Stop calling me your BFF! I'm only an anime character!
Posted on 06/21/2011 1:55:34 PM PDT by rxsid
"US SUPREME COURT PRECEDENT STATES THAT OBAMA IS NOT ELIGIBLE TO BE PRESIDENT.
The title of this article is correct. After having completed a more thorough review of the relevant US Supreme Court cases discussing the Constitution’s natural-born citizen clause, I have discovered precedent which states that a natural-born citizen is a person born in the jurisdiction of the US to parents who are citizens. Read that again. I said precedent, not dicta. The precedent holds that Obama is not eligible to be President of the United States.
Up until the publication of this report today, all discussion of the natural-born citizen issue (from both sides of the argument) agreed there had never been a precedent established by the US Supreme Court, and that the various cases which mentioned the clause did so in “dicta”.
Dicta are authoritative statements made by a court which are not binding legal precedent.
Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases“.
Precedent that must be followed is known as binding precedent. Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court. On questions as to the meaning of federal law including the U.S. Constitution, statutes, and regulations, the U.S. Supreme Court’s precedents must be followed.
It can no longer be denied that there is controlling US Supreme Court precedent concerning the definition of a natural-born citizen according to Article 2 Section 1 of the US Constitution. I predict satori will overcome those of you who have labored over this issue. This is not a remote obscure reading. It is, when revealed, a clear undeniable holding and binding precedent established by the highest Court of our nation which specifically defines an Article 2 Section 1 natural-born citizen as a person born in the US to parents who are citizens.
Therefore, Obama – according to US Supreme Court precedent – is not eligible to be President.
PRECEDENT ESTABLISHED BY MINOR V. HAPPERSETT
The direct US Supreme Court precedent is stated in Minor v. Happersett, 88 U.S. 162 (1875). Furthermore, the precedent stated in Minor is consistent with other US Supreme Court cases – both before and after Minor – which discuss the natural born citizen issue. While that part of the holding in Minor regarding woman’s suffrage was superseded by the 19th Amendment – which Constitutionally established a woman’s right to vote – the rest of the case is good law. And the remaining precedent stated regarding the definition of “natural-born citizen” – with regard to Article 2 Section 1 of the US Constitution – is still binding upon all lower courts.
Therefore, lower court decisions – such as the holding in Arkeny v. Governor of the State of Indiana – which have misconstrued the US Supreme Court’s holding in Minor v. Happersett are wrong. Below, we will review what the Indiana Court of Appeals had to say and explain why they got it wrong. But first we must revisit Minor v. Happersett.
THE SUPREME COURT IN MINOR V. HAPPERSETT DIRECTLY CONSTRUED THE US CONSTITUTION’S ARTICLE 2 SECTION 1 NATURAL BORN CITIZEN CLAUSE
Before revisiting Minor, we must revisit Wong Kim Ark, 169 U.S. 649 (1898) to review a clearly erroneous statement made by Justice Gray concerning the prior holding in the Minor case:
“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.’ “ (Wong Kim Ark at 655.)
This unfortunate remark by Justice Gray contains a clearly erroneous statement. The Supreme Court in Minor did not construe the 14th Amendment as to the issue of citizenship. Gray is absolutely wrong. The Court in Minor construed Article 2 Section 1, not the 14th Amendment. For over a century, it has been wrongly assumed that the Court in Minor did construe the 14th Amendment, and that the holding of Minor was later superseded by Wong Kim Ark. This is not correct.
A more careful reading of the Supreme Court’s opinion in Minor makes it clear that it did not construe the 14th Amendment with regard to the citizenship of the woman who wished to vote. The question presented was whether, since the adoption of the 14th Amendment, women had gained the right to vote. The Supreme Court in Minor held that nowhere in the Constitution, including the 14th Amendment, was anyone, man or woman, granted a right to vote. And it was only this part of the Minor case which was superseded by the 19th Amendment.
The other issue decided by the Court in Minor required the Supreme Court to determine if the woman was, in fact, a US citizen. As to this determination, the Court did not construe the 14th Amendment. In fact, the Court specifically avoided construing the 14th Amendment with regard to her citizenship. Instead, the Supreme Court in Minor chose to construe Article 2 Section 1:
“There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof ‘ are expressly declared to be ‘citizens of the United States and of the State wherein they reside.’ But, in our opinion, it did not need this amendment to give them that position …“The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption. If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters. (Emphasis added.)
There you have it. The Court stops short of construing the 14th Amendment as to whether the woman in question was a US citizen. The Court made a certain, direct determination that Mrs. Minor was a US citizen before the adoption of the 14th Amendment and that she did not need the 14th Amendment to be a US citizen.
The Court then, having determined that she was a US citizen, avoided any construction of the 14th Amendment as to her citizenship status. Therefore, the holding in Minor is in no way superseded by Wong Kim Ark.
The Court in Minor went on to decide the issue of whether citizens are granted a right to vote by the Constitution, holding that it did not. Again, this part of the holding was superseded by the 19th Amendment, but the determination that Mrs. Minor was a “natural-born citizen” is still controlling precedent.
Since the Court in Minor specifically avoided construing the 14th Amendment as to citizenship, it is clear that Justice Gray’s statement – concerning the citizenship passage by Justice Waite in Minor – was clearly erroneous. The Supreme Court in Minor chose to construe Article 2 Section 1 instead of the 14th Amendment. As such, Minor is the only US Supreme Court case which has directly construed the Article 2 Section 1 natural-born citizen clause. Therefore, Minor’s construction below creates binding legal precedent:
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,‘ and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.“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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.“ (Emphasis added.)
Whether the holding here was influenced by Vattel is not truly important. Sure, it looks just like Vattel’s definition, but Vattel does not make legal precedent – the US Supreme Court does. All that matters here is what the Supreme court held. So we must carefully examine the actual words stated by the Supreme Court. We must not allow ourselves to be guided by what the Supreme Court did not say. What the Court actually said is what makes law.
In the above passage, the Court noted that Mrs. Minor was born in the US to parents who were citizens. The Court stated that such persons were “natural-born citizens”. The Court also stated – as to such persons – that their “citizenship” was never in doubt.
By recognizing Mrs. Minor as a member of the class of persons who were natural-born citizens, they established her citizenship. Establishing her citizenship was required before they could get to the issue of whether she had the right to vote. In doing so, the Court in Minor directly construed Article 2 Section 1 of the US Constitution.
The Court also noted that some authorities include as “citizens” those born in the jurisdiction without reference to the citizenship of the parents. The Court refers to these people as a different “class”. The Court in Minor refused to comment on the “citizenship” of such persons since Mrs. Minor was not in that class. They didn’t need to reach the 14th Amendment to determine if Mrs. Minor was a US citizen since the Court previously established that she was a “natural-born citizen”. Read the following again:
“It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.“
This class is specifically defined as “natural-born citizens” by the Court. The other class – those born in the US without citizen “parents” – may or may not be “citizens”. But the Minor Court never suggested that this other class might also be natural-born citizens.
It’s quite the opposite. The Minor Court makes clear that this class are not Article 2 Section 1 natural-born citizens. If this other class were natural-born there would be no doubt as to their citizenship.
The Minor Court refrained from making a “citizenship” determination as to that class, but the Court did note that they were a different class. Later, in 1898, the Court in Wong Kim Ark took the question on directly as to who is a citizen under the 14th Amendment, but that case did not directly construe Article 2 Section 1, whereas Minor did.
In order to avoid construing the 14th Amendment, the Court in Minor had to define those who fit into the class of “natural-born citizens”. Mrs. Minor fit into that class. Mr. Obama does not.
This is so very evident by the fact that the Minor Court specifically states that the “citizenship” of those who have non-citizen parents was historically subject to doubt. Whether the 14th Amendment nullified those doubts was irrelevant to the Court in Minor, since Mrs. Minor was a natural-born citizen.
The 14th Amendment specifically confers only “citizenship”. In Minor, the US Supreme Court directly recognized that natural-born citizens were a class of citizens who did not need the 14th Amendment to establish citizenship. The class of natural-born citizens was perfectly defined in the Minor case.
Therefore, we have a direct determination by the US Supreme Court which defines a natural-born citizen as a person born in the US to parents who are citizens. The citizenship of this class has never been in doubt. The citizenship of the other class was in doubt. But even if that doubt was erased – as to their citizenship – that they are not natural-born citizens was established as precedent by the Supreme Court in Minor. In order for that precedent to be reversed, one of two things are necessary:
- a Constitutional amendment which specifically defines “natural-born Citizen” more inclusively than Minor did , or;
- a Supreme Court case which overrules the definition of natural-born citizen in the Minor case
We have neither.
Minor was decided seven years after the adoption of the 14th Amendment. The Supreme Court in Minor did not consider anyone but those born of citizen parents on US soil to be natural-born citizens. Later, in Wong Kim Ark, the Supreme Court stated that persons born on US soil to (some) alien parents were “citizens”, but that case specifically construed only the 14th Amendment.
Read again Justice Gray’s statement as to Minor, “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…“ Nope. Not true. Gray was wrong in that Justice Waite did not construe the 14th Amendment in the quoted passage. Chief Justice Waite construed Article 2 Section 1. Whereas, Justice Gray construed the 14th Amendment. Therefore, the two cases are not in conflict.
ARKENY V. GOVERNOR OF THE STATE OF INDIANA
The Minor case has been severely misconstrued in the Arkeny opinion issued by the Indiana Court of Appeals. That court quoted Minor’s natural-born citizen language, then stated:
“Thus, the 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.”
False. The Minor Court did not leave that question open. Nowhere in the Minor opinion does it state that the class of persons who are natural-born citizens is an open question. The Arkeny Court has it backwards.
The Supreme Court in Minor stated that the “citizenship” of persons who were not natural born citizens was an open question.
That is the most important sentence I’ve ever written at this blog. So please read it again. [edit: emphasis added] The “citizenship” of those born to non-citizen parents was a question that the Minor Court avoided. But they avoided that question by directly construing Article 2 Section 1. In doing so, the Supreme Court in Minor defined the class of persons who were born in the US to citizen parents as “natural-born citizens”.
Since Minor, no Amendment has been adopted which changes that definition, and no other Supreme Court case has directly construed Article 2 Section 1.
The Supreme Court in Wong Kim Ark only construed the question of who was a “citizen” under the 14th Amendment, it did not construe Article 2 Section 1. Therefore, Minor and Wong Kim Ark do not compete with each other at all. Minor is the standing precedent for construction of the natural-born citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing precedent as to “citizenship” under the 14th Amendment.
WONG KIM ARK SPECIFICALLY DEFERRED TO PRIOR PRECEDENT REGARDING THE DEFINITION OF NATURAL BORN CITIZEN.
That the majority opinion in Wong Kim Ark limited its holding strictly to the issue of 14th Amendment citizenship – and did not make any new determination as to Article 2 Section 1 – is evident from the following statement by Gray regarding the dissent by Justice Curtis in the Supreme Court’s earlier ruling in Dred Scott v. Sandford:
“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. 60 U. S. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.”
At first glance, Gray’s reliance upon the dissent’s passage in the Dred Scott case would appear to contradict everything I have written above. But it doesn’t. It actually confirms my analysis.
Justice Gray chooses his words carefully and so we must examine them carefully. Note where Gray says, “And, to this extent, no different opinion was expressed or intimated by any of the other judges.” Well, if we are talking only about “citizenship”, then – to this extent – Justice Gray is correct. But if we are talking about the definition of a “natural-born citizen”, then Gray is grossly mistaken.
The Dred Scott majority may not have expressed a different opinion as to “citizenship”, but the majority’s definition of a natural-born citizen is vastly different than that of Justice Curtis in his dissent. The majority opinion in Dred Scott, citing Vattel directly, stated:
“The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.”Again:“I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.”Vattel, Book 1, cap. 19, p. 101.From the views here expressed, and they seem to be unexceptionable…”
Unexceptionable is defined as; ” not open to any objection or criticism.” The Supreme Court majority, in the Dred Scott case, clearly states that a natural-born citizen is a person born in the US to parents who are citizens. Therefore, Justice Gray’s reliance upon the dissent in the Dred Scott case is strictly limited to its discussion of “citizenship” by Gray’s very choice of the words, “to this extent”.
Since Gray stated that none of the other justices in the Dred Scott case expressed a different opinion than Curtis did in his dissent, it is obvious that Gray’s statement only applies to general citizenship, and not to the definition of those who fall into the class of natural-born citizens. The majority in Dred Scott did, in fact, express a completely different opinion than Curtis on the issue of who was an Article 2 Section 1 natural-born citizen.
Gray’s use of the words, “to this extent” – with regard to the dissent by Curtis – indicates that the extent to which the holding in Wong Kim Ark applies is to the definition of “citizenship”, not to the definition of who is a natural-born citizen eligible to be President. The precedent stated by the Court in Minor still stands to this day.
THE US SUPREME COURT DEFINITION OF PRECEDENT
In 1996, the US Supreme Court’s majority opinion by Justice Breyer in Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996), stated that when the Court discusses a certain “…reason as an ‘independent’ ground in support of our decision”, then that reasoning is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The Supreme Court in Minor specifically construed Article 2 Section 1 by defining – as natural-born citizens – those persons born in the US to parents who were citizens.
Again, the Supreme Court specifically avoided the 14th Amendment, by specifically construing Article 2 Section 1.
In order to determine whether Mrs. Minor had the right to vote, the Court first needed to determine if she was a US citizen. They determined that she was a citizen because she was in the class of “natural-born citizens”. And, in doing so, they made it clear that persons born of non-citizen parents were not natural-born citizens.
The Court left open the question of whether those born of non-citizen parents were “citizens”. But the Court did not leave open their specific construction of Article 2 Section 1. Their definition of a “natural-born citizen” was the core reason they found Mrs. Minor to be a citizen. Therefore, the Minor Court established binding precedent as follows:
“…[A]ll 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...”
Please also note that the Court here makes specific reference to both aliens and foreigners as distinguished from natural-born citizens. Aliens are just that, aliens. They are not citizens. But we have always had many foreigners in this country who were citizens. Those who came here from foreign lands were foreigners naturalized as citizens. Some who were born in the US with dual citizenship – like Obama – were also citizens of the nation of their parents. These are citizens, but also foreigners. The Court in Minor made the careful distinction that a natural-born citizen is not an alien or a foreigner.
CITIZENS MAY BE BORN OR NATURALIZED
A common misconception of those who argue in favor of Obama’s eligibility is that if one is, at the time of their birth, a US citizen, then that person is also a natural-born citizen. False. This was unequivocally established by the majority holding in Minor, which states:
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providesthat ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.”
Again, at first glance this appears to provide a neat little soundbite for Obama supporters. But it doesn’t. The quote above is taken out of context. The Court’s opinion goes on to state:
“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided…that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.”
Here, the Minor Court cites the first naturalization act of 1790 to the effect that persons born of US citizen parents – outside the jurisdiction of the US – are “considered as natural-born citizens”. So, here we can see that while the Minor Court only recognizes two paths to citizenship, birth and naturalization… it is clear that some persons who, at the time of their birth, are US citizens, require naturalization for such status.
So, it’s clear that while there are only two paths to US citizenship, birth and naturalization, those two paths sometimes merge. But naturalized citizens are not eligible to be President. (The Minor Court failed to mention that the words “natural-born” were repealed from the naturalization act of 1795.)
Additionally, the current US Department of State Foreign Affairs Manual, at “7 FAM 1131.6-2 Eligibility for Presidency“, comments on the 1790 act as follows:
“This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”
This is most likely because the statute did not actually deem such a person to be a natural-born citizen, the act simply stated that such a person was to be “considered as” a natural-born citizen.
The Minor Court also noted that the “substance” of the 1790 act, which granted US citizenship at birth via naturalization, had remained as law up until 1875 when the Minor case was decided. So, clearly, while citizens may either be born or naturalized, some born citizens are simultaneously naturalized at birth. Naturalized citizens are not natural-born citizens. Therefore, they are not eligible to be President.
I am not arguing that Obama was naturalized. But Minor does establish that not all “born citizens” are “natural-born”. Minor also gives an unequivocal definition of who fits into the class of natural-born citizens. Obama does not fit into that class. Born in the US to a citizen mother and a British/Kenyan father, Obama was born with dual nationality and dual allegiance, part US citizen, part foreigner. Minor makes a clear distinction between natural-born citizens and aliens or foreigners.
No Constitutional amendment supersedes Minor by defining natural-born citizen in a more inclusive way. No US Supreme Court case has overruled it. Justice Gray’s statement that the Court in Minor construed the 14th Amendment in the passage quoted is wrong. The Court in Minor directly construed Article 2 Section 1 while directly avoiding construction of the 14th Amendment.
The Supreme Court in Wong Kim Ark directly construed the 14th Amendment and specifically avoided construction of Article 2 Section 1. The two case are not in contradiction. They are consistent.
Wong Kim Ark is specifically limited to determining who is a citizen under the 14th Amendment.
Minor is specifically limited to determining who is a US citizen, natural-born.
According to the US Supreme Court precedent established by Minor, Obama is not eligible to the office of President of the United States. [Edit: emphasis added]
Leo C. Donofrio, Esq."
"Anyway, Vattle is a 300 year old French person from France"
* He wrote Law of Nations in French.
* He spent no significant amount of time in France...let alone being "from France."
... "so who cares what he thinks about anything!!!"
* Colonists (i.e. not necessarily just framers or founders) thought Vattel a "Genius" as early as 1764.
* Earlier that year, patriot and advocate of the political views that led to the American Revolution, James Otis Jr wrote: The Rights of the British Colonies Asserted and Proved (1764). This pamphlet sets down another important philosophy underpinning the Revolutionary debate: it asserts that rights are not derived from human institutions, but from nature and God. Thus, government does not exist to please monarchs, but to promote the good of the entire society. His arguments are clearly based on natural law concepts. He quotes the law of nature and Vattel, specifically.
* In the early 1770's, Boston revolutionary leader, founding father and one of the architects of the principles of American republicanism, Samuel Adams begins using natural law principles, and Vattel in particular to make arguments against the British Common Law position that every man owes a perpetual allegiance to the crown, and that the British Parliament can not change their "Constitution" by themselves (without the peoples consent)...thus helping to solidify the groundwork for the movement for Independence.
* John Adams begins to make similar arguments in 1773.
* In the mid 1770's, we see members of the 2nd Continental Congress begin to refer to the authority of Vattel's work.
* In 1775, Benjamin Franklin writes to Charles Dumas: "I am much obliged by the kind present you have made us of your edition of Vattel, It came to us in good season, when the circumstances of a rising State make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept (after depositing one in our own publick library here, and sending the other to the College of Massachusetts-Bay, as you directed) has been continually in the hands of the members of our Congress now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author."
* All of this happens prior to the Declaration of Independence, which is filled with references to natural law.
* Even John Adam's wife, the erudite Abigail, reads Vattel's work.
* The framers of the Constitution read and reference Vattel's Law of Nations during the penning of the Constitution.
Etc.
"(I don’t spell Vattel right on purpose because it just seems so stupid to me.)"Do you think the founders and framers were stupid to read, reference and rely upon Vattel's legal treatise Law of Nations covering natural law?
"Then we have the British Vattle Birthers who think Obama is British because his father was British, but that seems stupid, too, because the Queen of England ain’t the Boss of Me!!!"
* “When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children."http://fightthesmears.com/articles/5/birthcertificate.html
* "In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii)# and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC." http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html# Assumes yet to be proven HI birth
* There is no law in the United States, that would (or could) deny Barry from inheriting his foreign fathers British citizenship even if he were born on the steps of the Lincoln memorial. To suggest otherwise, is to suggest that U.S. law reigns supreme over a British subject and effectively nullifies their British rights and laws simply because that British subject is here as a visiting student (as Barry's father was). See the Jay Treaty for further information. Barry's father was a British subject. Barry inherited, by birthright, his foreign fathers foreign citizenship.
Interestingly, you then seem to do a complete 180 and quote the ridiculous Ankeny v. Governor of the State of Indiana case and essentially suggest that our American common law is British common law. Fascinating the turn of events there.
However, James Madison (father of the Constitution) and George Mason (father of the Bill of Rights) disagreed with that notion.
Will you be issuing corrections to your blog?
WKA DOES affirm the finding in Minor and proceeded to create a definition of "citizenship by birth" via the 14th amendment because the court could NOT declare Ark to be a natural born citizen.
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States ...
The paragraph prior to this cited Waite's definition of natural born citizen from the Minor decision and two paragraphs prior, Gray noted that the court was "committed to the view that or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment ..." This is the last time in Wong Kim Ark decision that Gray says anything about natural born citizenship. Ark obviously didn't meet this definition. Gray had to shift his focus to the 14th amendment AND to the idea that the Constitution could override a treaty with China in respect to citizenship and that a child of foreign subjects could be born a citizen without the parents becoming citizens.
So, going on about how you've been saying the same thing for months that Leo is now "patting himself on the back" over makes you look silly because you aren't saying the same thing as Leo.
Sorry, buck, but I didn't say I was saying the "same thing" as Leo. I said I've been citing the Minor decision and the affirmation of that decision by Wong Kim Ark for months. Here's what Leo wrote in his essay:
The direct US Supreme Court precedent is stated in Minor v. Happersett, 88 U.S. 162 (1875). Furthermore, the precedent stated in Minor is consistent with other US Supreme Court cases – both before and after Minor – which discuss the natural born citizen issue.
There are several parts of his argument that are similar to things I and others have already posted, such as:
There you have it. The Court stops short of construing the 14th Amendment as to whether the woman in question was a US citizen. The Court made a certain, direct determination that Mrs. Minor was a US citizen before the adoption of the 14th Amendment and that she did not need the 14th Amendment to be a US citizen.
Sure, it looks just like Vattel’s definition, but Vattel does not make legal precedent – the US Supreme Court does.
By recognizing Mrs. Minor as a member of the class of persons who were natural-born citizens, they established her citizenship. Establishing her citizenship was required before they could get to the issue of whether she had the right to vote.
This class is specifically defined as “natural-born citizens” by the Court. The other class – those born in the US without citizen “parents” – may or may not be “citizens”. But the Minor Court never suggested that this other class might also be natural-born citizens.
Wong Kim Ark is specifically limited to determining who is a citizen under the 14th Amendment.
Actually, philman_36 has irritated me sooo much that I am going to write my third Vattle Birther Internet Article on my blog and in this one I will not hold back!!! I mean REALLY, he is trying to prove I am a Obot, sooo he goes to Obotski Central and links a 9 month old Internet Article where I spent like 300+ pages arguing with them all by myself against like 20 of them??? (And there are some more threads on that site too where it was like me by myself against a million Obotski.) Talk about Reading Comprehension Challenged!!!
As far as what Vattle was, Swiss or French, it is not a big deal to me. He wasn’t a American and maybe people read him or not. I have read the book by the guy who did the Witch Trials, but it doesn’t make me a witch.
The common law question you asked is not something I know anything about, sooo I will ask my BFF Fabia Sheen, Esq. about it, and if I am wrong on something there, then I will certainly correct it on my blog. (But right off hand, I don’t remember ever talking about it???)
Sorry, but the only person who has "blinded" himself is you. Read the decision. Minor's claim of citizenship is a central part of the case:
The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.
Her citizenship was part of the question and the court (part of which you quoted) rejected her argument on the basis of the 14th amendment because she was, by the court's definition, a natural born citizen.
If she had an alien parent, THEN they would have needed to determine if NBC applied to those born with alien parents - but she did not have an alien parent.
Sorry, but the court said if she was not born in the country to citizen parents, then doubt would need to be resolved about her simply being a citizen. If she was a natural born citizen, there would be no doubt. Thus, anyone who does not meet the definition of born in the country to citizen parents is not a natural born citizen. They MIGHT be a citizen, such as through the 14th amendment, but they are not a natural born citizen.
“Sorry, but the court said if she was not born in the country to citizen parents, then doubt would need to be resolved about her simply being a citizen.”
Given that the 14th had passed, this statement is simply false.
The court found there was no doubt about her having been a citizen by birth, and it was admitted in the case - so citizenship by birth was not the issue.
I’ve quoted the court case. Your quote confirms what I wrote:
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”
In this case, it didn’t matter if she was a citizen by birth or naturalized. Does citizenship confer the right to vote? That is what they were asked, and that is what the decision is about.
You don't seem to get it. Virginia Minor claimed citizenship via the 14th amendment and the court rejected her claim. Read the damn decision:
The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States ...
That is a quote of the citizenship clause of the 14th amendment. Again, the court rejected this claim.
...in our opinion, it did not need this amendment to give them that position ...
The fourteenth amendment did not affect the citizenship of women any more than it did of men.
... the rights of Mrs. Minor do not depend upon the amendment.
The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her.
Do you think the founders and framers were stupid to read, reference and rely upon Vattel's legal treatise Law of Nations covering natural law?
And while your chatting with your lawyer friend, ask them if Madison and Mason were wrong when the framers themselves wrote:
October 18, 1787 - James Madison wrote to George Washington, N. York:
"Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code.[Edit: Englands "Common Law"] The "revisal of the laws" by a Committe of wch. Col. Mason [Edit: George Mason] was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head.. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law."
June 18, 1788 - George Mason, In Convention, Richmond (Debates in the Several State Conventions on the Adoption of the Federal Constitution), states:
"We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states."
Just as they had done more than a decade earlier by declaring their independence from the crown, here we see the father of the Constitution, and the father of the Bill of Rights rejecting the English Common Law as being the American Common Law.
Does your lawyer friend alleged to know what Mason and Madison meant to say was in contrast to what they actually wrote.
Also ask your lawyer friend just how, did the Colonists declare their independence from the crown...when British common law essentially forbade it since they (the Colonists) were considered in perpetual allegiance to the crown.
Hold back? Hold back what? The truth? The history? Or do you mean you intend to correct the record from your previous article? You've already demonstrated you've gotten it wrong with the other article as I've documented. Are you intentionally trying to mislead the few people who visit your blog by attempting to rewrite (or bury) the history and the influences upon our founders and framers?
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Bury?
This must be one of the “shovel-ready” jobs Obama promised ( and you and I get to pay for it!) :-(
Minor was using the 14th amendment's equal protection aspect to claim the right to vote.
The court said before we decide that, we have to know that she is a citizen at all, because only citizens can vote.
The court said that Article II Section 1 establishes the phrase "natural born citizen." The court also said that natural born citizen was commonly understood at the time of the Framers to be a child born in the country of two citizen parents of the country.
The court observed that some authorities also consider a child of one citizen parent to be a citizen (absent the descriptive "natural born"), but since that situation doesn't exist with Minor, there is no need to resolve the issue of a single-citizen parent conferring citizen status to a child in order to settle the issue of whether she can vote.
The court concluded that the 14th amendment's naturalization aspect did not apply to Minor, because her citizenship was established via Article II Section 1.
The argument that Donofrio is making is that the court stipulated to the definition of "natural born citizen" in order to determine that Minor was a citizen first (a natural born citizen specifically), and then used that stipulation to proceed with the direct issue before them.
Donofrio is claiming that in so stipulating, the court established a precedent on the definition of "natural born citizen."
Is that a fair summary of the discussions in this thread?
-PJ
No. She claimed the 14th amendment gave her the right to vote under the equal protection clause.
I don’t expect to convince a blind man, but here is the decision in full for anyone who doubts me:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html
“Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.”
To affirm means to uphold a judgment. WKA does not uphold the judgment made in Minor of the definition of a natural-born citizen. In WKA Justice Gray mentions Minor to point out that Justice Waite resorted to common law to find a definition of something not defined in the Constitution and then to discuss the implications of owing allegiance. The Court determines that Wong Kim Ark is a citizen under the meaning of the 14th Amendment. That determination did not require a judgment on the defintion of a natural-born citizen.
Sorry, buck, but I didn't say I was saying the "same thing" as Leo.
You said you didn't know why Leo was patting himself on the back because you had been saying x for months. That most certainly implies that you believe you said x before Leo discovered it. (Which is childish and also incorrect.) Then later you suggested that you weren't looking for credit and went on to criticize Leo for touting his analysis as some sort of "breakthrough legal epiphany." There is a second implication that you've already covered what Leo is only now analyzing.
No, that's not quite right. Minor wasn't just citing the equal protection clause, but the citizenship clause as part of her right to vote, and the court did not say it needed to know if she was a citizen at all, but whether she was a 14th amendment citizen, and whether women, as a class, had their citizenship affected by the 14th amendment. Here it is again, as expressed by the court.
The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.The court observed that some authorities also consider a child of one citizen parent to be a citizen (absent the descriptive "natural born"), but since that situation doesn't exist with Minor, there is no need to resolve the issue of a single-citizen parent conferring citizen status to a child in order to settle the issue of whether she can vote.
That's not quite right. The court made a distinction between NBCs (born in the country to citizen parents - plural) and everyone else, who the court identified as aliens or foreigners. It said some authorities include persons born in the country as citizens, without regarding the citizenship of the parents, but for these persons, there is doubt about their citizenship. It noted that aliens could become citizens through naturalization, but that the citizenship of an alien's wife and children were dependent upon the alien becoming naturalized. Donofrio was right about one thing here: the Minor decision doesn't specifically really address whose citizenship is controlled by the 14th amendment. It just rejects the 14th amendment for those persons who are NBCs.
The court concluded that the 14th amendment's naturalization aspect did not apply to Minor, because her citizenship was established via Article II Section 1.
Again, that's not quite what the court was saying. It said citizenship could be added by birth, which is evident because of the NBC clause in Art II Sec I. It doesn't say the clause establishes citizenship, but instead said the term NBC is not defined by or in the Constitution. This is a very important point because it categorically rejects the 14th amendment as somehow defining or redefing what it means to be a natural born citizen. Read the court's words:
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.
Thus, the court is saying Virginia Minor's citizenship is established by a common-law type of definition (not English Common Law, but what appears to be nearly a verbatim citation of Vattel's definition of natural citizenship).
The argument that Donofrio is making is that the court stipulated to the definition of "natural born citizen" in order to determine that Minor was a citizen first (a natural born citizen specifically), and then used that stipulation to proceed with the direct issue before them.
That's pretty much right. The idea is that the court looked to the Constitution to find a term that it used to establish the citizenship of an appellee, and then proceeded to define that term from outside of the Constitution. In effect, it's rejecting the 14th amendment for a certain class of citizens. The timing of this decision is noteworthy. It was the perfect opportunity to resolve the doubt they talked about by simply accepting Virginia Minor's argument. "Yes, Virginia, the 14th amendment redefines citizenship for everyone who was born or naturalized here." But they did not do this. They said in their opinion, the 14th amendment was not needed. From that point, they explain how voting is not a "privilege or immunity" or a generic right of citizenship.
Fast forward 20 some years later to the Wong Kim Ark decision. The Supreme Court looks at the Minor decision and notes that Virginia Minor was found to be a citizen under its definition if NBC. Wong Kim Ark did not meet that NBC definition, so that court decided to resolve doubts about him being a citizen by other means. The court in Wong Kim Ark directly cited Minor's definition and affirmed its citizenship criteria. It then followed the precedent of the Minor decision by purposely NOT declaring Ark to be a natural born citizen. Without the Minor decision, the court could have made a pretty compelling case that birth in the country was sufficient on its own to make somebody a natural born citizen. They did not do this.
Thus, the court is saying Virginia Minor's citizenship is established by a common-law type of definition (not English Common Law, but what appears to be nearly a verbatim citation of Vattel's definition of natural citizenship).
This may be quibbling over a point, but something within the Constitution has to define whom it covers. The Supremacy clause says so, doesn't it. If you have to look elsewhere, then the Constitution ultimately is superior to whatever is found elsewhere.
It sounds like you're saying (and pardon me for hypothetically putting words in your mouth) when "We the People of the United States, in Order to form a more perfect Union...and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America" to bind us, we have to look elsewhere to find out who "We" and "our Posterity" are?
To me, a common sense understanding would be that people born in the country (our Posterity) of parents who are also citizens of the country (We the people) do not need to look elsewhere to define their citizenship.
The Preamble already lays out that the purpose of the Constitution was to define a country that was meant to be passed down to "our Posterity," meaning the citizen children of citizen parents.
But that's just me. I'm not a lawyer, so what do I know?
-PJ
You're a foil and a poseur. You claim to be something when you're not. You are nothing more than the desired vignette portrayal of Birthers.
You're the great Obot killer and yet you have no trophies, just blog links.
You've a great intellect yet you don't even know the most basic things you should to even appear to be informed.
Your "performance" needs some serious work.
How is that admission of error on "Ark" coming along? Do you still believe it means Arkansas?
The only problem I have is this...
...her citizenship was established via Article II Section 1.
Her citizenship was established by the circumstances of her birth, not the Constitution.
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