Posted on 01/31/2012 4:03:01 PM PST by sourcery
Wouldn't that be a kick in the head?
The representatives of both major parties disqualified for failing to meet a Constitutional requirement?
Thanks very much for putting this up.
Looks like the regime got to yet another judge.
The ones in place at the time of George Romney's birth in Mexico. Look it up. The law was changed in 1940 but the ones in place in 1907 has a child born to an American citizen father taking the citizenship of his father. This means that George Romney was an American citizen at birth, not a natural born citizen , but a plain-jane "native" citizen.
I'm not a Romney fan and would love to have had him ineligible but his father was an American citizen. I'll try to find the link but the info is there about Mexican citizenship laws and how they were applied to foreigners living in Mexico who had children.
Absent a firm such as Landmark Legal with minds like Mark Levin or comparable who can actually anticipate what a judge will rule and why, this is becoming fruitless.
In your discussion of the Minor decision, you mention Ex Parte Lockwood. That decision was written by Chief Justice Fuller. He also wrote the dissenting opinion in Wong Kim Ark case. In his dissent, he discusses the English Common Law and its perceived influence on the definition of the term “natural born citizen”. At one point, he complains that it inconceivable that a child born to alien parents could be “eligible to the Presidency”.
Why doesn’t he cite Minor as having defined NBC?
There is no text or language in the majority opinion authored by the Court itself—which excludes the quotation from Rhodes—to the effect that either the 14th Amendment, or any of the Court's holdings in past cases, define either natural citizenship or natural born citizenship as synonymous with "born in the country and subject to the jurisdiction thereof."
Obviously, there are those, including Justice Fuller, who interpret it that way. But there are no Supreme Court decisions that make any such holding. None.
Nor does Justice Fuller state that his interpretation of the effect of the majority opinion is the same as the majority's interpretation. Based on his words, he could have been arguing that there were strong reasons why his interpretation of the majority opinion might eventually become the consensus interpretation, even if those who agreed with the majority opinion didn't (then) see it the same way.
The 14th Amendment defines native born citizenship. That's not disputed by anyone (and if it is, they're irrational.) Nor does anyone argue that all natural born citizens are also native born citizens. The dispute is about whether the reverse is true—whether all native born citizens are also natural born citizens.
But those born outside the US to parents who were US citizens are citizens from birth—by statute. So they are also "native born," because they are citizens from birth. So if Wong Kim Ark does hold that "native born" = "natural born," then even those born outside the US to US-citizen parents would be "natural born citizens." But if that's the case, then it's a violation of the Law of Non Contradiction, because it would force "natural" born to include those who are naturalized. "Natural" and "naturalized" are mutually exclusive terms.
The dispute is also about whether any and all who qualify as citizens per the 14th Amendment are natural citizens, or whether some are natural but others are naturalized.
Anyone who was alive but not a citizen when the 14th Amendment was ratified, but became a citizen at that moment, was not a citizen from birth. So that proves that not everyone made a citizen by the 14th Amendment was a native born citizen.
The text of the 14th Amendment proves the same point: The 14th Amendment's citizenship clause defines both a) those born in the US and subject to its jurisdiction, and b) those naturalized in the US and subject to its jurisdiction, to be citizens of the US, and does so using a single sentence with a single phrase that is the subject of the sentence and a single phrase that is its predicate. The subject phrase is of the form "<A> and <B>", and the predicate phrase is "are citizens of the United States." That single predicate phrase, "are citizens of the United States," must intend to apply that exact same meaning of the word citizens to both noun phrases in the conjunctive phrase that is the subject of the sentence, since it's but one predicate phrase applied to but the one conjunctival phrase that is the subject of the sentence. Therefore, the semantics of the word citizens in the 14th Amendment must encompass both those born in the US (and subject to its jurisdiction) and those naturalized in the US (and subject to its jurisdiction.) That is flat-out impossible unless the intended semantics of the term citizen in the 14th Amendment is that of general citizenship, and is not intended to signify any other, more specialized meaning.
As to why Justice Fuller misinterpreted the majority opinion, only he could authoritatively answer that question. However, there are clues in the text of his opinion:
Whether it was also the rule at common law that the children of British subjects born abroad were themselves British subjects -- nationality being attributed to parentage, instead of locality -- has been variously determined. If this were so, of course, the statute of Edw. III was declaratory, as was the subsequent legislation. But if not, then such children were aliens, and the statute of 7 Anne and subsequent statutes must be regarded as, in some sort, acts of naturalization. On the other hand, it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad, and that the acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.
He (wrongly) believed that those born abroad to US parents were also "natural born citizens." He further states:
In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, [p715] unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized "in the United States."
He was interpreting the majority opinion to be a complete definition of citizenship, so that anyone who did not meet its rules of citizenship was not only not a citizen, but was Constitutionally prohibited from being one, unless they reside "in the United States" when they become citizens—whether by nature or by naturalization.
Soon after presenting that line of argument, he then makes the statement you referenced:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
That reasoning is invalid on its face. Neither the 14th Amendment, nor the decision in Wong Kim Ark, nor any subsequent holding of any Federal Court has ever enforced or asserted any rule that one must be resident in the US at the moment that one becomes a US citizen of any sort, whether "naturalized," "native born" or even "natural born citizen."
Of course, Minor vs. Happrsett does assert that one must be resident in the US at the moment one becomes a citizen in order to be a natural born citizen, but that case predates Wong Kim Ark.
But that leaves the question regarding why Fuller didn't argue that the decision in WKA was at variance with Minor, especially since he did argue that the decision was a contradiction of holdings in the Slaughterhouse Cases and Elk v. Wilkins.
However, he does mention Minor vs. Happerset, and does so as part of his argument with respect to the Slaughterhouse Cases and Elk v. Wilkins:
I do not insist that, although what was said was deemed essential to the argument and a necessary part of it, the point was definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 167, remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve. But that solution is furnished in Elk v. Wilkins, 112 U.S. 94, 101, where the subject received great consideration...
My reading is that Justice Fuller decided that, especially since he was writing a minority opinion, it was sufficient to make the stare decisis argument based on the Slaughterhouse Cases and Elk v. Wilkins, because the issue before the court (as stated in the opinion) was not whether Wong Kim Ark was a natural born citizen, but whether he was a citizen at all.
He explicitly mentioned the "doubts" expressed by Justice Waite in Minor about the citizenship of those born in the US to even one parent who was not a US citizen. Those doubts definitely applied to Wong Kim Ark, since neither of his parents were US citizens. And that's why he decided not to directly claim that Minor was binding precedent regarding whether or not Wong Kim Ark was a US citizen.
Well-written, tour-de-force, which provides the first counterargument I have seen to James Taranto’s argument that President Obama is a natural born citizen because his mother was, regardless of where he was born.
However, the logical connection between the definition of a foreigner and the necessity of two citizen parents to be a natural born citizen seems a little weak. The fact a person can be considered a foreigner due to having one parent as a foreigner does not seem to abrogate the fact they are also born of a citizen which seems sufficient to confer the natural law natural born state. Your essay implies this citizenship is actually a naturalized citizen state, that it may be conferred or removed by statue.
What I find lacking is clear proof that the condition of one parent as a citizen and one parent as a foreigner is either a natural born citizen or a naturalized citizen.
Your research is much appreciated and certainly the natural law usage juxtaposed against the foreigner definitions implies it requires two citizen parents; but I remain unconvinced.
Thanks for the constructive criticism. I’ll research that point.
“The last one to be presented, by Alexander Hamilton, is known as the British Plan (because it was modeled closely after the British governmental architecture.) Although that proposal was totally rejected, it also happens to have been the only one whose text included any eligibility requirements for the Chief Executive. That plan required that that person be “born a citizen.” “
This is historically inaccurate. Hamilton’s “British Plan” was presented on June 18th, 1787. It did not have a Presidential eligiblity clause because it did not have a President. The Executive branch was headed by a “Governour”.
“IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour-the election to be made by Electors chosen by the people in the Election Districts” James Madison, Notes on the Debates in the Federal Convention
http://avalon.law.yale.edu/18th_century/debates_618.asp
This Governour served a life term.
Hamilton’s draft Constitution with the Presidential eligiblity clause was submitted to James Madison at the end of the Convention.
A copy of Hamilton’s draft constitution is in Madison’s papers with a note in Madison’s handwriting that says,
“Copy of a Paper communicated to James Madison by Col. Hamilton, about the close of the Convention in Philadelphia, 1787, which, he said, delineated the Constitution which he would have wished to be proposed by the Convention. He had stated the principles of it in the course of the deliberations.”
This draft with Madison’s note can be found in Appendix 5 of Elliot’s “Debates on the Adoption of the Federal Constitution”.
That’s why I didn’t say “President,” but instead used the general term “chief executive.” A governor is a chief executive.
However, you are correct that there is no evidence that Hamilton’s plan contained any eligibility requirements until the final version presented to Madison at the end of the Convention. Since it isn’t clear whether Hamilton presented the entirety of his proposed Constitution in June, or only a summary of it, we have no way of knowing whether it contained the “born a citizen” requirement at that time, or whether it was added later.
But either way, the “born a citizen” rule was rejected, even though Hamilton’s plan was rejected for other, more important reasons. The fact that Hamilton kept the “born a citizen” language even in September shows his preference, and indicates how he may have argued on the matter at the Convention.
“You can be a US Citizen and not be a Natural born citizen and you must be a US Citizen to be a Natural born citizen.”
You just distilled all the sturm and drang on this issue into one concise sentence.
Put another way, all beagles are dogs but not all dogs are beagles. A pure-bred beagle with all his/her reproductive organs intact, and satisfying all of the other AKC conditions, can participate in AKC dog shows, while Muttley the `Peakapoo’ cannot.
Hey, I didn’t write the rules—blame the AKC and framers!
But it does help explain why the White Hut occupant is such a mutt, doesn’t it?
Seems pretty simple (you need to re-read the last sentence or two of what you posted).
“No person has a right to be classified as a Statutory citizen, Naturalized citizen, Native born or Natural born citizen. See 22 U.S. (9 Wheat.) at 827-28, “[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.””
The constitution makes the distinction and there is ample evidence as to its consequence.
There are certainly conceptual differences between a citizen and a subject. However on a practical level did the Founding generation worry about this difference?
The naturalization acts of Massachusetts provides a suggestion that they were not concerned.
In February, 1785, the Massachusetts legislature passed “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
In July, 1785, the Massachusetts legislature passed “AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
In July, 1786, the Massachusetts legislature passed “AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens."
In March, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others,”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
In March, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that William Martin and Others,”shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
In October, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children,”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
In November, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others,”shall be deemed, adjudged and taken to be free citizens of this Commonwealth, & entitled to all the privileges, liberties, and immunities of natural born subjects.”
In June, 1788, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”
In November, 1788, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”
In February, 1789, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”
In June, 1789, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
In March, 1790, the Massachusetts legislature passed “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
In March, 1791, the Massachusetts legislature passed“AN ACT FOR NATURALIZING JOHN WHITE & OTHERS" in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”
They used both terms in the same context, language and with the same effect.
So what would the understanding of the term natural born citizen be to the people of Massachusetts?
bm
Great question. Important question.
I’ll be fully addressing it in the next version of may essay. I’ll ping you when I post it.
I’m curious why in the article you seem to separate the contested election of William Smith and the dissertation of Dr. David Ramsay.
Dr. Ramsay wrote the dissertation as part of his campaign to have Mr. Smith declared ineligible.
From his dissertation:
The following appear to be the only modes of acquiring this distinguishing privilege.
1st. By being parties to the original compact, the declaration of indcpendcnce.
2d, By taking an oath of fidelity to some one of the United States, agreeably to law.
3d, By tacit consent and acquiescence.
4th. By birth or inheritance,
5th. By adoption.
From his petition to Congress in the Smith case:
“that citizenship with the United States is an adventiontitious character to every person possessing it, who is now thirty years of age; and that it can, in no case, have been acquired but in one of the following modes: 1st. By birth or inheritance. 2d. By having been a party to the late revolution. 3d. By taking an oath of fidelity to some of the States. 4th. By tacit consent. 5th. By adoption”
Dr. Ramsay also wrote a letter to James Madison asking Madison to support his petition in Congress. In the letter he makes some of the same arguments as in his petition and dissertation.
From the Dissertation:
“From the whole it is plain, that no private individual, tho’ a native, who was absent from this country at the time independence was declared, could have acquired citizenship with the United States, prior to his returning and actually joining his countrymen subsequent to the recolution.”
From Dr. Ramsay’s letter to James Madison:
“You and I became citizens by being parties to the Declaration of Independence. By that act a new compact for a new government was form between the then residing and consenting inhabitants of the States. But an absent native neither lost his allegiance by the one nor acquired citizenship by the other. Such continued subjects while in Europe and under British protection and could become Citizens on their returning and by residence by an oath or by some other move manifesting their acquiescence in the revolution.”
BTW, Dr. Ramsay came in third in the election that William Smith won.
We know Congress voted down Dr. Ramsay’s petition. Along with Madison, four other signers of the Constitution voted against Dr. Ramsay.
If everyone agreed with everyone else on all points, we wouldn’t need a Constitution, a Congress or a website such as this one :-)
Yes, Madison and Ramsay disagreed on some points regarding citizenship. And most certainly on other issues as well. But from the evidence, the only major disagreement between them regarding citizenship was the effect of the fact the Mr. Smith was absent from the American Continent when the Declaration of Independence went into effect. And from his words, Madison might have reached a different conclusion had Mr. Smith not still been a minor at that moment.
It seems to me that that issue is too technical and too off-topic to be worth including in the essay.
“If everyone agreed with everyone else on all points, we wouldn’t need a Constitution”
You hit the nail on the head. The disagreements in 1787 were as great then as they are today.
And it is why you can have William Rawle say,
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
Like Dr. Ramsay, William Rawle was also in a good position to know the minds of the Framers.
Even Charles Dumas, who published copies of Vattel's Law of Nations, with his own notes included specifically for the American Cause, in 1775, has a much better claim as an authority on such matters than does William Rawle. Dumas shared a home with both John Adams and his son John Quincy Adams. The odds are very good that Mr. Dumas had explicit conversations on the subject of Vattel and his writings with both John Adams and John Quincy Adams.
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