Posted on 09/20/2011 8:28:54 AM PDT by Ordinary_American
The critical issue for the 2012 election is whether or not a government of the people, by the people and for the people, shall perish from the earth.
The US Government has been hijacked by a self-serving, permanent political class, which considers itself above the law and elections as bothersome formalities temporarily interrupting their plundering of the nation’s wealth.
Having become comfortable with ignoring the will of the people, American politicians have created a culture of corruption in Washington, D.C., while they steadily whittle away at the Constitution to remove any remaining obstacles in their pursuit of personal power and affluence.
The rule of law has deteriorated to such an extent that it is now possible for Barack Hussein Obama to present a forged Certificate of Live Birth on national television, to use a stolen Social Security Number and forge his Selective Service registration without a single member of Congress raising an objection.
In 2012, these same politicians will ask voters to ignore Obama’s crimes like they have and endorse their endemic corruption.
(Excerpt) Read more at canadafreepress.com ...
Sorry for your misunderstanding, but the Minor case as cited by Gray in WKA is an excellent example of stare decisis. The Minor decision rejected a 14th amendment claim of citizenship and instead recognized natural born citizenship for the person in question and for women, as a class. In the appeal leading up to the WKA decision at the SCOTUS, it was suggested that the lower court decision, if upheld, would create natural born citizens of those who were born in the country to aliens without those parents first becoming naturalized citizens. Gray recognized that the court UNANIMOUSLY rejected Virginia Minor's 14th amendment claims because she fit the court's definition of NBC. In respect to that decision, Gray could NOT declare WKA to be a natural born citizen and that the Minor decision categorically exempted NBCs from being subject to the citizenship clause of the 14th amendment. He thus affirmed the Minor decision and was bound to respect it by using different means to declare citizenship status for Wong Kim Ark. Ark was not declared to be a natural born citizen AND his citizenship was subject to different criteria than is required for natural born citizens.
I understand that this has long been the case in (Muslim) Indonesia, a nation which does not permit dual citizenship.
Which of course has a bearing on the citizenship status of our Gangsta President. When Lolo Soetoro adopted Barry, little Barry became an Indonesian citizen, irrespective of the American citizenship of his mother, Stanley Ann Dunham Obama Soetoro.
To me, the entire brou-ha-ha about the place of Obama's nativity is a red herring; the debate about whether he is a native-born or natural-born citizen is irrelevant. If he is an Indonesian citizen, then clearly he is ineligible for the office he holds.
Unless he reclaimed his American citizenship upon attaining the age of majority (18). But did he do this? It has been reported that he took a trip to Pakistan in his early 20s, traveling on an Indonesian passport.
But of course, the pertinent evidentiary records — virtually all records pertaining to himself and members of his family — are either under seal or "disappeared."
But I digress — we were speaking of the NBC status of Marco Rubio and Bobby Jindal. On your interpretation of the Fourteenth, it seems clear that the former is a NBC and the latter is not.
Thank you so much for writing!
Excellent essay/post, Political Junkie Too! Thank you for your wonderful insights!
The Supreme Court has been pretty clear about what under the jurisdiction means.
For example, in ELK V. WILKINS, 112 U. S. 94 (1884):
“The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which
“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,”
and “The Congress shall have power to establish an uniform rule of naturalization.” Constitution, Article II, Section 1; Article I, Section 8. By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393), and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73; Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
http://supreme.justia.com/us/112/94/case.html
It uses the NBC clause and the naturalization clause to say there are only two categories of citizens - those born (from the NBC clause) and those naturalized. And someone “not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized”...
So, either Marco Rubio was born under the jurisdiction of the US, OR he needs to be naturalized to be a citizen. Period. And the basis for that was the NBC clause combined with the naturalization section.
The case went on to say:
“Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. ...”
That provides the exceptions for free people born within the bounds of the USA.
WKA goes on at length, and uses English common law:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”
And:
Again, in [Lessee of Levy v. McCartee, 31 U.S. 6 Pet. 102 102 (1832)], which concerned a descent cast since the American Revolution, in the State of New York, ...this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke ... and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
Notice again the equivalence between natural born and native born - used interchangeably.
From KWOCK JAN FAT V. WHITE, 253 U. S. 454 (1920):
“”It is not disputed that if petitioner is the son of Kwock Tuck Lee [Chinese] and his wife, Tom Ying Shee [also Chinese], he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649. But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived, and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909 as a son of a Chinese merchant, Lew Wing Tong, of Oakland, California.”
In SCHNEIDER V. RUSK, 377 U. S. 163 (1964):
“”We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.”
Again, there are two categories: naturalized, and either native born or natural born - the terms again are used as synonyms.
If Rubio is not a natural born citizen, then he is not a citizen at all, unless someone can find when he was naturalized. And if he was not born in the jurisdiction of the USA, then he is not a citizen at all unless naturalized.
If the parents have submitted themselves to the jurisdiction of the United States either by seeking permananet residency or Naturalized Citizenship, then their children will be natural born citizens.
I think that is too restrictive. If someone is here legally, even temporarily, I think that fits within the definition of the 14th, though I personally don't think that is good national policy. And certainly, if at least one of the parents is a citizen or permanent resident, the child is subject to the jurisdiction of the U.S. as well, regardless of the status of the other parent.
If this comes before a court, I am convinced that every court that hears it will agree with my reasoning and NONE will agree with yours.
9-0 if it makes it to the Supreme Court. Which it won't anyway because Courts of Appeal will all agree so there will be no need to accept cert.
Rubio was born in the US to parents who had sought asylum after escaping from Cuba in ~1960. He was born in 1971.
The discussion really is not about whether he’s legally qualified to be a candidate for the Presidency. That has been pretty well settled by courts who’ve determined that any native born citizen equals a natural born citizen.
The discussion is whether natural born meant something different at the time of the Constitution’s ratification.
Many believe it did not mean in that day what the courts say today, i.e., native born. To me it is a moot point, because today’s law will be followed.
However, originalists do not believe the courts are correct, so it is a good philosophical discussion. In my humble opinion, the details of Rubio’s life and that of his parents, plus the citizen law codified shortly after ratification, mean that Marco Rubio would have been considered a natural born citizen then as well as now.
JMHO, but I think originalism is the best way to stay true to the vision of America.
Thanks. I’m going to see if I can find the rest of that article for free somewhere. That site wants $9 for the article. From that page I see them going into the issue he had because he was a member of a very corrupt political machine in his early career. I know the GOP did a lot to hide what he did in it to make him palatable for higher office.
While you're at it why don't you point out a case decided in the Supreme Court of the United States that says that "native born citizen" and the phrase used in Article II "natural born citizen" are interchangeable.
In Wong Kim Ark it is stated at the outset that "the" question presented is citizenship under the the Fourteenth Amendment and thus no other question is decided. Further the extensive discussion that you refer to is about natural born "subjects" not about natural born citizens in the context that is the question before the court of the Fourteenth Amendment, not in regard to a question not before the court. Even further, the opinion cites the Story opinion in Shanks v. Dupont where Story refers to common law in England as mere municipal law and holds that on issues such as citizenship the Framers, in their references to citizenship, that is, before the Fourteenth Amendment, looked to the law of nations.
And frankly I find that Marshall in The Venus in concurence carries more weight than yourself as do both Tucker and Ramsay as authorities of the day. Nor do I see what is "poor" about the translation of Vattel that the Framers used. The French itself is quite clear and the translation is quite accurate.
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, S: 1."
Again, there are two categories: naturalized, and either native born or natural born - the terms again are used as synonyms.
I'd drop this particular line of argument, if I was you.
It says two SOURCES of citizenship, not two categories. Second, the part you cited says there was a difference of opinion on how citizenship was recognized prior to the 14th amendment so there can't only be citizenship from those born under the NBC clause. The Minor decision also acknowledged that some authorities go further than the NBC clause and recognize citizenship beyond that clause without regard to the citizenship of the parents. The 14th amendment would generally settle that doubt, but the jurisdiction as you've cited says "owing no allegiance to any alien power." Since Rubio's parents were exiles, that would negate any allegiance to a foreign power and thus qualify him for 14th amendment citizenship. If not that, then he probably falls under one of the naturalized at birth categories under the INA. Unless Rubio's parents naturalized before he was born, then obviously he is not a natural born citizen.
Well, no. This is not true at all. The Supreme Court has legal precedence. Its definition as proposed in Minor v Happersett and as affirmed in U.S. v. Wong Kim Ark is "all children born in the country to parents who were its citizens." I would agree that many people today are confused and equate native-born with natural-born, but by legal precedence, native-born still requires birth to citizen parents under the definition used in those decisions. The only way Rubio is natural-born is if his parents became U.S. citzens before he was born.
That was not the intent of the drafters of the 14th Amendment. It was directed primarily at slaves who though not Citizens, were subjects. The 14th Amendment made all children who were subjects of the United States at the time of their birth Citizens. Visitors who are on Visas from foreign countries, or invaders (as in illegal aliens) are not subjects of the United States, but are subjects of the country of their origin. Becoming a subject of the United States requires an intent to stay permanently and to subject yourself to the sole jurisdiction of the United States.
I do not believe that anchor babies are legitimately Natural Born Citizens or even Native Born Citizens (if there is still a distinction after the 14th Amendment) because their parents are not legitimately subjects of the United States and are legally, in all sense of the term, subjects of the country of their origin.
What Natural Born Citizenship is intended to convey is a singular loyalty and anyone possessing dual citizenship at the time of birth is not a Natural Born Citizen of the United States unless the parents are Citizens, which would make the child born on American soil solely an American Citizen at the time of birth.
So I vehemently disagree with your analysis of the effect of the 14th Amendment. You have to go back to the original intent of the drafters of the 14th Amendment and if you do, you must conclude that the children of visitors and invaders were never intended to be granted Natural Born Status.
You don’t make enough sense to bother with.
Yes, I feel very chastised.
Non Sequitur.
US Constitution trumps US Code.
Not reading your stuff. Especially the long stuff.
I agree, but I also agree with Scalia that the intent of the drafters is not what determines the meaning of a law or constitutional provision. The drafters, as such, have no constitutional authority or status at all. If they have such an intent, then it is there responsibility to put that intent into writing so that the people who are tasked with enacting it into law can see the meaning on its face.
The folks who turn a piece of paper into a law/constitutional amendment are the members who pass it, and even more importantly, the states that ratify it. So, you go by the ordinary meaning of the words as they would have been understood at the time by the people who voted for/ratified it.
The ordinary meaning of the words used is not limited just to former slaves, as it makes no mention of them. The best argument I've heard about "subject to the jurisdiction thereof" is that it excused Indians living on tribal reservations not fully subject to U.S. law. Perhaps you could stretch that to folks who are here illegally as well. But if the 14th was intended only to apply to freed slaves, why didn't they simply say that expressly in the Amendment itself rather than drafting it so broadly?
I think you meant to say citizen parents is an attribute of natural born citizenship. That's clear from your follow-up sentence.
Until that government was created, there were no citizens at all.
A point I am CONSTANTLY trying to drive home. There were no "Citizens" until the Founding of the United States. Across the entire world there were only "Subjects."
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