 39th Cong., lst Sess. 1832 (1866).
““The President also has an objection to making citizens of Chinese and Gypsies. I am told that few Chinese are born in this country, and where the Gypsies are born I never know…… And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), Globe, 39th Cong. 1st Sess. 1757 (1866)
“I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?” Senator Trumbull, CONG. GLOBE, 39th Cong., 1st Sess. 497 (1866).
“I am afraid that we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”‘ Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
“The children of Germans parents are citizens; but German are not Chinese.” Sen. Cowen, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
“Undoubtably.” Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)(in reply to Sen. Cowen’s question whether the Civil Rights Act will have the effect of naturalizing the children of Chinese aliens and Gypsies born in this country).
“On this question of citizenship, Mr. Marcy, while he was Secretary of State, in a note dated March 6, 1854, expressed himself as follows: ‘Although, in general, it is not the duty of the Secretary of State to express opinions of law, and doubts may be entertained of the expedience of making an answer to your inquiries an exception to this rule, yet, I am under the impression that every person born in the United States must be considered a citizen of the United States, notwithstanding one or both of his parents may have been alien, at the time of its birth.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1116 (1866).
“It is in vain we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” Rawle on the Constitution, pg. 86.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1117 (1866).
“The Amendments to the Constitution now pending seek to make citizens of the United States of all men born in the country of lawful age…It makes citizens not only of the pet negro but also of the filthy Chinese.” Sen. Johnson, The Congressional Globe, 3rd Session, 40th Congress pg. 1067 (1868) .
“The Constitution of the United States provides that no person but a native-born citizen of the United States, with other qualifications as to age and residence, shall be president of the United States…. Is the Congress of the United States prepared at this time to adopt a proposition that negroes and Indians and Chinese and all persons of that description shall be eligible to the office of President…” Senator Williams, Cong. Globe, 39th Cong., lst Sess. 573 (1866).
“I propose to insert before the word “citizen” the word “natural-born;” so that it will read: “The right of natural-born citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” If that amendment is adopted it will not be competent for Congress or for any State to discriminate against any person born in the United States on account of race, color, or previous condition of servitude ; but the States may discriminate as against foreign-born persons. Adopt this amendment of mine and the States of California and Oregon would be able to provide that any persons born in China or Japan should not exercise political power in those States, but California or Oregon could not provide that any person born in the United States, no matter what his color might be, sbonld be deprived of the elective franchise or the right to hold office; so that the effect of this amendment would be that it would leave it with the States to declare that persons born in Asia or in Africa should not exercise political power within the several States.” Senator Williams, The congressional globe, Volume 61, Part 2. pg. 938 (1869).
“This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States.” President Johnson’s Veto Message, William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 252 (1868).
“I assumed that by the amendment to the Constitution abolishing slavery, the slaves being made free became citizens entitled to all the rights, civil and political, of other American citizens. I maintained that if the offspring of a man from a foreign country became a citizen and entitled to vote, because a man happened to be born in America and was black, that did not disfranchise him.” Mr. Yates, The congressional globe, Volume 61, Part 2. pg. 1004 (1869)
“This bill provides that all persons born within the United States, excepting those that do not owe allegiance to the United States government, as children of ambassadors of foreign powers, and such are not subject to our laws, and Indians not taxed who owe a tribal allegiance, are citizens of the United States.” Rep. Cook, Cong. Globe, 39th Cong. 1st Sess. 1124 (1866).
“It is a principle of universal law that every person born in a country, and not a slave, is a citizen or subject of such country, and unless excluded by special laws is entitled to all privileges or citizens or subjects. ” Sen. Davis, Cong. Globe, 39th Cong., lst Sess. pg. 182 of Appendix (1866)
“It is a rule of universal law, adopted and maintained among all nations, that they who are born upon the soil are the citizens of the State. They owe allegiance to the state, and are entitled to the protection of the State. Such is the law, whether you put it into this bill or not. So far as this declaration of the bill is concerned, it is but reiterating an existing and acknowledged principle of law.” Rep. Thayer, Cong. Globe, 39th Cong. 1st Sess. 1152 (1866).
“Mr. Justice Curtis held that the Constitution of the United States assumes that citizenship can be acquired by nativity. That is the common law, that is the law of the civilized world, that he who is born in a country, and not made a slave at the moment of birth by any municipal law, becomes, by virtue of his birth, a citizen…” Senator Johnson, Cong. Globe, 39th Cong., lst Sess. 1776 (1866).
“The honorable Senator from Kentucky…forgets this general process of nations and or nature by which every man, by his birth, is entitled to citizenship, and upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection. That is the foundation, in my understanding, of all citizenship…” Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
“Why, all the world knows, the most unlettered of our people understand, that every human being born within the jurisdiction of any nation, or naturalized under its laws, is, by virtue of those facts alone, a citizen of that country in the fullest and amplest sense of the term.” Rep. Kerr., Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 47 of appendix (1871).
“Now where is the authority to except the native-born African from the application of the general rule of law that every native shall be a citizen of the country on whose soil he is born?” Rep. Raymond, Cong. Globe, 39th Cong. 1st Sess. 1266 (1866).
“As a positive enactment this would hardly seem necessary….What is a citizen but a human being who, by reason of his being born within the jurisdiction of a government, owes allegiance to that government?” Congressman Broomall, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1262 (1866).
“and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.” Senator Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)
“It is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do.” Senator Trumbull, Cong. Globe, 1st Sess. 39th Congress, pt. 1, p. 475 (1866).
“My own opinion is that all these people born in the United States and under it authority, owing allegiance to the United States, are citizens without any act of Congress.” Senator Trumbull, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 527 (1866)
“It was believe by myself and many others that all native born persons since the abolition of slavery were citizens of the United States. This was the opinion of Mr. Bates, the Attorney General during the Lincoln administration, the opinion adopted by his administration and acted upon since by all departments of the Executive Government, including Secretary of state, which has issued passports to persons of color recognizing them as citizens. It was the opinion expressed by Mr. Marcy when Secretary of State that all persons born in the United States were citizens of the United States not referring of course to slaves…” Senator Trumbull, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1757 (1866)
“As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone … Sir, he has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. this is the fundamental principle running through all modern politics both in this country and in Europe. Everywhere where the principle of law have been recognized at all, birth by its inherent energy and force gives citizenship. There for the founders of this government made no provision – of course they made none – for the naturalization of natural born citizens…. Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration….” Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
“The freedmen of the United States are citizens of the United States; not citizens under the naturalization law, not citizens by virtue of any treaty, but citizens because they are born native to the soil.” Sen. Lane, Cong. Globe, 39th Cong., lst Sess. 741 (1866)
“I would procede on the basis that all persons born in the United States are citizens of the same…” Sen. Tipton, Congressional Globe, 2nd Session, 40th Congress, pg. 1078 (1668)
“in other words to assert the axiom that every man born on American soil is an American citizen, and as such heir to all the rights, privileges and immunities or all other American citizen…Simply because the Constitution recognizes every man born in the United States as possessing the rights of sovereignty…Then, now, if the States have no power to elevate any man to citizenship, and Congress has no power to do so except exclusively in the case of aliens, do it not follow that citizenship is the natural, inherent right of every man born on the soil…” Rep. Newall, Congressional Globe, 2nd Session, 39th Congress, pg. 283 (1667)
“Everyone born on the soil is a citizen, and our naturalization laws are henceforth of universal application.” Rep. Kelley, Congressional Globe, 2nd Session, 39th Congress, pg. 259 (1667)
“The bill [the Civil Rights Act] proposes two things: 1. To declare who shall be citizens of the United States, and declares that all shall be citizens without distinction of race, color, or previous condition of servitude, who are, have been, or shall be born within the limits and jurisdiction of the United States. ” Mr. Raymond, Cong. Globe, 39th Cong. 1st Sess. 1266 (1866).
“What I said then, I say now, that as far as the United States are concerned, all persons born within the limits of the United States are to be considered as citizens, and that without reference to color or race….. Now, what does this bill propose? All born within the United States are to be considered citizens of the United States, and as such shall have in every State all the rights that belong to anybody else in the State as far as the particular subjects stated in the bill are concerned” Senator Johnson, Cong. Globe, 39th Cong. 1st Sess. 1780 (1866).
“and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.” Sen. Johnson, Cong. Globe, 39th Cong. 1st Sess. 2893 (1866).
“From his argument, it follows that any persons, black or white, born upon the soil of a states is a citizen of such state, unless he be born in slavery, and if he be born a slave he becomes a citizen so soon as by the laws of the state he becomes a freeman.” Senator Henderson, Cong. Globe, 39th Cong. 1st Sess. 3031 (1866).
“I hold in my hand Paschal’s annotated edition of the Constitution, four pages and a half of which are filled with references to decisions of the courts, from .the beginning of the century until now, declaring in the plainest terms that all free persons, born or naturalized in the United States, are citizens thereof. A weak attempt was made in the Dred Scott case to exclude free colored persons from the rights of citizenship, but that feature of the opinion was in opposition to the main body of previous precedents and to all subsequent decisions. I will quote but one or two of the many declarations of our constitutional teachers. Chancellor Kent says: ” Citizens, under our Constitution and laws, mean free inhabitants born within the United States or naturalized under the laws of Congress.” Rep. James Garfield, Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 152 of appendix (1871).
“In the admirable opinion of Attorney General Bates, delivered to President Lincoln November 20, 1862, this whole subject is thoroughly discussed. He said “The Constitution itself does not make the citizens, it is. in fact, made by them. Every person born in the country, at the moment of his birth, is prima facie a citizen.” Rep. James Garfield, Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 152 of appendix (1871).
“By the provisions of the civil rights bill all persons born within the jurisdiction of the United States, or duly naturalized, are made citizens.” Mr. Mercur, The congressional globe, Volume 58, Part 2, pg. 1291 (1867)
“and I shall therefore incorporate in my remarks an extract from Chancellor Kent directly sustaining my position in reference to this provision: “Citizens, under our Constitution and laws, mean free inhabitants born within the United States or naturalized under the laws of Congress.” Rep. Kerr., Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 47 of appendix (1871).
“Under the Constitution a citizen is a free in habitant born within the United States or naturalized under the laws of Congress.” Rep. Thorton, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1156 (1866).
“The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1116 (1866).
“Mr. HOWARD. I have two objections to this amendment. The first is that it proposes to change the existing Constitution in reference to qualifications of President of the United States. If this amendment shall be adopted, then that clause of the Constitution which requires that the President of the United States shall be a native-born citizen of the United States is repealed, and any person who hasbeen naturalized and then become a citizenof the United States will be eligible to the office of President;” Sen. Howard, The congressional globe, Volume 61, Part 2. pg. 1013 (1869)
“The Constitution of the United States declares that no one but a native-born citizen of the United States shall be President of the United States. Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency? Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 2901(1866).
“I told him that that I thought a man was eligible for the office of President or Vice President even if he was a citizen of the Territory of Tennessee if he was a native born citizen of the United States…If he is a citizen of the United States, born within the limits of the United States, he is eligible, no matter whether he was born in a territory that never became a state or born in the District of Columbia, or inside some of the forts of the country.” Rep. Broomall, The Congressional Globe, 2nd Session, 38th Congress, pg.468 (1865)
“The Constitution requires that the President must be a native-born citizen of the United States.” Sen. Sherman, The congressional globe, Volume 61, Part 2. pg. 1035 (1869)
“No one who is not a native born citizen of the United States, or a citizen at the time of adoption of the Constitution, can be voted for.” Sen. Johnson, The Congressional Globe, 2nd Session, 38th Congress, pg.552 (1865)
“that the President and Vice President must be native born.” Rep. Clarke, Congressional Globe, 2nd session, 40th Congress. 1105 (1868).
“One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of the United States at the time the Constitution was adopted, or he must be a native-born citizen.” Sen. Davis, 2/2/1865 reported in The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877).
“What is the qualification for the office of President? He must be a native-born citizen of the United States and thirty-five years of age. Nothing more!” Rep. Boutwell, 1/11/69 cited in Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913)
“you shall be permitted to take a position equal in every respect, with the exception, perhaps, of not being eligible to the office of President of the United States, to that of the native-born citizen.” Mr. Schenck, Cong. Globe, 39th Cong., lest Sess., pg. 298 of Appendix (1866).
“I propose to insert before the word “citizen” the word “natural-born;” so that it will read: “The right of natural-born citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” If that amendment is adopted it will not be competent for Congress or for any State to discriminate against any person born in the United States on account of race, color, or previous condition of servitude ; but the States may discriminate as against foreign-born persons. Adopt this amendment of mine and the States of California and Oregon would be able to provide that any persons born in China or Japan should not exercise political power in those States, but California or Oregon could not provide that any person born in the United States, no matter what his color might be, should be deprived of the elective franchise or the right to hold office; so that the effect of this amendment would be that it would leave it with the States to declare that persons born in Asia or in Africa should not exercise political power within the several States.” Senator Williams, The congressional globe, Volume 61, Part 2. pg. 938 (1869).
You still haven’t addressed the fact that children born in the United States of undocumented aliens are able to register to vote when they reach the age of 18. If they aren’t citizens, how are they eligible to vote?
Of course, that is just one of the many arguments raised here which you have ignored.
Mr Godkin: The US Supreme Court just yesterday declined to hear appeals of 2 cases from Georgia where the plaintiffs clearly and unambiguously argued the 2 citizen parent nonsense that you are peddling. This means that whatever some bloggers might say if you twist their words hard enough, for real judges the matter is closed. Settled. Not even a shadow of a doubt. Over. Finished. Done. Dead. Deceased. Gone to meet its maker.
Print your report out and you might find it useful to start fires on a cold evening or to substitute for toilet paper if you run low, but that is its sole utility from hence forward.
Have a pleasant rest of your life…
Scientist,
You seriously underestimate the utility of hardcopy of Commie Mikhail’s screed—it would make fine nesting material for birds and squirrels (or moose and squirrel, I suppose), could be used along with kindling to get a fire started, or, with many copies, a big mold, some patience, and a freezer truck could be used to make a pykrete boat.
Correct me if I’m wrong: You are the same Mike Godkin who in this forum wrote, “However, instead of guessing why I wrote my paper, you could have spent about the same time […]”. Reality could hardly be more opposite from what you pretend, Mr. Godkin. You fabricate motives for others while birther motives, your motives, are hard to miss.
You cited Gordon and Pryor writing, in the academic literature of the American Law, that the eligibility of the native-born is clear and settled. What was their motive? Who’s candidacy were they trying to advance or defeat? What motivated the follow-ups that disagreed withe Gordon and Pryor on that? Yeah, trick question. No one disagreed.
Mike, if you take motives out of the debate, we obots trounce you birthers easily. If you include motives, we trounce you even worse. Much, much, worse. Motives matter and yours are clear.
You, Mr. Godkin, wrote: “I deliberately quoted different opinions of only liberal scholars hoping that it would generate some doubts in your collective mind.” No, that’s not what you did, Mr. Godkin. You were so desperate in your hatred of the man who is president that you cited historically infamous xenophobe Breckinridge Long and birther cranks Donofrio and Wrotnowski. Why? Because that’s all there is on your side. There may have been debate in the 1700’s and 1800’s, but it got resolved.
Two-citizen-parent birthers, Twofers, are not iconoclasts standing against the mainstream on principle. They are cheaters who started telling the rules different when they didn’t like who was winning.
Unlike so many others here, I am not an attorney, I claim no great understanding of Wong- but this one sentence of yours shows your lack of credibility.
“without reasonable doubt”? That Barack Obama is our legally elected President is without reasonable doubt. That anyone born here in the United States is without reasonable doubt.
Mr. Maskall’s report- there is no reasonable doubt that his report is correct.
You have blatently abused the term ‘reasonable doubt’ – whether by intention, by ignorance or by psychosis- but you mis-used it.
Ok, this is getting pathetic. Passive-aggressive gamesmanship and attributing false motives to other people is not legal analysis. Clearly you didn’t actually read (or don’t understand) Wong Kim Ark, and all you are doing is trying to rewrite history from scratch to suit your results-oriented thesis.
I’m sorry, but it doesn’t work that way. This is why all birther cases lose in every court in the nation. This is why birthers who raise this two parent argument cannot obtain a single vote to grant cert from the Supreme Court in a single case. You can’t just make up the law and ignore what is already out there.
I’ve tried not to be too snarky, but I suggest you watch this clip, starting from about 50 seconds in to about 1:15.
http://www.youtube.com/watch?v=_wOUMd3bMRI
I specifically rejected the premise, in spirit and otherwise, of your first definition. So I argued against it because I think it is silliness. It is not modern, it isn’t even nineteenth century. it also is inaccurate. It isn’t very creative either. Your invented definition is not absurd; it is just silliness. Not to repeat the word too much, but I started my response above with it: silliness. Apparently, you spent the whole day waiting but not actually reading?
More importantly, “subject to the jurisdiction thereof” is the *reason* why most people born here are born citizens. Your damaged version is merely a whim. “Oh yeah, from now on, let’s just say everybody born here is automatically a citizen. Okay? Let’s stop giving American natural born citizenship to everybody born in Ceylon. It was a good joke on the British while it lasted, but you know what,
Paper,
I think I understand the problem here: Comrade Mikhail doesn’t understand that the ideas he has been pushing here for nearly two weeks aren’t any less ridiculous than his “hyperbole”. Only someone who shares his confirmation biases could tell the difference between the two, but Commie Mike’s cognitive dissonance blinds him to his own inadequacy.
Lupin,
Commie Mikhail’s smears against my friends Vince Treacy and David Drumm are relatively minor (although the thoughtless casualness with which he makes the smears and then refuses to acknowledge doing anything wrong is contemptible), and Mr. Maksell is associated with Congress which has an earned reputation for blind partisanship (someone like Commie Mikhail is probably incapable of seeing the distinction between someone working in a non-partisan agency which serves Congress and the hyper-partisanship shown by members of Congress—especially on the Republican side), but nothing excuses him for his attack on Ms. Bonner. She writes on a topic unrelated to President Obama’s eligibility under her own name and makes a completely reasonable argument to support her conclusions. In order to justify his slurs, comrade Mikhail needs to assume at least the following (unless he believes that simply disagreeing with him merits baseless attacks):
0. That President Obama is not a natural born citizen—unquestionably false for any rational person even moderately informed as to the US Constitution and law.
0(b). That President Obama (and his organization) knew that this was true—given the absence of anyone arguing the 2 citizen parent nonsense before 2008, we can reasonably conclude that President Obama learned that he was eligible and why in Law school. Thus, he lacks mens rea, the “guilty mind” necessary for there to be some sort of conspiracy. Oopsie!
1. That Ms. Bonner’s article helped “cover up” (0) and (0b)—as Ms. Bonner’s article never even addresses children born to aliens on US soil (let alone children born to one alien and one citizen on US soil) this is an amazing leap of faith on the part of comrade Mikhail.
2. That Ms. Bonner’s article was written at the behest of the campaign or that a minor post on an extremely low-traffic blog (this thread has more than 50 times as many comments as her blog post) written by either someone who was either a mid-level executive at Goldman-Sachs or had recently started volunteering for the campaign came to the notice of the campaign hierarchy who saw it as helpful in their unrelated cover-up efforts—neither of these seem particularly likely
3. That Ms. Bonner’s article (whether it was ordered or just noticed by the campaign) was valued so greatly that she was awarded with a minor post in the Defense Department as a result—given that, as I recall, the posting had something to do with economic development, as well as the fact that it is common practice for people who show loyalty and competence through volunteer work to be rewarded with positions in the administration of a successful candidate, not to mention the fact that someone who turned down a vice president position at GS would not seem to be under-qualified for the position Ms. Bonner was given, this seems like the fevered delusion of an irrational and juvenile mind.
Commie Mike implicitly asks us to accept all of these propositions as being so clearly true that no support for them whatsoever is needed before he makes an accusation. Unfortunately, we cannot just take his word for it as he is known to be a rapist and murderer—after all, he has never denied helping Glenn Beck rape and murder a young girl in 1990.
Comrade Mikhail,
You still haven’t told us when you stopped working for the KGB—are you working for them still?
I gave no idea what happened there..why a partial duplicate of my post from this morning just got reported this evening. It looks like a draft version from this morning that must have been accidentally submitted somehow when I got home this evening. My apologies.
Paper,
Don’t worry about it—Commie Mike didn’t read either comment and the rest of us can understand the mistake.
In my last post, I quoted Wikipedia with regard to NBC:
“The natural-born-citizen clause has been mentioned in passing in several decisions of the United States Supreme Court and lower courts dealing with the question of eligibility for citizenship by birth, but the Supreme Court has never directly addressed the question of a specific presidential and vice-presidential candidate’s eligibility as a natural-born citizen.”
Correct me if I am wrong, but as far as I know, the SCOTUS has not yet addressed “the question of a specific presidential and vice-presidential candidate’s eligibility as a natural-born citizen.”
I also quoted Jack Maskell as saying in the report:
“Although the English common law is not ‘binding’ on federal courts in interpreting the meaning of words or phrases within the Constitution, nor is it necessarily to be considered the “law” of the United States (as it is for the individual states specifically incorporating it), it can be employed to shed light on the concepts and percepts within the document that are not defined here, but which are reflected in the corpus of British law and jurisprudence of the time.”
Nobody made any comments on that statement of his.
I purposely asked a number of times why Justice Gray didn’t use the 14th Amendment directly.
Here it is again:
“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.”
Wong Kim Ark was born here and supposedly he was subject to the jurisdiction of this country. From this point of view, the Court should have taken 5 minutes to come up with a decision: “Based on the 14th Amendment, he is a citizen. Everybody can go home now.”
Finally, somebody mentioned to me that the part “and subject to the jurisdiction thereof” was not quite clear because no court considered a specific case like that. Why should it have mattered? All of you insist that even children born here to illegal aliens are “subject to the jurisdiction thereof.” If it is clear to you, why wasn’t it clear to the Supreme Court to begin with that the son of two legal residents is a U.S. citizen, or even a natural born citizen? On the other hand, according to common law, all children born on British territory were natural born subjects, and all children born on American soil were natural born citizens. Isn’t it enough to proclaim anybody born here a natural born citizen? So it looks like each one of these arguments is enough by itself. What’s wrong with the picture, then?
Let me quote George Mason, one of the Founding Fathers, who stated that “the common law of England is not the common law of these States.”
http://www.constitution.org/rc/rat_va_16.txt
As I wrote in my paper, Senator Howard, who was the author of the Citizenship Clause, stated in 1868 that “the amendment would ‘not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.’”
ballantine promptly disagreed with me:
“You either have not read the debates or are simply lying now. You are simply citing quotes that others who have not read the debates have cherry-picked. You cite Howard:
‘the amendment would ‘not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.’”
Then he said:
“Do you have a reading problem? Such quote does not say children of foreigners it says people born foreigners and doesn’t specify who they are other than families of ambassadors.”
Let’s analyze my reading abilities. I did not distort the quote and did NOT mention “children of foreigners.” You made a conclusion that Howard meant only foreigners who are members of ambassadors’ families. OK, this is your understanding. What do you do, then, with “aliens” whom Howard mentioned? Are aliens also the members of the same families?
Let’s assume for a moment that I do have a reading problem. What about Justice Samuel Miller? On April 14th, 1873, he delivered majority opinion of the court in the Slaughterhouse Cases – 83 U.S. 36:
“To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
‘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.’
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” [28]
So if I have the LD, then I am in a good company, because Justice Miller explicitly wrote about “citizens or subjects of foreign States born within the United States.”
Now, how can “citizens or subjects of foreign States” be born within the United States?
That’s right, ladies and gentlemen: “citizens or subjects of foreign States” can only be born on American soil if their parents were “citizens or subjects of foreign States.”
I rest my case, for now.
Explained in Wong Kim Ark:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:
The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
I’ll let you find it and look it up. You might actually enjoy reading the Wong Kim Ark opinion for the first time.
Commie Mike,
The Common law of England is not the common law of the US, but the Constitution is written in the language of the common law of England because it’s authors were, for the most part, lawyers who had been trained in that language. In other words, while the specific laws were only carried over inasmuch as the several states incorporated them into their own law, the principles were, for the most part, maintained, and, most importantly, the definitions were exactly the same unless otherwise specified. The term natural born is defined in the English common law—if the Framers meant it to have a different meaning they would have said so EXPLICITLY.
Once again, all Comrade Mikhail can do is cherry pick quotes and misinterpret them in a pathetic attempt to sell his lie.
1. It was dicta
2. It was a 5-4 decision
3. Many legal scholars believe the case was decided wrong (See John Denvir Democracy’s Constitution p 35 ff) and it’s starting to be overturned, see Roe v. Saenz, 525 U.S. 578 (1999)
4. It preceded US v. Wong
But, other than that… 😉
No, not really: As the Supreme Court only deals with existing contested issues that are brought before it, there hasn’t been a valid situation that requires them to address “the question of a specific presidential and vice-presidential candidate’s eligibility as a natural-born citizen”. So far, there have been NO legitimate areas of concern, in terms of individuals specifically running and viable to win said offices, for there to be any actual real contested controversy to cause them to weigh in on the matter.
However, if you wish to view Birtherism as something that falls under this category, then technically YES, they HAVE weighed in. As 24 Birther cases, pretty much claiming a “Constitutional Crisis” charge against Obama’s eligibility, have lost and then been appealed up to SCOTUS – which has DENIED CERT on EVERY SINGLE ONE OF THEM.
That should clue you in – IF any member of SCOTUS thought there was any doubt or merit as to Obama’s eligibility, then they woudn’t have simply denied hearing EVERY SINGLE ONE OF THEM, without so much as a single comment. HINT: That means that SCOTUS considers the Birther issues to be completely frivolous and not worthy of their time at all.
Why should they? What is there to comment on here? The rest of us are able to properly comprehend the English language and understand what Mr. Maskell is saying here. You obviously are having difficulty and have greatly misinterpreted it.
See Slartibartfast’s reply to you at 9:52pm today…to which I will echo and add *DUH*…
I find it peculiar that you keep ignoring the vast amount of replies people have given you and instead twist and turn to complain about some other paragraph that you haven’t heard “commentary” back about …and then go to cite something that is not a controversial concept to those of us with a basic grasp of English comprehension… are you going to ask us to comment on whether we think water is wet next? *sheesh*.
Sorry, but all you are doing here is immaturely dodging from the actual areas of controversial statements in your report, to which you have received an inordinate number of very detailed criticisms and yet you have steadfastly refused to yourself respond in kind and state whether you will amend the errors, misstatements and slandering within your paper.
You are now desperately twisting and spinning to manufacture controversy, in language that is plain and clear to the rest of us, and in which there simply is nothing controversial in what has been said. To expect folks to comment on what appears clear and straightforward to us, is simply ludicrous and only shows that you are extremely dishonest and disingenuous in your intent.
Again, you are willfully ignoring the mass amount of feedback you have been given, which explains the Wong Kim Ark case, its purpose and its background.
It is clear that you haven’t actually read the full case, nor paid attention to the history of the Chinese Exclusion Act and have no understanding of what it was really about or all that it ended up discussing.
If you had, you would not be making such a stupid statement. You HAVE been given the answers on this here – REPEATEDLY. You are dishonestly ignoring all of that and properly reading the actual case and its background on purpose. Your “not liking” the answers you find and are repeatedly given is NOT an excuse to keep asking the same disingenuous questions over and over and over again.
OMG, you really are delusional. It is not a matter of interpretation. Your quote of Howard in the English language does not say children of aliens were not citizens. That is not what he said. At this point I guess we have to assume you are simply a lier. I cited dozens and dozens of quotes up thread saing you are wrong from every member of such Congress who participated in the citizenship debate. They all say you are wrong. You obviously cannot respond to such a mountain of authority as it is simply a fact that no one said one needed citizen parents and everyone said jus soli was the rule. I know if sucks when you find out you are wrong. To keep misrepresting Howard’s statements is embarrassing. Why don’t you address his clearer statements:
“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black. Nativity imparts citizenship in all countries and that is sufficient for my purpose.” Senator Howard, Gong. Globe, 41st Congress, 2nd Sess., pg. 1543 (1870).
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…..They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
“Mr. HOWARD. I have two objections to this amendment. The first is that it proposes to change the existing Constitution in reference to qualifications of President of the United States. If this amendment shall be adopted, then that clause of the Constitution which requires that the President of the United States shall be a native-born citizen of the United States is repealed, and any person who hasbeen naturalized and then become a citizenof the United States will be eligible to the office of President;” Sen. Howard, The congressional globe, Volume 61, Part 2. pg. 1013 (1869)(debate on the 15th Amendment)
There are no ambiguities in these statements nor the dozens and dozens of statements I cited from such Congress. Did you really read how many people I cited that said you were wrong? Can you read English? You have just proven you are either a dishonest person or really stupid.
You are wrong and don’t understand the law. The court does not need address presidential eligibility to define what a natural born citizen means under the original Constitution and not be dicta. You continue to show that you do not understand these concepts. Let us see you make an arugment that WKA’s definition of natural born citizen is dicta. You cannot as you don’t understand what that means. You actually cite the Turley thread on in your silly article. Why not mention that those who argued on that thread that WKA’s discussion of natural born citizenship was dicta were thoroughy embarrassed and debunked. Have you actually read such thread?
Wow, you have a lot of brass to make such a bald-faced dishonest charge here!
In light of the huge volume of detailed replies you have received, which specifically address and explain to you how “subject to the jurisdiction” works, you come up with this nonsense? You are not listening at all and are now arguing against strawmen, instead of the actual conversation thread that has taken place here.
Shame on you! Re-read the responses here which address “subject to the jurisdiction thereof” and then reply specifically back to those.
And please learn how to use the simple “Quote” feature (in the upper right of a post, following someone’s handle and the timestamp). It is becoming rude that you weasel in your general responses and don’t address the actual replies you are given…and it is clear that you are now intentionally trying to mischaracterize the points others are trying to get through to you. So start using that “quote” feature, so your response deals specifically with what someone else has already given you the decency of responding to.
Again, how can you sit here and try to pull off pretending that numerous posts haven’t addressed this point already, explicitly explaining to you about the exceptions and reasons to jurisdiction, which apply to children of diplomats and invading armies and the like?
But other than those specific document exceptions, YES, that is what jus soli is about – children BORN on US soil are NBC, by the mere act of being born on US soil –period.
The only thing wrong with the picture here is your dishonest and willful denial.
Because such statement makes no sense. The Supreme Court for 200 years has looked to the common law to define the Constitution as half the Constitution is expressly based on English law. It doesn’t matter if we adopted the common law on a national level. We did not. However, much of the common law was incorporated into the Constitution as many words in the Constitution had no meaning outside the common law. Do you really not understand that? Where do you think the 2nd Amendment came from? Or the terms habeus corpus, bill of attender, ex post facto, cruel and unusual, due process, grand juries, presentments and indictments,high crimes and misdemeanors and on and on? seriously, do you have any education at all?
Justice Miller opposed the 14th Amendment and gutted it in Slaughterhouse. Such case today is generally considered nearly as embarassing as Dred Scott and is completely discredited. In addition, Miller’s statement is unsupported dicta that says something not a single person in the 14th Amendment Congress said. Accordingly, such dicta was rebuked with prejudice by the holding of Wong Kim Ark which actually took time to belittle Miller’s dicta. Again, I cited in the thread above what everyone involved in the 14th Amendment debates said, and everyone said you were wrong. Can you really read all those quotes and still insist you are right? If so, you are simply a dishonest person.
Help! I’m Mike Godkin and I can’t read English. I can’t undersand what Senator Howard is said even though the English is clear. Duh!!!!
“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black. Nativity imparts citizenship in all countries and that is sufficient for my purpose.” Senator Howard, Gong. Globe, 41st Congress, 2nd Sess., pg. 1543 (1870).
Duh. Seems to say I am wrong but I can’t admit it. I can’t understand the Chariman of the Senate Judiciary Committee either, the words are just too big or idiots like me:
“and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
Or the Chairman of the House Judiciary Committee:
“This provision is simply declaratory of what the law now is……The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1116 (1866).”
“On this question of citizenship, Mr. Marcy, while he was Secretary of State, in a note dated March 6, 1854, expressed himself as follows: ‘Although, in general, it is not the duty of the Secretary of State to express opinions of law, and doubts may be entertained of the expedience of making an answer to your inquiries an exception to this rule, yet, I am under the impression that every person born in the United States must be considered a citizen of the United States, notwithstanding one or both of his parents may have been alien, at the time of its birth.’ I quote this not to claim that it was written concerning a colored persons, but for the purpose of showing how broad the rule is that Mr. Marcy affirmed. Every person born in the United States must include negroes, for they are persons born in the United Sates; and I submit that, under the rule thus laid down, all such persons must be considered to be citizens of the United States.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1116 (1866).
Or the House reply to President Johnson:
“This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it. This has been sufficiently demonstrated by the by the distinguished chairman of the judiciary committee and by the authorities he has cited ….. In the great case of Lynch vs. Clarke, it was conclusively shown that in the absence of all constitutional provision or congressional law declaring citizenship by birth, “it must be regulated by some rule of national law coeval with the existence of the Union” it was and is that “all children born here, are citizens, without any regard to the political condition or allegiance of their parents.” Rep. Lawrence, Cong. Globe, 39th Cong., lst Sess. 1832
(1866).
Seriously, are you stupid? If you can’t admit you are wrong about Howard and everyone else in such Congess when I have pointed out what they said you are simply another delusional birther uninterested in our actual history and in fact an embarrassment to our history and traditions.
Mr. Godkin, you’ve been wrong and corrected over and over. The judiciary does not vet presidents, so if you are under the delusion that the courts have to then 44 out of 44 presidents are mysteries to you. Or maybe just 43 out of 43, depending on how we count Grover Cleveland.
The U.S. presidency has never had a Karmapa controversy. Vote-counting disputes got settled. When a Secretary of State proclaimed that he had control in the White House, the nation laughed. Desperately as you might want to deny that Barack Hussein Obama II is President of the United States, that’s a problem for you, not the nation. Birthers heaping more and more failure and defeat upon themselves doth not a constitutional crisis make.
Here’s the deal: If you won’t take a clue from anything less than the U.S. Supreme Court issuing a ruling on Obama’s eligibility, then Obama remains president and you remain clueless.
Exactly.
If you would take the time to read the government’s brief in WKA, the government’s contention was that WKA was not born subject to the jurisdiction of the United States because his parents were allegedly subject to the jurisdiction of the Emperor of China. This argument was intermixed with all sorts of racial slurs, and the government’s brief conceded that if WKA was a citizen, he was a natural-born citizen.
It was quite clear to SCOTUS that WKA was a natural-born citizen once the issue of whether he was born subject to the jurisdiction of the United States was resolved.
Mike’s unwillingness to read the case and the briefs keep coming back to haunt him. What an amateur.
I think there is a quote in a history book somewhere where the author defends the right of dual also-US citizens to any US government job by mentioning that Thomas Jefferson was a French citizen while President. Book written in the 19th century, I think.
I also found a source claiming George Washington refused French citizenship. Madison may have been enthusiastic about the offer, but he too is claimed to have refused in the end.
Lots of illustrious foreigners were offered French citizenship, which they accepted at first, but later rescinded to protest the execution of the king. It is not clear whether this was effective or honorific citizenship.
The citizenship of Jefferson seems not to have been just honorific. One thing to watch out for, however. An image once did the rounds on the web purporting to be the proof that Jefferson had been granted French citizenship. In fact, if you know French, you will immediately see it is merely a laissez-passer, warning officials that the bearer is a diplomat and is actually still signed by the king (probably from the period between 1776 and 1789).
The citizenship at birth granted to Huguenot descendants was NOT honorific. After the first world war, the law was changed to require descendants of Huguenots to present themselves at the embassy. They would then be granted naturalization. (After the second world war, the law was rescinded altogether, it never applied to Obama) But, yes, Grant, Taft and Teddy Roosevelt in some sense presidented while being born French.
Add Eisenhower, who almost certainly was born German according to Prussian law (direct descendant of a German immigrant who never became British and begot Ike’s next ascendant at the age of 70). Ike, like Obama, lost his foreign citizenship in his early twenties. This raises the rather odd question of whether Ike was still (potentially) German when he visited Europe just before the first world war. Which passport to visit Germany?
From Fuller’s dissent:
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
So, are we supposed to believe Fuller never brought this into the discussion, but waited until after the decision to hit his colleagues with a scholarly defense of an argument that the government had been making.
Shirley, Mike does not believe Fuller was asleep during the entire proceedings?
He did, for pages and page, and we have pointed this out to you multiple times. What you are also not getting is that is explanation of the 14th, the same as the framers of the 14th was that it was a restatement of the original understanding of the law (jus solis) but this time guaranteeing that the state and federal governments could not trample on this, at least without amending the Constitution.
They did not state WKA was a citizen because of the 14th but that the 14th guaranteed the existing traditional jus solis citizenship that various entities had tried to restrict (such as denying those born into slavery could be citizens).
Godkin-You have committed the most grievous, unforgivable sin possible here- you have become boring. No cares about this crap, President Obama is cruising to re-election because the American people would rather have a sensible guy with a foreign-born father than a plutocrat who scorns half (or 47%) of his countrymen and banks in the Cayman Islands and wonders why airplane windows don’t open (and who also had a foreign-born father).
You may not get it, but the fact that Obama has served as President is proof that your “theories” are wrong. Because if you are President, you are a natural born citizen. The Constitution says so. The precedent is now crystal clear that you don’t need 2 citizen parents to be President, and, therefore, you don’t need 2 citizen parents to be a natural born citizen.
Game over.
Source? My reading says that Madison accepted French citizenship in a letter.
It should be obvious to anyone who read Mr. Godkin’s paper that he wrote this at the behest of Boris Krushkin.
I did indeed find Madison’s letter of acceptance or thanks online (it was quite forward-thinking in terms of the brotherhood of nations united together etc etc) but I didn’t keep the link; I didn’t find any subsequent renunciation, however.
Besides, I don’t think it would have had any effect vis vis French Law. Once French, always French! 🙂 (Seriously, a citizen cannot renounce French citizenship; only the State can kick you out.)
I couldn’t agree more. I’m not at all an expert on libel laws, but I think this was a reprehensible, baseless and potentially damaging smear, esp. in the context of a pseudo-scholarly document presumably being widely circulated. If I was ms Bonner, I’d threaten to sue him.
Mr. Godkin, you act like your paper is a zombie able to keep moving after so many fatal flaws. But even if you could get it moving, much less keep it moving, it still would be a zombie. Whatever level of uncertainty exists about Americans who are born citizens abroad, there is no uncertainty about zombie arguments. The Supreme Court isn’t interested.
That is right. Mike not knowing much about the law doesn’t understand that the Supreme Court didn’t just want to declare WKA a 14th Amendment citizen. It wanted to explain why he was a citizen and make a compelling case that will put the issue to rest. This is particularly true when there is a long dissenting opinion that needs to be debunked. Both Gray and Fuller understood that the 14th Amendment was not intended to change the law, only to make it color blind. Hence the bulk of the argument for both was trying to define pre-existing law, the law the 14th Amendment was declaratory of. Gray made a compelling case citing pretty much every legal giant in the early Republic and nearly every famous citizenship case. Fuller could not cite any early authority that directly supported him because there are none. Accordingly, the Court has never challenged Gray’s opinion and has affirmed it multiple times. Does anyone actually think Mike ever read Wong Kim Ark?
It is increasingly clear that he still hasn’t. He seems incapable of doing anything more academic than simple search routines to quote mine. He is off-base contextually on most of the things he opines about.
I forgot this interesting tidbit:
“In the opinion of Senator Edmunds, Chairman of the Senate Judiciary Committee, Gray had “interpreted the 14th Amendment exactly as we members of the Senate understood it at its passage.” Stephen R. Mitchell, Mr. Justice Horace Gray, pg. 162 (1961)
Such was from a note sent by Senator Edmunds to Gray after Wong Kim Ark. Edmunds was obviously one of the few Senators who passed the amendment who was still around in 1898. I guess he didn’t get the memo that Gray was wrong. Has to be depressing for Mike to find out that actually everyone in the 14th Amendment Congress disagreed with him.
Perhaps Mike still has not read the ruling, the dissent, the lower court ruling and the briefs filed?
Because he asks these foolish questions, when the answers can so trivially be found in the excellent and somewhat lengthy ruling in US v Wong Kim Ark.
Once Mike appreciates the ruling, he may also appreciate the position of the many scholars on the ruling?
But is Mike interested in the ‘truth’ or just his version thereof?…
I believe Mr. Godkin’s response would be….
I will try to find that. Talking about sources, did Lupin already mention this:
http://www.grasset.fr/chapitres/ch_weil.htm
Weil is sure: that citizenship granted to illustrious foreigners was honorific. Note the absence in the list of Thomas Jefferson, whom I think was a special case and if granted citizenship, granted it later. Perhaps to stop Jefferson’s political enemies from having him arrested?
Weil also claims that from 1790 to 1791 naturalization could in some cases be automatic, even without the foreigner’s consent. The constitution of 1791 required that the foreigner had to swear an oath. The Huguenots are not concerned by that, as they were supposed to have been born French (francais naturels, and that was indeed a very early use of the word as a legal term of art).
You saved yourself with that last clause: only the State …
You see, France gave the same citoyennete they gave to Madison also to Anacharsis Cloots. But on 5 niv’se an II, Cloots was thrown out of the Convention (where he had been duly elected) together with Thomas Paine, for being a foreigner!
I will have to assume my source was wrong then. I do think the Cloots episode proves we need dates for the granting, acceptance/refusal and possible rescinding. Many liberal-minded people outside France supported the French revolution but changed their minds later. Some already when the king was executed, some when Robespierre came to power, some when Robespierre was executed and some only when Napoleon embarked on his conquests.
My more important mistake in this discussion was to think Napoleon was a Vatellite. He was not, most of the nativist ius sanguinis elements in the Code Napoleon were according to Weil inspired by Francois Tronchet.
And, he would add, no one has said anything about my neon chartreuse jigsaw puzzle tie.
Just wait until next year’s Fashion Week, he would guffaw the guffaw of a winner.
Dr. Conspiracy,
1. One of the first comments on this thread was Thomas Brown’s who said the following:
“I love it. When I first began anti-birthing, I often pointed out that it is neither silly nor insulting to the intelligence to argue that the current definition of NBC is not in the spirit of the founders. But arguing that it isn’t what it currently is, is. Birthers ignored this fine distinction generally, but I tried.”
I responded by quoting Christina Lohman (ref. [16]):
“Her [Ms. Pryor’s] position allows the Natural-Born Citizen Clause to mean one thing today, and something quite different tomorrow. This possibility does not reflect bright-line guidance, but rather suggests that the meaning of the Constitution is alterable at the whim of Congress. In light of Article V, this may not be a reliable method of interpreting the Natural-Born Citizen Clause.”
What is your position on this comment?
2. In my previous post I quoted Jack Maskell as saying in the report:
“Although the English common law is not ‘binding’ on federal courts in interpreting the meaning of words or phrases within the Constitution, nor is it necessarily to be considered the “law” of the United States (as it is for the individual states specifically incorporating it), it can be employed to shed light on the concepts and percepts within the document that are not defined here, but which are reflected in the corpus of British law and jurisprudence of the time.”
BALLANTINE responded this way:
“Because such statement makes no sense. The Supreme Court for 200 years has looked to the common law to define the Constitution as half the Constitution is expressly based on English law. It doesn’t matter if we adopted the common law on a national level. We did not. However, much of the common law was incorporated into the Constitution as many words in the Constitution had no meaning outside the common law. Do you really not understand that? Where do you think the 2nd Amendment came from? Or the terms habeus corpus, bill of attender, ex post facto, cruel and unusual, due process, grand juries, presentments and indictments,high crimes and misdemeanors and on and on? seriously, do you have any education at all?”
Do you share his view on Jack Maskell’s statement?
3. When I quoted Justice Miller as saying that, from his point of view, “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States,” it was not about where and when he said that, or whether or not it was a dictum, or whether or not a court decision was wrong. It was about WHAT he said. He was wrong about the status of children of consuls, but I am not discussing it, either.
Here are my questions to you:
Where did he get this idea from? Did he pull it from the thin air? Did he make it up? What do you think?
4. Finally, I’d like to address the Alexander Hamilton’ “Draft Constitution.” It was not presented to the Convention and therefore it was just his personal opinion. I’ll go along with that.
Now, let’s go back to what a Law School student Jill Pryor said when she discussed Hamilton’s proposal:
“…the President must be born a citizen. Without the modifier ‘natural,’ the essence of the text is apparent: the President need not be native born, but must be a citizen from birth.”
You are not against this statement, are you? If we add this modifier, the presidential eligibility requirement would be:
A) stricter,
B) looser,
C) the same
What is your choice?
Commie Mike,
My choice is that you are now quoting the responses on this thread out of context and that there is no reason that anyone should continue to play in the mud with you (unless, of course, they are doing it for their own amusement). Personally, I think you’ve become completely uninteresting. You started off asking for honest criticism and when you got it you revealed yourself to be nothing but a birther troll. Enjoy the rest of your pathetic life.
Brygenon,
You wrote:
“Here’s the deal: If you won’t take a clue from anything less than the U.S. Supreme Court issuing a ruling on Obama’s eligibility, then Obama remains president and you remain clueless.”
I didn’t know that Obama’s reelection depends upon my taking or not taking “a clue from anything less than the U.S. Supreme Court issuing a ruling on Obama’s eligibility.”
I was hoping to find here at least some semblance of scholarship; instead, I found a lot of partisanship.
It is sad Mike that you seem to not have the ability to admit you are wrong. Just another person with no legal education pretending to be a legal scholar on the internet. With respect to you silly points:
Pryor only suggested that Congress could provide that foreign born children of citizens were natural born citizens. She never suggested such applied to native born persons. Pryor expressly stated there was no dispute about native born persons and her entire paper was devoted to the argument that foreign born children of citizens could be natural born as well by act of Congress. She has a good point since Parliament was understood to have the power to make certain foreign born persons natural born subjects through naturalization, why wouldn’t the framers think Congress had the same power. What evidence do you have that she was wrong? None. From Pryor:
“It is well settled that “native-born” citizens, those born in the United States, qualify as natural born.” It is also clear that persons born abroad of alien parents, who later become citizens by naturalization,” do not.” But whether a person born abroad of American parents, or of one American and one alien parent,” qualifies/as natural born has never been resolved.”
“Under the naturalized born approach, however, a “natural born-Citzen” may be either of two things: a native-born citizen, or a naturaliied born citizen designated under Congress’ power to confer citizenship at birth upon any category of persons.”
Really not that hard to understand. It is difficult why you spend so much time trying to misrepresent a student note as if there are not hundreds of other legal authorities that also support the common law interpretation.
With repect to Maskell, it is simply a fact that the Court has always looked to the common law to interpret the Constitution. I’m sorry if you can’t except that. It doesn’t mean the common law is binding. However, in the caseof “natural born citizen,” the Court has looked to the common law as “natural born” was an English legal term of art that didn’t exist anywhere else in 1787. Such term did not show up in Vattel’s work until a decade later and it is simply a fact that no legal authority in the United States prior to the Civil War connected the term “natural born” with Vattel. I’m sorry that the facts hurt. The Supreme Court’s opinion counts. Your uneducated opinion does not.
On the 14th Amendment, it is truly pathetic after all the authority that I have cited from the framers of the Amendment saying you are wrong that you still cling to your delusions. If Justice Miller and Justice Fuller couldn’t accept what the framers of the 14th Amendment said, it is their problem as the majority of the Court in WKA held that they were wrong. Quoting Justices whose argument lost is pretty sad. Trying to hang you hat on Miller’s dicta in a case in which the citizenship clause was not before the Court and the issues were not argued or briefed is pathetic in light of the comprehesive treatment of the subject in WKA and fact that everyone in the Congress who passed the Amendment made clear that you and Miller are wrong. Are you really not man enough to admit you are wrong. How many quotes from the framers of the Amendment do you need? At this point you appear to just be the typical irrational birther incapable of accepting reality.
I really don’t get your point on Hamilton. Yes, Hamilton never showed his draft to the Convention. However, why do you think it would matter if he did? Under English law, a subject at birth was a natural born subject. Such included native born common law subject and statutory foreign born subjects. Accordingly, why do you think that anyone thought that a “citizen from birth” meant something different that “natrual born citizen” when they meant the same thing in English law? Why do you think that an English lawyer such as Hamilton and the other English lawyers who wrote the Constitution thought these terms meant something different that what these terms meant under English law? You have deluded yourself into believing that the framers wanted the strictest requirement. Doc has pointed out that such is not supported by the facts. The only evidence we have is a fear of the foreign attachments of the foreign born and the most important framers like Madison and Hamilton were not even concerned about that. Sorry, there is still no evidence any framers agreed with anything you say. Seriously, it’s time to go back to your day job.
Do you think your work is scholarship worthy of serious discussion? You refuse to admit what the Supreme Court has said and offer no arguments to support yourself. You refuse to admit what the framers of the 14th Amendment said no matter how many quotes you are shown. You misrepresent what the original framers said and offer no proof to support you misrepresenations. You misrepresent scholars who unambiguously state that there is no dispute about the natural born status of the native born and in fact slander them in a childish manner no scholar would ever do. Again, why are you pretending you are some kind of legal scholar when it has been shown that almost everything you have said is simply wrong?
Comrade Mikhail,
We’ve all lost count of the number of on-point quotes you’ve been provided and the number of times your misinterpretations have been explained and corrected. Not to mention the explanations of the meaning of the Constitution and the Framer’s intent as well as how the law works. The truth is that only one person here has been blindly partisan and that is you. You came here with your mind made up based on nothing but your own ignorance and delusions and your pathetic demonstration of your lack of legal scholarship. You’ve repeatedly made baseless smears without every showing the slightest indication of shame or remorse. The lives of everyone reading this thread will be slightly improved once it closes as a result of never having to consider your unAmerican screeds ever again. Like ballantine said, it’s time to go back to your day job—hopefully you’re not completely incompetent there, but here you are nothing more than a despicable, dishonest, disrespectful dummy who wallows in his own willful ignorance.
I can understand your confusion, considering that you apparently believe that your paper qualifies as “scholarship.”
Most of the people who frequent this blog have been researching, discussing and debating the issue of natural-born citizenship for nearly four years. You, on the other hand, have demonstrated woeful ignorance about a number of topics, including the Wong Kim Ark decision. You have been asked repeatedly to come to grips with the fact that the government’s attorneys in the WKA case acknowledged that if WKA was a U.S. citizen it meant that he was eligible to be President. Yet you have failed to demonstrate that you have even bothered to read the government’s brief.
You remind me of the child who sticks his fingers in his ears and yells “I can’t hear you.”
You do much asking, not so much in the way of explaining. I was taken aback by your comment that Justice Gray avoided the discussions of Congress regarding the 14th Amendment. I started to go back through and quote each and every time a commenter answered adressed exactly that. My “find” counter was not able to keep up with the references to Gray and 14th. If you are so concerned, so willing to learn, look it up yourself.
You may not have found scholarship here, but one thing is certain, You did not bring it here.
Agreed!
Dr. Conspiracy,
As a person condemned by this court of public opinion and sentenced to the capital punishment – complete lack of attention in the near future and – finally – oblivion, I sincerely hope that I can say a few last words (in case I don’t have a chance to express my opinion anymore on this thread for whatever reason).
At the beginning of our discussion, you brought to my attention that a short introduction to my paper was totally irrelevant. It’s your opinion. Mine is just opposite.
As I’ve mentioned before, just like millions of people who lived in the USSR, I was in fact a natural born soviet subject. The last thing I wanted, when I landed at the JFK airport in 1977, was to become a subject of the U.S. government.
This is why I am deeply convinced that the Founding Fathers, when they decided to break away from Great Britain, did not want to keep the essence of the legal system related to the citizenship. In my unprofessional view, a new political system required a new citizenship structure as well and not just simple replacement of the phrase “natural born subject” with “natural born citizen.”
The concept of the term “natural born subject” reflected the feudal relationship between the King and whoever was born on his territory. None of these “natural born subjects” were in line to become a king. It was not the case in a new Republic.
Let me remind to everybody what Professor Solum wrote in his famous paper where he gives three different definitions of the same term, NATURAL BORN CITIZEN:
“In feudal or monarchial constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assign sovereignty to the people.”
To make the long story short, really anybody born within a king’s territory became a natural born subject. In the U.S. Constitution, the term “natural born citizen” appears only once and is related only to the presidential eligibility. No other position in the whole country requires a person to be a natural born citizen to occupy it.
I fully realize that the Constitution does not specify what it means to be one. But intention of the Founding Fathers was to make sure that the future presidents have an attachment to this country from day one. Was it naïve? Of course it was. Does this mean that the person born with this attachment is going to have equally strong one the rest of his life? Of course not. Does it mean that all the people born elsewhere and naturalized here love this country less that the “natural born” citizens? The answer is NO.
What is the most democratic way to solve this problem? WE NEED TO GET RID OF THE NATRAL BORN CITIZEN CLASUSE in the U.S. Constitution.
Until that day, though, this clause is going to remain. Neither 14th Amendment nor the WKA case made this requirement invalid.
35 out of 55 participants of the Constitutional Convention in 1787 were lawyers. Some of them used the term “natural born citizen” way before Convention. All of them wanted to protect the highest office in the land from the foreign influence. All of them instantly agreed with the John Jay’s proposal to “elevate” the required status of presidential candidate from being a citizen to being a natural born citizen.
So, if somebody tells me that all these highly educated individuals were indeed very stupid and meant simply anybody born here, I am sorry, but I can’t accept this view.
I am not saying that the WKA court made a wrong decision. What I am saying is this:
If the SCOTUS found the time to decide whether a son of the Chinese Subjects living here as legal residents without the right to become the U.S. citizens, is indeed a U.S. citizen, they should find the time to determine whether a son born on American soil to an American mother and a father who was a British subject is eligible to become and be President.
You have, in a nutshell, demonstrated why your paper is worthless. You have a fundamental lack of understanding about how our judicial system works.
Bummer for you because that is what it meant to the Founders.
Comrade Mikhail,
Wow—you came to America looking for the freedom that the Founder’s envisioned and then completely missed the forest for the trees and got yourself bogged down arguing pointless semantics. You can’t be president, but your children can be—that’s what this nation of immigrants is all about. In the Founder’s day, anyone who came to this country and had children would be doing so with the intent to stay—just like you. No one came here on vacation or to go to school—why would they have even considered those situations? Anyone born here (with the exceptions noted) was, to them, an American and all the available evidence supports that conclusion.
Just to point out another reason why your theory could not possibly be correct, you should note that if you have correctly divined the Founders’ intent, you need to explain how they would have determined the citizenship of people’s parents when they were born. Not to mention the fact that you would be able to find some record of a person’s parent’s citizenship being verified at some point. A requirement with no mechanism to enforce it isn’t really a requirement at all and if you suddenly want to apply something which has never been applied in the past, it begs the question: “Why?”
You are a dishonest idiot—the court made it clear that Wong Kim Ark was eligible to become president: the opposition used that as an argument as to why he shouldn’t be ruled a citizen, the holding repeatedly called Mr. Wong “natural born” and “a citizen” and, most importantly: THE LAW OF THE TIME SPECIFICALLY STATED THAT MR. WONG COULD NOT BE A NATURALIZED CITIZEN. President Obama is the child of an American citizen—I would be willing to bet any sum you name that would make him natural born even if his father was a diplomat or an invading soldier (remember, if you disagree then you are saying that the child of a citizen raped by an enemy soldier is not a citizen, and, even more, is probably stateless).
Commie Mike,
This is my last comment to you, so let me just say that you are a deeply dishonorable man who shames himself and denigrates this country by disrespecting the very ideals and Constitution that you yourself said you came here to enjoy. You are beneath contempt and I wish that you would take your hatred of this country and leave.
That combined with a reluctance to actually read legal opinions, makes for quite a lethal combination.
Mike’s ‘arguments’ lack in logic or support from law, and instead are based on his raw emotions about what he perceives to be an ineligible President.
With rationality out the window, Mike has no choice…
What an interesting case to watch… And still no attempt to show that he has read or understood US v Wong Kim Ark.
If he had read the appellant and appellee briefs, he would have understood the ruling. But instead…
nbc,
It wasn’t just a reluctance to read legal opinions, it was a complete unwillingness to even acknowledge any of the criticism he came here claiming to want. It begs the question of why he did it in the first place…
Wow. Even your statement of what you *didn’t* know makes no sense. You, Mike, have shown us a level of ignorance evincing unwavering dedication.
No, you were hoping your act would fool people. Didn’t work that way, did it?
By refusing to review the lower court cases, that is EXACTLY what the Supreme Court has done. The question is answered with a resounding “YES!”.
You are like a little child who doesn’t like the answer his parents give, so you pretend not to hear it.
Like many Birthers, you show a fundamental misunderstanding of the reasons for our separation from England. This likely colors your entire understanding of the issue. We were not rebelling against English law or being England. Parliament and the Crown, in their arrogance to their American colonists, denied us the rights of an Englishman. We were being the denied the rights and privileges found in English Law. We were not rebelling against the English Law but rebelling against the government that did not allow us the privilege of that law.
Our changes from English laws after the revolution were not made to toss out what we knew but adapt it to our unique circumstances (such as we went from subjects to citizen), and to attempt to prevent the same arrogance that caused the revolution in the first place.
Incorrect. SCOTUS “found the time” because there was an actual case that needed resolution. As much as it might be intellectually satisfying to have SCOTUS decide “once and for all,” there is no such need about resolving natural born citizenship at this point in time. In addition, there is no controversy about the fact that people born here subject to our jurisdiction are natural born citizens regardless of their parents’ status.
If the constitution is not amended to allow naturalized citizens, it is theoretically, or shall we say, technically, possible that SCOTUS someday might hear a case about whether or not a foreign born American citizen at birth is a natural born citizen eligible to be president. But maybe not even then, given the constitutional authority of Congress in this matter. That is an intriguing fine distinction and interesting scenario as scenario, but for that to happen it would require such a person getting elected, getting through the primary process while most probably gathering a political party’s support and backing.
This has not become a crisis in over two hundred years because no one has done that. Let us remember *when* SCOTUS “found the time* to decide WKA. Before the Civil War, SCOTUS “found the time” in Dred Scott to say African American slaves and their descendants were not born citizens. A lot of outrage ensued; we had a civil war. After the Civil War, the nation itself “found the time” to pass an amendment. Reconstruction happened. Civil wars have that kind of effect. That was that, when it came to African Americans.
But then, very considerate and only intellectually concerned citizens (sarcasm) said hey what about Indians and Chinese (the aliens of that time). The Chinese Exclusion Act was just one facet of that mess. Then, lo and behold, someone “found the time” to stop Wong Kim Ark from reentering the country. He challenged that. Court cases ensued. The Supreme Court reluctantly put aside their golf games and “found the time” to make a decision.
You’ll notice (I mean, you ‘ll ignore) that they already decided your question. They have already found the time, in WKA, to determine “whether a son born on American soil to an American mother and a father who was a British subject is eligible to become and be President.” The answer is yes.
You of course want them to rule about a specific president. That’s never going to happen. There is no controversy about whether or not anyone born on American soil subject to our jurisdiction is eligible to the presidency. Thus, there is no need to “find the time.”
However, as you like quotes, I provide you with the words of retired Supreme Court Justice, Sandra Day O’Connor, who did indeed find the time to write:
“All of our Presidents have, to date, been born in the 50 states. Notably, President Obama was born in the state Hawaii, and so is clearly a natural born citizen.”
Perhaps, to address Rickey’s point, you will spend your future time learning how the legal system here works. Also, I suggest studying history.
Just to be clear: sideshows are not controversy. Just in case you think your concerns represent controversy.
An excellent point that bears repeating.
Also to be clear, Mr. Godkin, I present *retired* Sandra Day O’Connor’s comment to demonstrate not final authority but as an example of when Supreme Court justices may “find the time” to address such settled and long-resolved matters.
Then why did they use the same wording and thus invite all these alleged “misunderstandings” that you claim we are guilty of?
Why didn’t they just say “No-one except someone born on the soil to citizen parents, or a citizen of the United States, at the time of the adoption…”?
Why did they use the term “natural born” with its 400 years from Common Law and secretly meant it to mean something else entirely “when coupled with the word ‘citizen'”?
No birther can answer the simple question if the Founders were pranksters, or wrote the Constitution only for people who knew French? (Given the fact that the first public “definition” of “natural born citizen” – in English – was the Vattel translation that was released 10 years after(!) the Constitution was published.)
What is *your* answer to that?
Were the Founders pranksters? Yes/No.
Did the Founders write the Constitution only for people who knew French? Yes/No.
Did the Founders write the Constitution only for people who owned a time machine? Yes/No.
I’m waiting, Mikhail…
Since the former encompasses the latter, why would they have to do that? If SCOTUS has already decided that all dogs are four-legged animals, why would they have to decide that a German Shepherd has four legs?
This is, of course, central to your error: you are reading American history through the lens of your own experience, not through the history of the Framers. Having myself spent nearly three years studying the Russian language and literature under the instruction of an emigre from the Soviet Union who was stridently anti-Communist, I think I have some insight on how you might view your former country.
That’s not how it was in America in the 18th century. The American colonists had no objection to the English law, but to the English King. The grievances that led us to sever ties with England were enumerated in the Declaration of Independence:
http://www.ushistory.org/declaration/document/
Some of the grievances in the Declaration tie directly to the denial of the Common Law by England to the Colonies, for example deprivation of the common law right of trial by jury. Winston Churchill said in his famous “Iron Curtain” speech:
While I have read this from more leaned sources (which aren’t online and searchable) US Legal.com says it quite plainly:
It is simply impossible to maintain that the American colonies rebelled against the English Common Law when upon obtaining their independence the formally adopted it.
When the American Constitution was in its infancy, Supreme Court Justice James Wilson wrote:
Justice Wilson here shows a clear belief in the continuity of the law, not a radical reinvention of everything under the Constitution.
The colonists rebelled against monarchy, and it is apparent from their debates and the form of government they created is anti-monarchist. On the other hand the Constitution is rife with otherwise undefined terms from the Common Law.
The American colonists didn’t like King George, but they cherished the English Common Law.
Of course, no Framer actually said that. Pickney merely said it was to “insure experience and attachment to the country,” whatever that means. But why would one think a persons born here who lived here for 14 years would not have sufficient attachement? As has been pointed out, the bulk of evidence we have shows there was a fear by a few persons of the attachments of the foreign born to their native country. Why would you think English lawyers like the Framers raised in a nation where office holders had to be native born subjects would not think the same rule should apply following independance? The fact that you have to misrepresent what the Framers said shows the weakness of your arguments.
No, they found the son of Chinese subjects to be a citizen because he was a natural born citizen and there is no reason for them to revisit the issue. You simply don’t understand that the Court doesn’t need to call someone a natural born citizen to define the term and make clear one would be one. The dissent and all modern courts addressing the issue have no problem understaning what the Court said. It’s really not that hard. The Court ruled that (i) the English rule that children of aliens were natural born subjects was incorporated into the original Constitution’s NBC clause, (ii) the 14th Amendment re-stated the same rule making clear it was color blind, and (iii) WKA is a citizen under the original Constitution and the 14th Amendment as they both incorporate the English common law. Accordingly, a 14th Amendment citizen by birth means the same thing as a natural born citizen. Sorry you can’t accept this.
This highly educated individual wrote about the laws of Connecticut in 1795.
“The children of aliens born in this state are considerded as natural born subjects” Zephaniah Swift
Do you see the similarity of Connecticut law with the English Common Law?
Everyone can have a view. However, there are historical facts and the fact are that all early legal authority says we continued the common law rule. Whether you can accept that or not it doesn’t change the facts. Every early court decision, administrative opinion, legal treatise, dictionary of any significance says you are wrong. Do you really not know this or have you done no research? Go read Justice Fuller’s dissent. Did he name a single early legal authority that actually supported his view? No. The notion of citizen parents wasn’t raised by anyone of significance for a half century after our founding and would be soundly rejected by the Court. You may think the founders rejected the common law, but they adopted a form of it in every state that was based upon the English law and they incorporated much of the common law into the Constitution. Do you really not know that many provisions of the Constitution and most of the Bill of Rights are expressly based upon the common law or the English Declaration of Rights?
Actually, in the early republic, most Governors had to be native or natural born citizens. I think “native born” was the more popular term though both were used.
You have only received flack due to how you yourself have represented your ideas and responded here. You should reflect honestly upon what it was in your statements that caused reaction and what it was in your own correspondence that resulted in feelings of contempt.
In regards to these blog threads, they simply close down after a period of time. All of them do. There is a good and simple reason for that – these threads can become quite bogged down and hard to navigate through…plus take additional time to load as the comment count gets into the mid 100s in postings.
When this happens, which it soon will – this is not a sign of persecution nor silencing of you. No, it will be a standard function of this blog that happens all the time.
Those that wish to continue comments or ideas from a thread that closes are free to take it up under a new one – usually the currently active Open Thread, or under another blog post that is sufficiently relevant to the issue at hand.
First of all, although our concepts of citizenship derived from the prior system (England), we don’t have subjects – we have citizens. The American model of government was a new and unique departure from what had existed before. Hence, it took what it knew and reformed it into a way that would work for this structure.
Second and more importantly, I don’t have a sense yet from your statement that you’ve grasped what “subject to the jurisdiction” means. It does NOT mean “subject” in the sense of ownership. It simply means that you have entered territory where OUR laws are prevailing.
So yes, the moment you landed at JFK, you were subject to the jurisdiction of the United States laws, even though you were an alien and NOT a US citizen.
Simply put – if you stole something, you could be prosecuted and put in a US jail. If you were caught speeding, you would be subject to our driving laws and owe the resulting fine and penalty. If you physically struck someone, you would be charged with assault under US law.
That is what “subject to the jurisdiction” means. From the moment you have arrived in the US, you have been subject to US jurisdiction, regardless of your citizenship status.
Yes, those are the reasons he quickly lost respect from me. It all reeks of intentional dishonesty in transactional communications.
Agreed! Well summarized.
Well stated!
The Vermont Constitution also contains the phrase Natural Born Subject
The most instructive debate on the “common law” was in the Virginia ratification convention where many of the most influential founders were present. Patrick Henry and George Mason said the Constitution was defective since it didn’t declare the English common law to be in force like Virginia did in 1776 and hence provided none of the protections of the common law. For example:
“When our government was first instituted in Virginia, we declared the common law of England to be in force….That paper [the Constitution] ought to have declared the common law in force.” Patrick Henry
The reaction to these arguments was not that we didn’t like the common law. Rather, it was that we didn’t want the common law that existed at that time to be frozen and be immutable in the Constitution as the common law, by definition, was something that evolved. It was also argued that Virginia had already adopted the common law and there was nothing in the Constitution abrogating those rights. Finally it was pointed out that some provisions of the Constitution departed from the common law. They didn’t mention citizenship of course. At such time, Virginia had a statute declaring anyone born in Virginia was a citizen, a statute first drafted by Jefferson. Such statute only limited eligibility for office for people who migrated to the state or who held a foreign title.
One result of this debate was a promise to adopt a bill of rights which would provide for the common law protections missing in the Constitution. Accordingly, at least half of the Bill of Rights is clearly based on English law.
of course they were not stupid nor is there anything stupid about people born on American soil subject to its jurisdiction being natural born citizens by birthright. Actually, it is elegant, simple, potent, energizing and very smart…most especially for a country of immigrants.
I find that some on the right wing in the US seem obsessed about this and accuse me of being a British subject. I suspect I may have been, once, but am now a British Citizen. Don’t feel any different………..
Why does this bother people like Comrade Godkin?
Yet another reason to be impressed with you. I think I have lost count now…
There seems to be a certain scarred and very skewed mindset from certain people who come over here, after growing up under some form of oppressive totalitarian state.
They can’t seem to grasp how vastly different America’s history and structure are…and can only view it darkly through their own personal experience lense – falsely shrouding America with the structural failings of what they knew…
It really is a form of permanent emotional mindset damage…they may physically be living here, but their mind continues to see the shadows and demons of their past, everywhere.
We are all informed and shaped by our experiences and our childhood; but some are simply not good at adapting to entirely different situations and thus, draw upon false correlations, which hinder their adaptation instead of providing them with an actual well-informed understanding of how and why this new environment is different.
So I would argue that these “stuck” folks don’t really learn the right lessons from their past to be able to gain the right wisdom of how to recognize and avoid it; instead they are merely poisoned by it and perversely more likely to twist what is new and different to conform into that which they’ve been trying to escape from in the first place…
Mike, replying to your 4 points (other readers may click the link at the end to get the context):
1. Congress from the very first passed legislation saying that persons born outside the country to citizen parents, citizens from birth and “natural born citizens” and the courts have looked to the acts of the First Congress for guidance as to what the Framers intended. It appears to me based on the 1790 Act that the framers intended that the Congress have the authority to extend or at least clarify the definition who was a natural born citizen.
2. I cannot speak for Ballantine. It would appear to me that there is not a fundamental disagreement between him and Maskell here. The courts have relied on the English Common Law and such reliance is found in precedent such as Smith v. Alabama. However, the English Common Law is not “in force” in the United States, and the Supreme Court may look to other sources in defining terms and understanding Constitutional intent. I think the difference is more one of approach than substance. Ballantine is arguing for what is, and Maskell is focusing on the parameters of what could be under the law (which is appropriate for him as a legislative attorney). I guess that I agree fully with what Maskell says, and I fully agree with what Ballantine says EXCEPT where he seems to be saying that he and Maskell are at odds.
3. When I noted that Justice Miller’s comment was dictum, I did not say this to assert that it was not precedential (which it isn’t), but rather to point out that dicta is considered something not as carefully reasoned as the essential parts of the holding. So what I intended to convey was that wherever he got the idea, it was not necessarily thougtfully-reasoned on his part. As to where he got the notion, I don’t know. It’s a mystery to me. Miller was an abolitionist and a strong supporter of Abraham Lincoln (who appointed him to the Court). Lincoln’s own Attorney General Edward Bates had issued an opinion saying:
4. My view is that of the majority of authorities, that “natural born citizen” and “citizen from birth” as used in the U. S. Constitution are equivalent. My view is also that there remains some small uncertainty as to those born outside the United States. The issue is complicated by an open question as to whether the English statute De natis ultra mare of 1350 that made the children of British subjects born abroad British subjects was part of the Common Law by 1787 or not. It is further complicated by the question of whether those who ratified the Constitution considered natural born citizen a term of art or whether they used it according to common language. In all of the permutations of these questions, the citizenship of those born in the country is never in question because this is both the clear Common Law rule and the common linguistic usage. It’s only when we get to the question of the foreign-born that these questions come into play.
So my answer to your question is: “probably the same.”
[Since originally writing this comment, I have thought about this question further, and concluded that the answer is “the same.” You can read my reasoning in this article: http://www.obamaconspiracy.org/2012/09/framer-v-farmer/ ]
This thread will be closing sometime tomorrow (automatic close after 14 days).
Dr. Conspiracy,
I’d like to thank you for posting my paper on your blog.
I’d like to thank everybody else for expressing their opinions.
I hope I was not very boring. Around 700 comments seem to support this statement.
We are allowed to disagree. But after all we are not the enemies. On the contrary, we are all citizens of this great country: native born, natural born and naturalized.
While I appreciate your gracious tone here, the simple truth remains – there are only TWO main pathways to citizenship in the US – via birth and via natualization. Native & natural born are essentially the same thing.
That is not an area of opinion, where disagreement can be valid. It is simply a matter of real fact. Your personal desire to wish it were not so does not translate into changing the reality that it is so and has been so. Simple as that.
G,
You wrote:
“While I appreciate your gracious tone here, the simple truth remains – there are only TWO main pathways to citizenship in the US – via birth and via natualization. Native & natural born are essentially the same thing.
That is not an area of opinion, where disagreement can be valid. It is simply a matter of real fact. Your personal desire to wish it were not so does not translate into changing the reality that it is so and has been so. Simple as that.”
I am quoting Wiki, not myself:
“Alexander Porter Morse, the lawyer who represented Louisiana in Plessy v. Ferguson,[32] wrote in the Albany Law Journal:
If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, ‘no person, except a native-born citizen’; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase ‘native-born citizen’ is well understood; but it is pleonasm and should be discarded; and the correct designation, ‘native citizen’ should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are essential to intelligent discussion.[33]”
http://en.wikipedia.org/wiki/Natural-born-citizen_clause
Not a single comment was made in this section after the quotation.
Thanks again.
OK, so a lawyer who argued in favor of segregation is on one side and everyone else is on the other. So how would you react if I said: There are people (even a few professors) who say the Holocaust didn’t happen, so we must consider the subject unresolved? If I said we must give equal consideration to both sides? If I said we should teach in school that maybe the Holocaust happend and maybe it didn’t? I am sure you would consider that abhorrent, as would I and all sensible people.
So the fact that someone, even someone with some credentials, argues something (being paid to do so) doesn’t make it so or even worthy of attention.
What are you going to do with your paper? Is it perfect? Flawless? Will you discuss Ankeny and other recent court cases? It seems to me that is absolutely essential. You can say you disagree with them and explain why. But pretending they don’t exist is simply ridiculous and doing so makes you ridiculous.
Maybe if I am lucky, this will be the last word…
As soon as one cites Plessy, not much else needs to be said. You do know what that case was?
In response to Mike, Scientist has already beat me to it, so in reading what Scientist wrote, let me echo his point. The rest of this post is directed at Mike and not you.
Face it Mike, you have to dive deep into the past to even find a quote to cherry pick…and the only cases you site are from sad chapters in our history, where the people whom you are quoting are arguing from a xenophobic point of view.
I realize why this appeals to you – you yourself, ironically, are apparently a xenophobe as well. Of course, not to folks who immigrate with the same complexion or religion as yourself…but your quotes and statements indicate that you aren’t too comfortable and are inherently suspicious of those that are “different” from you and how you see yourself. Just my suspicions, based on your responses and attitudes to date. But at least I base my conjecture on the evidence before me…not a desperate cherry-picking attitude of pre-conceived denialism that you cling to.
Face it, this is 2012. The courts HAVE spoken on this issue. The CRS has weighed in on this issue. Yet another court this week (VT) struck down a Birther claim and commented on the citizenship portion, citing agreement with Ankeny. That makes what, at least 8 states that have done so and spoken to this underlying issue…all in agreement with that same Ankeny and thus, WKA rulings and interpretations of NBC.
You are simply a sham denialist. You simply can’t accept the reality all around you, but are too craven to honestly admit that you merely advocate for a change in our existing laws. No, you have to come across as a con artist crank, by pretending that these laws don’t exist, as they are solidly against your desired views. That is why you bring ire. Only the gullible and ignorant can’t quickly see through your scam. Your irrational emotional immaturity is only serving to discredit your ability to apply any real scientific principles and methods to your writing. Therefore, by continuing your foolish entrenchment, you are only serving to further dishonor and discredit yourself.
You simply can’t get around the reality of how ALL the courts are ruling on these matters these days and that in doing so in complete concordence with one another, have served to establish a strong body of precedential case law to reinforce that Obama is NBC by virtue of mere birth on US soil alone.
You simply also can’t get around the reality that the vast overwhelming majority of US law, from our founding through this date, support a position of there always only being 2 main paths to US citizenship – via birth or via a naturalization process. Further, the vast overwhelming majority of legal opinion and rulings on this matter support that there is NO DOUBT of NBC status via the principle of jus soli in this country.
There simply isn’t. You can only twist and turn and point to areas where the ADDITIONAL pathway of jus sangunis brings forth some unresolved permutations. But jus soli is NOT in doubt at all.