Posted on 07/20/2009 7:40:35 PM PDT by FreeAtlanta
flurry of articles on news sites. Google News - Obama Constitutionally Eligible?
(Excerpt) Read more at news.google.com ...
I posted: Conclusion (on the Wong Kim Ark SCOTUS ruling)
Taken into account the legislative history behind the citizenship clause - and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling as worthless as a three-dollar bill. (on the issue of natural born citizenship) The Court will never be able to sugarcoat over history or deny the acts of Congress in attempt to maintain England’s old feudal common law doctrine in this country at the expense of rendering unethical and legally unsound rulings.
NOTE: The Wong Kim Ark ruling left undisturbed the uniform judicial doctrine since 1885 that said when residence is permanent the child born here of permanent residents should be considered a citizen of the United States (Only citizen, not natural born citizen). Although not a constitutional controversy under the words or interpretation the framers of the Fourteenth Amendment provided, current federal judicial understanding could be said unsettled under Wong Kim Ark in terms of temporary or illegal residents. [[ http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html ]]
375 posted on Wednesday, July 22, 2009 11:04:34 PM by MHGinTN
To which you posted:
I stated earlier that you have to in effect argue that SCOTUS was wrong in their ruling on Wong Kim Ark back in 1896 in order to advance a narrow view of natural born citizenship that doesnt automatically include everyone born in the USA via 14th amendment clause. Lo and behold, you make my point!
380 posted on Wednesday, July 22, 2009 11:12:55 PM by WOSG
It must be tough to keep up with all the contradictory points you make at FR on the issue of Barry Soetoro's eligibility. Like jello and nails, you're pure deceit in action.
“Congress only has the power to “establish an uniform Rule of Naturalization”. They cannot define who is a “natural born” citizen.”
Not So. Congress has set laws on who becomes citizen at birth. They have done so since a law back in 1795 on the matter.
See this description of citizenship at birth defined by Congressional statutes:
http://en.wikipedia.org/wiki/United_States_nationality_law
“In most cases, one is a U.S. citizen if both of the following are true:
1. Both parents were U.S. citizens at the time of the child’s birth
2. At least one parent lived in the United States prior to the child’s birth.
INA 301(c) and INA 301(a)(3) state, “and one of whom has had a residence.” The FAM (Foreign Affairs Manual) states “no amount of time specified.”
A person’s record of birth abroad, if registered with a U.S. consulate or embassy, is proof of his or her citizenship. He or she may also apply for a passport or a Certificate of Citizenship to have his or her citizenship recognized.
[edit] Through birth abroad to one United States citizen
For persons born on or after November 14, 1986, a person is a U.S. citizen if all of the following are true:[4]
1. One of the person’s parents was a U.S. citizen when the person in question was born;
2. The citizen parent lived at least 5 years in the United States before his or her child’s birth;
3. A minimum of 2 of these 5 years in the United States were after the citizen parent’s 14th birthday.
INA 301(g) makes additional provisions to satisfy the physical-presence requirements for periods citizens spent abroad in “honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization”. Additionally citizens who spent time living abroad as the “dependent unmarried son or daughter and a member of the household of a person” in any of the previously mentioned organizations can also be counted.
A person’s record of birth abroad, if registered with a U.S. consulate or embassy, is proof of his or her citizenship. Such a person may also apply for a passport or a Certificate of Citizenship to have a record of his or her citizenship. Such documentation is often useful to prove citizenship in lieu of the availability of an American birth certificate.
Different rules apply for persons born abroad to one U.S. citizen before November 14, 1986. United States law on this subject changed multiple times throughout the twentieth century, and the law is applicable as it existed at the time of the individual’s birth.
Last point. Your claim that there are 3 circumstances of birth citizenship contradicts Supreme Court rulings and statements ...
SCOTUS in Wong Kim Ark:
http://en.wikisource.org/wiki/United_States_v._Wong_Kim_Ark/Opinion_of_the_Court
Relevent quote snippets:
“The Fourteenth Amendment of the Constitution, in the declaration 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,”contemplates two sources of citizenship, and two only: birth and naturalization. “
Kim Ark references this earlier ruling:
“In Inglis v. Sailors’ Snug Harbor (1833), 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, are natural-born British subjects. “
... and ...
“It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.””
The meaning is clear. “natural-born” is synonymous to aquiring citizenship at birth. Natural-born citizens are simply those who are citizens at time of birth. There is no “super-duper” citizen class above and beyond a citizen from time of birth. Asserting that contradicts the text and meaning of the 14th and additional statutes and precedents.
“leaves the Wong Kim Ark ruling as worthless as a three-dollar bill.”
I stated previously that you would have to argue against Wong Kim Ark in order to advance the very dubious claim that Obama was ineligible even if born in Honolulu. Your attack on the SCOTUS ruling validates my point there.
You can state that SCOTUS ruled wrong until the cows come home, but as of right now it is the Supreme Court precedent on the matter.
“a citizen of the United States (Only citizen, not natural born citizen”
The Wong Ark ruling in multiple places used the phrase “natural-born” as a phrase to clearly mean ‘citizen (or subject) from time of birth’, and cited laws where children of aliens born in the realm were “natural-born” citizens/subjects.
I’ll share an extended quote from the Supreme Court Wong Kim Ark ruling to show what I mean. The distinction you claim between natural-born and some other class of citizen is found nowhere in statutes or Supreme Court rulings, and is certainly at variance with the intent of the 14th amendment.
http://en.wikisource.org/wiki/United_States_v._Wong_Kim_Ark/Opinion_of_the_Court
The English statute of 11 & 12 Will. III (1700). c. 6, entitled
An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,
enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands
from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom
title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was
whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.
9 Wheat. 356.
Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
Yep - your reasoning sounds right to me!
Reading the full sentence in the Supreme Court ruling and you will see that “natural-born” was synonymous with ‘native-born’ as the phrase you quote was paired with ....
“a child born in England of alien parents was a natural-born subject”
Citizen at birth = natural-born citizen. QED.
My vote is on the impeachment option!
[[Concerning Wong Kim Ark:
Updated 12/10/08
There is a misconception floating around that suggests the ruling in U.S. v. Wong Kim Ark is the definite guiding rule of interpretation over the Fourteenth Amendment’s citizenship clause. Worst, some even go as far to suggest Wong Kim Ark is settled law. Nothing could be further from the truth.
Reading the majorities opinion in Kim Ark, one can’t help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous established court decisions that substantially covered the same ground regarding the meaning and application of the words found under the fourteenth amendments citizenship clause, leaves one to wonder what is going on here?
Deeper into the decision, justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found in the Constitution, Jacob M. Howard and Lyman Trumbull.
It is clear the Wong Kim Ark majority recognized the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: “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.”
Whatever credibility the court may had at the beginning was soon lost when Gray wrote (Gray was appointed by Chester Arthur and was sent ot the court, IMHO, to make Arthur fit eligibility he did not have, but that is grist for another mill):
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment … as the equivalent of the words “within the limits and under the jurisdiction of the United States…”Here the court is presuming what Congress may have intended while at the same time arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court.
Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”
Moreover, if Justice Gray was really being honest with his assertion that the “intention” of Congress lies in the amendments words alone; why then did the court fail to observe that persons naturalized were also required to be “subject to the jurisdiction” of the United States? Gray writing for the majority in Elk v. Wilkins observed these “words relate to the time of birth in the one case, as they do to the time of naturalization in the other.” Therefore, any court would have been forced to conclude by words alone that the clause requires not only not owing allegiance to another nation but also in return owing allegiance to this nation in advance - just as required to become a naturalized citizen. In other words, the condition of being “subject to the jurisdiction” of the United States equally applies to all persons whether born or naturalized and this jurisdiction includes political attachment (Elk v. Wilkins) and not simply geographical location.
Reviewing the intended purpose behind the words of the clause by both Sen. Howard and Sen. Trumbull, who were responsible for the drafting of the citizenship clause, clearly revealed the intended effect of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history of this language.
Howard presents a major hurdle for the majority when he specifically declared the clause to be “virtue of natural law and national law,” never once making any reference to England’s common law doctrine. Perhaps this is why Gray wasted much of his commentary along common law themes. The Civil Rights Bill of 1866 posed too large of a hurdle to dismiss outright - as this national law only recognized citizenship by birth to those who were not subject to some other foreign power.
John A. Bingham, chief architect of the 14th Amendments first section, considered the proposed national law (Section 1992 of the US Revised Statutes) as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.
Lyman Trumbull presents an insurmountable barrier of his own by declaring: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
Sen. Howard follows up by stating that: “the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
As mentioned earlier, the Supreme Court had already tackled the meaning of the 14th amendment’s citizenship clause prior to Wong Kim Ark, and unlike the Kim Ark court, did consider the intent and meaning of the words by those who introduced the language of the clause. In the Slaughterhouse cases the court noted “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.
Would anyone dare to say an American citizen visiting Russia was no longer a subject of the United States? The court in Elk v. Wilkins (1884) correctly determined that “subject to the jurisdiction” of the United States required “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Both Jacob Howard and Lyman Trumbull affirm this.
When all was said and done, the majority in Wong Kim Ark reveals their true nonsensical position: “To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”
Well now, the issue was not citizenship being withheld on account of the 14th Amendment to American citizens, and had the court bothered to consider the history of the amendment, they would have easily discovered it was all about granting citizenship as established by the jurisdiction which the United States already has over the parents of the child. The idea of withholding citizenship upon birth to subjects of other countries who owed this country no direct allegiance was, well, the desired result of declaring who is, and who isn’t, a citizen of the United States.
The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to “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 [born to American citizens].”
It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” This was needed to prevent rebel States from refusing to recognize former slaves (now citizens) as citizens of the United States under Article IV, Sec. II of the U.S. Constitution.
Furthermore, these former slaves had no political attachment to any other country, meaning they did not owe “allegiance to anybody else.”
To add additional insult, the court says: “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.
The most significant truth to come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller himself, when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” He was absolutely correct.
Only reason the language of the Fourteenth differs from the civil rights bill of 1866, which used the language “and not subject to any foreign power, excluding Indians not taxed” to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the Fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.
It was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction to the United States. Obviously then, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.
For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.”
The most damning indictment against the majority’s conclusion came in the year 1874 with a joint Congressional report that declared the “United States have not recognized a double allegiance.” This makes it impossible to argue the words “subject to the jurisdiction thereof” was merely to reassert the common law doctrine of unconditional allegiance through birth. The common law doctrine by operation creates double allegiances by making children of other nation’s citizens born locally subjects of the crown whether they consent or not.
There is also a disturbing ethical aspect of Wong Kim Ark in terms of the majorities’ apparent willingness to place themselves unethically above both facts and the supreme law of the land. The United States by treaty with China was prevented from admitting Chinese subjects to citizenship. This treaty was ratified by the same senators who had adopted both Section 1992 of the US Revised Statutes and the Fourteenth Amendment.
Furthermore, the court was also prohibited under 22 Stat. § 14 to admit subjects of China to U.S. citizenship: “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.”
The power to admit foreign citizens to U.S. citizenship resides exclusively with Congress and not with the Supreme Court. In essence, the court usurped the lawful will of the legislative branch.
The Fuller court was no stranger to criticism or controversy when it came to interpreting law or the Constitution. For example, Justice Brewer for the court laid down a bizarre doctrine that said it was “immaterial” how one obtains property: “He may have made his fortune by dealing in slaves, as a lobbyist, or in any other way obnoxious to public condemnation; but, if he has acquired the legal title to his property, he is protected in its possession, and cannot be disturbed until the receipt of the actual cash value.”
Note that “dealing in slaves” was illegal. So under this majority opinion crime could certainly have its advantages. Only the mafia (or a railroad magnate) could appreciate this kind of twisted logic.
In the cases of Brooks vs. Codman, and Foote v. Women’s Board of Missions where the court stepped in to revise an act of Congress that was standing in the way of making Justice Horace Gray a wealthy man. Codman was the administrator of Justice Gray’s grandfather’s (William) estate and under a 1891 law payments from the estate could only go to “creditors, legatees, assignees or strangers to the blood.”
What did the court do? They did just as they had in Wong Kim Ark, they simply said Congress did not mean what it said it meant, and instead, meant “next of kin.” Who was William Gray’s “next of kin”? None other than Justice Gray himself.
Conclusion
Taken into account the legislative history behind the citizenship clause - and the courts own stated objective in reaching the conclusion they did while also taking into account two prior Supreme Court holdings - leaves the Wong Kim Ark ruling as worthless as a three-dollar bill. The Court will never be able to sugarcoat over history or deny the acts of Congress in attempt to maintain England’s old feudal common law doctrine in this country at the expense of rendering unethical and legally unsound rulings.
NOTE: The Wong Kim Ark ruling left undisturbed the uniform judicial doctrine since 1885 that said when residence is permanent the child born here of permanent residents should be considered a citizen of the United States. Although not a constitutional controversy under the words or interpretation the framers of the Fourteenth Amendment provided, current federal judicial understanding could be said unsettled under Wong Kim Ark in terms of temporary or illegal residents. [[ http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html ]]
And here is a little from the Perkins v Elg case:
[[Perkins v Elg: In a comprehensive review of the principles and authorities governing the decision in that case-that a child born here of alien parentage becomes a citizen of the United States-the Court adverted to the 'inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship. …
And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United State …
Citing the in Steinkauler's Case, 1875, the issue of native son was raised … ‘Young Steinkauler is a native-born American citizen’ … his Prussian born father who had naturalized, took him to Germany but if the boy at age 21 returned and reasserted his citizenship he would be eligible for election to president since he was once a native born son and both parents were American citizens at his birth …
Secretary Evarts gave a similar instruction in 1880 with respect to a native citizen of Danish parentage who having been taken abroad at an early age claimed American citizenship on attaining his majority, saying:4 'He lost no time when he attained the age of majority, in declaring that he claimed the United States as his country and that he considered himself a citizen
The arguments boiled down to ‘explicit. Rights of citizenship are not to be destroyed by an ambiguity’ … note rights of citizenship is not stated as natural born citizenship
]]
Your reasoning is flawed, as was the Court’s reasoning in the Kim case.
All the quotations you have reproduced are dicta that were and remain irrelevant to the court’s finding in the case, and in any case, Kim was not trying to prove his eligibility to the Presidency. I do not believe that the court even one time used the term “natural born” in Kim.
Your assertion that I would have the court rely on the reasoning of a foreigner is simply insincere and disingenuous. I would have the Court rely on the intent of the Framers, and it was upon Vattell that the Framers relied in their formulation of the phrase Natural Born.
The Court in Kim would have been well advised to do the same, as well as to the Framers of the 14th Amendment to find that their reasoning and intent was precisely the opposite of what the Court imposed in Kim. In other words, the in Kim the Court stood the 14th on its head, and did so in an especially disingenuous way.
While I do not believe that Kim needs to be overturned in its entirety, I do think that the Framers intent will always count for more than any specific ruling, and because of that I hope that Kim becomes more limited in its application in the future. For example, in Kim, the parents had legal residence in the United States, and thus the case should not be seen to establish birthright citizenship for those in the United States illegally or for a limited time, such as those on Student visas.
And, it ought NEVER to be seen as establishing standards for the determination on “Natural Born” status.
WOW! Thanks for the information!
That's a bunch tripe you post. You're simply wrong. Wong Kim Ark had foreign parents who never gave up their Empire of China subject status and never became United States citizen. His parents were still in allegiance to China. The facts of the case and the holdings never attempted to call Wong Kim Ark a natural born citizen. You have no case that supports your viewpoint.
“Wong Kim Ark had foreign parents who never gave up their Empire of China subject status”
Yes, and he was judged citizen at the time of his birth by SCOTUS.
“The facts of the case and the holdings never attempted to call Wong Kim Ark a natural born citizen.”
Read the ruling. They used the phrase ‘natural-born’ in the ruling.
There has never EVER been any such distinction between ‘natural born citizen’ and any other type of citizen at birth. They are one and the same, and you cannot find any SCOTUS ruling that creates such a distinction because none exists.
Peddle your lies someplace else. Natural born includes not only birthplace, but TWO citizen parents.
“Natural-born citizens are those who are citizens from the time of birth.”
This is a natural conclusion from looking at statutes and case law, and phooey on your contentfree ad hominems.
Former Bush Solicitor General Ted Olson agrees with me and disagrees with you on this point- “citizenship conferred by statute based on the circumstances of one’s birth made one natural born.” ... This holds wrt to the 14th Amendment as strongly as to a statutory definition of birthright citizenship. See:
http://leahy.senate.gov/issues/Judiciary/McCainAnalysis.pdf
The Constitution does not define the meaning of “natural born Citizen.” The U.S.
Supreme Court gives meaning to terms that are not expressly defined in the Constitution by
looking to the context in which those terms are used; to statutes enacted by the First Congress,
Marsh v. Chambers, 463 U.S. 783, 790-91 (1983); and to the common law at the time of the
Founding. United States v. Wong Kim Ark, 169 U.S. 649, 655 (1898). These sources all confirm
that the phrase “natural born” includes both birth abroad to parents who were citizens, and birth
within a nation’s territory and allegiance. Thus, regardless of the sovereign status of the Panama
Canal Zone at the time of Senator McCain’s birth, he is a “natural born” citizen because he was
born to parents who were U.S. citizens.
Congress has recognized in successive federal statutes since the Nation’s Founding that
children born abroad to U.S. citizens are themselves U.S. citizens. 8 U.S.C. § 1401(c); see also
Act of May 24, 1934, Pub. L. No. 73-250, § 1,48 Stat. 797, 797. Indeed, the statute that the First
Congress enacted on this subject not only established that such children are U.S. citizens, but
also expressly referred to them as “natural born citizens.” Act of Mar. 26, 1790, ch. 3, § 1, 1
Stat. 103, 104.
Senator McCain’s status as a “natural born” citizen by virtue of his birth to U.S. citizen
parents is consistent with British statutes in force when the Constitution was drafted, which
undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause. Those
statutes provided, for example, that children born abroad to parents who were “natural-born
Subjects” were also “natural-born Subjects ... to all Intents, Constructions and Purposes
whatsoever.” British Nationality Act, 1730,4 Geo. 2, c. 21. The Framers substituted the word
“citizen” for “subject” to reflect the shift from monarchy to democracy, but the Supreme Court
has recognized that the two terms are otherwise identical. See, e.g., Hennessy v. Richardson
Drug Co., 189 U.S. 25, 34-35 (1903). Thus, the First Congress’s statutory recognition that
persons born abroad to U.S. citizens were “natural born” citizens fully conformed to British
tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth
made one natural born.
LOL, plug your ears, dont you dare get another point of view. you keep reposting this and you dont even have a name attached or a cite or a source. Some armchair Constitutional lawyer out there not liking a Supreme Court ruling is a pretty weak argumentation. I am back to pointing out that, even if the argument had some validity (and it doesnt) its not going anywhere because SCOTUS wont overrule that 100 year old precedent. It wont happen.
Bush Solicitor General Ted Olson shares the common-sense view of the matter, that natural-born citizen is simply those who acquire citizenship at birth. The term is rooted in court precedents and English common law’s terms of art as applied to Constitution:
http://leahy.senate.gov/issues/Judiciary/McCainAnalysis.pdf
If the Panama Canal Zone was sovereign
U.S. territory at the time of Senator McCain’s birth, then that fact alone would make him a
“natural born” citizen under the well-established principle that “natural born” citizenship
includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark,
169 U.S. at 655-66. The Fourteenth Amendment expressly enshrines this connection between
birthplace and citizenship in the text of the Constitution. U.S. Const. amend. XIV, § 1 (”All
persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States .... “) (emphases added). Premising “natural born” citizenship on
the character of the territory in which one is born is rooted in the common-law understanding
that persons born within the British kingdom and under loyalty to the British Crown-including
most of the Framers themselves, who were born in the American colonies-were deemed
“natural born subjects.” See, e.g., 1 William Blackstone, Commentaries on the Laws a/England
354 (Legal Classics Library 1983) (1765) (”Natural-born subjects are such as are born within the
dominions of the crown of England, that is, within the ligeance, or as it is generally called, the
allegiance of the king .... “).
"... you dont even have a name attached or a cite or a source."
Bwahahahaha, have you ever read all the way through it, fool? Notice anything resembling an html addy at the end?
I really find you persistent lying to be off putting. But then, that is part of the Alinsky wsay don'tchaknow. Lying is just like breathing for your ilk.
“Your reasoning is flawed, as was the Court’s reasoning in the Kim case.”
Good luck trying to overturn 110 year old Supreme Court precedent.
“All the quotations you have reproduced are dicta that were and remain irrelevant to the court’s finding in the case,”
On the contrary, the court was pointing out that the 14th amendment concept of citizenship by soil was rooted in English common law ... and lo and behold, the WAY English common law called persons in that situation was “natural-born subjects”.
“I do not believe that the court even one time used the term “natural born” in Kim.”
You are wrong. My quotes showed so. the phrase was used multiple times.
“Your assertion that I would have the court rely on the reasoning of a foreigner is simply insincere and disingenuous.”
You are the insecure one. If you had a better argument or actual *US CASE LAW* or Supreme Court precedent, you would use it. You dont. So you try to impress with a Swiss theorists definition of what it should mean. It has zero bearing and zero meaning in a US court of law. Or should. Maybe you can impress Justice Ginsberg. No real constitutionalist would be impressed.
“I would have the Court rely on the intent of the Framers, and it was upon Vattell that the Framers relied in their formulation of the phrase Natural Born.”
That’s not so. The framers used legal terms of art that were derived from English common law. The English common law uses and derivative US court cases were what was referenced in Supreme Court’s Kim ruling.
You are deliberately ignoring the clear and obvious.
I have pointed to a recent brief by former Bush Solicitor General Ted Olson. I’ll restate the obvious and clear blackstone definition, it is so obvious one has to be deliberately obtuse not to acknowledge its influence on the Article II definition. See here, Ted Olson’s brief wrt McCain’s eligibility, given to US Senate in March 2008:
http://leahy.senate.gov/issues/Judiciary/McCainAnalysis.pdf
If the Panama Canal Zone was sovereign
U.S. territory at the time of Senator McCain’s birth, then that fact alone would make him a
“natural born” citizen under the well-established principle that “natural born” citizenship
includes birth within the territory and allegiance of the United States. See, e.g., Wong Kim Ark,
169 U.S. at 655-66. The Fourteenth Amendment expressly enshrines this connection between
birthplace and citizenship in the text of the Constitution. U.S. Const. amend. XIV, § 1 (”All
persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States .... “) (emphases added). Premising “natural born” citizenship on
the character of the territory in which one is born is rooted in the common-law understanding
that persons born within the British kingdom and under loyalty to the British Crown-including
most of the Framers themselves, who were born in the American colonies-were deemed
“natural born subjects.” See, e.g., 1 William Blackstone, Commentaries on the Laws a/England
354 (Legal Classics Library 1983) (1765) (”Natural-born subjects are such as are born within the
dominions of the crown of England, that is, within the ligeance, or as it is generally called, the
allegiance of the king .... “).
Sorry, by cite or a source I meant a court case where this line of argument was argued, not just a blog post.
For example, this is a citation, in the SCOTUS Kim ruling:
“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]
They certainly have. But, those persons must be considered "naturalized at birth", because Congress has no delegated power to make anyone a citizen, except through a "uniform rule of Naturalization.
Your "Wong Kim Ark" decision contains the following language:
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle
So they do make a distinction between a natural born child of a citizen, and the child of an alien, born in the country. Add in naturalized citizens, and you have three classes of citizens. BTW, that is the only place in the entire decision, where the words "natural born" are used. The case is about citizenship, and retention thereof, not natural born citizenship. There essentially have been no cases involving "natural born" verses "native born but not "natural born"
This is not surprising, because the only distinction between the two , is eligibility to the Office of President. Thus, Chester Arthur had to hide the fact that his father was not a citizen, *at the time Chester was born*. That made him native born, but not natural born.
Congress certified the count, not BO's eligibility. Even though it's common to say the the Chief Justice "swears in" the President, that's really not correct. The Chief Justice, by custom only, *administers* the oath. The Constitution just requires the oath be sworn.
The president elect, if qualified, becomes President, not upon the swearing in, but rather at noon on January 20th, following the election, provided he has previously executed the oath.
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