Posted on 02/05/2016 8:22:26 PM PST by kathsua
Round and round it goes and where it stops no one knows.
“Whoever Congress naturalizes at birth is an NBC”?
No. That is not what I said. Where did you get that? You are apparently unable to let go of your preconceptions about the matter and even temporarily entertain a different viewpoint.
“by your hydrogen atom example, children born abroad to one citizen parent have always been NBC of the US.”
Read it again. Hydrogen exists whether we observe it, describe it, label it. “Natural born citizenship” does NOT. So, no. It is a legal and philosophical construct.
“I question his [Vattel] exposition as being superior over the constitution”
Vattel was a French philosopher who greatly influenced our founders. They were all well educated in his writings. It is his definition of natural born citizen that is most often cited. But you have to read in context.
The value of reading Vattel is not that what he says has greater authority than the Constitution. He has NO legal authority. He did however expound natural law. It is self evident truth that much of the Constitution is based on. For example, the right to bear arms is based on the natural right to protect ourselves and our property. What he said clearly was on the minds of our founders and serves to help us understand their intent, especially when it is not clear in matters such as this.
But obviously it is only reasonable to put the founders’ own words above any outside commentary when it comes to understanding their intent.
Right—and only his mother was.
I think my "Whoever Congress naturalizes at birth is an NBC"? is an accurate paraphrase of your view of the law on this question.
I got it from you saying, in post 296, "My contention is that the matter is within the purview of Congress and is determined by whatever naturalization laws are in effect at the time." in combination with "In my opinion, all citizens at birth, by the current Constitution and the applicable law of naturalization, are natural born citizens."
So, if congress passes a naturalization law that attaches citizenship at birth, what is the effect of that? Does that not, under your proposition, translate into NBC by Act of Congress?
You need to explain how the 1790 Act helps you further, because I really don't understand your point in bringing it up. Given what you say, whether the naturalization statute says "NBC" or not is irrelevant. In other words, under your interpretation, the current statute has the same effect the 1790 one did.
An artifact of your approach is that the NBC clause in the constitution becomes living at the whim of Congress. From 1790-1934, persons born abroad of a citizen-mother and alien-father were not even citizens of the US. Then, for a period of time, those persons were stripped of their citizenship before they could otherwise qualify for the presidency (5 years US residency by age 21, or citizenship is stripped, see Bellei case).
“So, if congress passes a naturalization law that attaches citizenship at birth, what is the effect of that? Does that not, under your proposition, translate into NBC by Act of Congress?”
There are two and only two types of citizenship: natural born and naturalized. Naturalized means making a foreigner a citizen.
So, while it is POSSIBLE for there to be a person naturalized at birth depending on the laws, anyone who falls into that category would NOT be a natural born citizen.
An example of how this could happen would be, according to Vattel, if foreigners living in the US had a child here and the law conferred citizenship to the child because he was born here. Vattel described this situation as the child being naturalized at birth because NATURALLY the child’s citizenship follows that of its parents. In this case that would make the child foreign, naturally, and therefore this would be naturalization to Vattel.
Vattel did not write our laws. I do not think this is what Congress intended when they passed the 14th amendment. So I think Rubio would probably be considered a natural born citizen on the basis of place of birth even though his parents were not citizens. But a reasonable argument could be made that he was naturalized at birth because naturally he was a foreigner.
Cruz was never naturalized. If he is not a naturalized citizen, and he is a citizen, then he must be a natural born citizen. If the argument is made that he was naturalized at birth, I would point out that he is, as Vattel describes, “naturally” a citizen by birth due to the citizenship of one of his parents (i.e. his mother). This part (i.e. his mother being a citizen) is NOT according to Vattel but according to the naturalization act of 1952 which applied to Cruz.
“You need to explain how the 1790 Act helps you further”
This act PROVES that the founders, who ratified the Constitution 18 months earlier, considered determining who was a natural born citizen to be within the purview of Congress under the naturalization powers. Most that argue against Cruz being a natural born citizen try to politely sweep under the rug that they actually believe the very founders of this nation did not understand what natural born citizen meant or were in direct rebellion to the Constitution they just signed. That’s just ridiculous.
The question is whether when Congress describes who is a citizen at birth, did they intend this to mean natural born citizen. And it is significant whether the founders thought that citizenship naturally followed the citizenship of the parents. The act in 1790 indicates so.
“your approach is that the NBC clause in the constitution becomes living at the whim of Congress”
The Constitution specifically grants Congress the power to create a uniform rule of naturalization. Remember that, at the time, states determined citizenship in their states. Thus, there was a need for a uniform rule. The Constitution also refers to the “Law of Nations”. These are laws that are inherent powers of all nations. Another way to think of it is that if a nation exists as a legal entity, it must have certain powers. Among these are determining who has the rights of a citizen. Another is regulating immigration.
Show me where the Constitution explicitly grants Congress the power to regulate immigration. It does not. Would you therefore want Congress to quit enforcing all border laws because they are unconstitutional?
The founders considered citizenship to naturally follow the father’s citizenship at birth, just like a child at birth ordinarily takes the father’s last name. However, even then the mother’s citizenship was considered. And since then, the right to vote, own property, and hold office have been recognized by changes to the Constitution and laws. So today, a child can just as well “naturally” follow the citizenship of either parent. So says the act of 1952 which is the one that applies to Cruz.
Roe v. Wade was an actual case. So far you have nothing like their decision to oppose or to support. The irony of the matter is that the Court set out to settle a controversy by what Justice White described as a raw exercise of judicial authority. Like Dred Scott, it shows the limits of a court’s power. Both made a political issue that had been proceeding from state to state and which had been resolved politically in some states. and made it into a national issue that is still ongoing after more than 40 years and which has helped turn the Supreme Court into a political organ. Today, Jeb Bush came out in favor of abortion laws in terms that resemble those of the Texas law overturned by the Court, Rubio would put even more restrictions on abortion. What irony.
No I wasn’t avoiding that question I had answered it previously in 283 but i’ll be more specific here-
none of them do provided the unwed father, a citizen, who’s partner is not a citizen, meets certain requirements- as 1409 states right off the bat, 1401 applies if conditions are met in regards to the unwed father- and that
b) Except as otherwise provided in section 405 of this Act, the provisions of section 1401(g) of this title shall apply to a child born out of wedlock
Which states:
“The following shall be nationals and citizens of the United States at birth:
1401 (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:”
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth,
Your argument ‘seems to be’ and correct me if I’m wrong, that if a father does not meet the requirements then the child in essence would lose what the ‘Ted is an NBC’ advocates state is ‘NBC’, therefore it can’t be NBC that the child has- is this a fair assessment of your main argument?
1. 1401(g) birth in wedlock, mother is a US citizens, father is an alien
2. 1401(g) birth in wedlock, father is a US citizens, mother is an alien
Answer: 1401 (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years,
4. 1409(c) birth out of wedlock, mother is a US citizen, father is an alien
Answer: 1409 (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth,
3. 1409(a) birth out of wedlock, father is a US citizen, mother is an alien
Does the father meet the requirements of 1409? Or does he refuse to take responsibility and own up to it? 1409 is there to show there is an exception to the rule IF a father doesn’t meet the requirments
I remain puzzled by your "1409 has only to do with a child of a foreign mother, who resides with a father- they are the ones who must apply after birth- at birth and by birth do not-" Your answers have only muddied the water.
I don't even know what you mean by the phrase "must apply after birth," and I don't know if "at birth and by birth do not [have to apply]" is the correct take on your statement.
Just say what you mean. After you describe the meaning of "must apply," answer YES or NO to whether persons born under 1401(g) "must apply."
This discussion isn't about what I believe. I am trying to understand what you believe. I'll answer your question, but it does nothing to further this line of discussion. My take on case law is well said by the case law itself:
Congress is empowered by the Constitution to 'establish an uniform Rule of Naturalization,' Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.
I see the language of 1401(a) in the constitution, so a 1401(a) person does not acquire citizenship solely under the exercise of Congress' power to naturalize. All the rest in 1401, and every birth covered by 1409, is naturalized.
Naturalized and natural born are mutually exclusive. One cannot be both.
That's the end of my answer to your question.
How is it possible? An infant can't participate in a naturalization ceremony.
-- This [1790] act PROVES that the founders, who ratified the Constitution 18 months earlier, considered determining who was a natural born citizen to be within the purview of Congress under the naturalization powers. --
Do you agree that my "Whoever Congress says is an NBC is an NBC"? is an accurate paraphrase of your view of the law on this question? YES or NO.
I guess another way to ask the question is, how do we figure out which of the statutes is a naturalization statute, and which are declaring a person to be a NBC. I was of a mind that you would view "at birth" as signifying a declaration of NBC, but you said that "it is POSSIBLE for there to be a person naturalized at birth."
You said. ‘The first naturalization act in 1790 conveyed citizenship to children of US citizens born abroad.’
How you conveniently ignore this -
James Madison was on the House Committee that wrote the 1795 Act that REPEALS the 1790 Act and removed NBC status from those foreign born to a US citizen parent ever since.
Congress had a chance in 2004 to reinstate NBC status to those foreign born to a US citizen parent, but did not.
‘Natural born citizen’ is a special citizenship status referred to only once in the constitution for the presidential requirement. How convenient it is for you to break it into 3 words to be interpreted individually the way you wish.
By your own definition/interpretation - a child born to US citizen parent(s) in Iran has his/her US citizenship conveyed to him/her by nature (i.e. parent(s)), therefore he/she is a nbc of USA;
According to the ‘birthright’ theorists, he/she is a nbc of Iran!
So this child is nbc of USA and nbc of Iran?????
Who is making it complicated? YOU and the birthright theorists!
It is simple -
A child born in USA to 2 USA citizen parentS can only be natural born citizen of USA! He/she can not be citizen or nbc to any other countries! And nothing can change his/her USA NBC STATUS!
Yes, only an idiot would want Roberts and the other liberal Supremes to rule on any Republican or anything good for America.
I said: MARCO RUBIO IS AN ANCHOR BABY!
“An infant can’t participate in a naturalization ceremony.”
True. But infants can be naturalized. For example: foreign parents immigrate and become citizen. By law, their children usually become citizens with them. Another example: US citizens adopt a foreign child. The child also becomes naturalized. They do not need to swear an oath of allegiance, etc.
I believe that the original intent of Congress was that “naturally” conveyed citizenship was by the parents. (Jus sanguinis) This is supported by the words of the act in 1790. But also, the 14th amendment probably supports “naturally” conveyed citizenship by where a child is born. (Jus soli)
“Do you agree that my ‘Whoever Congress says is an NBC is an NBC’? is an accurate paraphrase of your view of the law on this question? YES or NO.”
NO. Congress cannot retroactively make anyone a “natural born citizen”. Also, if Congress said that children born in Mexico to parents who were not US citizens at the time are “natural born citizens”, they would be redefining the term. “Natural” as pertains to citizenship must be either Jus sanguinis, Jus soli, or both. Beyond that Congress would be redefining the term. The only way to do that would be through an amendment.
And the issue for Cruz, Obama, and Rubio depends on which of the three possibilities above apply. My argument is that Jus sanguinis must apply because the act in 1790 proves the founders regarded citizenship as being naturally conveyed at birth according to the citizenship of the parents.
If YES, can you cite one court precedent that supports your view? One precedent where the child born abroad to one or two US citizen parents was NOT naturalized. There are hundreds of court cases to pick from, on citizenship, with birth abroad to one or both citizen parents.
-- if Congress said that children born in Mexico to parents who were not US citizens at the time are "natural born citizens", they would be redefining the term. --
Sort of like when the government says "persons up the age of 22 shall be considered as children" redefines "child?"
Off the top of my head, it seems to me that your definition of NBC comes from Vattel, not from US law.
-- Congress cannot retroactively make anyone a "natural born citizen". --
In 1958, Congress passed a law that said persons born in Alaska since 1867 were US citizens at birth. Is that law (still on the books) unconstitutional? Extra credit, this question has no bearing on whether or not Cruz is a naturalized citizen.
-- Another example: US citizens adopt a foreign child. The child also becomes naturalized. --
Since when? That isn't a trick question, it has an answer and I know the answer. Just for extra points, totally irrelevant to whether Cruz is naturalized or not.
The constitution expresses who shall be citizens of the US, does it not? Art IV, Sec. 2 and the 14th amendment. The founders composed Art IV Sec. 2.
The constitution operated before the 1790 naturalization act was passed (it would operate if no naturalization act was ever passed), and surely there were citizens who were not born-abroad.
Setting aside the NBC clause (which sets forth a limitation), where do you find jus sanguinis in the constitution?
“How you conveniently ignore this - James Madison was on the House Committee that wrote the 1795 Act that REPEALS the 1790 Act”
How conveniently you ignore that the act was repealed, not overturned by the Supreme Court. It was a lawful act. Madison NEVER said otherwise. NO other founder ever said otherwise. The 1795 act was also repealed, and the one after that, and the one after that.
“Congress had a chance in 2004 to reinstate NBC status to those foreign born to a US citizen parent, but did not.”
Citizens can only be one of two things: natural born or naturalized. The acts do not have to label them “natural born” any more than “naturalized”. The issue revolves around whether they are a foreigner. Naturalization is ALWAYS conferring citizenship on a foreigner.
“’Natural born citizen’ is a special citizenship status referred to only once in the constitution for the presidential requirement. How convenient it is for you to break it into 3 words to be interpreted individually the way you wish.”
Convenient AND accurate. It is not rocket science. It is simple language. The founders chose NOT to use legal terms in Latin for a reason. It is not interpreted as I wish, but simply as it is.
Great Britain had three classes of subjects: naturalized, natural born, and royalty. Only royalty could ever become king. Our nation followed the natural law described by Vattel in the Law of Nations. Citizenship “naturally” is conveyed from parents to their children. In Great Britain, place of birth was paramount. So even those born in British colonies were subjects of the crown.
But our laws are in contrast to Great Britain’s. The term “subject” is based on the rights of the king. The term “citizen” is based on the rights of the individual. Natural born subjects were subjects “naturally” due to the jurisdiction of the king which extended to colonies. In contrast, citizenship has to do with the rights and protections of the persons who are governed by their consent. Children are special cases because they cannot consent. Their parents consent for them. The citizenship of children naturally follows that of their parents.
Dual citizenship has been an issue for thousands of years. And the possibility of being a dual citizen at birth has also been an issue for thousands of years. Ultimately, according to the philosophy of our founders which was based on the Law of Nations, it is within the purview of the legislature to establish rules of citizenship and immigration. We cannot dictate what Iran does. Iran cannot dictate what we do. We can, however, require giving up foreign ties to become citizens, hold office, etc.
Check out the legal arguments for the war of 1812. Great Britain attempted to dictate that British-Americans could not fight on the side of the US in that war. Congress passed a law requiring all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. See the text here:
http://lcweb2.loc.gov/cgi-bin/ampage?collId=llhj&fileName=008/llhj008.db&recNum=663
Great Britain’s attempt to draft British-Americans to serve in their navy was a provocation that led to this war. If the founders accepted the Jus soli definition of natural born subject then Madison would not have included it in the list of reasons for being in a state of war with Great Britain.
“So this child is nbc of USA and nbc of Iran?”
Citizenship is conveyed naturally by the parents, not by the place of birth. Whether a child born in Iran could be a natural born citizen of the US depends on the law at the time. However, to be clear, natural born citizenship is a legal construct. Our laws and Constitution have no bearing at all in Iranian law, or the laws of nations in general. Congress DOES have jurisdiction to “define and punish... Offenses against the Law of Nations” though.
“The constitution expresses who shall be citizens of the US, does it not?”
You mean this?
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Well, yes and no. Before 1790, the laws of individual state determined who was a citizen of that state. That is why Congress was given power to create a uniform rule of naturalization.
“The constitution operated before the 1790 naturalization act was passed (it would operate if no naturalization act was ever passed), and surely there were citizens who were not born-abroad.”
See above.
Too many threads. I am consolidating yours because I am talking to more than one person.
“Would it be accurate to say that your view of the law on the subject is that persons born abroad of one citizen parent are NOT naturalized? YES or NO.”
Depends on the naturalization law in effect. For Cruz, yes. For Obama, no. Both had mother’s who were US citizens. But Obama’s mother did not meet the requirements of the 1952 act. Cruz’s mother did.
And I am not going to get into a discussion over what the courts say. They can be all over the board. The only court issue that would matter is what the courts would say right now about Cruz. Other than that, the clear intent of the founders is what matters.
“Off the top of my head, it seems to me that your definition of NBC comes from Vattel, not from US law.”
You would certainly have a point IF the Constitution clearly defined “natural born citizen”. It did not. However, the first act of Congress on the matter 18 months later does give us a clue to their understanding of the term and intent. That and history seem to support the Vattel definition.
“Setting aside the NBC clause (which sets forth a limitation), where do you find jus sanguinis in the constitution?”
I’ve already answered this. I’m not taking the time to repeat all that I said. You will need to go back and read it again if you are interested in my opinion on that.
Looking at jus sanguinis ... if a married couple, both US citizens, moves abroad and has a child, the child is a citizen by jus sanguinis.
Can that child transmit his citizenship by jus sanguinis, without ever setting foot in the US? The UK has this, allows transmission of citizenship by jus sanguinis across two generations. I bring up the UK just to say that this sort of citizenship arrangement exists in the real world.
My question to you, is what is the limit of the "definition" of NBC, that constrains Congressional Act. How far can Congress go "full jus sanguinis" without redefining the term NBC? How many generations can become citizens without setting foot on US soil? Where do you find the authority for the limits of NBC, if there is one?
[[Naturalized and natural born are mutually exclusive. One cannot be both]\]
Agreed- no disagreement here-
[[All the rest in 1401, and every birth covered by 1409, is naturalized.]]
All the rest “ARE” Naturalized? Or are “ALL THE REST IN YOUR OPINION ARE” Naturalized? Because this is the area where legal scholars disagree-
[[This discussion isn’t about what I believe.]]
Actually the discussion is about a disagreement between you and I over what we both believe-
[[My take on case law is well said by the case law itself:
Congress is empowered by the Constitution to ‘establish an uniform Rule of Naturalization,’ Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.]]
I understand the position you take on the issue- however, there is still the fact that legal scholars believe that while congress is given the power to describe what naturalization is, by implication, this means it also has the power to describe what it isn’t- and they believe that congress has made it clear that only cases in which a process takes place is naturalization- the rest have their citizenship automatically without need of a process-
I understand your quibble with this That essentially, I believe, takes the position that anything that relies on an ‘act or statute of congress for definition’ means it is an act of statute and not an act of constitution- however this again is the major disagreement among legal scholars-
[[I don’t even know what you mean by the phrase “must apply after birth,” and I don’t know if “at birth and by birth do not [have to apply]” is the correct take on your statement.]]
I’ll try to explain- I’m not a wordsmith obviously- and htigns come out confusing, I know this- however I’ll try ot be clear-
The major issue among legal scholars seems ot boil down to jus soli and jus sanguinis- some purists think only jus soli qualifies a person for presidency IF the parents are citizens too- other say jus soli if only one parent is citizen, while other argue that jus soli and jus sanguinis allow a child to run for president someday IF one, two, parents, either or, is a citizen (which brings us to ‘at birth and by birth’)
At birth indicates jus soli, by birth indicates jus sanguinis, which implies citizenship by descent basically- (I know you know all this- I’m just trying to make my comments clearer concerning my take on at birth and by birth)
The CRS report and the cases cited by the report, both SC case and federal- indicate that jus sanguinis is afforded the same rights as jus soli if conditions are met- arguing that basically common law/natural law and the law of nations etc imply citizenship is passed, in a sovereign right, by descent to the child of a sovereign parent- This is a ‘natural law’ (that congress gets to further ‘help’ by defining what naturalization is or isn’t later, as circumstances change and warrant further clarification by congress- While congress may not directly define NBC, they indirectly clarify it further by describing those things which need a process of naturalization and those that don’t-
This last statement I think is the point of contention in the different camps - some assert that it is an attempt by congress to manipulate NBC by ruling on what isn’t NBC, others state that it does no such thing and simply clarifies NBC further as was intended by the founders who knew things would necessarily have to be further defined as the country grew and circumstances changed through the ages (or rather as new info came to light which would later complicate things further ie: the whole stinking gay marriage issue, in vitro fertilization, paternity issues etc) Things our founders perhaps didn’t realize, but envisioned unforeseen complications would arise later-
I’ve made it clear which side I’m leaning towards, and given the reasons why- I’m not seeing the significance of your argument bringing up 1409 all the time- maybe I’m just missing your point- or maybe your aren’t explaining it well enough, I don’t know- probably the former- but the conversation seems stalled at this one point-
Now, I’m going to sit back and follow your conversation with unlearner for a bit- as you both are bringing up interesting points- important points- which I think may help to possibly clarify the point you are trying to make to me, about 1409-
I asked whether or not the person was naturalized, and your answer says Cruz was a citizen, and a hypothetical Obama would not be. But your answer does not directly say whether Cruz was naturalized.
Also, does it not strike you as "weird" that Congress can make and eliminate NBC's by statute? From the founding of the country until 1934, a US citizen mother married to an alien father could not produce a US citizen on birth abroad, the 1790 act did not make those children citizens (see the Bellei case). What's "natural" about that? Vattel didn't disappear in that interim, only to suddenly reappear in 1934.
-- I am not going to get into a discussion over what the courts say. They can be all over the board. --
I take that as you being unwilling to support your point of view with authority.
It is also telling that you won't give a direct answer to "where do you find jus sanguinis in the constitution?"
I'm held to produce authority for my propositions, and yours are correct just because you say so. That is at best unfair on your part.
Given a choice between case law and unlearner's word, every reasonable person will go with the case law.
Can you PLEASE, pretty please, express what you mean by "must apply after birth" as you used that phrase a couple days ago? In context, it (the verb "to apply") reads like an action that is taken by the parents (or the child), making an application to the US government, for example, to the State Department or a consular office.
This is what you said:
1409 has only to do with a child of a foreign mother, who resides with a father- they are the ones who must apply after birth- at birth and by birth do not-
You are the one who introduced 1409, using a misleading CRS restatement of the Nguyen case as authority for the proposition that in certain cases, birth abroad is equivalent to birth on US soil.
You obviously don't understand my explanation of why the CRS restatement is misleading, or my restatement of what the Nguyen case actually says and stands for. But never mind that.
I want to understand what that blockquote sentence of yours means. "they are the ones who must apply after birth- at birth and by birth do not-" describes two different groups. I don't want an explanation WHY one group has to "apply" (whatever that is) and the other does not. I only want to know, precisely, who the "they's" are, and what is "must apply after birth."
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