Posted on 03/17/2011 6:46:17 AM PDT by maggief
Sherman,
Look at the entire text.
http://supreme.justia.com/us/169/649/case.html
You will find this passage, which is most often quoted by legal theorists.
Here the Justices refer to English Common Law to define what a “natural born citizen” is and explicitly say that the reason they refer to English Common Law is that “we do not have US Common Law”
124 U.S. 124 U. S. 478.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.
DISCLAIMER: I really really wish that Congress would explicitly define this and kill the “anchor baby” option. However, till that happens, this case law prevails.
Thanks,
Software Engineer
A great deal of it is taken up in reviewing the history of US law regarding citizenship, and IMO makes it very clear that the principles are identical to those of English common law. That jus solis applies rather than jus sanguinis.
In fact they make it very clear that the constitutional provisions regarding citizenship must be interpreted in the light of common law. While they don't spend a lot of time specifically discussing the NBC issue, as it wasn't relevant to the case, there is no logical reason this provision wouldn't also use common law definitions in the absence of specific direction to do otherwise.
Such allegiance and protection were mutual ... and were not restricted to natural-born subjects and naturalized subjects
Unless I'm confused this is a clear implication that only these two classes of subjects/citizens exist. That natural born = native born = citizen at birth. It makes no sense for him to discuss natural-born as compared to naturalized if natural-born are only a subset of the larger native born/citizen at birth group.
Agreed! Most of the decision is a historical discussion.
However, by including that paragraph in their official ruling, they do create a precedent of an actual definition, since Congress has refused to provide one.
“Children, born in England, of such aliens were therefore natural-born subjects”
Now, the thing to be understood here is that since England was a Kingdom, they have subjects, whereas since we are a Roman/Greek style Republic, we have Citizens
Thanks for a great discussion! Freepers like you are why I live in FR!
That would be incorrect.
U.S. Foreign Affairs Manual, Volume 7, 7 FAM 1111 Introduction (CT:CON-314; 08-21-2009)
U.S. laws governing the acqusition of citizenship at birth embody two legal principles: 1. Jus soli (the law of the soil) and 2. Jus sanguinis (the law of the bloodline.)
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.
What Gray doesn't address is that aliens in England were held to have "actual obedience" to the crown. There's no such expecation of aliens in the United States. Second, this is a matter of temporary allegiance, because that allegiance only lasts "so long as they were within the kingdom." This is why Gray makes a point of emphasizing that Ark's parents had a permanent residence and domicil in the United States, so that it fit the "subject" clause of the 14th amendment: "civil status is universally governed by the single principle of domicil ..."; "In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, ..."; "The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose ..."; "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
Gray did cite a definition of natural born citizen from the Minor v. Happersett case that is dependent on jus soli AND jus sanguinis factors. He reinforces this dependence in the paragraphs immediately prior to and after the paragraph with the definition of NBC.
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which 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.
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, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
This is the last point in the decision where Gray uses the term natural born citizen. Obviously Ark was not born to citizen parents and was NOT a natural born citizen. Gray uses a different term, "citizenship by birth" to describe the class of citizenship defined and authorized under the 14th amendment. "Citizenship by birth" through the 14th amendment is similar to the term "natural born subject" except that it does not apply to children born outside the United States. Below are several listings where Gray uses this term:
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.
The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.
If Gray's citation of "natural born subject" were being used to define (or technically redefine) natural born citizen, then there's no reason for Gray to use his term "citizenship by birth." In the conclusion of the Wong Kim Ark decision, Gray wisely avoids declaring Ark to be a natural born citizen. He only says:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
I underlined the domicil criteria and I also underlined that it says the "facts agreed" by both parties. Wong Kim Ark claimed he was a natural born citizen, but the other party did NOT agree. The appellants felt Ark was not a citizen at birth because of the Chinese exclusion acts (based on a treaty China), but Gray said the Constitution outweighs treaties (which is technically not so according to Article Six) and because the 14th amendment "reaffirmed" English common law ... while still noting that NBCs are excluded from the operation of the first sentence of the 14th amendment. By doing this, he rejects Ark's claim of being an NBC, but allows through the 14th amendment that he is a citizen and that the Chinese exclusion acts are not strong enough to override the 14th amendment.
Nope. The Wong Kim Ark decision, as I said, spends several pages discussing how the basic principle of citizenship in the USA if jus solid, not jus sanguinis.
If you disagree, I suggest you file your complaints with the Court.
I would assume this is the reason for the use of the non-constitutional term citizenship by birth. Again the decision leaves unstated whether or not all citizens by birth are also NBCs. Had the Court addressed this point, it would have been obiter dicta, so they just ignored it.
The ruling of the Court allows a belief either that NBCs are a subset of citizens by birth, or that all citizens by birth are by definition NBCs.
IMO the second conclusion seems more congruent with the general tenor of the decision.
YMMV
He gave a definition for NBC that excludes Ark: all children born in the country of parents who were its citizens. The facts as agreed by BOTH parties is that Ark was not born to citizen parents. Gray explained that NBCs were excluded from the operation of birth clause of the 14th amendment (in respect to the Minor decision). How much more clearly does it have to be stated??
The ruling of the Court allows a belief either that NBCs are a subset of citizens by birth, or that all citizens by birth are by definition NBCs.
No court ruling can control irrational beliefs. This one, however, clearly stated that NBCs are those born in the country to citizen parents. For those born to NONcitizen parents, the parents had to have permanent domicil and residence, which excludes Obama from being a 14th amendment citizen. At best, he is a citizen by statute, but only if he can legally prove the facts of his birth.
Nope? You mean the U.S. government is wrong and you're right?
The comment I posted wasn't an opinion. It was a statement of fact in the form of a quote directly from the U.S. Department of State Foreign Affairs manual. Here it is again.
"U.S. laws governing the acqusition of citizenship at birth embody two legal principles: 1. Jus soli (the law of the soil) and 2. Jus sanguinis (the law of the bloodline.)"
U.S. Foreign Affairs Manual, Volume 7, 7 FAM 1111 Introduction (CT:CON-314; 08- 21-2009)
Nope? You mean the U.S. government is wrong and you're right?
The comment I posted wasn't an opinion. It was a statement of fact in the form of a quote directly from the U.S. Department of State Foreign Affairs manual. Here it is again.
"U.S. laws governing the acqusition of citizenship at birth embody two legal principles: 1. Jus soli (the law of the soil) and 2. Jus sanguinis (the law of the bloodline.)"
U.S. Foreign Affairs Manual, Volume 7, 7 FAM 1111 Introduction (CT:CON-314; 08- 21-2009)
Obama was born on American soil to one American citizen parent and one alien legal resident parent.
At the time of these various decisions the bloodline right was generally tracked only through the father, but that was tossed overboard many decades ago, with maternal descent given equal weight.
Certainly those born in the country to citizen parents are NBCs. Nobody has ever said otherwise. The question is whether a child born in the country to one citizen parent and one resident alien parent is NBC. I think the Wong case can be read either way on that.
But Obama, Sr. wasn't a resident alien, legally speaking. He was a student temporarily in the country, participating in a Kenyan government-sponsored educational program. He had no intention of ever remaining here, had no abiding interests business or apparently personal, or even in becoming a citizen.
He was an alien transient, a nonresident.
I’m sure that there are numerous facts that are excellent indicators that Obama is not eligible for POTUSA. To ignor these facts, noted many times on this forum, does not do anything to clear away the cause or reason for hiding or exposing these facts. The indicators are ignored at the probability of letting this Nation’s exceptionalism be eroded if not destroyed.
I’m sure that there are numerous facts that are excellent indicators that Obama is not eligible for POTUSA. To ignor these facts, noted many times on this forum, does not do anything to clear away the cause or reason for hiding or exposing these facts. The indicators are ignored at the probability of letting this Nation’s exceptionalism be eroded if not destroyed.
Wanted to revisit your comment about subsets of citizenship. You said, “The ruling of the Court allows a belief either that NBCs are a subset of citizens by birth, or that all citizens by birth are by definition NBCs.”
The latter part of your statement can be disproven. NBCs are a subset of Citizens of the United States. At the time, this country was established, the citizens were those who declared themselves to be citizens of the country and renounced any and all allegiance to Great Britain or their other parent countries. So in this sense, there were no citizens at birth except those who occurred under NATURAL circumstances, those persons who were born to the original self-declared citizens of the United States. If there is a “set of citizens at birth grew,” then it grew by addition not by incorporation or by broadening the NBC.
The first by naturalization law, the act of 1790, declared, “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens:” While these children might be considered as NBCs, they are technically naturalized at birth because Congress only has the power to naturalize. They are NOT literally NBCs.
Evidently Congress realized this was problematic, so the NBC verbiage was dropped in 1795: “and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.” These are citizens by birth, but they are still not natural born citizens.
The 14th amendment ADDS to this growing set of citizens at birth (part natural and part statutory), but it does not expand nor change the definition of natural born citizen. Again, Gray said NBC were excluded from the birth clause. The point is that NBCs were the original citizens at birth, so they were only a subset of a larger set that was added on and did not overlap in meaning. Justice Waite in the Minor decision also recognized that the 14th amendment created citizens at birth, but he specifically said that NBCs did not need that amendment. In his definition NBCs are one class of citizens by birth and those who are born to noncitizens are a second class of citizenship, for which doubt exists about their citizenship. There is no doubt about NBCs.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.