Posted on 01/24/2016 2:17:53 PM PST by Isara
How Congress defines naturalization for statutory purposes is immaterial when the question is a Constitutional one. In 1898 the SCOTUS made clear that the jus sanguinis was never part of our common law, and that persons born abroad and thus outside of U.S. jurisdiction are made citizens only through naturalization. That principle was affirmed by the Court in Rogers v. Bellei (1971). And the Scalia/Thomas concurrence in Miller v. Albright (1998) indicates the principle is still very much alive and well.
Congress can define naturalization so as to exempt that class of at-birth citizens from the procedural requirements of the naturalization laws. But that doesn't change how, from the Constitutional perspective, the grant of citizenship at birth to certain children born abroad to citizen parent(s) is considered an act of naturalization.
Though the argument you're making is the sort of thing a judge who is disinclined to interfere in the electoral process may seize upon as a way to work around Bellei.
Especially since 8 US Code 1401 also provides for the following, along with other sets of qualifying conditions for "citizen at birth":
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
Unless someone wants to argue that we area ALL naturalized citizens, he would be forced to argue that there are distinctions among the quality of citizenship granted by the statute, not merely among the qualification conditions for citizenship, that are simply not present in the statute.
I think either argument would lose if tested in a courtroom.
8 US Code 1401 provides for the following, along with several other sets of possible qualifying conditions for "citizen at birth":
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
So, we're ALL naturalized citizens now?
Mind you, this is precisely the same section of the US Code that defines certain children of an American citizen born abroad as a US citizen at birth; it's merely a different qualification standard among several. There is no distinction made regarding the quality of the citizenship at birth granted.
It's not clear what you're trying to say here. The relevant distinction is made between birth within the United States and birth outside of it:
"Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." U.S. v. Wong Kim Ark, 169 U.S. 649, 702, 703 (1898).
8 U.S.C. s.1401(a) pertains to citizens born within the jurisdiction of the U.S. It's obviously just a restatement of the birth provision of the citizenship clause of the 14th Amendment, which principle is also set forth in the first sentence of the above quotation. Those persons are considered natural born citizens.
Other provisions of that section (subsections c, d, e, g, and h) pertain to various other classes of persons not born in the U.S. Those persons would be considered naturalized citizens.
So no one would argue that everyone described in section 1401 is a naturalized citizen. You're erecting a nice strawman argument.
I think either argument would lose if tested in a courtroom.
That everyone described in section 1401 is a naturalized citizen is an argument no sane person would make.
I'm not sure what other argument you have in mind here. Though it seems you're still trying to look at the statutes to answer the Constitutional question.
A person born in the United States, and subject to the jurisdiction thereof does not depend upon the statute for their citizenship.
True, but then...
BTW, this is not a peculiarly Constitutional question. This is a question of how we will define natural born citizen, and I think that question has been answered by two events. The accession of Barack Obama to the Presidency despite his obvious lack of eligibility by the standard heretofore accepted, and two, 8 US Code, both 1401 - and 1101 (23) "The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever."
Not 'at birth'.
“But then” what? Please complete your thought.
But then, what the hell is Barack Obama doing in the Oval Office?
But then, what the hell is Barack Obama doing in the Oval Office?
Yes. Exactly.
No, it doesn't. If being born a citizen pursuant to one of the subsections of 8 U.S.C. s. 1401 relating to births outside the U.S. made a person a natural born citizen in the Constitutional sense, then Mario Bellei would have won his case. He lost because he did not fall within the "Constitutional definition" of citizen per the 14th Amendment.
BTW, this is not a peculiarly Constitutional question.
I know you dearly want to bring in the U.S. Code to answer the Constitutional question. I'm merely pointing out the flaw in your argument. How Congress characterizes a matter isn't binding on the Supreme Court. Congress may, for example, impose a certain statutory penalty and indicate "it's not a tax" while the SCOTUS may still say "yes, it is."
In this case, Supreme Court over 100 years ago stated that persons born abroad who are citizens at birth are naturalized citizens, and the courts (both the SCOTUS and lower courts) have consistently affirmed that principle as recently as 1998. A statute enacted along the way defining naturalization as a process occurring after birth hasn't and doesn't trump that.
The accession of Barack Obama to the Presidency despite his obvious lack of eligibility by the standard heretofore accepted
What standard was that? I can point you to law review articles from 1968 and 1988 that state that the jus soli principle the U.S. adapted from England is settled law, and thus all native born citizens are natural born citizens. The courts and scholarly community over the past 75 years or so (at the least) have been unanimous on this point. Obama's case falls within that accepted principle.
That’s certainly one point of view.
Or, as my post contained 4 different sentences on at least two different topics, it could be 3 or 4 points of view. :)
The problem is that in modern parlance, naturalization has come to be understood not as the legislatively conferred citizenship but as a process of acquiring citizenship. Cruz, McCain and George Romney did not have to go through any process to acquire their citizenship; Congress conferred that citizenship automatically by statute. These are not the only examples, however, of automatic naturalization by statute without any process or request. For example, United States citizenship was statutory conferred on all Native Americans living within the United States by the Indian Citizenship Act of 1924, even though some tribes actually objected, then as now.Man, it's like this Constitutional law prof has been reading my posts here. :)
Thus, naturalization as a term seems to have two very different meanings: (1) legislatively conferred citizenship either automatically or pursuant to some process, and (2) the more recent understanding, the process for acquiring citizenship where Congress has prescribed such a process. The Constitution appears to adopt the former reading on the issue of presidential eligibility, however much modern language usage employs the latter. In his recent comments on whether he is a "natural born" citizen, Sen. Ted Cruz appears to confuse or obfuscate these two. U.S. News & World Report
BTW, what other "point of view" did you have in mind?
I think that’s the divide. It’s actually more than mere usage. The second is the definition embodied in the statutes.
Constitutionally, it’s more problematic, but it’s an open question.
None of the case law I have read involves anyone with an unqualified citizenship conferred at birth, so they are not entirely on point. All of them involve some sort of condition or qualification that was not met by the appellee; some a before-the-fact qualification that had not been met; at least one an after-the-fact conditionality that had not been fulfilled, but none of them involved a straight-up unqualified, unconditional grant of citizenship at birth later that was later denied or revoked. In other words, in every case the Court gave effect to Congressional will, as the courts should, unless the Constitution is contravened.
Guess-I’m-just-silly bump
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