Chief Justice Fuller Opinion Natural Born Citizen (United States v. Wong Kim Ark)

Yes, it is remarkable how ignorant some of our circuit courts are about The Constitution and Supreme Court precedent. Why they just make it up would be a worthy doctoral thesis. They have absolutely no Supreme Court case law supporting their assertions, at least among affirmative decisions (I once read a dissenting opinion which misstated the Vattel definition, perhaps in Elg v. Perkins, but I can't go looking right now).

Another remarkable example of ignorance is the Indiana Supreme Court decision stating that the U.S. had already knowingly validated the presidency of the son of a non-citizen, Chester Arthur. This was a complete fabrication, since Leo Donofrio discovered the fact of Arthur's father's naturalization date, when Arthur was 14, at the end of 2008. Donofrio searched the literature of the time for any hint that this was suspected, and only found the reference by scouring the few remaining private Chester Arthur papers, since Arthur had his records burned shortly before his death. Even Arthur's biographers had missed the significance of Arthur's father's naturalization date - but then they were not looking.

Of course no circuit court decision can alter supreme court precedent, accepted common law, as exemplified by John Marshall in 'The Venus 12 U.S. 253, 1814' citing Vattel and quoting the famous definition of natural born citizens, “...born in the country of parents who are its citizens.”

Yes, it is remarkable how ignorant some of our circuit courts are about The Constitution and Supreme Court precedent.

You got that right. James777 has been passing those cases as basis in fact - law of the land that the natural born citizen clause has been defined. Anchor babies of foreigners as NBC in asylum and deportation cases, where the circuit and district judges make unsupportable statements the children as NBC The cases have nothing to do with natural born citizens as it pertains to the US Constitutional clause. .

obumpa

Thanks Red Steel. I kind of guessed that was his intent, but someone had gone to such trouble to find screwy decisions that I decided to assume he was sincere. He/she may have picked up the references at Dr. Conspiracy's blog. I've not seen them before, and will be curious to see if I can find them on line. Heaven forbid that people would put phony citations on the web! But more and more we are learning that unwinding elaborate obfuscation is not necessary. The truth is not hard to find. Many of us, and I've seen your well-informed responses before, have been chasing the geese for more than a year now, and have seen most of the red herrings. This person found circuit court decisions, which don't change anything, but are remarkable for the ignorance they display.

I assume many of these judges don't have clerks, but you'd think they would at least look up some reference to natural born citizen in a supreme court case. They aren't hard to find. Lots of books have been written about citizenship, the Alexander Porter Morse work being an exhaustive one, and all explain the reasoning behing our founders choice of requirements for commander in chief to protect a society that is not a monarchy, and which was born from immigrants.

You’re welcome. Those cases are on the After-Birther sites all over the Web...that’s where he got them.

This is a very interesting read — Thanks.

Gabriel Chin's recent paper on McCain's eligibility explores and supports the reasons that McCain is not a natural born citizen. Even the Canal Zone in 1936 was a unique place for not having applicable sovereignty statutes

If you actually read the Law of Nations, you'll see that McCain meets one of the exceptions to the "born in the country" rule for NBC. He was born "in the armies of the state" See Law of Nations, Vol I. Section 217. The same exception applies to the children of diplomats.

If we are going to accept he Law of Nations definition for NBC, which is in section 212, we should also accept the exception in section 217. Under that, his father could have been an exchange instructor at the Chinese Naval Academy and he could have been born in Mamei in Fujian (Fukien) Province, RoC, and he'd still be a natural born citizen, given also that his parents were both citizens.

Both of my children were born in Germany during my overseas tours. Both have birth certificates issued by the US State Dept that are headed “Record of a US citizen born abroad.” Are they Natural Born Citizens, and if so, what makes them Natural Born Citizens?

Well, according to "Law of Nations, sections 212 and 217, they meet the same exemption that McCain met, that is, they were born "in the armies of the state". So since they were also born to US Citizen parents, they are natural born citizens. Opinions differ on the matter, and it is not addressed in the law, anymore than the basic NBC definition is.

Thanks for the info, it seems what we have is a lot of opinion and not much case law.

it seems what we have is a lot of opinion and not much case law.

Nada, nunca, jamas, none, zero, zilch, zip. No case law at all. Only dicta.

At least where it counts, at the Supreme Court level. Not much at any lower level either. The reason is that the distinction between "native born" or "citizen at birth" verses the subsets of those that are Natural Born, can only really be relevant in eligibility to the office of President. There have been no Supreme Court cases on that at all.

I agree El Gato, with the discussion of the questions “about which there is some doubt.” The court never clarified those issues concerning diplomats or overseas military. As you and Professor Chin pointed out, Panama was an odd case in which jurisdiction had not been formally asserted, where it had in almost every other country. Chin pointed out that some children of military personnel born before 1937, and based in Panama were declared illegal immigrants and deported back to Panama.

Of course none of this applies to Obama because his father was never an immigrant, and certainly had no allegiance to the United States, perhaps like his son? McCain fell between the cracks. I suspect that modifying the definition of natural born citizen to include children of military and diplomatic corp born to U.S. citizens on assignment would require an amendment, since the definition “about which there has never been doubt” is precedent

As I expect you have noted, the definition in Section 217 does not mention “natural born citizen.” I conservative interpretation is that Vattel would grant children of diplomats and military personnel jus soli citizenship. Some nations ordained that children born on their soil are jus soli citizens, subject to conscription and other laws pertaining to citizens unless or until they apply to repudiate their citizenship at majority (usually 18 or 21, depending upon the country). (See Alexander Porter Morse, “Citizenship”, for an exhaustive history of citizenship law).

I don't understand your “snarky” “If you actually read the Law of Nations.” I don't think we disagreed on any point, and if you are an Obot, you are the sort of Obat I'd like to see more involved with elevating the dialog about citizenship as you did here. A conclusion based upon the meaning of the founders, and their precedents is exactly what we need. I have found no support for the notion that anyone ever entertained defining the son of an alien, wherever he was born, to be a natural born citizen. And I have discovered that contrary to the assertion by Obama supporters that Vattel was of little consequence to the founders, Vattel was the most cited legal source in American Jurisprudence between 1789 and 1820 - by a fact of at least four (Grotian Society Papers, 1972, pg 179). “When Jefferson inaugurated the study of The Law of Nature and of Nations at William and Mary College in 1779, the text from then until 1841 was Vattel’s.” Recall when our Constitution was ratified. One of Jefferson's students, if only briefly, was John Jay. Vattel was taught widely at law schools for more than a decade prior to the ratification.

Chin pointed out that some children of military personnel born before 1937, and based in Panama were declared illegal immigrants and deported back to Panama.

Actually I think he only implies that, he indicates that persons born to US citizens in the Canal zone were so treated, but not specifically children of military serving in the zone.

Chin artfully mixes quotes from cases (possibly out of context?) with his own opinions. It's not a very good paper, IMHO, and was likely intended as a McCain hit piece, because an earnest professor would have written a paper on Obama's eligibility as well, even one that concluded he was eligible. Chin is a professor of Criminal law, not Constitutional law, election law or immigration law. He's also a professor of Public Administration and Policy. Just look at his list of publications here. and here too He dismisses the original meaning of the Constitution with "The Supreme Court holds that the citizenship statutes are exclusive; there is no residual common-law or natural-law citizenship". To say that is to say the Constitutions terms have only the meanings ascribed to them by statute, rather than original meanings, many of which were based on natural law concepts.

From reading the the Chin paper, it seems that Chin feels that statute law can influence who is or is not a natural born citizen. I reject that notion. For if it were true, a simple statute, passed by 50% +1 of the Congress could modify the Constitution. That I cannot accept.

I suspect that modifying the definition of natural born citizen to include children of military and diplomatic corp born to U.S. citizens on assignment would require an amendment, since the definition “about which there has never been doubt” is precedent

But its not exclusive precedent, since it does not exclude other situations and only mentioned those born in the US of non-citizen parents, like Obama. But it also did not address the special cases of the children of diplomats (about which there also has never been any doubt) and military serving abroad. I don't think it would take an amendment, any more than it would take an amendment to define Natural Born Citizen as having two citizen parent and born in the country. It's the original meaning of the term, as understood at the time, that counts.

I have discovered that contrary to the assertion by Obama supporters that Vattel was of little consequence to the founders, Vattel was the most cited legal source in American Jurisprudence between 1789 and 1820 - by a fact of at least four (Grotian Society Papers, 1972, pg 179). “When Jefferson inaugurated the study of The Law of Nature and of Nations at William and Mary College in 1779, the text from then until 1841 was Vattel’s.” Recall when our Constitution was ratified. One of Jefferson's students, if only briefly, was John Jay. Vattel was taught widely at law schools for more than a decade prior to the ratification.

Yet Chin does not even mention Vattel. Wonder why? Maybe it would undermine his thesis that McCain is not an NBC?

One must go back and try to understand what the authors and ratifiers of the Constitution meant by "Natural Born Citizen". Chin indicates that "Natural Born citizen" is equivalent to citizen at birth. Under that definition, if Obama was indeed born in Hawaii, he'd be natural born. So would all the "anchor babies" born to illegal alien mothers and who knows what fathers. But Obama is not and NBC under the Vattel/Law of Nations definition, which I am convinced is the one the founders were using.

I am no Obot. I was once, reluctantly, convinced that McCain could not be an NBC, until *I* read more of the Law of Nations than just section 212. Now I've never been a McCainiac either. Haven't trusted him since well before the 2000 primaries. Well before. The reasons are legion, but I will not go into them here. Suffice it to say that even with Sarah Palin as his running mate, it took a powerfully strong clothespin to be able to darken the oval next to his name, and I certainly did not vote for him in the primary, even though by then he was the presumptive nominee.

Can you imagine an Obot with my .sig? Or one who belongs to the NRA, CCRKBA, SAF, and GOA? See My FR profile page