Skip to comments.Ankeny's Error: Virginia Minor could run for president; Wong Kim Ark could not
Posted on 02/05/2012 2:16:29 AM PST by edge919
In the ballot hearing in Georgia, Judge Malihi cited Ankeny v. Daniels from the Indiana Appeals Court to define natural-born citizen, using jus soli criteria to declare Barack "No Show" Obama to be eligible for Georgia's primary ballot, despite the lack of actual legal evidence to prove whether or not Barry was even born in the United States or not. That aside, the ruling is based on an errant conclusion.
Keeping things simple, the best way to emphasize why Minor v. Happersett is the one & only legal precedent and Wong Kim Ark is not, is to use Ankeny v. Daniels to show where it admits that its rationale is flawed. The Indiana Appeals Court admits there was an NBC definition in Minor:
"Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that [a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . . U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a natural born Citizen. U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that [t]hus new citizens may be born or they may be created by naturalization. Minor v.Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
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.
First, there's a clear error. Ankeny says the 14th amendment and Article II were read in tandem. This is false. The 14th amendment was used by Virginia Minor in an argument to claim she was a citizen, and from that citizenship she had a right to vote through the privileges and immunities clause. The Supreme Court rejected that her citizenship was due from the 14th amendment. But before they got to Article II, they covered the other way you could become a citizen ... by self-declaration and political unification.
Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens.
This is kind of important, because it rejects the English common law theory of natural-born citizenship AND it rejects the trite argument that the courts have only recognized two ways to become a citizen. When the country was formed, those persons loyal to the United States were the original citizens and their children were natural-born citizens. But by treaty, those persons loyal to the crown and their children, even those born on U.S. soil AFTER the declaration of Independence were natural-born subjects. This was formalized through the Treaty of 1783. Thus, the Constitution, being established only four years later was not going to use a standard of citizenship that allowed anyone born on the soil to be president. This explains why the Minor court said that "all children born in the country to parents who were its citizens" was the "nomenclature of which the framers of the Constitution were familiar" ... it matches the Law of Nations, and it's why the court characterized this type of citizenship EXCLUSIVELY as natural-born citizen. By using this definition, this would have made Virginia Minor legally capable of running for president even though the court denied she had a right to vote.
Ankeny argues that 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." A) This is false, because Minor contemplated several combinations of factors related to citizenship including split nationalities:
... in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or [p169] who should be married to a citizen of the United States, should be deemed and taken to be a citizen. [n11]
From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.
The Minor court considered every combination it considered to be relevant, but it purposely and willfully only characterized ONE class of persons as natural-born citizens: those born in the country to citizen parents.
B) The other reason Ankeny's conclusion is false is because the Minor distinction of children born to citizen parents serves no purpose if not tied to how natural-born citizenship is exclusively defined. The characterization is self-limiting: "as distinguished from aliens or foreigners." For those latter persons to be citizens, they must rely on other means of citizenship such as through the Constitution or statutory law. If jus soli was enough to be a natural-born citizen, then the court could have simply accepted Minor's 14th amendment argument, but they did NOT ... and Ankeny admits it:
In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
The Constitution does not, in words, say who shall be natural-born citizens.
The 14th amendment is part of the Constitution, so this means that the 14th amendment does NOT define NBC. This destroys Ankeny's assumption that jus soli is enough to be an NBC. U.S. v. Wong Kim Ark says this same thing, and it cites and affirms the Minor definition of NBC. The Ark case knew it could not apply the NBC definition to Wong Kim Ark, so it relied on applying common law, with some stipulations. Ankeny cites some of that common law, but it was dicta.
Ankeny claimed that "Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." I've already shown this is false, but it's important to understand that under Ankeny's logic, Wong Kim Ark ALSO left this question open. And they admit it, by way of footnote:
We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a natural born Citizen using the Constitution‟s Article II language is immaterial. For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States.
Wong Kim Ark was NOT declared to be a natural-born citizen. Again, using Ankeny's logic, this means the question is "left open." Why rely on a case that does not declare its subject an NBC, when the other one does?? Ankeny says it's immaterial to all but 44 people, which were all the people who were president, but this is false. The NBC criteria is to protect the public by trying to ensure we have a president who is less subject to foreign entanglements ... and that criteria would be material to ANYONE and EVERY ONE who wants to run for president.
Progressives have seized on this interpretation of the WKA majority opinion to create anchor babies. The WKA majority justices CANNOT be blamed for this, IMO. The WKA majority protected the Minor court's definition of NBC by NOT changing it and NOT applying it to WKA.
This claimed “conclusion” in the dissent was rejected and refuted by the WKA majority. The majority explicitly affirmed the Minor court's definition of NBC by leaving it untouched. The WKA majority took up the citizen rights of non-NBC children of aliens about whom there was doubt regarding their citizenship, NOT their NBC status. The WKA majority expanded citizenship rights to this subclass of non-NBC children of domiciled aliens at birth.
On its face this dissent does not correctly state the conclusion of the majority that WKA was as much a citizen as a natural born citizen, but did NOT declare WKA to BE an NBC!
The WKA dissent has ZERO value as precedent and is not even dicta.
I regard Fuller to be the first person to FAIL to parse the Minor v. Happersett language correctly...so I agree with Mr. Rogers (ouch!) that Fuller is describing exactly what he believes the “conclusion” of the majority to be! Unlike Mr. Rogers I disagree with Fuller's interpretation of what the WKA majority ruled because Fuller's dissent is based on a false parsing of the Minor NBC language.
The Minor majority did NOT extend NBC status to the children as Fuller claims, but ONLY CITIZENSHIP. Even the Ankeny court and Malihi admit that Fuller was wrong...but then, as Donofrio points out, using the magic word “TANDEM” as in viewing WKA in TANDEM with the 14A, the citizenship of Barry's mom TRUMPS the fact that neither WKA nor the 14A granted NBC status to WKA. Go figure!
We got stuck with the Kenyan citizen drunk with power and driving us into bankruptcy and ruin.
The real losers are the American children born today that will have to pay back this Kenyans 5 trillion dollar loans that he has squandered like his drunk father used to drive, with same results.
The winner in all this is a Guy named Odinga who is getting a billion dollars a year from his cousin in the Oval Office.
Here is the final ruling:
"For the foregoing reasons, we affirm the trial court‟s grant of the Governor‟s motion to dismiss.M Affirmed. CRONE, J., and MAY, J., concur."
The governor's motion to dismiss had nothing to to do with WKA, it had nothing to do with MvH or another SCOTUS ruling or the Constitution itself.
The motion to dismiss was due to lack of ability provide relief since Indiana could not remove a sitting president.
And when it went the appellate level they added pages and pages of dictum that looks like it came from the same source as CRS reports on the subject. It probably did.
In hide site - the default ruling should have been taken. We know there is an aversion to lawyers being the same room as any Hawaii birth document. Maybe that would have forced that issue. He seemed to ready to do that but the plaintiffs insistence of all of this muddied the water so badly he used the cover of Ankeny to avoid leaving the SoS with an unclear path.
As FBI guy says in the movie National Treasurer - "somebody's got to go to jail." To get this off center. That seems to be the case.
However, the dissenting justices were correct in that anti American communists and tyrants would construe the majority decision to allow foreign citizens access to drive our country into bankruptcy and ruin.
So the dissenters need to be praised for their insight.
NBC = NBS. That is the argument made in the first half of the WKA decision, and it lead inevitably to the idea that WKA & possibly Obama are natural born citizens.
And in truth, natural born subject WAS an extremely well known term describing citizenship in the colonies, and was used interchangeably with NBC for years after the Constitution.
Given that the Founders used the term NBS regularly to describe themselves, is it really likely they pulled the term NBC from a translation of Vattel made in 1797? THAT is the challenge the birthers have refused to discuss.
However, there is a small chance that WKA could be thrown out - IF you can convince the court that the legal history of NBS in common law could not have anticipated a time when people could enter a country for a couple of days, have a kid, and depart. Tourism just wasn’t a part of 15th & 16th century thinking.
And WKA does assume the parents are here legally, and discusses domicile - a factor usually ignored.
There is an argument that could be made that Obama Sr was not domiciled here, and that the English common law that defined NBS did not anticipate an African coming to the US to study and then leave. It could be argued that Obama Sr was more like an ambassador, in terms of 15th century thinking, than a common citizen. If so, then UNDER WKA, Obama Jr would NOT be a natural born citizen, because his father was here at the request of a foreign government.
THAT argument, if given weight, would toss Ankeny out.
Minor does not and has never defined NBC exclusively, and no court will EVER say otherwise. If you don’t want to lose forever, then you need to take WKA and the undoubted meaning of natural born subject/citizen into account, and give the court a reason to say Obama Jr doesn’t qualify.
Until then, Obama won’t even need to show up to kick your asses.
Except that he's not. Fuller was addressing the argument brought up by the appellant based on a citation from the lower court. The reason this assumption fails is proved at the conclusion of the dissent, where Fuller says he agrees with the majority on how to determine 14th amendment citizens, EXCEPT in Wong Kim Ark's case where the treaty with China was controlling.
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Read the underlined part above. It agrees that children become 14th amendment citizens at birth by being born to parents permanently located in the U.S. Past the underlined part, it notes that the "will of their native government" can prevent such persons from satisfying the subject clause. Keep in mind, that earlier in the dissent that Fuller specifically cites Vattel for the definition of NBC and that definition completely agrees with the Minor definition. Fuller, after all, is the guy who wrote the Ex Parte Lockwood decision that cites the Minor language correctly.
Unlike Mr. Rogers I disagree with Fuller's interpretation of what the WKA majority ruled because Fuller's dissent is based on a false parsing of the Minor NBC language.
It's not based on Minor at all and it's NOT based on the majority opinion in WKA. You're reading something that isn't there.
Nonetheless, despite the Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. The Court granted Plaintiffs' request.
It seems you forgot something. It says right there that the Plaintiffs asked the Court to decide the case on the merits of their arguments and the evidence.
Yet he chose to rule solely on the merits, not on the merits and evidence.
This is false. You're stretching dicta and playing connect the dots for something that was NEVER said in WKA. What they really said was NBC = born in the country to citizen parents and that NBS + permanent residence and domicil = 14th amendment "citizenship by birth." Rogers, if you C&P the entire WKA decision, it will prove my point. Try it.
Given that the Founders used the term NBS regularly to describe themselves, is it really likely they pulled the term NBC from a translation of Vattel made in 1797? THAT is the challenge the birthers have refused to discuss.
No, actually James Madison noted that natural-born citizenship to the state superceded British subjectship ... the latter was a secondary allegiance that was dissolved when the state declared its independence from Britain. He also noted that citizenship was a birthright through the parents. The founders could NOT be U.S. citizens if they strictly adhered to English common law because it required perpetual allegiance. The 1797 translation of Vattel follows the understanding of how "naturel" was translated in 1781, which = natural-born.
The ALJ was supposed to present Findings of Fact and Conclusions of Law. There were no findings of fact that Obama was born in the United States, only an assumption or a “consideration” as Malihi said he considered that Obama was born in Hawaii. The conclusions were not law, but what the Ankeny court wanted the dicta to say. My OP shows that what the law actually says is contrary to the conclusions based on the dicta. Minor was declared an NBC and Wong Kim Ark was not. Minor could run for president and Wong Kim Ark could not. Tested by this rule and the ONLY law that was cited, Obama cannot run for president nor is he Constitutionally qualified to hold office.
Hey, loucon, do yourself a favor and look at the name of @USC Title 8
It's ALIENS AND NATIONALITY, not Citizens and Nationality
Nice. Stealing it.
Beat you too it. I stole that Several weeks back. :)
I tend to rephrase it as specifying the 14th amendment.
In Minor, the Court said "(the 14th amendment) does NOT say who shall be "natural born citizens."
I do this because I hope the Obots will call me on it and be forced to LOOK at the fact the court was DISCUSSING the 14th amendment when they said this. Obviously they couldn't have overlooked the meaning of the 14th if that is what it meant. They are explicitly saying that the 14th amendment does not define natural born citizens.
The implication is that since the 14th amendment DOES say who shall be born citizens, but not who shall be "natural born citizens" a "born citizen" is therefore explicitly different than a "natural born citizens."
This is because no one was aware of it at the time. He had changed his birth day to make it appear he was born later than he actually was, (and thereby confusing any attempt to locate birth records for him) and he lied about when his father was naturalized.
In order to make an issue of something, people must first be aware of it. Arthur kept it under the Radar until just last year.
Yup. I realized that right away.
TF:”I think we are being suckered by the GA court. The new Obozo appointment to the appeals court which will review the GA case if it is appealed, is bought and paid for. She was noted as having done work on this exact issue prior to his election. She got the job to silence this challenge.”
First of all, I agree with you that the real isssue is whether Obama was born in Hawaii. Since he nor the state of Hawaii are willing to come forth with a legitimate (non-forged) birth certificate, that seems to point to the fact that none exists.
Second, I think that the Georgia Appeals court decision (assuming we get that far) will be moot either way it’s decided. I can’t image this issue will be closed until it gets to the SCOTUS. Seems that all the intermediate steps to get there are somewhat immaterial. Though it would be nice if one our two judges along the way actually read the law istead of making up their own...
“You’re stretching dicta and playing connect the dots for something that was NEVER said in WKA...Rogers, if you C&P the entire WKA decision, it will prove my point. Try it.”
As you wish:
I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “no person except a natural-born citizen, 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 Fourteenth Article of Amendment, besides declaring that
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,
also declares that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the Fifteenth Article of Amendment declares that
the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
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. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
124 U.S. 478.
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. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which
the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,
he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, 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. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
And he adds:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Dicey Conflict of Laws, pp. 173-177, 741.
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
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.
In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:
Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.
2 Cranch 64, 119.
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
3 Pet. 164.
In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:
The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
The English statute of 11 & 12 Will. III (1700). c. 6, entitled
An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,
enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands
from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom
title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was
whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.
9 Wheat. 356.
Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
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.
The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,
that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
Garder v. Ward (1805), 2 Mass. 244, note. And again:
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.
The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.
Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
2 Kent Com. 258, note.
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,
(namely, foreign-born children of citizens, under statutes to be presently referred to)
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.
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. [p666]
P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.
Here is the short version, for those who find reading a chore:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
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.”
If two paragraphs is too much, here is the one sentence version:
“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.”
Judges read the law? Now that is a novel idea.
There was a time when that was exactly how it was done.
But Liberals need not worry about “the laws” because they are exempt from those trivialities.
It seems as though your criteria for whether or not a case has been decided on its merits is whether or not you get the answer you want.
No, that is not the case. but the judgement gave no reasoning in relation to the cases cited as precedent by those bringing the lawsuit.
He basically stated that since the State of HI said he was born in HI, he therefore was a “natural born citizen” as required by the Constitution.
Now how is that judging it on the merits of the case.
I stated earlier that the resolution of this must come from HI. Since they have stated he was born there.
But there is not a shred of evidence to support that except what is clearly a conjured document he presented in a .pdf format.
Examination of the .pdf document clearly shows it was not scanned from an original COLB. I have looked at the document he presented as his “long form” COLB. It is made up of multiple images, It has multiple pixel resolutions. It has various font styles, even within individual lines.
There is a “reason” for this to drag on so long. It is not as simple as some have stated that his birth name does not say Barack H. Obama, Jr. If it was that easy to explain, it would have been done long ago.
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