Canadian-born Ted Cruz says “facts are clear” he’s eligible to be president

http://trailblazersblog.dallasnews.com ^ | 07/21/2013

[Ira_Louvin]

Sen. Ted Cruz rejected questions Sunday over his eligibility to be president, saying that although he was born in Canada “the facts are clear” that he’s a U.S. citizen. “My mother was born in Wilmington, Delaware. She’s a U.S. citizen, so I’m a U.S. citizen by birth,” Cruz told ABC. “I’m not going to engage in a legal debate.” The Texas senator was born in Calgary, where his mother and father were working in the oil business. His father, Rafael Cruz, left Cuba in the 1950s to study at the University of Texas and subsequently became a naturalized citizen.

President Obama has been hounded by critics who contend he was born outside the U.S. and, therefore, ineligible to win the White House. Obama was born in Hawaii. But some Democratic critics have taken the same charge against Obama by so-called “birthers” and turned it against Cruz. The Supreme Court has not definitively ruled on presidential eligibility requirements. But a congressional study concludes that the constitutional requirement that a president be “a natural born citizen” includes those born abroad of one citizen parent who has met U.S. residency requirements.

“I can tell you where I was born and who my parents were. And then as a legal matter, others can worry about that. I’m not going to engage,” Cruz said in the interview with “This Week” on ABC.

[RegulatorCountry]

OK. Whatever you say, Hoss.

[DiogenesLamp]

Yep. there are a bunch of trolls on this thread. Cruz should expect this though. He is a threat to both elitist GOP and Dems. They are both going to come after him.

Yes, after five years of listening to turdburgers such as Jeff arguing that anyone born *IN* this country is a "natural born citizen" and therefore eligible to be President, it is now those people objecting to Jeff alleging a matrially foreign born person being "Natural born" who are the "trolls."

How about we just say that anyone who has ever MET an American is a "natural born citizen"? After all, if it doesn't achieve the purpose for which it was created, and it really has no discernible purpose, why should we bother with it?

[Eric in the Ozarks]

Neither one had a message like the Gipper did. RR got the crossover vote big time.
McCain and Romney were Donk lite.

I was in the coal business when Jimmah Cahtah was issued out of the White House. I can’t tell you how relieved we were.

Now we have the son Jimmah never had.

[Tau Food]

How about we just say that anyone who has ever MET an American is a "natural born citizen"?

If you can justify that standard to yourself as a voter, there isn't anything the rest of us can do about it except to try to persuade you that more is required. As a voter in a presidential election, you have a constitutional obligation to refrain from voting for a candidate who is not a NBC.

After all, if it doesn't achieve the purpose for which it was created, and it really has no discernible purpose, why should we bother with it?

Many of us would argue that the NBC does have a purpose as it, along with the 14 year residency requirement, prevents the selection of someone who has little or no connection or personal experience with the United States. Like I said, as a voter you are obliged to "bother" with these questions, but no one will imprison or fine you if you don't. We cannot have a republican government at all without some measure of trust.

I want to trust you. ;-)

[DiogenesLamp]

That's been covered in another post. The core reasoning of a case is binding precedent just as much as the final statement is. This is basic law, which is routinely ignored by DiogenesLamp whenever it suits him.

Yeah, it's basic law that took 14 English Judges nearly six years to figure out, and over 12 months for the "Wong" court to decipher, and that only after it had made the rounds through the other courts who couldn't seem to decipher it either.

Apparently that "basic" stuff is really complicated.

Ah, but in Minor v. Happersett, he picks out one or two sentences that don't even have to do with the case at hand, and argue that they "prove" his claim.

Yeah, like that Sentence in which Justice Waite explicitly states that the 14th amendment does not define "natural born citizen" and the meaning has to be obtained elsewhere.

Yeah, it's a crazy thought that five years after the 14th amendment, a judge might not notice it or something. What was the case about? THE 14TH AMENDMENT!

This is why it is POINTLESS to reason with you. You simply IGNORE anything you don't like.

So the conclusion is supposedly somehow invalid because the Supreme Court doesn't talk about the War of 1812?

I'm not even saying the Wong decision is wrong, it depends on the scope of interpretation. If it is construed to be an explicit interpretation of the 14th amendment it is arguably correct. If it is construed as being the equivalent of the 1787 "natural citizen" it is absolutely wrong.

Once again, the Waite court asserted that the 14th amendment doesn't define "natural born citizen." As for the war of 1812, you're d@mn right it should have been included in the court's research and commentary. It explicitly dealt with the issue of citizenship by people who KNEW THE TRUTH. People such as Bushrod Washington and Chief Justice John Marshall who EXPLICITLY noted that the best definition of citizenship was Vattel's definition.

Once again, I point out that My pair of Supreme Court Justices beat your English trained Lawyer. (So does the entire Supreme court of Pennsylvania.)

Note what we don't have here: Any analysis of the Court's reasoning in Wong.

No, we have evidence of extremely BAD reasoning on the part of the court which decided Wong. An impeachment of their competence is what we have.

The argument is basically, "They got it wrong with Plessy, so they must've gotten it wrong with Wong as well."

That is one argument. Another way of looking at it is that they decided there were distinctly different classes of citizens in Plessy, and they followed the exact same philosophy in Wong.

Wong was a "citizen" but not a "CITIZEN." Get it?

The same court that drew distinctions between citizens in Plessy, can be understood to have drawn distinctions in Wong by not including the words "natural born."

Wong was one of those "separate but equal" citizens, like Homer Plessy, according to the Wong court.

Oh. And this is from the exact same guy who has regularly tried to make his case by quoting one of the Justices in the most infamous decision in American history - the infamous Dred Scott case that ruled that Dred Scott was was "property" and not a "person," and that black people were not and could never become US citizens.

I'm the same guy who points out the UGLY truth whether you like it or not. The Tanney decision stood until overturned by the 14th amendment, and it is sh*theads like you who refuse to acknowledge truths you don't like. Beyond pointing out the case, I have no recollection of ever citing Tanney by quote. I'm not absolutely certain, but i'm pretty sure this is another Jeff Lie for which you need your ass beaten.

Remember how I asked you to explain the 14th amendment and you come back with that horsesh*t about Needing to pass another law which says the same thing as the existing law?

No @$$hole, the Civil rights act of 1866 and the 14th amendment were created for the EXPLICIT purpose of overturning the Dred Scott decision.

Furthermore, it's your impugning of my motives that make me want to beat the ever loving dog sh*t out of your lying deceitful @ss.

[DiogenesLamp]

Forgot to cc you my response to Jeff. See post above.

[DiogenesLamp]

This guy Slater is out to punk you.

Too late. They are already punks.

[DiogenesLamp]

That's because it isn't the opinion of the Supreme Court of Pennsylvania.

Anyone can click through to the book, read it, and see that that's the case.

Roberts wrote ABOUT the set of English statutes that the PA Supreme Court had identified as being still in force in the State. He conveniently included a copy of those statutes in his book, creating a reference work where lawyers could look up those statutes.

You contradict yourself with your very own words, and are too STUPID to realize it.

I've actually looked through the Statutes the Pennsylvania Supreme court Identified, and they DON'T include the statute which makes one a subject from having been born on English soil.

The ACTUAL report from the Supreme Court of Pennsylvania does NOT include the English version of "natural born subject." It doesn't included it because we Jettisoned it when we formed our own nation, but some ignorant and deliberately deceitful people such as Rawle, mislead others that we were following English law.

[DiogenesLamp]

This from the guy who uses as two of his major sources David Ramsay, who wasn't at the Constitutional Convention either, and whose views on citizenship were slapped down 36 to 1 by James Madison, half a dozen other Framers, and our first House.

Jeff, once again you are a LYING piece of sh*t. You DELIBERATELY misrepresent the vote to seat Williams as a referendum against Dr. Ramsey's scholarship (which even Madison himself Acknowledged) and you completely ignore Madison's argument regarding William Smith's Jus Sanguinus Heritage. William Smith HIMSELF quotes Vattel in presenting his case!

Madison simply points out that the GENERAL RULE in the absence of an explicit law, is to use the place of birth. He specifically notes that it is not the ONLY criteria. He also bemoans the fact that South Carolina did not have an explicit law defining citizenship,and if it had, it would have made the decision simple. Once again, NONE of this addresses the issue of "natural born citizen" as required of the Presidency.

You further ignore the fact that Under Madison, the US Ambassador to France (John Armstrong, who WAS a Member of Congress in 1787) EXPLICITLY rejected the claim that birth in the United States equaled citizenship. You likewise ignore Madison's letter to the Alexandria Herald explicitly stating that James McClure wasn't a citizen just because he was born in Charleston South Carolina.

"Publius", 1811 (Madison's Pen name when he wrote some of the Federalist papers.)

In other words, You ignore anything which puts the lie to your theory, and you twist anything you can into appearing to support your theory.

And Samuel Roberts, who not only wasn't a Constitutional Convention delegate, he didn't even have any known direct connection to any of the major Founders or Framers.

No, Samuel Roberts wasn't a constitutional Delegate, but William Lewis, who trained him, WAS a member of the Pennsylvania Legislature that ratified the Constitution. (James Wilson, invoked Vattel at the Ratification debate.)

Once again, Robert's credentials are better than Rawle's, who was EXPLICITLY trained in English law, and had no direct knowledge of the specific Deliberations of the founders except what he could glean from having had lunch with some of them.

Rawle was a close personal friend of both Washington and Franklin,

Big deal. Everyone in the Philadelphia legal circles of that time period knew each other. Martha Washington had Sex with George, but that didn't mean she learned anything.

met with them and other Founders for months in Philadelphia leading up to the Convention,

He met with them casually, and what could he have learned BEFORE they discussed article II, to which they added the "Natural born citizen" requirement late?

was asked to be US Attorney General by President Washington, was appointed US District Attorney for PA, and was one of our major early legal experts.

Yes, he succeeded William Lewis (you know, the guy who TRAINED Roberts) as United States Attorney for the District of Pennsylvania. Like I said, Lewis was a member of the Legislature that debated Ratifying the US Constitution, what was Rawle again? Private Lawyer at the time?

Once again, you attribute to Rawle God like knowledge and certainty without a qualm about his training or motivation. Once again, I will tell you that he attempted his "English Common Law Argument" on behalf of a slave for who's freedom he was suing, and the Supreme Court of Pennsylvania rejected his argument and found Unanimously against him.

He just waited till those Judges were dead to get the last laugh when he wrote his book.

[DiogenesLamp]

Cruz's view is the view of pretty much everybody in the entire legal world, including all significant conservative Constitutional foundations (Heritage Foundation, National Review, etc.) It is nothing novel.

And here is Jeff with his Bald Faced F***ing lie again.

Once more Jeff, the Heritage foundation, and many other conservative legal experts do not agree with you, but you f***ing lie and keep claiming EVERYONE agrees with you! In the past i've listed perhaps a dozen contemporary authorities who DO NOT AGREE WITH YOU, but you JUST KEEP LYING ABOUT THIS!!!!

From Feudalism to Consent : Rethinking Birthright Citizenship

By John C. Eastman(-John C. Eastman, Ph.D., is Professor of Law at Chapman University School of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence.)

It is today routinely believed that under the Citi­zenship Clause of the Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizen­ship. However strong this commonly believed inter­pretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate surrounding its adoption), but also with the political theory of the American Founding.

It is time for Congress to reassert its plenary authority and make clear, by resolution, its view that the "subject to the jurisdiction" phrase of the Citizen­ship Clause has meaning of fundamental importance to the naturalization policy of the nation.

The Original Understanding of the Citizenship Clause

The Citizenship Clause of the Fourteenth Amend­ment provides 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."[1] As manifest by the con­junctive "and," the clause mandates citizenship to those who meet both of the constitutional prerequi­sites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.

The widely held, though erroneous, view today is that any person entering the territory of the United States-even for a short visit; even illegally-is considered to have subjected himself to the juris­diction of the United States, which is to say, sub­jected himself to the laws of the United States. Surely one who is actually born in the United States is therefore "subject to the jurisdiction" of the United States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire "subject to the jurisdiction" clause redundant. Anyone who is "born" in the United States is, under this interpre­tation, necessarily "subject to the jurisdiction" of the United States. Yet it is a well-established doc­trine of legal interpretation that legal texts, includ­ing the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.[2]

The "subject to the jurisdiction" provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's par­ents, remained a citizen or subject of the parents' home country was not entitled to claim the birth­right citizenship provided by the 1866 Act.

The jurisdiction clause of the Fourteenth Amendment is somewhat different from the juris­diction clause of the 1866 Act, of course. The pos­itively phrased "subject to the jurisdiction" of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act, one more in line with the modern understanding. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.

When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" juris­diction, "[n]ot owing allegiance to anybody else."[4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[5] (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.[6]

The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court-by both the majority and the dis­senting justices-in The Slaughter-House Cases.[7] The majority in that case correctly noted that the "main purpose" of the clause "was to establish the citizenship of the negro" and that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."[8] Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Brad­ley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitu­tionality of the 1866 Civil Rights Act, which pro­vided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.[9]

Although the statement by the majority in Slaughter-House was dicta, the position regarding the "subject to the jurisdiction" language advanced there was subsequently adopted as holding by the Supreme Court in Elk v. Wilkins.[10] John Elk was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, renounced his former tribal allegiance, and claimed U.S. citizenship by virtue of the Citizen­ship Clause. This Court held that the claimant was not "subject to the jurisdiction" of the United States at birth, which required that he be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance."[11] Elk did not meet the jurisdictional test because, as a mem­ber of an Indian tribe at his birth, he "owed imme­diate allegiance to" his tribe and not to the United States. Although "Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states," "they were alien nations, distinct political communities," accord­ing to the Court.[12]

Drawing explicitly on the language of the 1866 Civil Rights Act, the Court continued:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.[13]

Indeed, if anything, American Indians, as mem­bers of tribes that were themselves dependent upon the United States (and hence themselves subject to its jurisdiction), had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals. But the Court in Elk rejected even that claim and in the process necessarily rejected the claim that the phrase, "subject to the jurisdiction" of the United States, meant merely territorial jurisdiction as opposed to complete, political jurisdiction.

Such was the interpretation of the Citizenship Clause initially given by the Supreme Court, and it was the correct interpretation. As Thomas Cooley noted in his treatise, "subject to the jurisdiction" of the United States "meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government."[14]

The Supreme Court's Wrong Turn in Wong Kim Ark

Despite the clear holding of Elk and the persua­sive dicta from Slaughter-House that mere birth on U.S. soil is not sufficient to meet the constitutional prerequisites for birthright citizenship, the Supreme Court held otherwise in United States v. Wong Kim Ark,[15] with expansive language even more broad than the holding of the case itself. It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after the adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since.

In Wong Kim Ark, Justice Horace Gray, writing for the Court, held that "a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and resi­dence in the United States," was, merely by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment.[16] Justice Gray cor­rectly noted that the language to the contrary in The Slaughter-House Cases was merely dicta and therefore not binding precedent.[17] He found the Slaughter-House dicta unpersuasive because of a subsequent decision, in which the author of the majority opinion in Slaughter-House had con­curred, holding that foreign consuls (unlike ambassadors) were "subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside."[18]

Justice Gray appears not to have appreciated the distinction between partial, territorial jurisdiction, which subjects all who are present within the terri­tory of a sovereign to the jurisdiction of that sover­eign's laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.

More troubling than his rejection of the persua­sive dicta from Slaughter-House, though, was the fact that Justice Gray also repudiated the actual holding in Elk, which he himself had authored. After quoting extensively from the opinion in Elk, including the portion, reprinted above, noting that the children of Indians owing allegiance to an Indian tribe were no more "subject to the jurisdic­tion" of the United States within the meaning of the Fourteenth Amendment than were the chil­dren of ambassadors and other public ministers of foreign nations born in the United States, Justice Gray simply held, without any analysis, that Elk "concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country."[19]

By limiting the "subject to the jurisdiction" clause to the children of diplomats, who neither owed alle­giance to the United States nor were (at least at the ambassadorial level) subject to its laws merely by virtue of their residence in the United States as the result of the long-established international law fic­tion of extraterritoriality by which the sovereignty of a diplomat is said to follow him wherever he goes, Justice Gray simply failed to appreciate what he seemed to have understood in Elk, namely, that there is a difference between territorial jurisdiction, on the one hand, and the more complete, alle­giance-obliging jurisdiction that the Fourteenth Amendment codified, on the other.

Justice Gray's failure even to address, much less appreciate, the distinction was taken to task by Justice Fuller, joined by Justice Harlan, in dissent. Drawing on an impressive array of legal scholars, from Vattel to Blackstone, Justice Fuller correctly noted that there was a distinction between the two sorts of allegiance-"the one, natural and perpet­ual; the other, local and temporary."[20] The Citizen­ship Clause of the Fourteenth Amendment referred only to the former, he contended. He noted that the absolute birthright citizenship urged by Justice Gray was really a lingering vestige of a feudalism that the Americans had rejected, implicitly at the time of the Revolution and explic­itly with the 1866 Civil Rights Act and the Four­teenth Amendment.[21]

Quite apart from the fact that Justice Fuller's dis­sent was logically compelled by the text and his­tory of the Citizenship Clause, Justice Gray's broad interpretation led him to make some astoundingly incorrect assertions. He claimed, for example, that "a stranger born, for so long as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason."[22] And he was compelled to recognize dual citizenship as a neces­sary implication of his position,[23] despite the fact that ever since the Naturalization Act of 1795, "applicants for naturalization were required to take, not simply an oath to support the constitu­tion of the United States, but of absolute renuncia­tion and abjuration of all allegiance and fidelity to every foreign prince or state, and particularly to the prince or state of which they were before the citizens or subjects."[24]

Finally, Justice Gray's position is incompatible with the notion of consent that underlay the sover­eign's power over naturalization. What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children merely by giving birth on American soil, whether or not their arrival on America's shores was legal or illegal, temporary or permanent.

Justice Gray stated that the children of only two classes of foreigner nationals were not entitled to the birthright citizenship he thought guaranteed by the Fourteenth Amendment.

First, as noted above, were the children of ambassadors and other foreign diplomats who, as the result of the fiction of extraterritoriality, were not even considered subject to the territorial juris­diction of the United States.

Second were the children of members of invad­ing armies who were born on U.S. soil while it was occupied by the foreign army. But apart from these two narrow exceptions, all children of foreign nationals who managed to be born on U.S. soil were, in Justice Gray's formulation, citizens of the United States. Children born of parents who had been offered permanent residence but were not yet citizens, and who as a result had not yet renounced their allegiance to their prior sovereign, would become citizens by birth on U.S. soil. This was true even if, as was the case in Wong Kim Ark itself, the parents were, by treaty, unable ever to become citizens.

Children of parents residing only temporarily in the United States on a student or work visa would also become U.S. citizens. Children of parents who had overstayed their temporary visas would like­wise become U.S. citizens, even though born of parents who were now in the United States ille­gally. And, perhaps most troubling from the "con­sent" rationale, even children of parents who never were in the United States legally would become citizens as the direct result of the illegal action by their parents. This would be true even if the par­ents were nationals of a regime at war with the United States and even if the parents were here to commit acts of sabotage against the United States, at least as long as the sabotage did not actually involve occupying a portion of the territory of the United States. The notion that the framers of the Fourteenth Amendment, when seeking to guaran­tee the right of citizenship to former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in its terri­tory illegally is simply too absurd to be a credible interpretation of the Citizenship Clause.

Although hard to sustain under the broad lan­guage used by Justice Gray, the actual holding of Wong Kim Ark is actually much more narrow, and the case need not be read so expansively as to pro­duce such absurd results. Because of the Chinese Exclusion Acts,[25] Wong Kim Ark's parents were ineligible for citizenship even if they had renounced their Chinese citizenship and subjected themselves to the exclusive jurisdiction of the United States. As such, Wong Kim Ark arguably would have been entitled to citizenship because, like his parents, he would in fact have been "sub­ject to the jurisdiction" of the United States in the complete, allegiance-obliging sense intended by the phrase.[26]

This is not to say that Congress could not, pur­suant to its naturalization power, choose to grant citizenship to the children of foreign nationals.[27] But thus far it has not done so. Instead, the lan­guage of the current naturalization statute simply tracks the minimum constitutional guarantee- anyone "born in the United States, and subject to the jurisdiction thereof," is a citizen.[28] Indeed, Congress has by its own actions with respect to Native Americans-both before and after this Court's decision in Wong Kim Ark-rejected the claim that the Citizenship Clause itself confers citi­zenship merely by accident of birth.[29] None of these citizenship acts would have been neces­sary-indeed, all would have been redundant- under the expansive view of the Citizenship Clause propounded by Justice Gray.

A Citizenship of Consent, not Feudal Allegiance

Once one considers the full import of Justice Gray's language in Wong Kim Ark, it becomes clear that his proposition is simply incompatible not only with the text of the Citizenship Clause, but with the political theory of the American Found­ing as well.

At its core, as articulated by Thomas Jefferson in the Declaration of Independence, that political theory posits the following: Governments are insti­tuted among particular peoples, comprised of nat­urally equal human beings, to secure for themselves certain unalienable rights. Such gov­ernments, in order to be legitimate, must be grounded in the consent of the governed-a nec­essary corollary to the self-evident proposition of equality.[30] This consent must be present, either explicitly or tacitly, not just in the formation of the government, but also in the ongoing decision whether to embrace others within the social com­pact of the particular people. As formulated in the Massachusetts Bill of Rights of 1780:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights…. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.[31]

Thus, as Professor Edward Erler has noted:

[T]he social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens-even those whose parents are in the United States illegally- then this would be tantamount to the conferral of citizenship without the consent of "the whole people."[32]

In other words, birthright citizenship is contrary to the principle of consent that is one of the bed­rock principles of the American regime.

Such a claim of birthright citizenship traces its roots not to the republicanism of the American Founding, grounded as it was in the consent of the governed, but to the feudalism of medieval England, grounded in the notion that a subject owed perpetual allegiance and fealty to his sover­eign.[33] A necessary corollary of the feudal notion of citizenship was the ban on expatriation, embraced by England and described by Blackstone as follows:

Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection…. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance…. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrence act of that prince to whom it was first due.[34]

Thus, when Congress passed as a companion to the Fourteenth Amendment the Expatriation Act of 1868, which provided simply that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happi­ness," it necessarily rejected the feudal birthright citizenship doctrine of medieval England as fun­damentally incompatible with the principles of the Declaration of Independence. As Representa­tive Woodward of Pennsylvania noted on the floor of the House of Representatives: "It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it."[35]

Such remnants of feudalism were rejected by our nation's Founders when they declared to a candid world that they no longer owed allegiance to the king of their birth. They were rejected again by the Congress in 1866 and by the nation when it ratified the Fourteenth Amendment.

Reviving Congress's Constitutional Power Over Naturalization

It is time for the courts, and for the political branches as well, to revisit Justice Gray's erroneous interpretation of the Citizenship Clause, restoring to the constitutional mandate what its drafters actually intended: that only a complete jurisdic­tion, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented.

Of course, Congress has in analogous contexts been hesitant to exercise its own constitutional authority to interpret the Constitution in ways contrary to the pronouncements of the courts. Even if that course is warranted in most situations so as to avoid a constitutional conflict with a co-equal branch of the government, it is not war­ranted here for at least two reasons.

First, as the Supreme Court itself has repeat­edly acknowledged, Congress's power over natu­ralization is "plenary," while "judicial power over immigration and naturalization is extremely lim­ited."[36] While that recognition of plenary power does not permit Congress to dip below the con­stitutional floor, it does counsel against any judi­cial interpretation that provides a broader grant of citizenship than is actually supported by the Constitution's text.

Second, the gloss that has been placed on the Wong Kim Ark decision is actually much broader than the actual holding of the case. Congress should therefore adopt a narrow reading of the decision that does not intrude on the plenary power of Congress in this area any more than the actual holding of the case requires. Wong Kim Ark's parents were actually in this country both legally and permanently, yet were barred from even pursuing citizenship (and renouncing their former allegiance) by a treaty that closed that door to all Chinese immigrants. They were therefore as fully subject to the jurisdiction of the United States as they were legally permitted to be, and under those circumstances, it is not a surprise that the Court would extend the Constitution's grant of birthright citizenship to their children. But the effort to read Wong Kim Ark more broadly than that, as interpreting the Citizenship Clause to con­fer birthright citizenship on the children of those not subject to the full and sovereign (as opposed to territorial) jurisdiction of the United States, not only ignores the text, history, and theory of the Citizenship Clause, but also permits the Court to intrude upon a plenary power assigned to Con­gress itself.

-John C. Eastman, Ph.D., is Professor of Law at Chapman University School of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence. This memorandum stems from an amicus brief filed by the Center for Constitutional Jurisprudence in support of respondents in Hamdi v. Rumsfeld.

STOP LYING Jeff!

[DiogenesLamp]

That doctrine almost never appeared between 1787 and 2008. On the few occasions when it did, it was slapped down by people who knew better.

You need to be "slapped down" by people who know better. You lie about this just like everything else.

There is no doubt whatsoever that some legal authorities believed we followed British Subject law, but the BEST authorities note that we follow "Natural Law" as articulated by Vattel's "Law of Nations."

The Confusion (which YOU REFUSE TO ACKNOWLEDGE) is the result of some honest misunderstandings, and People like RAWLE deliberately pushing the wrong meaning through the influence of the book he published.

The Supreme Court explicitly NOTED this confusion in their Minor v Happersett ruling.

Chief Justice Waite in 1875:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

[Jeff Winston]

That's been covered in another post. The core reasoning of a case is binding precedent just as much as the final statement is. This is basic law, which is routinely ignored by DiogenesLamp whenever it suits him.

Yeah, it's basic law that took 14 English Judges nearly six years to figure out, and over 12 months for the "Wong" court to decipher, and that only after it had made the rounds through the other courts who couldn't seem to decipher it either.

No. That the core reasoning of a case serves as precedent as well as the final proclamation is basic law.

Very basic, and only ignored by birthers. Apparently that "basic" stuff is really complicated.

As for the war of 1812, you're d@mn right it should have been included in the court's research and commentary. It explicitly dealt with the issue of citizenship by people who KNEW THE TRUTH.

Courts cite legal precedent, not wars.

People such as Bushrod Washington and Chief Justice John Marshall who EXPLICITLY noted that the best definition of citizenship was Vattel's definition.

They used Vattel in The Venus for his view on how to treat one's own citizens who were living in another country, which is a matter of international law. That was the purpose that Vattel was often cited for. Not the domestic definition of citizenship.

Once again, I point out that My pair of Supreme Court Justices beat your English trained Lawyer. (So does the entire Supreme court of Pennsylvania.)

If your pair of Supreme Court Justices had had anything to say about natural born citizenship, you might have a point. They didn't.

And of course you either twist the words of other Supreme Court Justices, like those in Wong, or completely ignore them, like Supreme Court Justice Sandra Day O'Connor, who said that it was CLEAR that Obama was a natural born citizen and eligible to the Presidency, because he was born in Hawaii.

No, we have evidence of extremely BAD reasoning on the part of the court which decided Wong. An impeachment of their competence is what we have.

Ah, yes. Do let me know when they make you Chief Justice. I'll buy you a bottle of cheap whiskey so you can celebrate, and let you drink yourself into the ditch.

That is one argument. Another way of looking at it is that they decided there were distinctly different classes of citizens in Plessy, and they followed the exact same philosophy in Wong.

Either way, the comment doesn't address the quality of the Court's reasoning in Wong.

Wong was a "citizen" but not a "CITIZEN." Get it?

Ah, yes. I get it.

Yes, yes. Quite so.

The same court that drew distinctions between citizens in Plessy, can be understood to have drawn distinctions in Wong by not including the words "natural born."

Except, of course, for the 34 times they did include the words "natural born."

Wong was one of those "separate but equal" citizens, like Homer Plessy, according to the Wong court.

Ah, yes. Well, it's a novel theory.

Except that the dissent correctly noted that the Opinion meant that Wong and every other US-born Chinerman was eligible to be elected President.

Well, well. What to do with that. So they decided Wong was a second-class citizen, but that wouldn't stop him from being elected President.

Yes, you do have a talent for novel legal theories.

Oh. And this is from the exact same guy who has regularly tried to make his case by quoting one of the Justices in the most infamous decision in American history - the infamous Dred Scott case that ruled that Dred Scott was was "property" and not a "person," and that black people were not and could never become US citizens.

I'm the same guy who points out the UGLY truth whether you like it or not. The Tanney decision stood until...

Can't have it both ways, Roscoe. Either I'm a bad man merely for citing a Supreme Court most of whom (not all) also adjudicated Plessy, as you say - which makes you a FAR WORSE, EVIL, DESPICABLE SCUMBAG of a man for directly trying to use the Dred Scott decision...

Or nothing. Or you way overreached again by being the pot that called the dandelion black, and you would do well to shut up while you're not as far behind as you might be.

No @$$hole, the Civil rights act of 1866 and the 14th amendment were created for the EXPLICIT purpose of overturning the Dred Scott decision.

Of course they were. But the sponsors also stated, quite clearly, that they considered they were simply affirming the law as it already was.

Obviously, they believed that the Supreme Court far overreached in the Dred Scott decision and that the Court itself was ignoring what US law really was.

Oh, did I mention... cough, cough... that you have previously appealed to that infamous decision?

Furthermore, it's your impugning of my motives that make me want to beat the ever loving dog sh*t out of your lying deceitful @ss.

Look, your promotion of clear, demonstrated fallacies and making of false claims has been demonstrated many, many times in the past.

There are literally dozens of these. And most of them are quite CLEAR.

What am I to conclude except that you're doing it on purpose? I simply can't believe you're unbalanced enough to actually believe all the fallacies you post.

[DiogenesLamp]

Then it sure is odd how you can't name one.

Up above, Just posted a few messages ago, your contention that the Heritage foundation completely supports you. Utter lie.

So is your contention that all other legal authorities agree with you. Another Utter lie.

And this is probably the third or forth time this has been explicitly pointed out to you by me, but you will come back and simply state your lie once again.

Next time you will come along and say again that you have never been wrong, or caught in a lie. The truth is simply not in you. You are a Liar, and a pathological one at that.

[DiogenesLamp]

Okay. So according to you, the famous Supreme Court Justice Joseph Story, James Bayard, John Seely Hart, George Bancroft (who founded the US Naval Academy), Henry Flanders, Edward Waterman Townsend, and Father of the Constitution James Madison were all "IDIOTs."

No you f***ing sh*thead, it's your CONTINUOUS, NEVER ENDING CLAIMS THAT THEY AGREE WITH YOU THAT IS IDIOTIC.

Story doesn't agree with you, Bayard doesn't agree with you, Madison doesn't agree with you, and the rest of your "authorities" are not significant enough to look up and find out whether they agree with you or not.

RAWLE, agrees with you, but i've figured out the cause of his deluded and deliberate misdirection.

You know who DOESN'T Agree with you?

Benjamin Franklin, John Adams, John Jay, John Armstrong, James Madison, James Monroe, Daniel Webster, George Washington, Bushrod Washington, William Lewis, James Wilson, John Marshall, Two US Supreme Courts, the ENTIRE Supreme Court of Pennsylvania, and a whole host of other authorities that make your pathetic "Authorities" look like step and fetch it water boys.

Once more, the "team" behind you is a bunch of Straw men.

Behold everyone! Jeff's "Authorities"!

Yeah, Jeff's got an entire army of "scare crow" "authorities." It's okay though, he puts words in their mouths and claims that they agree with him.

[DiogenesLamp]

Also apparently according to Senator Jacob Howard, who, when he introduced the amendment to the Senate, said "This amendment which I have offered is simply declaratory of what I regard as the law of the land already."

Which is a perfectly reasonable thing to say if you believe that the "law of the land" already excludes people born to foreigners, as citizens.

Senator Jacob Howard, in 1866:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

And what piece of Legislation was it to which he was referring when he offered that clarification? It was this one, the Civil rights act of 1866.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;

Any suggestion that Senator Howard intended to grant citizenship to "anchor babies" is an intentional misrepresentation of his meaning. His focus, and the focus of the entire congress of that era, was to insure citizenship and protection for newly freed slaves.

The reason most of these historical references to people born to foreigners are casually is because nobody at that time BELIEVED ANYONE WAS STUPID ENOUGH TO DO THAT!

[Jeff Winston]

No you f***ing sh*thead, it's your CONTINUOUS, NEVER ENDING CLAIMS THAT THEY AGREE WITH YOU THAT IS IDIOTIC.

Jim, I am wondering how long we here at FreeRepublic have to continue to put up with the abuse of this poster.

[DiogenesLamp]

That is a foolish argument. The United States does INDEED restrict emigration of people in certain industries which it regards as a strategic interest. In Vattel's time they were called "Mechanics". Today we call them Engineers and Scientists.

The United States follows this principal of Vattel.

[DiogenesLamp]

Right. Your mind’s made up, and you aren’t interested in facts. Got it.

[Red Steel]

From the NY Times in 1874. The intent behind the 14th Amendment from the House Comittee on Foreign Relations. Justice Gray disregarded the intent and meaning of the 14th Amendment: