Posted on 05/08/2013 8:03:24 AM PDT by SeekAndFind
In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.
I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)
To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)
My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.
Birthright citizenship does exist. Under the current Constitution and federal law, those born in the U.S. to U.S. citizen parents or aliens permanently domiciled in the U.S. have a claim to birthright citizenship though that does not necessarily make the latter natural born citizens for Constitutional purposes.
Similarly, one born abroad to U.S. citizen parents may be defined as natural born citizens by statute but that does not necessarily imply that they are natural born citizens for Constitutional purposes.
Quoting the U.S. Department of State:
"In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."http://www.state.gov/documents/organization/86757.pdf
Hmmm...quoting Secretary of States, or the US Supreme Court...who gets to say what the Constitution means?
Further, I learned a long time ago that birthers parrot supposed cases without ever learning the facts. Unhappily, a search of “Ludwig Hausding” turns up a lot of birther parroting. Both of those examples seem to come from “A Digest of the International Law of the United States”, and both seem to involve people living in foreign countries as citizens of those foreign countries, who then claimed US citizenship to avoid military service.
If you have a fuller treatment of their cases, and in particular a court case involving them, please cough it up.
“The ruling in 1898 (WKA) that seems to be the holy grail for you does not address a person’s eligibility to serve as president.”
Yes, it did. As the dissent acknowledged:
“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.”
The ruling went into great detail on the meaning of NBC. If you cannot see that, then you are probably beyond any help I can give.
The first Congress had authority under the new Constitution to recognize children born overseas at the time of adoption of the Constitution as citizens for purpose of eligibility for POTUSA. The word “or” in ARTICLE II, Section 1 distinctly makes this difference apart from the stated ‘natural born citizen’.
They were both born in the U.S.
The U.S. Secretaries of State rulings were that they were NOT U.S. citizens because they were subject to a foreign power at the time of their birth in the U.S.
Can you shed any more light on the fact that those two men, though BORN IN THE U.S., were ruled by the federal government to NOT be U.S. citizens at birth?
Why did Gray specifically decline to rule Wong Kim Ark a 'natiural born citizen?'
* ‘natural born citizen’
Reason certainly hasn't worked. Facts certainly haven't worked.
We are long past the time, in my opinion, when birthers are deserving of ridicule.
Aside from which, someone like myself or Nero Germanicus or Mr Rogers presents the facts, presents a calm, reasoned argument, and what do we get in return?
We get invalid arguments, twisting of the Constitution, twisting of the law, twisting of historical quotes. We get called all kinds of names. "Obama supporters." "Liberals." "Trolls." We get accused of being "paid." All for standing up for the Constitution and the truth.
On a conservative site.
Early on in this discussion (two whole years ago) DiogenesLamp said that if I could be taken out and shot, he would cheer.
And I believed him.
I try to generally refrain from the more extreme forms of ridicule. That said, in my opinion, the more dishonest and hard core birthers deserve every ounce of ridicule that I or anybody else could pour on them.
By the way, when I said:
All of that was pretty factual.
There is little of birther Constitutional claims that is even an accurate representation of our history and law. And the little bit that is, is overwhelmed by more authoritative evidence.
I’ll go back to my original (Post 81) question: Why would any American support a position that would allow the President of the United States of America to legally be subject to a foreign power?
The Founders and Framers simply did not consider that those born on US soil of immigrant parents were "subject to a foreign power" in any way that mattered. If they had, then they would have said the President had to be born on US soil of citizen parents.
But that's not what they said. They said the President had to be a natural born citizen. And that term certainly included those born on US soil to non-citizen parents, as long as those parents weren't ambassadors, foreign royalty, or members of invading armies.
There is good evidence (see earlier post) that they also believed the term could and should include children born abroad to US citizen parents.
How can you NOT get that "natural born citizen" didn't require BOTH birth on US soil and birth to citizen parents, when the first Congress and first President, which included 40% of the signers of the Constitution, passed a law that expressly said:
"...the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens".
And there doesn't seem to be any record that anybody in that Congress ever objected to that.
No, the historical and legal record is very clear. When I say that this claim is BS, it's because it's really and truly BS.
You’ll be glad to know I found the details. They were mentioned in the DISSENT of WKA. DISSENT. As in “LOSING SIDE” of a court case. IOW, over 100 years ago, those cases were REJECTED by the US Supreme Court.
“And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.
Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:
You ask “Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.” Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.
Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:
Richard Greisser was no doubt born in the United States, but he was on his birth “subject to a foreign power,” and “not subject to the jurisdiction of the United States.” He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.
2 Whart.Int.Dig. 399.”
That was the LOSING SIDE, quoting what the State Department had done. That is not binding precedence, nor did it persuade the US Supreme Court, which rejected it 6-2 (McKenna took no part in the consideration or decision of the case).
You might consider this case:
REGAN v. KING, Registrar of Voters
No. 22178-S
District Court, N.D. California, S.D.
49 F. Supp. 222; 1942 U.S. Dist.
July 2, 1942
Plaintiff, a citizen of the United States and of the State of California, a registered voter of San Francisco, sues the Registrar of Voters of the City and County of San Francisco, alleging that more than “2600 Japanese of the full blood born in the United States and the State of California, of alien parents born in the Empire of Japan,” are erroneously registered to vote in San Francisco. He further alleges that his rights and privileges as an elector, secured to him by law, are impaired by permitting ineligible persons [Japanese] to exercise the rights and privileges of electors of the State of California. He prays that the Registrar be directed to strike the names of all Japanese from the register of voters on the ground that they are enemy aliens, citizens of Japan, and therefore ineligible to citizenship and the right to vote.
Defendant Registrar answers that Japanese born here are citizens of the United States and as such are entitled to be registered as voters, and asks to be dismissed with his costs.
This case is exceptional because the sole question it presents to this court is one which has been definitely decided by the United States Supreme Court: Is a person of the Japanese race, born within the United States, a citizen? The question has been answered in the affirmative in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; and Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320.
Counsel for plaintiff frankly stated that he was asking this court to overrule the leading case of United States v. Wong Kim Ark, supra, because he believed the decision was erroneous. Since the decision was rendered it has been twice cited with approval by the Supreme Court in Morrison v. California, supra, and in Perkins v. Elg, supra. In the Morrison case Justice Cardozo, speaking for the Court, said [291 U.S. 82, 54 S.Ct. 283, 78 L.Ed. 664]: “A person of the Japanese race is a citizen of the United States if he was born within the United States.” In the Perkins case, Chief Justice Hughes delivering the opinion, it was held that a child born here of alien parentage becomes a citizen of the United States.
It is unnecessary to discuss the arguments of counsel. In my opinion the law is settled by the decisions of the Supreme Court just alluded to, and the action will be dismissed, with costs to the defendant.
To the extent that we're talking about the "born on US soil of citizen parents" claim, this is absolutely true.
To those many unanimous authorities (which already represent almost every real authority in the country) we could also add the major conservative Constitutional organizations such as National Review, Heritage Foundation, and Hillsdale College.
Legally speaking this is a settled issue.
There is no legal argument about needing two citizen parents. None. At this point, every birther lawsuit should be fined for being frivolous. There simply is no legal basis for claiming a requirement to have two citizen parents to run for President.
Again, correct. And I agree on the lawsuits.
Richard Greisser was no doubt born in the United States
WHY wasn't that enough to make them U.S. citizens at birth?
For about the 42nd time, he didn't. The entire reasoning of the case had to do with who was and was not a natural born citizen. The fact that he didn't say the magic words "natural born" in the final summary of the case is irrelevant. All of the core reasoning, which mentioned the phrase "natural born" literally dozens of times, is binding precedent.
“Why did Gray specifically decline to rule Wong Kim Ark a ‘natiural born citizen?’”
The ruling was formed by the complaint. However, the holdings of WKA are all binding precedence:
Here are some of the holdings in WKA:
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been seven years a citizen of the United States, and every Senator to have been nine years a citizen of the United States; and 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.
The United States Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith” or “power,” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual, as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem, and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or within the jurisdiction of the King.
The question of naturalization and of allegiance is distinct from that of domicil.
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: One, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth. Subject to exceptions, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions in the common law of England are only these two: 1.) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person’s birth is in hostile occupation, is an alien. 2.) Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign state is (though born within the British dominions) an alien.
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory at least depended, not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the Crown.
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of the United States, 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.
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto.
There are some exceptions to the creation of citizenship that are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject to the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens. Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.
U.S. Const. art. II, § 1, uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
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 common law of this country, as well as of England.
A man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land; and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.
It is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied.
U.S. Const. amend. XIV affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of U.S. territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. U.S. Const. amend. XIV, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Rides3 believes that only the final judgment statement is a binding holding of the court. He is wrong, but it is probably an honest error.
It was. The position of the State Department (which is rather murky anyway) was not correct. And it was overruled by WKA.
If you don't think an administration can have policies which are wrong and unconstitutional, I refer you to the current administration.
Evidence right there that one can be born in the U.S. and NOT be subject to the complete jurisdiction of the U.S. as required by the 14th Amendment.
That's EXACTLY why U.S. Secretaries of State ruled such persons to NOT be U.S. citizens at birth, more than ten years after the ratification of the 14th Amendment..
Like most positions of most birthers, it is difficult for me to consider it an honest error at this point, since the truth has been pointed out to him on numerous occasions.
Birthers seem to be, pretty much by definition, deaf to any truth they don't happen to like.
Sorry, I should have been more clear for you (my fault) - The ruling in 1898 (WKA) that seems to be the holy grail for you was not to determine a person’s eligibility to serve as president (as are the cases related to 0 or against others for not determining his natural-born citizenship before putting him on the ballot - in which case SCOTUS will have to explain the definition of natural born citizen).
WKA was about whether or not Wong was an American citizen because he was born in the US. The court found that he was as much a citizen as a natural born citizen, but not that he was natural born citizen.
“The ruling went into great detail on the meaning of NBC.”
Since the ruling was related to whether Wong was a citizen not whether he was eligible to President, you’re throwing dicta at me because....
No, I believe what the Judge writing the Court's decision explicitly TELLS us, as should you...
"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.",/i>
Only if alien parents are permanently domiciled in the U.S. at the time of their children's birth in the U.S., among other specifically named facts, as Gray EXPLICITLY states in the WKA decision.
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