Birthright Citizenship-ers, Dual Citizenship-ers, and Birth-ers

The Post & Email ^ | March 10, 2010 | Sally Vendée

[kyright]

Going with the new trend of adding “-er” to the end of terms describing groups of people with similar beliefs ungrounded in commonly-accepted reality, we need to add Birthright Citizenship-ers and Dual Citizenship-ers to the mix, along with the Birth-ers.

The reason to group them together—they march to the same drumbeat—all apparently believe that birth in the US is all that is necessary for anyone to have US citizenship. The only point on which they seem to disagree is whether a long-form or a short-form birth certificate is sufficient proof. (Many of the so-called birthers will argue the finer point of “natural born” type of citizenship for the Presidency, but that will be addressed here later.) Ironically, those who loudly ridicule the “birthers” who shout “show me the birth certificate” find themselves also relying on the birth certificate. They can all march together to Washington DC with Philip Berg, hand in hand, waving their certificates.

The addition of the “-er” to these other groups is merited because the notion of Birthright Citizenship—automatically granted to all children born on US soil to parents who are not US citizens—is not grounded in the reality of the Constitution. And even though dual citizenship is now tolerated, the oath for US naturalized citizens specifically disallows allegiance to any other country.

[PugetSoundSoldier]

Can you tell me the Constitutional basis for natural born citizenship, then? Where and how is it defined?

[El Gato]

It says they're a citizen at birth. It's the same thing.

The Supreme Court begs to differ. Look it up. It's a fairly recent, 20th century, case involving the differing requirements for persons born abroad of a US citizen father, verses those born of a US citizen mother, with the other parent being an alien.

[Cboldt]

-- The other six US Presidents with foreign born parents aren't "strawmen," they are historical precedents. --

The strawman is your (implied) argument that the birthplace of the parent is relevant to determining the citizenship or "constitutional natural born citizenship" of the child. I also disagree with your construction of Wong Kim Ark, but I have no use for discussing that disagreement with you.

[PugetSoundSoldier]

Hmmm... S.2128 seems to simply re-create the original position of the 1790 act [see Sec 2(a)(2)(A)] whereby you can be born outside US soil, but if your parents are citizens you are considered a natural born citizen.

It also seems to explicitly state that being born on US soil (outside of those exempt from US jurisdiction such as an ambassador) are natural born citizens as well. Thus, in the case of Obama, if he was born in Hawaii the status of his father is moot (at least from S.2128’s interpretation).

I’m not sure how I see S.2128 disagrees with the 1790 Act.

[El Gato]

There is no difference between a “born citizen” and a “Natural Born Citizen” anywhere in US law.

Could that be because "Natural Born Citizen" does not appear in any US law. Except one clause of the Constitution.

[patlin]

You mean because I read the words, the history, and the actions of the Founders and I reach conclusions different from you I must not be capable of independent thought.

If you know so much then cite the founders? Cite the founder you speak of that refutes this founder who actually was on the committee of 6 that constructed all the drafts and in whose handwriting the Constitution is seen & read by people every day:

Supreme Court Justice James Wilson (1791)

English law has its roots in Anglo-Saxon customs, which were too firmly established to be completely broken by the Norman Conquest and still form the basis of their common law today. In 1068, having at last reduced the country to submission, William set to work to establish a Roman government on a firm and lasting basis.

Roman law is legal system of ancient Rome is now the basis of civil law, one of the main European legal systems. Church influence led to the adoption of Roman law throughout western continental Europe, and it was spread to Eastern Europe and parts of Asia by the French Code Napoléon in the 19th century. Scotland and Québec (because of their French links) and South Africa (because of its link with the Netherlands) also have it as the basis of their legal systems.

In otherwords, Western Europe initially had 2 systems of law: Commmon Law of Rome and the Common Law of the Saxon, prior to the conquest. US law is the renewed form of Saxon law...

As a citizen of a republican government owes obedience to the laws ; so he owes a decent, though a dignified respect to those who administer the laws. In monarchies, there is a political respect of person : in commonwealths, there should be a political respect to office. In monarchies, there are ranks, preeminences, and dignities, all personal and hereditary. In commonwealths, too, there are ranks, preeminences, and dignities; but all official and successive. In monarchies, respect is paid without a prospect of return. In commonwealths, ‘ one may, next year, succeed, as an officer, to the respect, which, this year, he pays as a citizen. The dignities of office are open to all.

You will be pleased to hear, that, with regard to this as well as to many other subjects, we have renewed, in our governments, the principles and the practice of the ancient Saxons...

The subject, to one standing where I stand, is not without its delicacy: let me, however, treat it with the decent but firm freedom, which befits an independent citizen, and a professor in independent states.
Surely I am justified in saying, that the principles of the constitutions and governments and laws of the United States, and the republicks, of which they are formed, are materially different from the principles of the constitution and government and laws of England; for that is the only country, from the principles of whose constitution and government and laws, it will be contended, that the elements of a law education ought to be drawn. I presume to go further: the principles of our constitutions and governments and laws are materially better than the principles of the constitution and government and laws of England...

The only rational and natural method, therefore, of constituting a civil society, is by the convention or consent of the members, who compose it. For by a civil society we properly understand, the voluntary union of persons in the same end, and in the same means requisite to obtain that end. This union is a benefit, not a sacrifice: civil is an addition to natural order.

[El Gato]

Can you tell me where in the Constitution it defines what a Natural Born Citizen is? Use the Constitution only, please.

About the only term the Constitution defines is "treason". And that is because they were changing the commonly accepted definition.

[El Gato]

That those who wrote the Constitution did not consider, write, and pass the original legislation?

Some did, many did not. But many of those who passed the 1790 act also passed it's replacement, which removed the "shall be considered as natural born citizens:" in favor of just making the same persons citizens.

Why did they do that?

The first Speaker of the House,Frederick Muhlenberg, was not a signer of the Constitution. However the President pro tem of the Senate was.

There were 39 signers of the Constitution. There were 62-64 representatives in the House and 24-26 Senators at the time the first Immigration Act was passed.

[El Gato]

Well yeah. That’s the way it works. When Congress passes a law, its the law of the land until its declared unconstitutional.

Not what the courts have said.

An Unconstitutional Act is not law; it confers no rights: it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” (Norton vs. Shelby County 118 US 425 p.442)

And it is unconstitutional from the day it is signed, one cannot be punished for violating such a "law", even if one does so before the law is declared unconstitutional.

[BP2]

> I’m not sure how I see S.2128 disagrees with the 1790 Act.

The very fact that Congress even saw the need to enact a Bill such as S.2128 is a clear indication that they KNOW any provisions of the 1790 Act were revoked by the 1795 Act which does not include the “Natural Born Citizen” language.

In the same way the SCOTUS has overturned previous SCOTUS rulings, Congress historically has done the same with previously-passed Legislation.

One example of this is how the 18th Amendment regarding prohibition in 1919 was overturned by the 21st Amendment only 14 years later. There are obviously numerous other examples on this in the annals of Congressional history.

To that end, IF the Dems push through ObamaCare in early-2010, expect a Republican Congress to overturn ObamaCare in early-2011.

[El Gato]

Can you tell me the Constitutional basis for natural born citizenship, then? Where and how is it defined?

It's not. At least in the statutes or the Constitution. You have to look at what the authors and as importantly the ratifiers, of the Constitution understood it to be.

Judging by citations, they depended more heavily on Vattel's Law of Nations than they did on Blackstone's Commentaries. Vattel says that "naturals", are those born in the county of parents who are citizens. He also called them "natives". But the meaning of native has drifted since then.

He also documents an exempton of sorts to the "born in the country" for those born in the armies of the nation" or in the diplomatic corps. Those are to be found in Book one, sections 212 and 217. The former for the "naturals" defintion the latter for the armies of the state exemption.

But Vattel was not alone, he mostly chronicled what others had written, and that "naturals" definition is contained in earlier works as well.

[BP2]

Emphasis added. It seems to me that being born on US soil is enough to qualify for natural born citizenship, if we're to fall back on the history of English common law, at least that's what the Supreme Court ruled. Correct?

I should point out at the beginning that this includes new research, especially regarding US v Wong Kim Ark ...

As attorney and law expert John W. Guendelsberger pointed out in 1992 regarding US v Wong Kim Ark (169 U.S. at 653): “In particular, the Court noted the Constitution's requirement that the President be a “natural-born citizen,” a condition whose meaning could be derived only by reference to English common law in existence at the time” – see US v Wong Kim Ark (1898), referencing Minor v. Happersett (1874).

However, a closer look at this “reference to English common law in existence at the time” used in Wong Kim Ark includes the somewhat dicey and contemporary use of A. W. Dicey’s 1896 edition of “Conflict of Laws”. Dicey’s 1896 version of “Conflict of Laws” is the primary reference used in Justice Gray's discussion regarding “Natural Born Subject” in Gray’s 1898 Wong Kim Ark Majority Opinion.

Significant portions of this language that Dicey used in his 1896 version of “Conflict of Laws” (referenced in the 1898 US v Wong Kim Ark) disappeared in the 1908 and subsequent versions of Dicey's book. Further, it would appear that as the years moved on, Dicey’s respect for the wisdom of "Blackstone’s Commentaries" seasoned with time.

Fast forward from the 1898 Kim Wong Ark Opinion to 1932, when an older and wiser A. W. Dicey himself wrote, “To any critic of Blackstone, as to any student of English law, I unhesitatingly give this advice: Begin your study by reading Blackstone's Commentaries. Keep in mind that the book describes English law as it stood towards the end of the eighteenth century.”

Of course, this would include the US Constitution, ratified in 1789, influenced by "Blackstone’s Commentaries". Just five years later, the Congressional (Senate) Library purchased its only two books of the 18th Century: "Blackstone’s Commentaries" and Vattel's "Law of Nations":

Although the famed Wong Kim Ark case itself is referenced dozens of times by subsequent US Supreme Courts, Dicey’s “Conflict of Laws” has only been referenced EIGHT times in ALL of the searchable US Supreme Court Opinions on record. In fact, the last time Dicey’s “Conflict of Laws” was referenced by the SCOTUS was in 1964 BANCO NACIONAL DE CUBA v. SABBATINO, 376 U.S. 398, nearly 46 years ago. That's very telling of the US Supreme Court's use and confidence of Dicey’s late-19th century book in their Court Opinions.

By comparison, "Blackstone's Commentaries" is considered to be one of the chief standards used by today's Roberts Court in interpretation of common law, searchable thousands of times in prior Supreme Court Opinions. Most recently, "Blackstone's Commentaries" was referenced nearly 20 times in determining the Framer's meaning of “keep and bear arms” in the 2008 DC v Heller Opinion.

So, if one is to invoke Common Law as it existed at the end of the 18th century, the default reference IS Blackstone. As Obama’s father was a British subject and Obama became a Indonesian citizen, there’s an often-overlooked portion of "Blackstone’s Commentaries" that immediately damages Obama’s claim as a “Natural Born Citizen”:

[BP2]

Judging by citations, they depended more heavily on Vattel’s Law of Nations than they did on Blackstone's Commentaries.

Very correct.

Just to point out to the casual observer in this debate of the Framer's meaning of “Natural Born Citizen”: whichever you pick as a reference — EITHER Vattel or Blackstone — Obama is equally as screwed.

[trumandogz]

“So no need for the bribe. Obama had a non US citizen parent. Therefore, even if he is native born, in the modern meaning of the term, he’s not natural born.”

I have seen that “theory”bandied about for two years and not a singe person has been been able to cite legislation that proves that to be fact.

[Non-Sequitur]

That depends upon the country.

Yes it does.

Before they can become US citizens at age 18 they have to prove they have “lived”in the US for 4 years by using proof of passports and travel documents.

Then they should see an attorney. According to Title 8 > Chapter 12 > Subchapter III > Part I > § 1401 > Paragraph G the would seem to be natural born citizens. That paragraphs says that 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 is a natural born citizen.

[Non-Sequitur]

The Supreme Court begs to differ.

I think you're wrong on that one.

[Non-Sequitur]

Only by assuming that "citizen at birth" is the same as "natural born citizen" can you make such statement.

They do.

But that courts have already ruled that those who are citizens at birth by operation of that statute, or any other, must be considered "naturalized at birth", under Congress power to define rules of Naturalization.

I don't think you're correct on that one.

If they are naturalized, they can hardly be natural born, now can they?

So a person born in the U.S. of two citizen parents is a naturalized citizen?

[rolling_stone]

That paragraphs says that 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 is a natural born citizen.

Really? What I read is " The following shall be nationals and citizens of the United States at birth: " and besides that was not the law in 1961....but then you knew that...

According to the State Department:

"In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."

http://www.state.gov/documents/organization/86757.pdf

[edge919]

At best, Obama might be a native-born citizen, like Ark, but not natural born, based on the Ark decision, since the court decided not to declare Ark to be a natural born citizen.

[allmendream]

Nice that you think you know the definitions.

Now where are these definitions spelled out?

Especially the plural in Parent(s).

And in Wong Kim Ark they found the child of foreign nationals born inside the USA to be a “natural born subject”. Hardly consistent with the definitions you invented.