Posted on 01/16/2016 12:34:18 AM PST by RC one
The Founding Fathers’ insistence that the presidency be limited to “natural born citizens†was based on their openly expressed fear that “foreigners were disloyal,†as law professor Malinda L. Seymore has written.
As Article II, Section 2 of the Constitution declared: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President ….†(Italics added) A loophole for themselves, as Supreme Court Justice Joseph Story wrote 46 years later, was created “out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.â€
(Excerpt) Read more at washingtonpost.com ...
I was just reviewing the Katyal and Clement paper and am of the same opinion as Mary Brigid McManamon on the matter. They have, for whatever reason, cherry picked a few radical statutory departures from the accepted common law and then blatantly misrepresented the founders application of the common law as it applied to NBCs. They then go on to cite the Naturalization act of 1790 while ignoring the fact that the Naturalization act of 1795 repealed the Naturalization act of 1790 and specifically changed the words natural born citizens with the word citizens implying that they recognized a distinct difference between the two classes of citizens and meant to ensure that NBC status was not transferred to those born "born out of the limits and jurisdiction of the United States".
The paper and its conclusions are...spurious.
I see this all the time, and while some are of that opinion as to the why of the 1795 act and the removal of the term, both side agree that although sentiment was expressed by Congress in the 1790 act, the act was in part, a bridge too far and attempted to define part of article 2. and thus affected the 14th which can only be done via amendment. But you can't argue that the sentiment at the time was in favor of my position as the statute passed.
But later in 1795 rewritten to be the basis of the following naturalization policies of the US which have changed over time, but are constitutional granted authority.
Is that you Tribe?
LOL
I’m intrigued as to just how the 1790 Act affected the 14th Amendment, can you elaborate?
Not directly, indirectly.
The 14th uses the terms born or naturalized .......are citizens etc..then it further says that no state shall....abridge privileges or deprive......
So it too, in addition to article 2, have bearing on citizen status.
To change either of them requires amendment unless Congress has the authority.
The error was the term “natural born” mentioned one time in article 2. They should not have tried to define it. They should have tried to amend it.
It’s why we are here arguing today...
When the wrote the it was the perfect place to fix the two class citizenship issue. But they did not.
if you need to know the authority under which citizenship is granted, you go to the 14th.
IMO, had they allowed the 1790 language to stand until the 14th was written and passed, I think the amendment would have mentioned natural born.
But that is just conjecture...it is what it is today and has been for a long time..
scuse the typos....I have distractions..
It is not left to conjecture to ascertain why the founders included their loophole. They weren't all born in the United States and were not, as such, NBCs. Hamilton, for example, was born in the West Indies. He was a citizen of New York when the declaration of independence was signed however and, at that moment, his citizenship transferred from the Crown to the U.S. and he was, therefore, a citizen at the time of the adoption of the constitution and eligible to be POTUS.
By distinguishing between the two classes of citizens, there can be no doubt that there is a difference and by understanding why they made the distinction, there is little doubt as to what the difference was, A NBC was, at a minimum, born in the United States.
This precedent is almost fully supported by the common law and is expressed in no uncertain terms multiple times in the Wong case.
I have posted it all many times now.
So we begin anew.
By distinguishing between the two classes of citizens, there can be no doubt that there is a difference and by understanding why they made the distinction, there is little doubt as to what the difference was, A NBC was, at a minimum, born in the United States.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I note there are no exceptions here. As such the 14th seems to run contrary to the establishment of two distinct citizen classes but in reality it created three classes because simply being born on the dirt belonging to the US in no way enhances security. Native born children of foreign nationals is just as easy to accomplish and much more common then born by happenstance in a foreign country. To add to that, there is plenty of precedent to make the argument that natural born applies to people born outside the jurisdiction to a citizen.
It's no wonder why courts are reluctant to take this on, as it is political (the presidency or vice presidency) and it applies to very, very few of us citizens.
As such, it will not be taken on by SCOTUS.
This should be the end of this argument, but it won't be .......will it.....I think that is just a statement based on the obvious.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
stating it another way adds clarity:
all persons born in the United states, and subject to the jurisdiction thereof, are citizens of the United States
AND
all persons naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States.
The 14th amendment makes note of two classes of citizens here: citizens born of the soil and citizens created by an act of naturalization or citizens of other than the soil and it says that they are both citizens of the United States But, importantly, nowhere does its language specifically act upon article II, section I, clause 5 by making mention of a Natural Born Citizen which it surely must do if it intends to affect Article II, section I, clause 5.
In fact, the 14th amendment has validated the opinion that a citizen not born of the soil, is not a Natural Born Citizen by specifically calling such a person a citizen as opposed to a Natural Born Citizen, for our founders and the authors of the 14th amendment perfectly understood the meaning of the language they used and we can assume that no words adopted into the constitution were either used or omitted without intent or perfect understanding.
By omitting the words Natural Born Citizen, the meaning of which the authors were perfectly familiar with they have acknowledged that a citizen not born in the United states is not a Natural Born Citizen, eligible to serve as POTUS.
It will no doubt be mentioned that it also calls a Citizen by right of Soil a Citizen. But there is no discrepancy here as a Natural Born Citizen clearly is, by default, a citizen. A citizen, on the other hand, is not by default, a Natural Born Citizen.
It is also worth making note of the words subject to the jurisdiction thereof.
From United States v. Wong Kim Ark, we know what this means. It refers to full and unencumbered allegiance to the sovereign i.e. the United States. In this way, the children of foreign ambassadors who, through, happenstance, are born on US soil while their parents are acting in an official capacity of a foreign sovereignty, are not held to be citizens of the United states at the time of their birth upon US soil.
So, in summary, article 2, section 1, clause 5 specifically denies the right to be POTUS to any but a Natural Born Citizen and the 14th amendment does not act to amend that.
We are, again, left to the historical records and common law understandings to ascertain what Article II, section I, clause 5 was referring to.
I have already shown that natural born citizenship is derived from the common law understanding and language and that it specifically refers to persons physically born in the country and that the Katyal and Clement paper that Ted Cruz bases his own opinion on misrepresents the common law understanding by using a few ancient and limited statutory references as being indicative of the common law understanding in its entirety.
There is ample evidence throughout United States v. Wong Kim Ark to confirm this and I have stated much of it already. So let us go back further, closer to the time of the adoption of the constitution, closer to a time when common law understandings were better understood by all Americans.
we see clear evidence of this Jus soli basis of natural born citizenship in Justice Curtis's dissenting opinion in the infamous 1857 Dred Scott decision whereby he states:
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.
Again, as in United States v. Wong Kim Ark we see the clear truth of the matter. Our founders perfectly understood the meaning of the language they used and had a perfect and specific understanding of what it meant to be a Natural Born Citizen: it was a person born in the country and they, for good reason, intended that none but such a person would be eligible for the office of President and they incorporated that intent into the constitution. No Act of congress can change this. No judicial hearing can change this. No statement by Ted Cruz or his supporters can change this. Only a constitutional amendment can change this.
Thank you for your input. FRegards ....
I would put that another way and already have, multiple times. There are not three classes in that statement.
There is not a carve out for a child of a American citizen born abroad to be naturalized, nor is there any wording to say that jurisdiction ends at out border for a US citizen.
The term citizen is the same as subject. Subjects or citizens do not lose their rights or status when abroad for any reason, unless they have given up those rights or changed allegiances. Therefore jurisdiction applies to them as well and does not mean a "Place" in every case..
If it did, we would have a statute requiring naturalization for the foreign born of a natural born citizen and we do not, do we..But we have plenty of items mentioned in out naturalization statutes that have grown over the years.
Using the 14th as a guide, one can argue what it says, or what it does not say. It does not say that jurisdiction ends at the border, and it says there are two classes and not three.
If the Mother of Ted Cruz gave up her US class, then I would like to see it or some evidence of it. There being none to offer, she was still under the jurisdiction of the US when she had that child. That child was automatically of the same class as she.
And then there is this!
Expatriation on or after June 17, 2008
If you expatriated on or after June 17, 2008, the new IRC 877A expatriation rules apply to you if any of the following statements apply. Your average annual net income tax for the 5 years ending before the date of expatriation or termination of residency is more than a specified amount that is adjusted for inflation ($147,000 for 2011, $151,000 for 2012, $155,000 for 2013 and $157,000 for 2014).
Your net worth is $2 million or more on the date of your expatriation or termination of residency.
You fail to certify on Form 8854 that you have complied with all U.S. federal tax obligations for the 5 years preceding the date of your expatriation or termination of residency. If any of these rules apply, you are a “covered expatriate.â€
Talk about cross border jurisdiction!
Tell me how Citizen differs from Subject, as many have done already.
Were are subject to this and to that and to anything they come up with, especially is you have deep pockets.
The colonists simply did not like the term because it brought forth vivid memories, but as we can see, there really is no fantasy citizen relationship with the jurisdiction the government has claimed and has exploited.
The people are not doing this, the government is. So much for the fantasy of a government subject to the people.
I could write so much more, but the jurisdiction argument got me lit up...
....Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
"British subject" means any person who owes permanent allegiance to the Crown. "Permanent" allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes "temporary" allegiance to the Crown. "Natural-born British subject" means a British subject who has become a British subject at the moment of his birth." "Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
Your case with Wong that you continue to use as proof, treats anyone (Mr. Wong/anchor baby) as a natural born citizen. And that is all it does, which is why I said it was not decided correctly. What you cite as proof is but dicta and only interesting for discussion purposes, and not determinate of the law concerning Cruz,
But I repeat my self, far too many times for my own peace of mind, so I will end it here and restate the obvious fact that no case will make it to SCOTUS on this, and that they do not want to rule on this political case.
Unless something unexpected occurs, I believe they will leave it ambiguous, because the intent was national security and national security concerning individuals is always ambiguous because it must be. If set in stone it would be easily exploited by those seeking to do damage. Simply by following the letter of the law.
If you do not see that, then I am unlikely to ever win a single point of logic with you.
Ted Cruz was born on December 22nd. 1970. At this time, his citizenship was defined by the Canadian Citizenship Act of 1947. page 69 of this document clearly states that: A person born after the commencement of this act is a Natural Born Citizen: (a)if he is born in Canada or on a Canadian ship.
I'm sorry. Ted Cruz is clearly defined as a NBC of Canada and, as such, can not be a NBC of America.
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I see no difference. Subject = Citizen.
I never disagreed.
Your case with Wong that you continue to use as proof, treats anyone (Mr. Wong/anchor baby) as a natural born citizen. And that is all it does, which is why I said it was not decided correctly.
It is proof that "by the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, was an English subject". and incidentally, you were the first to cite Wong in this dialectic between you and I.
What you cite as proof is but dicta and only interesting for discussion purposes, and not determinate of the law concerning Cruz...
It was determinate of the law concerning Cruz when he was erroneously citing it as proof of his natural born US Citizenship i.e. the Katyal and Clement paper which I have clearly shown to be wrong about many things.
Cruz cites their paper as proof of his Natural Born Citizenship. That proof is now gone along with their credibility as unbiased spectators in this debate. It is also worth noting that in arriving at their conclusion, Katyal and Clement also cited United States versus Wong kim Ark. Katyal and Clement also admitted that the Common Law of England was instrumental and accepted by the SCOTUS in understanding the the constitution.
OK then. the common law of England is pretty clear on this: "British subject" means any person who owes permanent allegiance to the Crown" and "any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject."
Ted Cruz was born in the dominion of Canada where the common law is also the basis of civil. At his birth, he became a Canadian citizen as evidenced by his birth certificate. At the time of his birth, his parents were both in allegiance to Canada and when he was born, he too was in allegiance to Canada.
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign.
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