A quick read of attorney Irion’s argument which appears incorporated in Hatfield’s post-hearing filing seems to me to contain a flaw. He states: However, this statement is immediately followed by the clarification that there have “never been doubts” as to the narrower class of “natural born Citizen[s]. On its face, the lack of doubts may be true, but the court’s classification may have applied to children and not forms of citizenship. In any event, we will not have to wait long to see what status the ALJ gives to Minor.
We may also agree on the view I prefer: that Minor has an important role in the debate because it asserts there can be no doubt regarding the intent of the framers and ratifiers when they used the term NBC and executed the document. That 1787 intent, if it can be ascertained of course, is what is most relevant, not subsequent theories, misapplications, redefinitions, or misunderstandings.
It is possible to imagine Minor could well have said, if indeed it did not actually convey, “It is unnecessary for the Constitution to say who shall be natural born citizens, because at common law there was never any doubt that all children…(etc.)” In such a reading, Minor does not define but affirms 1787 usage.
You may know there is evidence that George Washington, Commander in Chief of our nation’s forces during the Revolution corresponded with John Jay, then President of the Continental Congress, about the desirability of sending him officers that were American citizens. Jay, of course, established himself as one of the nation’s leading intellects and later argued strongly in the Federalist Papers against the danger of foreign influences in our new government. Jay’s 1787 letter to Washington, then the chair of the Constitutional Convention, emphasizing that the Command(er) in Chief be a natural born citizen was almost certainly in furtherance of their prior correspondence.
It is not clear whether very preliminary drafts of the new constitution addressed presidential qualifications, but a August 22 report from the Committee of Eleven recommended the president be a citizen (similar to senators and representatives, along with 35 yrs of age and 21 years residency). Within a matter of days there appeared on September 4 the term NBC applicable solely to the president. Typically there was discussion and comment on most issues but there was none on this point. Perhaps more telling, no concern was expressed about whether that important and unique qualification extracted the highest level of allegiance and loyalty
Would Jay, a prominent thinker and lawyer have used an ambiguous term to qualify the CinC in order to extract the highest level of allegiance and loyalty? That is unimaginable. What other term was available to convey those attributes by virtue of parental citizenship? There is none, the term speaks for itself.
It seems to me the burden of proof is on those who would propose a different definition of NBC. In that regard, I believe the only persuasive rebuttal would come from the record of those notables who attended the convention and those who signed the document.
This subject certainly draws out a lot of comment. I appreciate especially that frog in a pot and sourcery presented logical arguments unencumbered by condescension and ad hominem attacks.
In this discussion I have been solely addressing the subject of whether the Supreme Court's finding in Minor legally defines NBC. I am not staking out a strong position one way or another as to what the proper definition should be (though, admittedly, I lean slightly towards "born under U.S. jurisdiction"). And I am not taking a strong position on Obama's status other than strongly feeling that as a matter of policy it should be the responsibility of any candidate for office to present proof of their eligibility - which Obama has not done, in my opinion.
As best I can decipher Danae's point through the sarcasm, condescension and ad homimem attacks, it seems to be that anyone who knows the law and how it works can not possibly hold any other opinion than that Minor defines NBC. (If I have mistaken the point, perhaps Danae could restate it without the extraneous accouterments.)
Well, I can only respond by saying that the Court of Appeals of Indiana apparently, by Danae's definition, doesn't understand the law either. In Ankney and Kruse v. Governor of the State of Indiana (http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf) the opinion quotes the relevant passage from Minor and adds this comment: "Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." Now Danae is certainly welcome to his opinion that the judges of the Indiana Court of Appeals are mistaken; but I have a hard time thinking they are not aware of the structure and rules of Supreme Court opinions.
By the way, in a footnote the Indiana court states: "Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom." That was an argument I don't recall seeing before.
Sourcery makes a much more persuasive argument which, however leaves me with a question. If Minor's definition "... it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also" defines a set that cannot be added to or subtracted from, where does that place children born to U.S. diplomats serving abroad? Now, it is generally considered that the grounds of a U.S. Embassy are legally part of the U.S.; but what happens if the birth takes place outside the embassy proper? Are such children not "natural born citizens"? I tried to do some research, but was buried under all the hits generated by various articles on the status of the children of foreign diplomats born in the U.S. And in the process I have seen references that that President Obama, disregarding all precedent and law, has had the government extend citizenship to the children of foreign diplomats. That warrants further investigation.
Finally, frog in a pot and I seem to be in basic agreement about Minor, and I appreciate the citation of additional facts regarding the meaning of the term NBC to the drafters of the Constitution. But in researching, I found an alternative theory as to why NBC was inserted in the Constitution. I include it here not because I necessarily accept it, but simply as another data point.
From an article by Akhil Reed Amar in Legal Affaris, March-April 2004. (http://www.legalaffairs.org/issues/March-April-2004/argument_amar_marpar04.msp)
"Why, then, did the generally pro-immigrant founders include a provision in the Constitution that would exclude immigrants from the presidency? The rule seems anti-egalitarian if one imagines a poor boy coming to America and rising through the political system by dint of his own sweat and virtue only to find himself barred at the top. But in 1787, the more plausible scenario was that a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that virtually no American could match. No such grandees had yet come to our shores, but it made sense to anticipate all the ways that European aristocracy might one day try to pervert American democracy.
Several months before the Constitution was drafted, one prominent American politician, Confederation Congress president Nathaniel Gorham, had apparently written to Prince Henry of Prussia, a brother of Frederick the Great, to inquire whether the prince might consider coming to the New World to serve as a constitutional monarch. Though few in 1787 knew about this feeler, the summer-long secret constitutional drafting sessions in Philadelphia did fuel widespread speculation that the delegates were working to fasten a monarchy upon America. One leading rumor was that the bishop of Osnaburgh, the second son of George III, would be invited to become America's king.
The natural-born clause clearly gave the lie to such rumors and thereby eased anxieties about foreign nobility."
---------------------- Thanks for the discussion!