I regard Fuller to be the first person to FAIL to parse the Minor v. Happersett language correctly...so I agree with Mr. Rogers (ouch!) that Fuller is describing exactly what he believes the “conclusion” of the majority to be! Unlike Mr. Rogers I disagree with Fuller's interpretation of what the WKA majority ruled because Fuller's dissent is based on a false parsing of the Minor NBC language.
The Minor majority did NOT extend NBC status to the children as Fuller claims, but ONLY CITIZENSHIP. Even the Ankeny court and Malihi admit that Fuller was wrong...but then, as Donofrio points out, using the magic word “TANDEM” as in viewing WKA in TANDEM with the 14A, the citizenship of Barry's mom TRUMPS the fact that neither WKA nor the 14A granted NBC status to WKA. Go figure!
NBC = NBS. That is the argument made in the first half of the WKA decision, and it lead inevitably to the idea that WKA & possibly Obama are natural born citizens.
And in truth, natural born subject WAS an extremely well known term describing citizenship in the colonies, and was used interchangeably with NBC for years after the Constitution.
Given that the Founders used the term NBS regularly to describe themselves, is it really likely they pulled the term NBC from a translation of Vattel made in 1797? THAT is the challenge the birthers have refused to discuss.
However, there is a small chance that WKA could be thrown out - IF you can convince the court that the legal history of NBS in common law could not have anticipated a time when people could enter a country for a couple of days, have a kid, and depart. Tourism just wasn’t a part of 15th & 16th century thinking.
And WKA does assume the parents are here legally, and discusses domicile - a factor usually ignored.
There is an argument that could be made that Obama Sr was not domiciled here, and that the English common law that defined NBS did not anticipate an African coming to the US to study and then leave. It could be argued that Obama Sr was more like an ambassador, in terms of 15th century thinking, than a common citizen. If so, then UNDER WKA, Obama Jr would NOT be a natural born citizen, because his father was here at the request of a foreign government.
THAT argument, if given weight, would toss Ankeny out.
Minor does not and has never defined NBC exclusively, and no court will EVER say otherwise. If you don’t want to lose forever, then you need to take WKA and the undoubted meaning of natural born subject/citizen into account, and give the court a reason to say Obama Jr doesn’t qualify.
Until then, Obama won’t even need to show up to kick your asses.
Except that he's not. Fuller was addressing the argument brought up by the appellant based on a citation from the lower court. The reason this assumption fails is proved at the conclusion of the dissent, where Fuller says he agrees with the majority on how to determine 14th amendment citizens, EXCEPT in Wong Kim Ark's case where the treaty with China was controlling.
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Read the underlined part above. It agrees that children become 14th amendment citizens at birth by being born to parents permanently located in the U.S. Past the underlined part, it notes that the "will of their native government" can prevent such persons from satisfying the subject clause. Keep in mind, that earlier in the dissent that Fuller specifically cites Vattel for the definition of NBC and that definition completely agrees with the Minor definition. Fuller, after all, is the guy who wrote the Ex Parte Lockwood decision that cites the Minor language correctly.
Unlike Mr. Rogers I disagree with Fuller's interpretation of what the WKA majority ruled because Fuller's dissent is based on a false parsing of the Minor NBC language.
It's not based on Minor at all and it's NOT based on the majority opinion in WKA. You're reading something that isn't there.