Posted on 05/11/2020 5:18:01 AM PDT by blam
In a Sunday interview on New York 970 radio’s “The Cats Roundtable,” Rudy Giuliani, personal legal counsel for President Donald Trump, weighed in on the Department of Justice’s decision to drop charges against former National Security Adviser Ret. Gen. Michael Flynn after new evidence came to light showing FBI agents attempted to entrap Flynn into lying to them.
Giuliani said former CIA Director John Brennan, along with former FBI Director James Comey, orchestrated the Deep State’s attempt to take down Trump, which he described as “as close to treason as you can get.”
“This is now an inexperienced prosecutor’s hypothesis … I think Brennan ran this damn thing,” Giuliani told host John Catsimatidis. “I particularly think Brennan ran the Papadopoulos-Carter Page part of it because that’s a very elaborate counter-intelligence plan — kind of a stupid one. Brennan is smart, but if he goes overboard, he makes a lot of mistakes, which is why he was in trouble all his career. So, that one I’m sure is orchestrated by CIA. And who the hell would’ve done it in the CIA but a screwball like Brennan?”
He added, “I think they have Comey. And I think, despite the fact that he got let off a couple of times — and I have no inside information — I believe that Attorney General Barr was saving it for the really good case, the one that comes pretty close to treason, because what they did after [Trump] was elected, I don’t say that it’s treason, but it’s as close to treason as you can get. They wanted to take out the lawfully elected President of the United States, and they wanted to do it by lying, submitting false affidavits, using phony witnesses — in other words, they wanted to do it by illegal means.
(snip)
(Excerpt) Read more at breitbart.com ...
Look at the gramma and see what that little word “OR” does to the meaning. They can be charged.
No, “or” doesn’t change the meaning. It would if there was a semicolon that was before the “or” and not a comma. In Federal statutes, a semicolon indicates that what follows is to be considered a separate statement. Having a comma indicates it is a continuation of the same sentence.
You are correct. There is quite a few essays on legal writing discussing this.
It seems as if it never even once occurred to any given adult citizen of any of the several states of the newly formed United States of America, when occupying his or her respective domicile located within his or her particular home state, and engaging in the marital act with another citizen of that state of the opposite sex, that the natural result of the two of them doing such a thing would be to beget anything other than another full-fledged citizen of that very state, just like them but newer.
I seems to have escaped your attention that a sovereign people have the power to adopt whatever laws they choose. The people, acting in their sovereign capacity, stand higher than any branch of any government. If they choose to make all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States, there exists no higher authority they answer to who can tell them differently.
If the people choose to exercise their sovereign power to change that, they may change it in the manner of their choosing. It is good to be sovereign.
Early on, the sovereigns of each state chose to adopt, either through the state constitution or statute law, so much of the English common law as was not inconsistent with the Federal Constitution. And as in the colonies, the product of the horizontal bop, if produced in the territory and jurisdiction of the United States, became a bouncing natural-born citizen.
Ok, bet.
You forgot to say what the bet was. I bet I can answer the question.
Can’t you see that mere birth in the U.S., without more, could never win the day when sovereigns of ostensibly equal dignity clash on the world stage?And can’t you see that maturely confining your natural born citizen claims to sovereign vs. sovereign cases in which the U.S. demonstrably can’t lose to the other sovereign is the only way to go?
By contrast, close cases in contested proceedings should NEVER feature NBC claims by either sovereign. Neither party wants to alienate or lose precious credibility with the judge. An NBC claim that is so weak or indefensible that the neutral and unbiased judge has no choice but to declare it frivolous could put the offending party in the position of having sanctions applied against it, any one of which could result in the case no longer being winnable, even if the laughable NBC claim is withdrawn and replaced with the well-formed, well-argued, and potentially winning position you should have articulated in the first place.
Your claim is manifestly false.
The people, acting in their sovereign capacity, stand higher than any branch of any government. If they choose to make all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States, there exists no higher authority they answer to who can tell them differently.
There are no sovereign-on-sovereign claims. Within the jurisdiction of the United States, United States law prevails.
If two German citizens give birth to a child here, and the child is subject to the jurisdiction of the United States (no immunity conferred), the child is considered a natural born citizen by the United States. Simultaneously, Germany may consider the child a German citizen. The child may obtain a passport from each. The United States policy is to not recognize dual-citizenship. If Germany recognizes the child as a German citizen, that is their right. While in Germany, the child, or later adult, may be subject to German law.
Your long creative hypothetical contains some very interesting possibilities which I am certain escaped your attention.
There is no such thing as an American ambassador to Great Britain. There is an ambassador to the UK, the formal name of which is the United Kingdom of Great Britain and Northern Ireland. Northern Ireland is not a part of Great Britain, but is a member of the UK, what is now the nation state.
If José, the adventurous boy, had jumped an American ship at Gibraltar, we would have an international mess. Officially, Gibraltar is a possession of the UK. The Spanish claim it as their own. Performing a land entry to Gibraltar, one may get an entry and exit stamp, shaped like the rock, in one's passport from Gibraltar, but Spain defers, considering that you have not gone anywhere; you went from Spain to Spain, and back to Spain. Indeed, if a couple run off to Gibraltar to get married, and for legal reasons get a Spanish copy of the marriage certificate, it says one got married in La Linea, España, that being the Spanish town right outside the land entry point to Gibraltar.
Entering a U.S. Navy ship from UK soil, young José could not become a member of the crew.
The U.S. Secretary of State is eventually presented by his deputy with a proposal, approved by all inferior staff, that the United States stop insisting to the learned judges of the International Court of Equity for Resolving the Highest and Most Touchy Diplomatic Disputes Between Sovereign States of Equal International Dignity (ICERHMTDDBSSED) under the Natural Law and the Law of Nations that the accident of the son’s birth on New York soil makes him a natural born citizen of the United States under the 14th Amendment versus a mere naturalized citizen of Spain such that, on balance, the equities lay in favor of the United States as the sovereign with the superior claim to the son’s loyalty and future service as a citizen. The U.S. would moreover transmit a formal letter to the son explaining that his actions since reaching the age of majority, considered as a whole, are judged to be wholly and unmistakably incompatible with a true desire on his point to renounce his Spanish citizenship and corresponding loyalties in favor of perfecting a previously inchoate status of U.S. citizen, and that as a result, the United States renounces its sovereign prerogatives in your case, concedes the superior claim of sovereignty held by the country of Spain, and declares your window of opportunity to capitalize on your New York birth by electing against your home country and in favor of the country of your birth to be forever closed. Spain would further obtain a formal decree from the ICERHMTDDBSSED thst its sovereign authority claim over the son, based as it is on principles of Jus Sanguinis, or the Law of the Blood, combined with more than twenty years of unbroken domicile in Spain undisturbed by any domestic, social or political strife or antagonism between the son and any level of Spanish government, squarely places the equities in favor of Spain and against the United States, and justifies awarding criminal custody in your case to Spain together with the requested extradition which is also formally granted. In return,the Spanish authorities agree to drastically reduce the gravity of the potential criminal penalties faced by the son and work with the son’s father after extradition is complete in the hopes of obtaining a guilty plea to a lesser charge, facilitating the son’s reintegration over time back into Spanish society as a formal and permanent citizen and a regular member of the polity thereof possessed of all associated rights including the right to vote, first in local elections and later in national elections after the son has demonstrated his restored loyalties plus overall good behavior, and employ modern public relations techniques to rapidly de-escalate the appearance of tensions between the son and the Spanish central government in the eyes of his fellow citizens.The Secretary of State, knowing that his dear friend Woodpusher is likely to have a cow if the United States ever formally concedes, pursuant to the Law of Nation as informed by applicable provisions of the Natural Law, that mere accidental birth within the United States to two non-domiciled alien parents briefly waylaid on their way back home to Europe was insufficient to produce a natural born citizen of the U.S., calls you to ask your advice. He also wants to know whether you would consider coming off your high horse for five minutes to consider how preposterous you’ve been sounding lately over at Free Republic, but he’s willing to take that up with you later.
So, Woodpusher, what’s your take on this scenario? NBC or no NBC? Does the U.S. have the right to negotiate away its sovereign interests in securing the formalization of an inchoate U.S. citizenship held throughout childhood by a young man who could have, but arguably didn’t, make a timely election in favor of the U.S. instead of his home country?
You present the absolutely false dichotomy of a choice between 14th Amendment natural born citizenship in the United States, and mere naturalized citizenship in Spain. Young José had a Spanish parent and obtained natural born birthright citizenship in Spain, pursuant to article 17 of the Spanish Civil Code.
The unanimous advisory of inferior staff is always irrelevant to the one person with the actual authority to decide. They advise, but only he decides.
Young José appears to be in the Netherlands, under arrest and accused of domestic terrorism. The Spanish government intends to seek formal extradition and prosecute for high treason, allegedly potentially resulting in the death penalty. As the death penalty was abolished in Spain, the Netherlands may safely conclude that the potential for the death penalty is nil, and that extradition is lawful. The Spanish government presumably have a European arrest warrant out for young José. Under the stated facts, it is a veritable certainty that young José was traveling on a Spanish passport. He left the United States before his first birthday, did not return, and, as a minor, could not have obtained a U.S. passport overseas on his own. Young José was being held in the Netherlands as a Spaniard.
The United States has no standing to make an extradition request unless it ispursuing some charge with intent to prosecute. Even if young José were a naturalized citizen of Spain, the United States would have nothing to compete with a charge of treason. Moreover, natural born and naturalized citizens enjoy the same general rights of citizenship.
Young José is a natural born citizen of the United States and a natural born citizen of Spain, traveling as a Spaniard.
Woodpusher. Don’t you understand that an NBC claim against a competing sovereign must win, and can’t lose, without the losing sovereign being forced back to the drawing board to adjust its municipal definition of an NBC to avoid another humiliating sovereign-versus-sovereign loss like that in the future?
Actually, I am fairly certain you framed the question so defectively, there is no call to enter into some mystical, but non-existent sovereign-on-sovereign loss.
The hypothetical young José is a natural born Spaniard, traveling as a Spaniard on a Spanish passport. He is in a Dutch prison, held there as a Spaniard. The decision of where he goes will be made in the Dutch courts. The Dutch decision will be controlled by the European law as it relates to two members of the European Union and a European warrant.
[EUROPEAN UNION] COMMISSION NOTICE of 28.9.2017 HANDBOOK ON HOW TO ISSUE AND EXECUTE A EUROPEAN ARREST WARRANT
At page 13:
Member State’s decision must be recognised without further formalities and solely on the basis of judicial criteria.The surrender of nationals is a principle and a general rule, with few exceptions. These exceptions concern the enforcement of custodial sentences in one’s home country and apply equally to residents. Practice has shown that about one fifth of all surrenders in the Union concern a country’s own nationals.
The grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4 and 4a of the Framework Decision on EAW. There is no verification of double criminality as a ground for non-execution and non-surrender with regard to 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW, as defined by the issuing Member State, where those offences are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years.
If the offences in question are not regarded by the competent authority of the issuing Member State as offences falling within Article 2(2) of the Framework Decision on EAW, double criminality may still apply. It was held by the Court of Justice in its judgment in Case C-289/15 Grundza12, that when assessing double criminality, the competent authority of the executing Member State is required to verify whether the factual elements underlying the offence would also, per se, be subject to a criminal penalty in the executing Member State if they were present in that State (see Section 5.2).
From 28 March 2011, the Framework Decision on EAW has been amended by Council Framework Decision 2009/299/JHA13, deleting Article 5(1) and inserting a new Article 4a on decisions rendered in absence of the person concerned at the trial (trial in absentia).
Extradition Agreement With The European Union, 109th Congress, 2nd Session, Senate, Treaty Doc. 109-14:
ARTICLE 10Requests for extradition or surrender made by several States
1. If the requested State receives requests from the requesting State and from any other State or States for the extradition of the same person, either for the same offence or for different offences, the executive authority of the requested State shall determine to which State, if any, it will surrender the person.
2. If a requested Member State receives an extradition request from the United States of America and a request for surrender pursuant to the European arrest warrant for the same person, either for the same offence or for different offences, the competent authority of the requested Member State shall determine to which State, if any, it will surrender the person. For this purpose, the competent authority shall be the requested Member State’s executive authority if, under the bilateral extradition treaty in force between the United States and the Member State, decisions on competing requests are made by that authority; if not so provided in the bilateral extradition treaty, the competent authority shall be designated by the Member State concerned pursuant to Article 19.
3. In making its decision under paragraphs 1 and 2, the requested State shall consider all of the relevant factors, including, but not limited to, factors already set forth in the applicable extradition treaty, and, where not already so set forth, the following:
(a) whether the requests were made pursuant to a treaty;(b) the places where each of the offences was committed;
(c) the respective interests of the requesting States;
(d) the seriousness of the offences;
(e) the nationality of the victim;
(f) the possibility of any subsequent extradition between the requesting States; and
(g) the chronological order in which the requests were received from the requesting States.
As a natural born Spaniard, traveling on a Spanish passport, young José will be extradicted to Spain to face trial. The only competing interest of the United States would be young José's desire to escape responsibility for his misdeeds. The United States would have no cause to seek extradition.
I think Long was probably brilliant.
I find it apparent that he was just brilliant enough to get caught lying to Congress. Bigly.
Because the large cohort of permanent non-citizen residents living subject to the jurisdiction of no sovereign other than the good ‘ol United States has passed into history, their descendants now permanently folded into our polity as full-fledged members thereof, the 14th Amendment can probably now safely be repealed without fanfare or agony.
Just abolishing the 14th Amendment would make no difference to our citizenship law.
Rogers v. Bellei, 401 U.S. 815, 828 (1971), opinion of the U.S. Supreme Court by Blackmun, J., in which Burger, C.J., and Harlan, Stewart, and White, JJ joined.
1. Over 70 years ago, the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 (1350); 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, § 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later, Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this “very learned and useful opinion of Mr. Justice Gray,” and observed
“that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . .”Weedin v. Chin Bow, 274 U.S. at 274 U. S. 660. He referred to the cited English statutes, and stated, “These statutes applied to the colonies before the War of Independence.”
We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.
If not, then at least the 14th Amendment should be modified, or a new Amendment enacted, to specify how at all relevant times we are to treat domestically-born people with dual citizenship or two- or three-way split loyalties at birth, i.e., do they have inchoate citizenship, provisional citizenshop, “considered as” citizenship status, a potentially revocable chance to elect U.S. citizenship at the age of majority, what is it, and how shall all that work? /blockquote>Not all that is required. The problem with the law now is with mass migration of illegal aliens. Already for naturalization, one must be lawfully present in the country. A law or amendment can declare that no person shall be considered to have any legal presence in the country before effecting legal and authorized entry. No person without a lawful prsence in the country shall be eligible for naturalization, employment, or any government benefit.
A natural born citizen with a claim to foreign citizenship may be President. In the alternative, the Duchy of Grand Fenwick could extend citizenship to President Trump and Mike Pence, and Nancy Pelosi would be the lawful President.
Prior to the passage and ratification of the 14th Amendment, did we as a nation have the collective power to enact an Amendment to the U.S. Constitution, setting forth a restriction of some kind (the nature of which is not important to this question) on individuals born in U.S. states to U.S. citizen parents, pursuant to which a given individual born in a U.S. state to U.S. citizen parents could potentially be determined, say, by a U.S. district court judge, to not be a U.S. citizen, and moreover, to not ever have been a U.S. citizen, due to a demonstrated failure of such requirement?
The people, organized as States, exericise their sovereign power to amend the current Constitution, or to write a new Constitution, and it may say whatever they damn please. They are the sovereigns and the source of all political power. They delegate their power to the government they create. Exercising their sovereign power, the people can dictate any requirement to be President or a citizen. Their only restraint is not raw power, but a presumed lack of political support to ratify some truly radical idea. As a collective group, the sovereign power of the people is without limit. It is the sovereign power of a king, but exercised by the People.
This is distinguished from the previous example involving the powers of Congress which are distinctly limited. Sometimes they act beyond their authorized power and get slapped down on appeal to the Courts. From the sovereign act of the People, there is no appeal but to the People. The government cannot strike down or amend the Constitution. That requires another act of the People.
Caution is recommended with the Constitution as unintended consequences may be difficult to undo.
The 14th Amendment clearly authorized anchor babies.
The 16th was marketed as a small tax of 1% base rate, and starting at $20,000, an additional tax of 1%, rising to 6% at over $500,000. $20,000 in 1913 would be equivalent to about $518,000 today. It was a tax on the rich to ease the burdens of the poor. Gack! That was a marketing campaign to get the rubes to delegate the power to tax income without apportionment. It succeeded. The authority to tax was granted. The words ratified did not limit the grant of authority to the tax that was proposed.
The unapportioned income tax, and the Internal Revenue to collect it, did not start after the 16th Amendment. It actually began in earnest during the civil war. It was totally unconstitutional, but Lincoln did it, so it got a pass for decades.
The 17th was probably a mistake. The Framers had the right idea.
Just sayin'. Act with care.
A swath of text from a 2010 University of Virginia Law Review:A. Rights of Recognized Sovereigns Under the Law of Nations
To understand the law of nations background against which the Constitution was adopted, one must begin with the writings of the eighteenth-century Swiss philosopher, Emmerich de Vattel.
Your quoted content from the deliberately uncited and unlinked Law Review article has to do with the Law of Nations which is just an outdated term for INTERNATIONAL LAW.
International Law has no place in the discussion of United States domestic determinations of citizenship of children born within the United States or any other nation. International law ony applies where one nation does not enjoy exclusive jurisdiction, such as certain cases on the high seas.
The United States does not care whether any other nation does, or does not, extend their citizenship to a natural born United States citizen.
If claimable second citizenship disqualified a President, Putin and Russia could confer Russian citizenship on Donald Trump and Mike Pence tomorrow and make Nancy Pelosi the President.
As for your secret unlinked, uncited Law Review article:
https://virginialawreview.org/sites/virginialawreview.org/files/729.pdf
The Law of Nations as Constitutional Law, Virginia Law Review, Vol. 98, No. 4, June 2012, Anthony J. Bellia Jr.and Bradford R. Clark, pp. 729-838, your excerpt taken from page 749.
The Law of Nations, now called International Law, was mentioned once in the Constitution, at Art. I, Sec. 8, Cl. 10, stating that Congress shall have the Power:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.
The United States grant of natural-born citizen status to children born within the United States, and subject to its jurisdiction, is not a piracy or felony committed on the high seas, nor is it any offense against the Law of Nations or International Law as that is known today.
At page 734 the authors assert:
These understandings of Articles I and II, we contend, more effectively explain Supreme Court decisions involving the law of nations in U.S. courts than alternative arguments about whether fed-eral courts have Article III power to treat customary international law as federal common law.
As stated by the United States Supreme Court, there is no general federal common law. Common law courts are not created by statute law. All United States courts are created by statute law. The United States has precisely zero common law courts.
No general common law arises from the States as there are 49 different common law systems, and the common law arising in each commmon law State is different. And then there is Louisiana which retains their French colonial heritage with the Napoleanic Code system of law. The Code system does not rely upon precedents as does the Common Law system.
As the Supreme Court has found, the Constitution cannot be read without reference to the common law, as it is written in the language of the common law.
More on point to the topic being discussed was an article in another, and more recent, law review article expressly on the topic of Natural Born Citizen.
The author correctly notes, for example, "The 1790 statute explicitly used the words "natural born citizens" to designate this category of extraterritorially born citizens."
The United States, and the United States alone, determines who are its citizens, born or naturalized, whether they are born in the United States, or born in a foreign country.
Apparently you do not like United States law, and your chosen method of changing it is by judicial activism, rather than by changing the law.
United States law is clear, 66 Stat. 235, Public Law 414, June 27, 1952
SEC. 301. (a) The following shall be nationals and citizens of the United States at birth:(1) a person born in the United States, and subject to the jurisdiction thereof;
https://fam.state.gov/FAM/08FAM/08FAM030101.html
8 FAM 300
(U) U.S. CITIZENSHIP AND NATIONALITY8 FAM 301
(U) U.S. CITIZENSHIP8 FAM 301.1
(U) ACQUISITION BY BIRTH IN THE UNITED STATES(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)* FAM 301.1-1 (U) INTRODUCTION
(CT:CITZ-1; 06-27-2018). . .
d. “Subject to the Jurisdiction of the United States”: All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth:(1) The U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization;
(2) The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Pursuant to this ruling:
(a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and
(b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.
If you would like to CHANGE the law, by all means advocate for CHANGING the law. Depending on what you want to change it to, I might join that effort. However, I will not join an effort to make believe that the law is not what it says.
FWIW- James R., at The Hot Seat, a YouTube host, has a credible source at the DOJ, that reported seeing (eyes on) arrest warrants of several coup plotters, and one of the many charges is- Conspiracy To Overthrow The Government. YMMV
Seditious conspiracy
https://en.wikipedia.org/wiki/Seditious_conspiracy
Advocating overthrow of Government
https://uscode.house.gov/view.xhtml?path=%2Fprelim%40title18%2Fpart1%2Fchapter115&edition=prelim
18 U.S. Code; 2384. Seditious conspiracy
https://www.law.cornell.edu/uscode/text/18/2384
“International law ony applies where one nation does not enjoy exclusive jurisdiction...”
Such as, when two sovereigns reasonably claim jurisdiction over the same person, simultaneously demanding performance of the same duties that full-fledged citizens alone is obliged to discharge?
“If claimable second citizenship disqualified a President, Putin and Russia could confer Russian citizenship on Donald Trump and Mike Pence tomorrow and make Nancy Pelosi the President.”
This is why I’ve always said that dual citizenship can’t, strictly speaking, be deemed a categorical disqualification when it comes to the U.S. presidency. At some times and places, certain countries have made known their willingness to grant citizenship on request to certain people whose grandparents were citizens of that country. What’s to stop such countries from attempting to repopulate themselves with a mass naturalization statute that includes such a low qualification standard so that such people don’t even have to apply for such citizenship, but are instead granted it automatically, and notified via a mass global mailing? In that case, many NBCs even under my strict definition would surely be ensnared by a dual-citizen POTUS disqualifier. But that would really not be necessary to worry about if the U.S. were to maturely confine its NBC claims to citizens who meet the relatively narrow NBC definition originally laid out in Minor v. Happersett. In any given Sovereign v. Sovereign dispute in which simultaneous claims of jurisdiction are being lodged with respect to the same person, the U.S. literally can never lose if the person in question meets the strict standard of Minor v. Happersett. The overall presumption of loyalty in favor of the U.S. in such cases would never fail to overwhelm the contesting foreign power. Moreover, the U.S. should always strive to maximize the fractional size of that cohort of its citizens (I think it is currently estimated to be about 70% of the population). How better to encourage the overall fidelity and patriotism of the population, whether for generally dissuading other countries from making the effort in times of peace to try to gain a foothold in our governing apparatus, or specifically during periods of international conflict or global upheaval, for making a foreign power think once, twice, three times before acting on a plan for invading the U.S.?
Well put, Woodpusher.
Who’s to stop the people in a country from amending their constitution in a foolish way?
According to some estimates, up to 70 percent of citizens in the U.S. meet the Minor v. Happersett definition of NBC. One would think that nobody would even consider monkeying with the natural citizenship-transmitting power of such a large cohort of his countrymen. Given what has happened in the last two months in response to the novel Coronavirus pandemic though, particularly how people in blue states have been treated by their Governors, law enforcement officers (and even pharmacists!), who knows what a small minority of would-be tyrants could or would be capable of doing (not wanting to let a crisis go to waste, as it were!).
“Young José is a natural born citizen of the United States and a natural born citizen of Spain, traveling as a Spaniard.”
Surely you see the lack of any logic or reason in this sentence.
[Woodpusher #148] “International law ony applies where one nation does not enjoy exclusive jurisdiction...”[OGINJ #150] Such as, when two sovereigns reasonably claim jurisdiction over the same person, simultaneously demanding performance of the same duties that full-fledged citizens alone is obliged to discharge?
The fallacy is your belief that the United States does not enjoy exclusive jurisdiction over children born in the United States at the time of birth.
The only exception to United States jurisdiction is if the child enjoys immunity from our laws by virtue of a parent being an accredited diplomat with recognized immunity, or the child of visiting royalty.
There are no competing claims of sovereignty. Within the territory of the United States, no other nation claims sovereignty.
The child of a onE UK citizen parent and one American parent, born either in the UK or the US, is born a citizen of both the US and the UK. Assuming birth in the UK, the American parent can go to the U.S. embassy in London and obtain a U.S. passport for the child. The UK parent can obtain a UK passport for the child. The child can travel on either passport.
A child born in one of the old USSR republics who managed to leave and acquire citizenship in the United States could not be extradicted to the home nation to serve in the Army. However, if he travel to the home nation, he could be held there and required to serve. While in the U.S. Armed Forces, said person would not be allowed to fly on any aircraft scheduled to pass through the air space of his home nation because, if it were requuired to land, he would be subject to being taken by the government of the home nation.
The sovereign is only sovereign within its own territory. No other sovereign exercises any sovereignty whatever within the territorial jurisdiction of the United States. Foreign embassies are legally treated as the sovereign territory of the foreign nation.
[OGINJ #150] But that would really not be necessary to worry about if the U.S. were to maturely confine its NBC claims to citizens who meet the relatively narrow NBC definition originally laid out in Minor v. Happersett. In any given Sovereign v. Sovereign dispute in which simultaneous claims of jurisdiction are being lodged with respect to the same person, the U.S. literally can never lose if the person in question meets the strict standard of Minor v. Happersett.
Citizenship, natural born or otherwise, was not at issue in Minor v. Happersett. In an Agreed Statement, the parties stipulated that Virginia Minor was a natural born citizen, qualified to vote in every respect except sex. The one and only issue before the Court was whether a woman could lawfully be denied the franchise solely because of sex.
See Transcript of Record, Agreed Statement.
Supreme Court of the United States, No. 182, Virginia L. Minor and Francis Minor, Her Husband, Plaintiffs in Error, vs. Reese Happersett, In Error to the Supreme Court of the State of Missouri, Filed August 16, 1873.
Agreed statement,STATEMENT.
This is an action brought by the plaintiff against the defendant, a registering officer, for refusing to register her as a lawful voter.
The defendant demurred to the petition, (a copy of which is appended hereto for greater convenience,) the defense, in substance, being based upon the constitution of Missouri, which provides (Art. 2, sec. 18) that every male citizen of the United States, &c., * * * * shall be entitled to vote and also upon the registration law of said State, approved March 10th, 1871, to the same effect; and it is claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex.
The plaintiff, however, denies the validity of this clause of the Missouri constitution and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof which she has specified in her petition. It is admitted by the pleadings that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form, made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she is a female, (and that she possesses the qualifications of an elector in all respects, except as to the matter of sex, as before stated.)
The question is thus broadly presented of a conflict between the constitution of the State of Missouri and that of the United States, as contemplated by the 25th section of the judiciary act of 1789 and 5th February, 1867.
(For copy of demurrer see page 3 of this transcript.)
See Transcript of Record, DEMURRER.
DEMURRER.IN THE CIRCUIT COURT OF ST. LOUIS COUNTY.
Virginia L. Minor and
Francis Minor, her husband, plaintiffs,
vs.
The defendant, Reese Happersett, demurs to the petition of plaintiffs, and for cause of demurrer defendant states that said petition does not state facts sufficient to constitute a cause of action, for the following reasons:1. Because said Virginia L. Minor, plaintiff, had no right to vote at the general election held in November, 1872, in said petition referred to.
2. Because said Virginia L. Minor had no right to be registered for voting by said defendant, at the time and in the manner in said petition alleged.
3. Because it was the duty of the defendant to refuse to place said Virginia L. Minor’s name upon the list of registered voters in said petition referred to.
All of which appears by said petition.
SMITH P. GALT,
Attorney for defendant.The defense, in substance, being based upon the Constitution of Missouri, which provides (Art. 2, Sec. 18.) that “every male citizen of the United States, etc., * * * shall be entitled to vote and also, upon the registration law of said State, approved March 10, 1871, which is as follows:
An act to provide for a uniform registration of voters, the appointment of judges of elections, and repealing all former acts relating thereto.
Be it enacted by the General. Assembly of (he Stale of Missouri., as follows:
“Section 1. Every male citizen of the United Slates, and. every person of foreign birth who may have declared his intention to become a citizen of the United States, according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, who has resided in this State one year next preceding his registration as a voter, and during the last sixty days of that, period shall have resided in the county, city or town where he seeks registration as a voter, who is not convicted of bribery, perjury, or other infamous crime, nor directly or indirectly interested in any bet or wager depending upon the result of the election for which such registration is made, nor serving at the time of such registration in the regular army or navy of the United States, shall be entitled to vote at such elections for all officers, State, county or municipal, made elective by the people, or any other election held in pursuance of the laws of this State: but he shall not vote elsewhere than in the election district where his name is registered, except as provided in the twenty-first section of the second article of the Constitution.
“Sec, 2. The several clerks of the county courts in this State shall provide a suitable registration book for each election district in their several counties, which shall have written or printed therein the following oath: ‘We, the undersigned, do solemnly swear or affirm that we will support the Constitution of the United States, and of the State of Missouri.’
“Sec. 3. On or before, the 9th day of March, 1871, the several county courts in this State shall appoint some competent person to act as Registrar in each election district in their respective counties, who shall have the qualifications of an elector in his election district, and who shall hold his office until the general election in 1872, and until his successor is elected and qualified. Said Registrar shall have authority to administer all oaths which may be necessary in the registration of voters.
“Sec. 4. Any person having the qualification of a voter as prescribed in the first section of this act, and who shall take and subscribe the oath required of voters, by the second section of this act, and who applies for registration at the time and in the manner prescribed by law, and any naturalized citizen who shall subscribe to a written statement, under oath, before the Registrar, that he is naturalized according to the laws of the United States and of this State, and has resided in this Stale, according to the first section of this act, and that his naturalization papers, or evidence of his citizenship, have been lost or destroyed, or that the same are not accessible to him, and shall state where he was naturalized, shall bo accepted by the registering officer, and duly registered as a qualified voter.”
It is claimed, therefore, that the defendant was justified in refusing to register the plaintiff on account of her sex.
The plaintiff, however, denies the validity of this clause of the Missouri Constitution, and the registration act based thereon, and contends that they are in violation of, and repugnant to, the Constitution of the United States, and particularly to those articles and clauses thereof, which she has specified in her petition.
It is admitted, by the pleadings, that the plaintiff is a native-born, free, white citizen of the United States, and of the State of Missouri, that the defendant is a Registrar, qualified and acting as such, that the plaintiff, in proper time and in proper form, made application to him to be registered, and that the defendant refused to register the plaintiff solely for the reason that she is a female, (and that she possesses the qualifications of an elector, in all respects, except as to the matter of sex, as before stated.)
The question is thus broadly presented of a conflict between the Constitution of the State of Missouri and that of the United States, as contemplated by the twenty-fifth section of the judiciary act of 1789, and the supplemental act of February 5, 1867.
In Minor v. Happersett, The U.S. Supreme Court held that neither the Constitution nor the Fourteenth Amendment made all citizens voters. The privilege of the elective franchise was a privilege of the sovereign of each State. By its Constitution, the People of Missouri had delegated that privilege to male citizens and certain other males, but not to females. The People of the several States had not delegated any authority over the elective franchise to the Federal government. With the Nineteenth Amendment, women still did not enjoy a right to vote; nor did men. The privilege of the elective franchise is not a right. The Fourteenth Amendment concerns equality, and requires that if men are granted the privilege, then women must be granted the privilege on an equal basis.
There is nothing in the Constitution which says anyone has a right to vote for President.
United States Supreme Court, Bush v. Gore, 531 U.S. 98, 104 (2000)
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U.S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (" '[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated'") (quoting S. Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)).
[OGINJ #150] if the U.S. were to maturely confine its NBC claims to citizens who meet the relatively narrow NBC definition originally laid out in Minor v. Happersett.
This statement proceeds from the false premise that there is a definition of Natural Born Citizen within Minor v. Happersett. In Minor, as amply shown above, the issue of citizenship was a stipulated fact, agreed to by the parties, and was never an issue before the Court. The Court had no jurisdiction to resolve the issue not before it, even if it had chosen to do so, which it emphatically denied doing.
In Minor v. Happersett, in dicta, the Court observed, at 88 U.S. 167-168:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providest that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," I and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.
The Court did not define natural born citizen as you claim. It stated that some people expressed doubts that a U.S. born child of alien parents was a natural born citizen. The Court then said that the case before it presented no need for the Court to address and resolve those doubts. There is neither a holding nor a dictum that a child born in the United States, of alien parents, is not a natural born citizen. There is merely a dictum that some people then had doubts about who was included in the definition of natural born citizen. Such doubts were erased in later court holdings, directly on point.
In re Look Tin Sing, Circuit Court D. California, September 29, 1884
21 Federal Reporter 905The Citizenship of a Person Born in the United States of Chinese Parents.
In re Look Tin Sing, on Habeas Corpus.
(Circuit Court, D. California, September 29, 1884.)
1. Citizenship of Persons Born in the United States of Chinese Parents.
A person born within the United States, of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the emperor of China, is a citizen of the United States.2. Construction of Words "Subject to Jurisdiction Thereof," in First Clause of Section 1 of the Fourteenth Amendment to the Constitution.
Persons are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, with the consequent obligation to obey them when obedience can be rendered; but only those who are thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. Persons excepted from citizenship, notwithstanding their birth or naturalization in the United States.3. Origin of the Clause in the Amendment Declaring who are Citizens of the United States.
Previous to this amendment the general doctrine, except as applied to Africans brought here and sold as slaves, and their descendants, was that birth within the dominions and jurisdiction of the United States of itself created citizenship. The amendment was adopted as an authoritative declaration of this doctrine as to the white race, and also to do away with the exception as to Africans and their descendants.4. The Restriction Acts not Applicable to Citizens.
The acts of congress of 1882 and 1884, restricting the immigration of Chinese laborers to the United States, are not applicable to citizens of the United States, though of Chinese parentage. No citizen can be excluded from the United States except in punishment for crime.. . .
The first section of the fourteenth amendment to the constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.” This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words “subject to the jurisdiction thereof.” They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, while within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognize the right of every one to expatriate himself and choose another country.
. . .
The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country, so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott Case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States, nor capable of becoming such. 19 How. 393. The clause changed the entire status of these people. It lifted them from their condition of mere freedmen, and conferred upon them, equally with all other native-born, the rights of citizenship. When it was adopted, the naturalization laws of the United States excluded colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws. So the inability of persons to become citizens under those laws in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either as citizens under the amendment in question.
Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-chancellor Sandford in Lynch v. Clarke, found in the first volume of his reports. [1 Sandf. 583.] In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind. In illustration of this general understanding he mentions the fact that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners. It is enough that he was born here, whatever was the status of his parents.
In re Wong Kim Ark, U.S. District Court, Northern District of California, No. 11,198, January 3, 1896:
A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook Sing v. U.S., 1 C. C. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
18 U.S. Supreme Court Reporter 456, Column 2
(169 U. S. 649)
UNITED STATES v. WONG KIM ARK.
(March 28, 1898)
No. 132.Citizenship — Construction or Constitution — Common Law — Fourteenth Amendment — International Law — Naturalization — Civil Rights — Child of Chinese Parents.
1. In construing any act of legislation, whether a statute or a constitution, regard is to be had, not only to all parts of the act itself, and of any former act of the same lawmaking: power of which the act is an amendment, but also to the condition and the history of the law as previously existing, and in the light of which the new act must be read and interpreted.
2. As the constitution nowhere defines the meaning of the words "citizen of the United States," except by the declaration in the fourteenth amendment that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," resort must be had to the common law, the principles of which were familiar to the framers of the constitution.
3. Under the common law, every child born in England of alien parents, except the child of an ambassador or diplomatic agent or of an alien enemy in hostile occupation of the place where the child was born, was a natural-born subject.
4. The fourteenth amendment to the constitution, which declares that "all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the states wherein they reside," is affirmative and declaratory, intended to allay doubts and settle controversies, and is not intended to impose any new restrictions upon citizenship.
5. It affirms the ancient rule of citizenship by birth within the territory in the allegiance and under the protection of the country, including all children here born of resident aliens, except the children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies during a hostile occupation, and children of Indian tribes owing direct tribal allegiance. It includes the children of all other persons, of whatever race or color, domiciled within the United States.
6. The fourteenth amendment to the constitution, in the declaration above cited, contemplates two sources of citizenship, and two only—birth and naturalization. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen thereof, and needs no naturalization. A person born out of the jurisdiction can only become a citizen by being naturalized, either by treaty or by authority of congress, in declaring certain classes of persons to be citizens, or by enabling foreigners individually to become citizens by proceedings in judicial tribunals.
7. At the time of the adoption of the fourteenth amendment to the constitution, there was no settled rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
8. The laws conferring citizenship on foreign-born children of citizens do not supersede or restrict, in any respect, the, established rule of citizenship by birth.
9. Before the Civil Rights Act, April 9, 1866, c. 31, § 1 (14 Stat. 27), or the fourteenth amendment to the constitution, all white persons born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were natural-born citizens of the United States.
10. The refusal of congress to permit the naturalization of Chinese persons cannot exclude Chinese persons born in this country from the operation of the constitutional declaration that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.
11. Chinese persons born out of the United States, remaining subjects of the emperor of China, and not having become citizens or the United States, are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here, and are "subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States, and their children born in the United States" cannot be less "subject to the jurisdiction thereof."
12. A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes, at the time of his birth, a citizen of the United States.
71 Fed. 382, affirmed.
According to some estimates, up to 70 percent of citizens in the U.S. meet the Minor v. Happersett definition of NBC.
As explained in great detail in my previous post #153, there is no Minor v. Happersett definition of natural born citizenship. In Minor, the citizenship of Virginia Minor was a stipulated fact, and no issue of citizenship was before the court. In a dictum, the Court opined that some people doubted that children born in the United States of alien parentage were born citizens, but that issue was not before the Court, and therefore the Court had no need to decide it, and so the Court did not decide it. Indeed, as the issue was not before the Court, the Court lacked jurisdiction to decide it, and could not decide it. It was squarely faced and decided by later courts. Minor contains neither holding, nor dictum defining natural born citizen. For something to be attributable as an opinion of the court requires the agreement of a majority of the justices. As for a Minor definition of natural born citizen, any definition at all lacks the support of a single justice.
According to my estimate, as the alleged Minor v. Happersett definition does not exist, precisely 0.00% of citizens in the U.S. meet it.
The Supreme Court, in Wong Kim Ark, 169 U.S. 649, 698-699:
The Fourteenth Amendment of the Constitution,. as originally framed by the House of Representatives, lacked the opening sentence. When it came before the Senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form, (less the words "or naturalized,") and reading, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Mr. Cowan objected, upon the ground that the Mongolian race ought to be excluded; and said: "Is the child of the Chinese immigrant in California a citizen?" "I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit." Mr. Conness, of California, replied: "The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States." "We are entirely ready to accept the provision proposed in this Constitutional Amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others." Congressional Globe, 39th Congress, 1st sess. pt. 4, pp. 2890-2892. It does not appear to have been suggested, in either House of Congress, that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves; and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered and not overlooked.
The acts of Congress, known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the Emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color.
In reviewing the English law, and its application and continuance to the colonies, then the independent states, and under the Constitution, the Court in Wong Kim Ark stated at 657-658:
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: "By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were. settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality," Cockburn on Nationality, 7.Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: "'British subject' means any person who owes permanent allegiance to the Crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes 'temporary' allegiance to the Crown. 'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth." "Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural born British subject. This rule contains the leading principle of English law on the subject of British nationality." The exceptions afterwards mentioned by Mr. Dicey are only these two: "1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien." "2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien." And he adds: "The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the King of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the Crown." Dicey Conflict of Laws, pp. 173-177, 741.
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.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
And at 169 U.S. 659-660, the Court in Wong Kim Ark explained:
In Inglis v. Sailors' Snug Harbor, (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, were natural-born British subjects." 3 Pet. 120. Mr. Justice Johnson said: "He was entitled to inherit as a citizen born of the State of New York." 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying: "Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine: Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and borii in a place where he has dominion in common with all other sovereigns& So the children of an ambassador are held .to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince." 3 Pet. 155. -"The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 156. "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth." 3 Pet. 164.
it was orchestrated by Clinton and Obama and it’s called subversion. Comey and Brennon were second tier players.
[woodpusher #145] “Young José is a natural born citizen of the United States and a natural born citizen of Spain, traveling as a Spaniard.”[oginj #152] Surely you see the lack of any logic or reason in this sentence.
No, surely you will see from my two previous posts, #153 and #154, that your misapprehension of the meaning of citizenship and allegiance are the only problem.
The hypothetical child, young José, was born in the United States. It is too clear to admit of argument that young José is a natural born United States citizen. All persons born in the United States, and subject to its jurisdiction, are citizens of the United States.
As stated in Wong Kim Ark, quoted previously,
"Allegiance is nothing more than the the or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto.
When the young José was born in New York, he was born into the protection of the United States. The United States held total and complete sovereignty where young José was born, at the time of birth and thereafter.
That young José also became a citizen of Spain is a matter of Spanish law pursuant to Spanish Civil Code Article 17, as a previously mentioned. Just as the United States recognizes citizenship without reference to Spanish law, Spain has its own laws, as do other nations.
https://www.conceptosjuridicos.com/codigo-civil-articulo-17/
Artículo 17 del Código Civil1. Son españoles de origen:
a) Los nacidos de padre o madre españoles.
b) Los nacidos en España de padres extranjeros si, al menos, uno de ellos hubiera nacido también en España. Se exceptúan los hijos de funcionario diplomático o consular acreditado en España.
c) Los nacidos en España de padres extranjeros, si ambos carecieren de nacionalidad o si la legislación de ninguno de ellos atribuye al hijo una nacionalidad.
d) Los nacidos en España cuya filiación no resulte determinada. A estos efectos, se presumen nacidos en territorio español los menores de edad cuyo primer lugar conocido de estancia sea territorio español.
2. La filiación o el nacimiento en España, cuya determinación se produzca después de los dieciocho años de edad, no son por sí solos causa de adquisición de la nacionalidad española. El interesado tiene entonces derecho a optar por la nacionalidad española de origen en el plazo de dos años a contar desde aquella determinación.
Both of the parents of young José were Spanish citizens. One was enough.
Just as a child born in Spain of an American parent may be a U.S. citizen pursuant to U.S. law; a child born in the U.S. of one or two Spanish parents may be a Spanish citizen pursuant to Spanish law.
While in Spain, José owes his allegiance to Spain. If young José uses his Spanish passport or European ID card to travel to another country, that country will treat him as a Spanish citizen. As young José left the United States before his first birthday, and by your story, "his mother tries, ultimately without success, to imbue him with the kind of love she has for Spain, the land of her birth, full citizenship with respect to which, and the sovereign governmental protection of which, the son, now nearing the age of majority, has enjoyed without pause or interruption since well before his first birthday."
Young José is still a minor, and has enjoyed full citizenship of Spain and the sovereign governmental protection of Spain without pause or interruption since well before his first birthday, according to your story.
Neither his travel to Spain nor elsewhere, nor any act of José as a minor, could have stripped the minor José of his U.S. citizenship. The is no provision in law to seperate José from his U.S. citizenship as a minor.
Considering that Spain and the Netherlands are both part of the EU, I suppose José traveled to the Netherlands on his European ID card. Young José, despite being an American citizen, cannot travel internationally as a U.S. citizen while using a European ID card or Spanish passport.
Present in the Netherlands on a European ID, and wanted on a European warrant, José is going to be surrendered to Spain.
sedition: which outlaws advocating the overthrow of the federal government by force
subversion: an attempt to change or weaken a government or to remove it from power by working secretly within it
[woodpusher #145] “Young José is a natural born citizen of the United States and a natural born citizen of Spain, traveling as a Spaniard.”
[oginj #152] Surely you see the lack of any logic or reason in this sentence.
[woodpusher] No, surely you will see from my two previous posts, #153 and #154, that your misapprehension of the meaning of citizenship and allegiance are the only problem.
________
Hey listen, I really appreciate you going round the maypole with me on the extended hypothetical I posited. But you shouldn’t go away without knowing exactly why I accused you of illogic.
A Venn diagram of NBC’s worldwide should feature hundreds of circles, one for each sovereign state, none of which intersect. To the extent this is not the case, monkey business is going on. Flat out.
A Venn diagram of full-fledged, inchoate, provisional, “considered as” citizens, etc. in two given sovereign states is bound to feature overlap, now more than ever with the normalizing of dual citizenship (even triune citizenship in the case of Ted Cruz).
Keep the two analyses separate. I assure you the cognitive dissonance will fall away.
In Minor, the Supreme Court deemed it necessary to first determine whether Virginia Minor was a Natural Born Citizen or not before delving into the question of whether she was a citizen pursuant to the 14th Amendment to the Constitution. To do so, the Court needed to first determine and set forth a definition of Natural Born Citizen as that term was used in the Constitution. Comparing the circumstances of Virginia Minor’s birth to the definition of Natural Born Citizen it had just set forth, the Court concluded she was a Natural Born Citizen thereof. Having no doubt that Natural Born Citizens of the United States like Virginia Minor are, in fact, citizens of the United States, the Court refrained from going forward with any consideration of her claimed citizenship pursuant to the 14th amendment as being unnecessary to resolve the remaining questions and issues in the case.
Independent grounds for deciding a case are not to be breezily dismissed as “dicta”. On the contrary, depending on the particular case or decision, they constitute necessary grounds for the corresponding judicial holding. Hence we have the Minor definition of NBC, fully legally applicable for all purposes including determining POTUS eligibility.
Hey listen, I really appreciate you going round the maypole with me on the extended hypothetical I posited.
Saul Goodman. It was fun.
But you shouldn’t go away without knowing exactly why I accused you of illogic.A Venn diagram of NBC’s worldwide should feature hundreds of circles, one for each sovereign state, none of which intersect. To the extent this is not the case, monkey business is going on. Flat out.
A Venn diagram of full-fledged, inchoate, provisional, “considered as” citizens, etc. in two given sovereign states is bound to feature overlap, now more than ever with the normalizing of dual citizenship (even triune citizenship in the case of Ted Cruz).
Keep the two analyses separate. I assure you the cognitive dissonance will fall away.
The problem with this analysis is that almost the entire face of the Earth is the sole and exclusive jurisdiction of some nation or other, excepting Antarctica, which is claimed by no nation.
There are no overlapping jurisdictions.
Consider a dual citizen of the United States of America and the United States of Mexico. In Mexico, he is under the sole jurisdiction of Mexico. If the U.S. wants to prosecute him for a crime, it must either have the Mexican government extradite him, unlawfully kidnap him, or wait until he enters the territorial jurisdiction of the U.S.
If he is in the U.S. and wanted in Mexico, it works the other way.
Dual citizenship is not a new discovery. It has always been with us. Jurisdiction depends on where one is standing.
There is a no man's land when one arrives at an international airport terminal before one clears immigration. If the immigration authorities refuse entry, and your country of origin will not accept you back, you can take up residence in the airport terminal. There was a Spielberg movie a while back, set in JFK airport, starring Tom Hanks, about such an unfortunate soul. The movie was inspired by the story of Mehran Karimi Nasseri, "an Iranian refugee who lived in the departure lounge of Terminal One in Charles de Gaulle Airport from 26 August 1988 until July 2006, when he was hospitalized." Edward Snowden got caught up in Moscow's Sheremetyevo airport when the United States canceled his passport and he could not leave on another scheduled flight, but did not have a visa to enter Russia. Snowden remained in no man's land until granted asylum.
By a legal fiction, the incoming passenger is not considered in country until he is granted entry and passes immigration control.
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