American Citizen, Native Born Citizen, Natural Born Citizen, Why these Terms are Important?

His Master's Voice | 8/4/09 | HMV

[Hillary'sMoralVoid]

What I find so amazing about the "birther bashers" (or "afterbirthers" as I call them) is that they have so little appreciation for the complexity of Obama's citizenship dilemma. They also do not appreciate the trap doors that exist at various points in his life regarding adoption and immigration between countries where he resided. Most of all, though, they don't understand the basic terms that they banter about.

In short, Obama's life path is fraught with potentially disqualifying conditions for the office he holds. As a constitutional law instructor, perhaps no one understands these conditions like he does, and that explains his intransigence in releasing anything that might expose him to constitutional challenge.

Let me just take a stab at a few terms that the 'afterbirthers" throw around like they are interchangeable.

American citizen - this only means that at least one of the birth parents was an American and that the indivicual was naturalized, if not born in the US. These alo include immigrants who have been naturalized citizens. You can be considered an American citizen if you have dual citizenship with another country. To scream that Obama is an American citizen, as many afterbirthers do, proves NOTHING avout his right to be president. Even Syrian-born Tony Rezko is an American citizen.

Native Born Citizen - this means that an individual, in addition to having at least one parent who is an American citizen and you were born on US soil (including territories and American bases). Although this term is thrown around by afterbirthers, this still does not meet the definition of a Natural Born Citizen.

Natural Born Citizen - this is an individual born of two American parents, whether the parents were native born or were foreign born and then naturalized. I believe that Bobby Jindal's parents were not native born, but he would be qualified for president because both parents were American citizens through the naturalization process.

The afterbirthers scream that there were seven presidents born that had at least one foreign parent like Obama. That is true, but in every case, the foreign parent was naturalized, with the exception of Chester Arthur. His father was Irish and became a Canadian citizen, never a naturalized US citizen. He obviously realized he was not qualified for office because he actually burned some of his personal records to keep anyone from finding out. A familiar pattern of behavior?

The fact is, we don't need to go to Kenya to disprove Obama's eligibility. It is hidden in plain sight. He is not a Natural Born Citizen due to to his Kenyan father. The Supreme Court simply has to take on this issue to declare that the meaning of the term has never changed. Constitutional scholars have been eerily silent on this issue, but in the research I've done, I can find no other interpretation.

As mentioned earlier, there is a plethora of reasons why Obama might otherwise be unqualified should the Supreme Court not decide against his natural born status, but that is the most logical starting point.

Thoughts, additions, corrections welcome.

[mlo]

"In Minor v. Happersett (1874), the Supreme Court said that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also said that, if you were born in the United States and one of your parents was not a U.S. citizen when you were born, your natural born citizenship is in doubt."

This is a mischaracterization. This decision did not establish that doubt existed. In one section it mentions, in passing, the some people thought this way, but it wasn't a question the court had to decide. It says nothing towards giving credence to those unspecified people who thought that way.

[mlo]

Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (1844)

"Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen."

"The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. "No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President," &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution ? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the ' the colonies and in the states, under the constitution was adopted, he is a citizen."

[mlo]

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

"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."

This ruling, which is a ruling from the United States Supreme Court, says that the common law in England was that every child born in England of ALIEN parents was a "natural-born subject".

It explains that since the Constitution did not redefine the term, and that the US did inherit english common law in large part, that US common law holds the same. Further, that the definition "continued to prevail under the Constitution as originally established."

It therefore defines "natural born citizen" as including anyone born in the country, even if they had alien parents.

[Phlyer]

Law of nations says both parents must be citizens, period.
Law of nations is the guiding light for this subject.

Nope. The US Constitution is the guiding light.

[14th Amendment}
1. 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.

It's one of the things that makes the United States unique among all the nations of history. We are the only one - that people actually want to come to - that allows anyone who is born here to be a citizen. There are 5th generation Turks living in Germany who are not German citizens.

It is what the framers used to draw up the consitution!

Maybe. But that got changed with the 14th Amendment. It was ratified to keep states from invoking 'grandfather' clauses where someone couldn't vote unless his grandfather had been able to vote. That was being used as a way to keep freed slaves from voting.

So unless you're trying to say that foreign law should be considered authoritative over the US Constitution, for Americans, then I think you've got the wrong argument. And I certainly would not agree to the supremacy of foreign law.

Even if you want to advocate a repeal of the 14th Amendment, it couldn't be retroactively applied to keep Obama from being a citizen. That's in the US Constitution, too. (Article 1, Section 9: No ex post facto laws)

[Phlyer]

I think he was born in Kenya.

Therein lies the rub. There is plenty of incentive for an unwed mother to want to get her child declared to be a US citizen. If there were any way for her to fake a birth certificate, using any of the known ways to obtain a Hawaiian birth certificate that don't require an attending physician to sign off as having actually witnessed the birth of a child, then motive and opportunity are present.

So I won't argue with your belief. The uncertainty is reasonable, and the reason I think he should be required to prove his citizenship.

[GreenLanternCorps]

If your children were born in the United States, then they have their citizenship from the moment of birth and are natural born citizens.

The US citizenship is their birthright, notwithstanding any foreign citizenship they may have acquired from you under the laws of your former country.

[Lauren BaRecall]

I surely wish that Cheif Justice John Roberts had the stones to get into this more deply, as he promised in Idaho.

Has anything more been said about this?

[Hillary'sMoralVoid]

The key word here is “jurisdiction”. For example, Kenya, was part of the British Commonwealth and under English law. Aliens were citizens of theat country who were not British citizens by birth, but were conferred citizenship by virtue of being under British jurisdiction.

We’re not talking illegal aliens here, we’re talking masses of people who were not born as British Citizens but came under British jurisdiction, and were therby conferred citizenship.

BHO senior is a good example, and he conferred British Citizenship to BHO Jr. But BHO Jr. would not be a natural born citizen of Kenya, just as he isn’t of the United States, because BHO Sr’s citizenship was not under the jurisdiction of the United States. Had BHO naturalized, we wouldn’t be having this discussion.

I’ve read many opinions on this, and there are certain excerpts that can certainly cause confusion, but when you read the opinion in totality, we revert to English common law when it comes to the deginition of “Natural Born Citizen”, and it is clear-cut.

[mlo]

"The key word here is “jurisdiction”..."

Read this sentence from Wong:

"...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."

The jurisdiction exception is laid out right there. If you are the child of an ambassador or of an invading soldier, then you aren't under the jurisdiction. Everyone else in the territory is.

It does not mean having some loyalty or attachment to another country. Even people loyal to another country are under the jurisdiction of the laws of the country they are in. Only diplomats and invading soldiers are not.

[mlo]

"...we revert to English common law when it comes to the deginition of “Natural Born Citizen”, and it is clear-cut."

Yes it is clear-cut, but it isn't what you are saying it is. Go back and read post #43 again, a decision from the US Supreme Court explaining exactly what the common law was.

[Hillary'sMoralVoid]

Don’t agree. It depends at what point an alien becomes a resident citizen. Can someone be an alien and yet be a naturalized citizen at the same time.

Is it conceivable that the son or daughter of two illegal mexican aliens could become president, I think not. If birthright alone was the criteria for a natural born citizen, why do we even differentiate in the constitution?

Once again, it gets into the native born versus natural born. And when does an alien not become an alien, after he/she obtains citizenship? Define alien as they did in 16th and 17th century England. I believe it defines those not born under British jurisdiction, but those who obtained citizenship through immigration or by being declared such by British conquest. To attempt to use 17th/18th century definitions to apply to 21st century America invites only confusion. Back then, for example, many of those who immigrated from colonies to England had neither the financial means nor the capabilities to do so, but they were British citizens even before they arrived on England’s shores, yet were problably considered aliens in England.

The bottom line is that there are serious doubts about what natural born citizenship is and the Democrats should have fully investigated obama’s citizenship credentials before ever nominating him.

[mlo]

"Don’t agree."

The law is the law, whether we agree with it or not.

"Is it conceivable that the son or daughter of two illegal mexican aliens could become president, I think not. If birthright alone was the criteria for a natural born citizen, why do we even differentiate in the constitution?"

Read the cites I posted. This is specifically covered. Yes, the child of two Mexican aliens would be eligible.

By requiring a "natural born citizen" the qualification in the Constitution prohibits a naturalized citizen from being President. That is its purpose.

"Once again, it gets into the native born versus natural born. And when does an alien not become an alien, after he/she obtains citizenship?"

No, it doesn't, because there is no such distinction. You are a citizen or an alien. If citizen, you are natural born or naturalized. All this other stuff are phantom issues designed to confuse. It really isn't that complicated. Again, read the cites. They are quite clear.

"The bottom line is that there are serious doubts about what natural born citizenship is..."

Serious doubts on whose part? The birthers? That doesn't make it a legitimate issue. There is no doubt in the law. If you are born in the US you are a natural born citizen.

[CamJack]

Let me begin by saying that I have a law degree, and practice in the field of immigration law. I graduated from Tulane Law in 08 and practice in the field of immigration law. I’m currently an Associate with the Lawrence B. Fabacher Law office in New Orleans. You can look it up, our offices are on Canal Street.

I do not mean any disrespect or have any intention to belittle anyone when I assert my qualifications, I simply would likely to lend what insight I can to this discussion.

Ok lets be clear, when we are discussing citizenship, there essentially two ways in which a person can be born a US citizen. The First is through what is known as Jus Soli, or the “law of the soil” in latin.” In 1608 a case before the House of Lords in England, in a matter known as Calvin’s case, it was declared that no principal was more firmly established in the common law than that a person who is born on territory subject to the sovereignty of the Crown, was a subject of the Kingdom of England. For Modern purposes this would be what we consider citizenship. Now one thing that needs clarification is the value of precedence in a Common law country. Under a common law system, as opposed to system of a civil code, many areas of the law are unwritten and established by Judcial precedent. The house of lords at that time was the highest Court in England, and until very recently possessed the authority to pronounce what the King’s law was. This similarity is important because when we address here in a moment the American law of Jus Soli, its important to keep in mind that the Supreme Exercises an Analagous power with regards to interpreting the US constitution. What is important to state for our purposes here is that even in 1608 the concept was so firmly embedded in the common law that the Judges in that case were surprised they even needed to restate it.

When English settlers came to America they brought with them Common law of their homeland. Now to be absolutely crystal clear, the common law of England is not in the literal sense “foreign law” as been asserted above. In the early days of American jurisprudence American courts literally looked to English precedence to decide how to interpret the Common law after independence. When deciding how to interpret provisions of the Constitution, the Supreme Court and Justice Scalia in particular, are fond of looking at how those concepts were construed under the English common at the time of the founding. One need only look to the right of a trial by jury, embedded in the common law, guaranteed by the bill of rights. While that is not to say that important differences in American Common law and English law have not developed in the 200+ years since independence,that not immediately relative for what we are discussing here.

Now to get to the point concerning Jus Soli. The concept was adopted in early American Courts as part of the common law. By 1830 no fewer than five state supreme courts and the US supreme courts had referenced and established the right of birthright citizenship. Indeed the first immigration laws passed by the US congress made no reference to the Jus Soli as the legal philosophy at the time implied no need to supplement by statute those doctrines were firmly established by the Common law.

At this point, as a previous poster has stated, the United States Constitution does supersede any conflicting rule of rule under the Supremacy clause. The original constitution made no mention of birthright citizenship. As basic matter of statutory interpretation it is improper that were a statute is silent as to a particular situation as one of the most basic foundations of the Common law is that that which is not forbidden is permited. Congress is given explicit authority to regulate the authority to regulate the procedures for naturlization. On its own this would not be particulary insightful, unless one reads it in conjunction with the 9th and 10th amendments. The 9th states that the explicit listing of rights in the bill rights should not be read as exhaustive or to disparage and the 10th states that those powers not given to the federal government are reserved to the states or to the people directly. One might draw a reasonable inference from that the “birth-right” to citizenship should not be interpreted as nonexistent, and further logical analysis might suppose that such a birthright was reserved either to the states or to the people directly. While subsequent case has severally diminished the practical effect of the 10th amendment, the logical coherency would stand. With the alone exception of a dissent in the Dredd Scott case, no binding court opinion issued prior to the adoption of the 14th amendment stated that states had the power to resend citizenship acuired through jus soli

Which brings us to the next question, did the 14th amendment change the jus soli or mainly codify it. Looking at the an alienage act passed prior to the 14th amendment, it adopts simliary the same language as that of the 14th. Further the necessity or the 14th amendment was based on citizenship stripping requirement passed after emancipation. If one looks at the historical propositions and arguments made for the 14th amendment’s citizenship provision, it suggests that the framers of that amendment were struck by the novelty of the citizenship provision. The phrase, subject to the jurisdiction thereof, is a term of legal art that refers children who are born to ambassadors, whose immunity imputes to their children. It was also originally construed to include Native American born on tribal lands, but congress has since granted them citizenship through statute. Indeed those cases are the only which deny the birth rights ever by the Supreme Court. To name but one an example, in one case regarding a Chinese child born to alien parents within the United States. At the time CA and the US government had laws prohibiting the naturlizarion of Chinese immigrants. While the Court stated that Congress powers on when and under what circumstances citizenship could be conferred by naturalization or parental heritage, it had no power to restrict the 4th amendments grant of citizenship to those born within the United States. There is, as far as such are possible on legal academics, a consensus that a child who received citizenship under ju solis would be naturally born.

The largest area of uncertainty is where a child is born outside the United States to citzen parents. In the law this concept is know as jus sanguinos or law of the blood. as above, congress may define the rules for acquiring citzenship. So to understand this, we need to look at what terms or conditions has set forth in where the facts are analogous to our own. Here the original poster has erroneously asserted that the marriage between a Obamas mother a citizenship and an alien denies him citizenship. This is blatantly erroneous as the be almost comical.

The Immigration and Naturalization spells out the circumstances in which citizenship is automatically granted at birth. The relevant section is INA 301. Under that article, a child born outside of the US to a citizen and an alien is a citizen at birth if the US citizen parent had been physically present in the use for any period amounting adding up to 5 years, at least two years of which were after the age of 18. Prior to her assignment in Indonesia, Obama had never left the country. Thus its fair to say she would meet the 5+2 requirement. Even if the alleged claims by birthers that Obama was not born US are true, he would nevertheless have been a us citizenship.

Whether he is a natural born citizen is a different legal matter. We have no literal ruling by the Supreme Court on this issue. The legislative history of the convention hold almost no information as to its adoption. We do have in the minutes statements establishing that the founders where worried about an invasion and assumption of foreign rules to the presidency. We do have one letter from Alexander Hamilton to a friend stating congress was concerned about the president being a citizen with no bond or blood ties to the nation. If the constitution is silent as to the definition, can we impute is meaning to context of other provisions. Remember there are three mechanism of acquiring citizenship , jus soli, jus sanguinos, and naturalization. The only distinction the constitution makes is between naturally born citizen and those who are not. If naturilized citizens are not naturally born, to which there is consensus and the plain meaning of the word born, then those who were “born” citizens should qualify. Children granted us citizenship through relation automatically gain the full measure of citizenship and no one can reasonably claim.
A few other closing points to note. First the anchor babies idea is blatantly in conflict with the entirety of the INA, and such a failure to make even a cursory glance of applicable law is odious to the lady. While it may be true that babies born to illegal/unlegal alien parents in the US through Jus Soli, such status would afford little comfort to the parent. Under the INA a child may not petition for his parents until he reaches 21. Does anyone really truly believe that a parent would endanger the lives of their child to cross a border just so 21 years later that child could petition for their parents to immigrate. Further that child, in order to petition for is parent would have to prove income or assets equal to 125 of the federal poverty line. Finally even if an immigration judge decides to withold removal of the citiens because of hardship to the citizen, in may cases that parent obtain work authorization.

[bushpilot1]

“The 14th amendment says all persons born OR naturalized in the U.S. are U.S. citizens.”

You left out subject to jurisdiction.

[screaming eagle2]

interesting arguemnt

[Rona Badger]

Whether he is a natural born citizen is a different legal matter. We have no literal ruling by the Supreme Court on this issue.

And this is what we've tried to get through to others. It's a *special* designation. No one seems to be able to clearly tell us the current law (i.e., most Acts have since been repealed; other cases were about native born citizenship).

Peeps are confused here over the simple natural-born definition (born in the United States by two citizen parents) with the more complexly defined native-born and naturalized citizen. The natural-born is a special, simple definition and we know that because it is called out in relation to becoming POTUS. John McCain was not natural-born either.

This article helped me get a better understanding: ObamaNaturalBorn.

CamJack: I'd like to know, based on your qualifications stated, if you think Obama is a natural born citizen, supposing that he is born in the US to a foreign father, without regard to anything else. Yes or no. Is he natural born according to the current law today? Thank you in advance for your reply.

[Jean S]

“Born in the U.S. Mainland”.

Where do you get that from?

[Rona Badger]

It is in the article I linked to in my post (This article helped me get a better understanding: ObamaNaturalBorn). There are references in that article as to how US soil is relevant.