Posted on 11/30/2011 4:54:22 AM PST by Natufian
The Supreme Court in Wong Kim Ark thus concluded that the Fourteenth Amendment “affirms”the common law rule of “citizenship by birth within the territory,” even if one is born of alien parents in this country, and approved of the characterization of the children of such resident aliens as “natural born” citizens of the United States.63
There's nothing in the Wong Kim Ark decision that "approved" a characterization of children of resident aliens as natural born citizens. This is an outright fabrication. It's footnoted to page 693, which is the part where Gray quotes Binney saying the child of an alien "if born in the country, is as much a citizen as the natural-born child of a citizen." This passage doesn't approve of a characterization, nor does anything else on this page. It's making an analogy in which it still distinguishes children of aliens from natural-born citizenship. It only says their level of citizenship is the same by virtue of the 14th amendment, which no one disagrees with. If the president requirement was only basic citizenship, then this would be true. But it requires the specific characterization of "natural-born" which is neither expressly stated nor implied. Secondly, this is the same kind of dicta that Maskell downplays from Minor. He also ignores that this passage requires domicile (Obama's father was not domiciled in the U.S.): "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction ..." Under this requirement, Obama fails to be a 14th amendment citizen.
Maskell, for unknown reasons, wants to downplay the influence of Vattel. He says he was only cited once by the Federal Convention of 1787. This ignores that Vattel was cited frequently by the Journals of the Continental Congress between at least 1780 and 1787. The Law of Nations is cited even more frequently.
This next passage is another work of fiction. It says that Minor v Happersett:
... discussed the question in dicta as to whether one would be a “natural born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that“some authorities” hold so.
This is NOT what it says. Some authorities include as citizens those born "without reference to the citizenship of their parents." This doesn't say anything about a question of whether such children would be a "natural born" citizen. It's questioning whether they are citizens. It also does NOT say that some authorities hold such persons to be NBCs.
The Court, however, expressly declined to rule on that subject in this particular case.
... because it established an exclusive set of criteria for defining natural-born. Maskell claims the discussion quoted here is dicta and not relevant to the holding in the case, which is false. This was the basis for establishing Virginia Minor's citizenship in rejecting an argument that it was derived through the 14th amendment. Wong Kim Ark noted this fact and affirmed it, which Maskell fails to understand.
The majority opinion of the Court [in WKA] clearly found, by any fair reading of its reasoning, discussion, and holding, that every person born in the United States and subject to its jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation),regardless of the citizenship of one’s parents, is a “natural born” citizen
The conclusion above is based on the same dicta using the Binney "as much a citizen" citation. It's a faulty conclusion and poor reading.
By footnote, Maskell claims this about Minor:
Any analysis of the distinction between “holding” and dicta is simplified in Minor v. Happersett, as the Supreme Court expressly explained that “For the purposes of this case it is not necessary to solve” the issue of parental citizenship, thus clearly stating that its discussion was not part of, and theresolution of the issue not necessary to, the underlying holding or ruling of that case.
Waite did NOT say it is not necessary to solve the issue of "parental citizenship." He solved it quite clearly. All persons born in the country to citizen parents are natural-born citizens. It is a type of citizenship without doubt. What Waite did NOT solve is the issue of territorial-birth citizenship. "Parental citizenship" was directly applicable to the holding in Minor because it was used to reject the 14th amendment citizenship argument proposed by Virginia Minor.
There are plenty of other errors. What needs to be understood is that Minor was a unanimous decision that defined natural-born citizen. The Supreme Court affirmed that definition in Wong Kim Ark. There was no way Horace Gray was going to overturn a unanimous decision. There's no other higher judicial or legal authority. Not 20th century "legal scholars." Not circuit court decisions. Not state appeals court decisions. And not the CRS.
Nobody did, which is why who was a natural born citizen and who isn't was not a question for the court to decide. Which is why any comments defining natural born citizen were, by definition, made in dicta. As the CRS study noted a number of times.
Gee, you say non-birthers are Obama supported and Diogenesis says that they're Romney supporters. I wish you guys would make your minds up.
The point is that you have an agenda. That agenda does not include seeking the truth in this case.
I believe Obama’s own “fight the smears” website said he was eligible for British citizenship at birth, and for Kenyan citizenship if he applied at age 18. I myself was not eligible for either, and I suspect a lot of other Americans were not by birth. I think the answer to the trivia question “who was the last US president born a British subject is arguably answered correctly by pointing to Barack Obama.
I am only stating my opinion as to what I believe the law should be. I also believe, perhaps incorrectly, that dual citizenship is a relatively recent concept.
Just my two cents.
I do seek the truth. I just don't accept your version as being the truth.
All persons born in the allegiance of the King are natural-born subjects, and all persons bornin the allegiance of the United States are natural born citizens. Birth and allegiance gotogether. Such is the rule of the common law, and it is the common law of this country, as well as in England.
This is taken from U.S. v Rhodes (a circuit court decision), but in that decision, this passage is summarizing dicta in Shanks v. Dupont, an 1830 SCOTUS case. That case said:
The Treaty of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states were virtually absolved from all allegiance to the British Crown; all those who then adhered to the British Crown were deemed and held subjects of that Crown.
When it says "natives or otherwises," the natives refers to people born on U.S. soil. Depending on the political allegiance of the parents, you could be born on U.S. soil and be a British citizen, not a U.S. citizen. It says if you "adhered" to the Crown, you were a British subject ... native or otherwise (born in the U.S. or not). The key factor isn't jus soli, it's jus sanguinis. If we are to accept a common-law definition of NBC, the key factor is jus sanguinis.
The other problem is that the common law in England required the parents to have "actual obedience" to the crown. There's no American concept analogous to this. Second, English common law did not respect dual allegiances. You had solitary allegiance to the crown and it was perpetual allegiance. By citing the passages above, with reference to the Treaty of 1783, it is saying you cannot be a dual citizen. You are either one or the other. Your allegiance (through the parents ) is either to the crown and you are a subject, or you're allegiance is to the United States and you are a natural-born citizen by birth. It doesn't accept a combination of allegiances. Obama's father never had allegiance to the United States. His mother's allegiance is irrelevant, because a natural-born citizen cannot be a dual citizen by the terms of this treaty. It explains why Gray used common law, but NOT the term natural-born citizen, to declare Wong Kim Ark to be a citizen by birth. What he did require, however, was permanent residence and domicil, neither of which that Obama's parents had.
You’re right but I didn’t post it to convince the Birthers. They are beyond convincing. You only have to look at the responses so far - this report is now part of the conspiracy.
I just thought that a well reasoned, authoritative report into the topic would help lurkers or people with a genuine interest and an open mind.
If it does, great. if it doesn’t... well, what the hell, it was only 10 minutes out of my life.
Or do you consider flat out lying to be "well reasoned"?
If so, this reply of yours is "well reasoned"...and well seasoned as well with BS Sauce.
Thanks.
From your link:
http://legal-dictionary.thefreedictionary.com/Holding
“That part of the written opinion of a court in which the law is specifically applied to the facts of the instant controversy. It is relied upon when courts use the case as an established precedent in a subsequent case.
“A holding is distinguishable from dicta, which is language in the opinion relating some observation or example that may be illustrative, but which is not part of the court's judgment in the case.”
Applying this definition of holding as opposed to dicta:
In Minor, SCOTUS applied the law to the facts with their holding that under the supreme law of the Constitution using their own clarified explicit definition of NBC, Mrs. Minor was the NBC type of citizen born in the country having two citizen parents (which excluded foreigners) and applied that definition to the facts and circumstances of Mrs. Minor's birth.
Locking in precedence, in Ex. Parte Lockwood, SCOTUS declared that the NBC language of law which was applied to the facts in Minor were "held" by SCOTUS, i.e. were an NBC holding and NOT dicta.
Minor v. Happersett was a voting rights case. The citizenship of Virginia Minor was never in question and was not decided by the court. She was a citizen before the suit and was a citizen afterwards.
Or haven't you read the case?
This is an excellant scholarly analysis of the Natural Born Citizen topic and for anyone who is really interested in the technical analysis, is well worth reading. Not only page 22 but the last ten pages address what I see as the developing end game topics. If the Supreme Court ever reaches this issue with Obama, the opinion will be couched in these terms--the decision may vary but probably only a little.
In the first place, we all need to understand that the Supreme Court is a political institution--and its decisions are a mixture of legal principles and political reality. The Bar generally is probably 75% Liberal Democrat; the Constitutional Bar is probably closer to 90% Democrat. The author here has that as a basis for his views.
The Court is presently divided 4-4 with a swing Justice, Kennedy, the deciding vote on the close contested issues. So any analysis of how the Court would decide this kind of question will turn on Kennedy's vote. Kennedy generally tends to look for the center of gravity in the precedents.
I have set out an anlysis of Vittel on a number of occassions. Legislative History, in connection with the Constitution is not often the controlling basis for Con Law decisions. Neither is a sense of Congress Resolution.
There isn't any doubt that Vittel was accessible and considered by the founders. Exactly what the founders considered is not certain but as the author points out, the primary focus of the retained communciations among them was on persons "born in" the United States rather than on their historical parentage.
The issue of Natural Born has been actively on the table several times during the period in which I have been in practice--with Goldwater in 64; and Romney to name two examples. There are a number of articles in legal periodicals on the issue although few as well done as this particular piece; and there is a strong center of gravity in the Constitutional Law Bar, perhaps in part founded on the view that the 14th Amendment removed any limitation on the quality of citizenship obtained by a person born in the United States, to the effect that a person born in the US is a Natural Born Citizen, no matter the citizenship or heritage of his parents.
If a challenge to Obama comes down on facts that do not demonstrate that he was born outside the geographical limits of the United States, he will be held Natural Born and eligible under Article II to hold the office of President.
If his father was the man in the moon and his mother a mermaid in the South Pacific, if he was born in Lake Washington, he will be held Natural Born. That simple.
I disagree with the author in one respect--the author would put the burden of proof on the place of birth issue on a complaining party rather than on Obama.
Under circumstances where Obama has produced a number of fraudulent documents regarding his place of birth, where the record also demonstrates that over the years, he has told a number of individuals, and has made many public or semi-public statements that he was born outside the US, I think that a properly pleaded action with appropriate parties is likely to see the trier of fact holding that the burden is on Obama to show where he was born and not on the complaining party.
In context, that issue is likely to have some force, even if Obama now produces real evidence that he was in fact born in the United States. We are likely to see a legitimate inquiry as to the underlying facts before a court is convinced documentary evidence of his US birth is in fact real.
Because a second place in which I disagree with the author is the case which would be presented if Obama were in fact born elsewhere--London for example; with a classic multi-generational US Citizen father; and to a non-US Citizen mother.
In that case, I believe the argument against his being a Natural Born Citizen is persuasive. The place of birth country in any situation in the modern world has significant continuing legal authority over person's born in its jurisdiction; which is probably not cut off even by a naturalization proceeding.
For example, the US taxes worldwide income of all of its citizens. We know of a case where a prominant German investor was born in New York in 1947 to two German parents who were in New York on business when premature birth occurred.
Having accumulated hundreds of millions of dollars of net worth from income which would be taxable in the US over the last 64 years (and never having filed any US tax return), he now proposes to invest a hundred million dollars in a proprietary engine modification invention owned and developed by a US entity. In a routine assessment by his counsel, his place of birth became known and he is presently thought to be liable for criminal and civil tax penalties in nine and ten figure amounts. He is not able to come to the US at present under these circumstances.
I don't think either Obama or McCain would be held to be Natural Born under circumstances where they were born outside the United States under the sovereignty of a foreign power. There is no conclusive authority on this question and although the author here is to the contrary, I believe the center of gravity of the Constitutional Bar is on the ineligible side of the argument.
Or haven't you read the case?
No wonder you're so confused. You need to read this because you don't even seem to know the question before the court.
The direct question is, therefore, presented whether all citizens are necessarily voters.
Get your horse out from behind your cart.
Spaulding wrote: “When a justice department attorney uses this statement [...]”
And: “The publishing of this document must mean that Obama’s Justice department is worried about the issue,”
Wrong branch of government. Jack Maskell doesn’t work for the Justice Department. That very first word — “Congressional” — that was a clue.
MMaschin wrote: “In ex parte Lockwood the court says - ‘this court HELD’. HELD is the operant word. It means that it was a Holding.”
And since they were stating the holding they left out the dicta about “natural born”:
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.” Ex parte Lockwood , 154 U.S. 116 (1894)
Yes, like the "Congressional Budget office" which is responsible for that work of fiction they call a budget every year. It seems that different Congressional offices have about the same competency level as well. (Meaning none.)
http://dailycaller.com/2011/10/11/michelle-obamas-warning-to-gun-owners/
Why such interest in "natural born citizen" law, but no interest in Second Amendment law? No doubt some parts of the constitution are more equal than others in your opinion.
Protecting Obama: Congressional Research Service Releases Error and Disinformation Ridden Report on Natural Born Citizen Requirement
(Maskell writes, “There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one’s parents governs the eligibility of a native born U.S. citizen to be President.” Two sentences later he states, “…the eligibility of native born U.S. citizens has been settled law for more than a century…” If there is no controlling case law, how can the issue have been settled law for more than a century?)
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