Posted on 01/14/2010 11:55:03 PM PST by bushpilot1
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting.
I cannot concur in the opinion and judgment of the court in this case.
The proposition is that a child born in this country of parents who were not citizens of the United States, and under the laws of their own country and of the United States could not become such
-- as was the fact from the beginning of the Government in respect of the class of aliens to which the parents in this instance belonged -- is,
from the moment of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment, any act of Congress to the contrary notwithstanding.
Book I, c.19, § 212.
"The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . .
The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction."
Before the Revolution, the view of the publicists had been thus put by Vattel:
The natives, or natural-born citizens, are those born in the country of parents who are citizens.
As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers,"
(Excerpt) Read more at law.cornell.edu ...
are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."
I am no attorney but reading the opinion of Chief Justice Fuller..Obama is not a natural born citizen.
Chief Justice Fuller is in good company, and not alone.
The definition of the term, “natural born citizen”, was entered into the Congressional record of the House on March 9, 1866, in comments made by Rep. John Bingham on the Civil Rights Act of 1866, which was the precursor to the Fourteenth Amendment. He repeated Vattel’s definition when he said:
“[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that 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. . . . ” — John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866).
In other words, anyone born in the U.S.A. to citizen parents is a natural born citizen.
Here is the true precedent from a most liberal professor.
In a recent Illinois Public Law & Legal Theory written by Professor Lawrence B Solum of the U of IL, College of Law, Chicago, Solum further explains why the English common law definition of ‘natural born subject was not the definition adopted by the Framers for the Sovereign citizens of the United States of America.
[Blackstone Commentaries (1765): When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;...]
[F.E. Edwards, Natural Born British Subjects at Common Law, 14 Journal of the Society of Comparative Legislation 314 (1914): The pro- position that British Protectorates, and consequently any less interest of the Crown, should be excluded from our definition of the King’s protection, is supported by Sir William Anson, who declares that birth within such a region is not sufficient to found a claim for British natural-born status. The real test of whether a given territory is part of the British Dominions is that it must have passed openly, completely, and unequivocally into the possession of the Crown.]
[Solum: If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified. This might lead to the conclusion that McCain would not be a constitutional natural-born citizen, because the Panama Canal Zone was not the sovereign territory of the United States, but was instead merely subject to its administrative control.
The language of the Constitution recognizes a distinction between the terms “citizen” and “subject”. For example, in Article III Section 2, which confers “judicial power” on the federal courts, “citizens” of the several states are differentiated from “citizens” or “subjects” of foreign states—corresponding to the distinction between diversity and alienage jurisdiction. In the framing era, these two terms reflected two distinct theories of the relationship between individual members of a political community and the state.
In feudal or monarchical 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 assigned sovereignty to the people.
The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, the first great constitutional case decided after the ratification of the Constitution of 1789:
[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State…
[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…]
As you can see, in England there are two very distinct meanings of ’natural born’ subject. In one hand there is the broader view & in the other there is the view of the laws of nations. What the liberal progressive constitutionalists use is the broader view and thus disregard the fact that at some point, even England used the law of nations. The Framers also knew of Englands use of the law of nations and were very aware of its importance when establishing a new nation. It has also been proven that the Law of Nations was in the hands of the Framers at the time of the drafting of the Declaration of Independence.
...we know for a fact from the very 1st SCOTUS Justice Washington appointed, a Justice who was only 2nd to Madison in the drafting of the Constitution that the definition for US citizens was not derived from English common law, but on the law of Nations which is the law of nature:
“The law of nature, when applied to states and political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation…But if the knowledge of the law of nations is greatly useful to those who appoint, it surely must be highly necessary to those who are appointed…As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects treated of the law of nations separately; but has every where joined it with the law of nature, properly called so…the law of nature is applied to individuals; the law of nations is applied to states.”
Wilson, in his 1st commentaries, blasts Blackstone’s theory by citing that the definition of ’subject’ per English common law according to Blackstone was not the definition of ‘citizen’ as adopted by the framers of the US Constitution. A ’subject’ is ruled by an all powerful central government/monarchy and the under the new Constitution of the United States, the central government’s power is derived from the people, the citizens.
Wilson also wrote the very 1st SCOTUS decision in Chisolm which is cited to this day as to the powers of the central government. He also was no right-wing conservative where the limits of the central government were concerned. Wilson felt that the Constitution did not go far enough in giving broader powers to those in Washington, but he KNEW the premise of the Constitution and stood behind it in every decision he made, regardless of his political philosophy.
I made a mess of this post..I’am wired on coffee..today..thanks for posting.
bttt
Gabriel Chin's recent paper on McCain's eligibility explores and supports the reasons that McCain is not a natural born citizen. Even the Canal Zone in 1936 was a unique place for not having applicable sovereignty statutes. A law was passed in 1937, but being natural born can not be retroactive.
Now our Republican ‘leadership’ is promoting both Romney and Jindal, neither of whom is a natural born citizen. That could insure that the validity of laws, appointments, treaties, signed by the ineligible Obama will not be challenged by Republican legislators.
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]
The majority opinion says he is as much a citizen as the natural born child of a citizen, but was it DOESN'T say is he IS a 'natural born citizen'.
If that were the case, the opinion would have said Wong Kim was a natural born citizen....but it does not.
He is a native born one.
I knew about Jindal, but I was not aware of Romney. As I recall, his father was born in Mexico to missionary parents (from England?),but I assumed that he became a US citizen before raising a family. Can you lead me to a source on this matter. This is huge. Great point! Note tagline.
Romney’s father was also a republican candidate for president although he was born in Mexico.
A question for someone with more legal knowledge than I. My wife and I are US citizens, born in Illinois and Virginia. Both of my children were born in Germany during my overseas tours. Both have birth certificates issued by the US State Dept that are headed “Record of a US citizen born abroad.” Are they Natural Born Citizens, and if so, what makes them Natural Born Citizens?
Where do you get that he was born in Mexico? He was born in Detroit, Michigan.
ping
George Romney was born in Mexico, read my post again.
I´m not a lawyer either but if you are trying to argue that Obama isn´t a natural born citizen on the basis of a *dissenting*, minority opinion from SCOTUS, then it stands to reason that the majority opinion (ie the one that counts) is that SCOTUS has determined that he is an NBC.
What part of 'Dissenting Opinion' don't you understand?
There is established case law precedent on the other side of the argument as well:
Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999) (children born in US to two Romanian citizens described as “natural born citizens” of the US):
Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.
DeTomaso v. McGinnis, 970 F2d 211 (7th Cir. 1992) (equating “natural born citizen” with “native born citizen” for purposes of presidential eligibility): “DeTomaso is ‘eligible’ to be President of the United States if he is “a natural born Citizen … [who has] attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” Art. II § 1 cl. 5. A 35-year-old native does not have a property interest in the presidency.”
Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983) (child born in US to Mexican citizen is “natural born citizen” of US): “Petitioner, Sebastian Diaz-Salazar, entered the United States illegally [from Mexico] in 1974 and has been living and working in Chicago since that time. *** The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States.”
Nwankpa v. Kissinger, 376 F. Supp. 122 (M.D. Ala. 1974) (child born in US to two Biafra citizens described as “natural born citizen” of the US): “The Plaintiff was a native of Biafra, now a part of the Republic of Nigeria. His wife and two older children are also natives of that country, but his third child, a daughter, is a natural-born citizen of the United States.”
Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961) (holding that where evidence supported contention that person was born in US (to two citizens of Greece), he was a “natural born citizen” of the US): “The plaintiff claims that he is a natural-born citizen of the United States, having been born in Wheeling, West Virginia, on July 14, 1900. He claims that when he was two or three years of age his parents returned to their native Greece… ***
The Court is of the opinion that, weighing the evidence on both sides, the plaintiff has established by a fair preponderance of the evidence that he is a natural-born citizen of the United States, and the Court so finds.”
Nyman v. Erickson, 170 P. 546 (Wash. 1918) (child born in the US to Russian citizen was “natural born citizen” of US):
“Appellant was therefore, as correctly decided by the General Land Office and the Department of the Interior, not an heir of the deceased entryman, while at the time of the final proof at least the grandchild Esther Gustafson undoubtedly was. She was born in a state of the United States, and whether her parents were naturalized or not, under the Constitution she is a natural-born citizen of the United States entitled to the benefits of all the laws of the United States and of the state. U. S. Const. Amend. 14, § 1.”
State ex rel. Carroll v. Sup. Ct. of Washington, 193 P. 226 (Wash. 1920) (holding that there are two (and only two) paths to citizenship and that natural born citizenship depends upon location of birth): “According to the Fourteenth Amendment of the Constitution of the United States there are two methods by which a person may become a citizen: (a) By birth in the United States; and (b) by naturalization therein . A natural-born citizen’s right to vote depends upon his place of birth, and this is the fact to be established. A naturalized citizen’s right to vote depends, not upon his place of birth, but on a judgment or decree of a court of competent jurisdiction, declaring either him or his ancestor a naturalized citizen.”
If the argument comes from a dissenting opinion then it is not established case law precedent.
“Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence”
This was part of the opinion by Justice Gray. Obama had a foreign residence after his alleged birth in Hawaii. Seems to me if Ark had residence in Indonesia for several years would he kept the same opinion.
Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . .
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 [p680] 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.
It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
Can’t get away with anything around here!
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