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.
Help me understand something here.
The three of you vehemently argue that virtually anyone is a natural born citizen if one of the parents is American, regardless of where they were born. Do I have that correct?
If the definition of natural born citizen is born in the country of two citizen parents, a condition that in no way allows other countries to have ANY claims whatsoever on this type of citizen, why are you not only supporting but actively trying to convince others of a definition that allows virtually anyone with one American parent (regardless of place of birth) to be eligible to be President and in charge of our military, given the fact that the other parent’s country (or the country of birth) has legal claims and or jurisdiction over that person?
Why would you not want the most restrictive (conservative) definition?
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?
Your support of any other definition of natural born Citizen as born in the country to citizen parents, weakens America. It does not strengthen it.
What is your end game here?
I can't speak for others, but my "end game" is this.
The Constitution is sacred. Don't claim that it says BS that it doesn't say. And if you do, don't pretend to be a "conservative," because conservatives don't misrepresent the Founding Fathers and our Constitution.
Our laws are sacred too. I'm not very tolerant of people propagandizing that the law says such-and-such when it says no such thing.
If you want to change the Constitution, fine. Our Founding Fathers and Framers gave us a process to do that.
But don't misrepresent what it says, and try to con our fellow conservatives into believing stuff that just isn't true.
How can we possibly expect others to respect the Constitution if people posing as "conservatives" don't? How can we possibly expect truth in our society if we don't uphold the truth?
Aside from which, those people are making conservatives look like idiots. I don't appreciate that.
That's it.
I will add that I am completely mystified as to what birthers think they will accomplish, can accomplish, or are even trying to accomplish.
Because it’s all BS. There’s not the SLIGHTEST chance that any court, or any major legal authority, or even any major conservative Constitutional organization, is EVER going to adopt their “definition” for natural born citizen.
Because that’s not what it means, and it’s not what it has EVER meant.
So there’s no possible way for them to EVER win in the courts. There’s no possible way for them to EVER get any major legal authority or Constitutional organization on their side.
All they can do is mislead people.
And I’m completely convinced that some of the people pushing this Constitutional BS are completely aware that it IS BS. I don’t see how they could fail to be.
They just want to con people. I don’t understand that.
“...why are you not only supporting but actively trying to convince others of a definition that allows virtually anyone with one American parent (regardless of place of birth) to be eligible to be President and in charge of our military, given the fact that the other parent’s country (or the country of birth) has legal claims and or jurisdiction over that person?”
Because that was the original meaning of the term. Beyond any reasonable doubt, the meaning of natural born citizen was the same as natural born subject, only changing the final descriptor. And that definition, without any doubt, included those born in the realm to aliens.
There is SOME question if the statues passed by Parliament had any bearing. But the standard legal reference of the time, Blackstone, included those born overseas to British parents as natural born subjects. So that is reasonably the meaning as understood by the writers, and by the legislators voting to ratify it.
Remember, there is only ONE distinction between a NATURALIZED citizen and one born a citizen - the latter can be President. Since every other office was open to naturalized citizens, and since the original draft would have allowed naturalized citizens to be President, and since naturalized citizens who were alive when the Constitution was ratified were allowed...it really seems to me the intent was to prevent a naturalized citizen from moving to America, being naturalized, and then made President.
This all has NOTHING to do with loyalty. The idea that Hillary Clinton and the Rev Wright are loyal, freedom-loving Americans, and Ted Cruz is an untrustworthy American-wannabe who doesn’t love America as much as Hillary Clinton is INSANE.
The problem with Obama is Obama’s VALUES, not his parentage. The problem with Hillary is that she is a liberal bitch who hates America and wants to drag us into the gutter.
If you think being a citizen born to two citizen parents guarantees ANYTHING, listen to a Rev Wright sermon and get back with me!
Why do YOU believe Hillary Clinton would be a better President and more loyal American than Ted Cruz?!!!!!!
I concur.
That even bears repeating.
Because that was the original meaning of the term. Beyond any reasonable doubt, the meaning of natural born citizen was the same as natural born subject, only changing the final descriptor. And that definition, without any doubt, included those born in the realm to aliens.
There is SOME question if the statues passed by Parliament had any bearing. But the standard legal reference of the time, Blackstone, included those born overseas to British parents as natural born subjects. So that is reasonably the meaning as understood by the writers, and by the legislators voting to ratify it.
Implication: Ted Cruz is eligible to be President.
Remember, there is only ONE distinction between a NATURALIZED citizen and one born a citizen - the latter can be President. Since every other office was open to naturalized citizens, and since the original draft would have allowed naturalized citizens to be President, and since naturalized citizens who were alive when the Constitution was ratified were allowed...it really seems to me the intent was to prevent a naturalized citizen from moving to America, being naturalized, and then made President.
Absolutely. Particularly, members of British or European royalty.
Why do YOU believe Hillary Clinton would be a better President and more loyal American than Ted Cruz?!!!!!!
It seems to me that in a great many instances, immigrants and their children have a greater appreciation for our country, and a greater loyalty to our nation, than some of the natives do. Because they know what the alternative is.
And that's not an argument that immigrants should be eligible to be President. I wouldn't be in favor of that change. I am in favor of having the President be born a citizen. But I certainly wouldn't hesitate to vote for someone like Ted Cruz, as long as he has the right head on his shoulders.
There is NO question regarding acts of Parliament, THEY ARE IRRELEVANT! See U.S. Const. art. VI, cl. 2.
"any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." got that? State reception clauses or statutes are the not supreme Law of the Land: only the Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, are the supreme Law of the Land.
There is no clause in the United States Constitution which incorporates acts of the Parliament of England/Great Britain into United States law.
There is no clause in the United States Constitution which incorporates the "common law" of England/Great Britain into United States law.
There is no clause in the United States Constitution which grants to the Federal Judiciary the authority to incorporate other systems of laws of its own choosing.
There is no Act of Congress which incorporates acts of the Parliament of England/Great Britain into United States law.
There is no Act of Congress which incorporates the “common law” of England/Great Britain into United States law.
Please stop reacting and think about the logical argument. If Parliament had authority to expand the meaning of natural born subject beyond the original meaning, to include those born to parents living outside the realm, and that authority was accepted as normal by the Founders...
THEN when they wrote “natural born citizen”, their understanding of what it meant would include that Congress (the functional equivalent of Parliament) could set the terms for who was considered a NBC.
I am NOT saying the Acts of Parliament govern our law. How those acts, however, affected the understood meaning of natural born subject WOULD influence what the Founders and Ratifiers MEANT when they used the phrase “natural born citizen”.
Since the most authoritative legal dictionary of the day said Parliament COULD expand the definition of NBS, then it is reasonable to assume that NBC could also be expanded in definition by Congress.
Please do not take partial sentences out of context. I have never said Parliament passes acts that bind the USA. But if the Founders believed Parliament could expand on the definition of NBS, then in the absence of any other evidence, it is reasonable to assume Congress can expand the definition of NBC beyond the one every legal analysis has for NBS - born within the borders, but not including those born to ambassadors, invading armies, or property (slaves) or embedded nations (Indians).
There has never been a formal ruling by the US Supreme Court on this. However, the decision on WKA in 1898 certainly supports it. If Cruz runs, there MAY be a US Supreme Court ruling. My guess, however, is that the courts would leave it with Congress, and Congress would say Ted Cruz was born a citizen and thus is a NBC. And since CONGRESS gets to decide if the Electoral votes count, THEY are the ones who will decide.
Congress has no such authority.
It seems the Founders and Ratifiers may well have disagreed with your assessment. If they all believed Parliament could do it for NBS, then they likely believed Congress could for NBC.
Notice that "jurisdiction" is political not territorial.
Gray misinterpreted the jurisdiction clause of the 14th Amendment applying it in a territorial rather than political sense, substituting domicile of the parents for citizenship of the parents.
The result of this broadened interpretation was that the children of aliens became citizens, which is a judicial novelty contrary to law.
Prior to WKA there were two kinds of citizenship: native or natural born, and naturalized. Subsequent to WKA this is no longer true.
The court created a distinction where none had existed. It severed "native born citizen" from "natural born citizen".
Subsequent to WKA there are three kinds of citizenship: native born, natural born, and naturalized.
It seems all you offer is an unsupported opinion.
US v. Wong Kim Ark (1898):
[An alien parent’s] “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject.’”
“’Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries,
’subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”
“…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 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.”
When you combine the ruling above with the 14th Amendment’s citizenship clause: “ALL (not some, not everyone except presidents and vice-presidents but 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.” Then you have the legal, Constitutional and historical/traditional basis for my point of view as a conservative who supports the Constitution, the law of the land and traditional precedent.
My end game is to have the strongest conservative candidate with the best chance to win run against the Democratic nominee in 2016. If that candidate happens to be Ted Cruz, so be it. If it happens to be Rand Paul or someone else, I’m fine with that too.
I know of very few Americans of any political leaning who would judge a candidate by their parents’ place of birth. One American born parent is good enough for me. I judge the candidate, not the family history.
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”—James Madison, Founder, Framer, President and “Father of the Constitution”
The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State."
Gray is citing State v. Manuel, an 1838 case before the North Carolina Supreme Court.
The following is the first portion of the paragraph containing the sentence cited:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan's Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens - and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State." Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: "The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law."
It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method. The founding principle of the federal government is "the law of nature and nature's god", as such it differs from the states. The cited sentence is inapplicable to the federal government.
I don’t mind if Cruz remains in the Senate for the next 24 years.
Tch tch mon adversaire. The topic is "natural born citizen"
There are only two types of citizens: born and naturalized. Born citizens can be president, naturalized citizens cannot.
There is no difference between a Citizen of the United States At Birth and a Natural Born Citizen.
“Citizenship is membership in a political society, and implies the reciprocal obligations as compensation for each other of a duty of allegiance on the part of the member and a duty of protection on the part of the society.
Under the Constitution of the United States, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.” —Luria v. United States, 231 U. S. 9 (1913)
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”—Elk v. Wilkens, 112 U. S. 94 (1884)
You have done an amazing job of completely screwing up what was written in WKA.
“The result of this broadened interpretation was that the children of aliens became citizens, which is a judicial novelty contrary to law.”
So novel it was completely accepted prior to WKA. That is why WKA was NOT the first son of Chinese parents whose citizenship was challenged but then ruled a US citizen. Nor did WKA in any way sever native born from natural born.
WKA did not, in any way, say what you claim. For anyone who doubts, here is a link to the actual decision:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
As discussed in the original WKA decision (District Court, N.D. California, 71 F. 382; 1896):
“The fourteenth amendment to the constitution of the United States must be controlling upon the question presented for decision in this matter, irrespective of what the common-law or international doctrine is. But the interpretation thereof is undoubtedly confused and complicated by the existence of these two doctrines, in view of the ambiguous and uncertain meaning of the qualifying phrase, “subject to the jurisdiction thereof,” which renders it a debatable question as to which rule the provision was intended to declare. Whatever of doubt there may be is with respect to the interpretation of that phrase. Does it mean “subject to the laws of the United States,” comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws; or does it [**12] signify, “to be subject to the political jurisdiction of the United States,” in the sense that is contended for on the part of the government?
This question was ably and thoroughly considered in Re Look Tin Sing, supra, where it was held that it meant subject to the laws of the United States. Mr. Justice Field, sitting as circuit judge, delivered the opinion, which was concurred in by Judges Sawyer and Sabin. There is a [*387] note to the opinion, stating that “Judge Hoffman did not sit on the hearing of this case, but he was on the bench when the opinion was delivered, and concurred in the views expressed.” The opinion discusses and decides the precise question involved in the case at bar. There, as here, a person of Chinese descent, born in the United States, but whose parents had always been subjects of the emperor of China, claimed the right to land in the United States by virtue of his right as a citizen thereof, and, as such citizen, to be unaffected by any of the Chinese exclusion acts. The court held that, although born here of parents who were subjects of the emperor of China, he was a citizen within the meaning of the fourteenth amendment; and that, though he was [**13] without the certificate required by the Chinese exclusion acts of 1882 or of 1884, being a citizen, he could not be prevented from returning to his country. The similarity of the essential facts between that case and the one at bar is obvious from the recital contained in the opinion, which is as follows:
“The petitioner belongs to the Chinese race, but he was born in Mendocino, in the state of California, in 1870. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884), and now seeks to land, claiming the right to do so as a natural-born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino, in California, and have resided there for the last twenty years; that they are of the Chinese race, and have always been subjects of the emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the emperor of China. The petitioner is without any certificate under the act of 1882 or of 1884, [**14] and the district attorney of the United States, intervening for the government, objects to his landing, for the want of such certificate.”
The learned justice then continues:
The first section of the fourteenth amendment to the constitution declares 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.’ This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words ‘subject to the jurisdiction thereof.’ They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of [**15] foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This extraterritoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection [*388] with the country. The United States recognized the right of every one to expatriate himself and choose another country.”
“With this explanation of the meaning of the words in the fourteenth amendment, ‘subject to the jurisdiction thereof,’ it is [**16] evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship; and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.”
After adverting to the objects of the citizenship clause of the fourteenth amendment, and to the fact that one of the purposes of its enactment was to overturn the doctrine enunciated in the Dred Scott Case, the opinion continues:
“Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship.
This subject was elaborately considered by Assistant Vice Chancellor Sandford in Lynch v. Clarke, found in the first volume of his reports (1 Sandf. Ch. 583). In that case one Julia Lynch, born in New York, in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the [**17] United States. After an exhaustive examination of the law, the vice chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind.
In illustration of this general understanding, he mentions the fact that when, at an election, an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners; it is enough that he was born here, whatever was the status of his parents.
He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the states, and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general [**18] understanding of the profession and of the public.”
The opinion concludes as follows:
“As to the position of the district attorney that the restriction act prevents the re-entry of the petitioner into the United States, even if he be a citizen, only a word is necessary. * * * Being a citizen, HN4the law could not intend that he should ever look to the government of a foreign country for permission to return to the United States, and no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws, and beyond the power of congress. The petitioner must be allowed to land, and it is so ordered.”
In 1892, the question was again passed upon; this time by the circuit court of appeals for this circuit (Ninth), in the case of Gee Fook Sing v. U.S., supra. Gee Fook Sing, the appellant, had sued for a writ of habeas corpus in the court below (district court for the Northern district of California), claiming that he was illegally restrained of his liberty, and imprisoned on board the steamship Belgic, at the port of San Francisco, by the master of the vessel, on the ground that he was a Chinese person prohibited by law from [**19] entering into this country.
The appellant contended that he was a citizen [*389] of this country, and was not prohibited, therefore, from entering into the United States. The lower court found, upon the evidence adduced, that Gee Fook Sing had not established to its satisfaction that he had been born here, and remanded him. This judgment was affirmed by the circuit court of appeals. The court was composed of Judges Deady, Hanford, and Hawley, and the opinion was delivered by Judge Hanford. The case was submitted upon the record, without argument. In the course of the opinion, which was quite short, the court simply stated its conclusions upon the identical question presented here for decision, as follows:
“We have considered all the questions of law and fact which we find involved, and our conclusions are that, inasmuch as the fourteenth amendment to the constitution of the United States declares that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside, the laws excluding emigrants who are Chinese laborers are inapplicable to a person born in this country and subject to the [**20] jurisdiction of its government, even though his parents were not citizens, nor entitled to become citizens under the laws providing for the naturalization of aliens; that any person alleging himself to be a citizen of the United States, and desiring to return to his country from a foreign land, and that he is prevented from doing so without due process of law, and who on that ground applies to any United States court for a writ of habeas corpus, is entitled to have a hearing and a judicial determination of the facts so alleged, and that no act of congress can be understood or construed as a bar to such hearing and judicial determination.”
The authority of In re Look Tin Sing is not referred to by the court, nor, in fact, are any authorities cited, or a discussion of the question indulged in; but it is safe to assume that Mr. Justice Field’s decision was considered and followed. In 1888, Judge Deady, sitting in the circuit court for the district of Oregon, reached the same conclusion in the case of In re Chin King, 13 Sawy. 333, 35 Fed. 354. He cites In re Look Tin Sing, supra, and Lynch v. Clarke, supra, and holds that the citizenship clause of the fourteenth amendment is but declaratory [**21] of the common-law doctrine. See, also, In re Yung Sing Hee, 36 Fed. 437.
It is clear that these decisions, — the one rendered in the circuit court of appeals and the other rendered in the circuit court of this district, — determining, as they do, the identical question involved in the case at bar, are conclusive and controlling upon this court, unless the supreme court of the United States has directly and authoritatively, and not by way of dictum, announced and laid down a doctrine at variance with that expounded in the cases in this circuit.”
THEN when they wrote “natural born citizen”, their understanding of what it meant would include that Congress (the functional equivalent of Parliament) could set the terms for who was considered a NBC.
I am NOT saying the Acts of Parliament govern our law. How those acts, however, affected the understood meaning of natural born subject WOULD influence what the Founders and Ratifiers MEANT when they used the phrase “natural born citizen”.
Since the most authoritative legal dictionary of the day said Parliament COULD expand the definition of NBS, then it is reasonable to assume that NBC could also be expanded in definition by Congress.
I think there is extremely good reason to believe that the Framers of the Constitution did in fact believe that Congress had the ability to specify who, in addition to those born on US soil, was a natural born citizen.
First, you've noted the historical precedent.
But beyond that... our First Congress CLEARLY SPECIFIED that the children born overseas to US citizens were to be considered natural born citizens.
And who was in our First Congress?
39 delegates to the Convention signed the Constitution.
6 of those were in our first House.
9 of them - William Samuel Johnson, Richard Bassett, George Read, William Few, John Langdon, William Paterson, Rufus King, Robert Morris, and Pierce Butler - were in our first Senate.
And 1 of them - Washington - was our first President.
So a good 40% of those who signed the Constitution were in on the approval of that 1790 Act, and the provision that specified that children born abroad to US citizens were natural born citizens doesn't seem to have been controversial at all.
The 6 Signers represented only about 10% of the House, but the 9 Signers in the Senate made up more than a third of that body.
And of course, President Washington signed the bill into law on March 26, 1790.
So 40% of those who signed the Constitution were in on naming children born abroad of US citizens as "natural born citizens." Obviously, they must have believed that Congress had the power to specify that, or somebody would have objected.
I also believe I recall reading in the debates of the First Congress that someone DID object to some measure that they thought Congress didn't have the authority to legislate. Not 100% certain it was the First Congress, but I'm fairly sure it was.
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