A Simple-Minded Reading of the Constitution on the Subject of Citizenship

vanity | 1/16/2016 | Self

[John Valentine]

I shall show that the Constitution contemplates two types of Citizen: those that acquire their citizenship at birth and those who acquire their Citizenship at a later time. The first are referred to in the Constitution as 'natural born' and the second is a class of citizen not specifically named but implied and are those we consider 'naturalized citizens.'

The word 'citizen' including derivative forms appears only eleven times in the Constitution. We shall look at each instance and derive what is possible from each usage and instance. By the end, I hope to have exhaustively shown that within the 'four corners' of the Constitution, two and only two types or classes of citizen are identified or implied: citizens by birth and citizens by naturalization. There is no third subset of citizen to be differentiated from among the two classes of citizen identified or implied in the Constitution.

 

Instance 1: Article I, Section 2, Clause 2

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

This clause establishes three requirements for eligibility to membership in the Untied States House of Representative. They are:

1.     Age of at least 25 years

2.     A citizen of the United States for at least 7 years

3.     An inhabitant of the state from which elected

Notice, please, that the citizenship requirement requires fewer years than does the age requirement. This fact requires acceptance of the notion that an individual can become a citizen at some time long after being born, and implies things about citizenship: first that individuals can be citizens, and second that there can be a time in the life of the individual before the individual became a citizen.

This is important: there is nothing in this clause that says or implies anything about citizenship by birth.

 

Instance 2: Article I, Section 2, Clause 3

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

This clause establishes three requirements for eligibility to membership in the Untied States Senate. They are:

1.     Age of at least 30 years

2.     A citizen of the United States for at least 9 years

3.     An inhabitant of the state from which elected

Notice, please, that the citizenship requirement again requires fewer years than does the age requirement. This fact requires acceptance of the notion that an individual can become a citizen at some time long after being born, and implies things about citizenship: first that individuals can be citizens, and second that there can be a time in the life of the individual before the individual became a citizen.

This is important: there is nothing in this clause that says or implies anything about citizenship by birth.

 

Instances 3 and 4: Article II, Section 1, Clause 5

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

This clause establishes three requirements for eligibility for service as President of the Untied States. They are:

1.     Age of at least 35 years

2.     A natural born citizen of the United States or a Citizen of the United States, at the time of the Adoption of this Constitution

3.     Resident within the United States for at least 14 years

Notice here that a different citizenship requirement is established: in fact, two alternative requirements. We need not concern ourselves with the second, which concerns the Framer's generation and has no application to anyone alive today.

As to the first we see that the citizenship requirement has no specific requirement for its duration. Instead, it refers to a citizenship deriving from the circumstances of birth.

This is a distinctly different citizenship requirement than those for the House of Representatives or Senate. The citizenship requirements for the House of Representatives and Senate could encompass the same class of citizen contemplated by the requirement for Presidential eligibility. We do know that historically individuals have served both in the Senate and as President so the requirements cannot be mutually exclusive.

Logically, we can conclude that the citizenship requirement for eligibility to the Presidency would also be sufficient to establish eligibility for the House of Representatives and Senate.

Thus far there are two classes of citizen established or implied by the language of the Constitution: (1) a class of citizen (natural born) which is derived by the circumstances of birth and which suffices to establish the citizenship component for eligibility for membership in the House of Representatives and Senate, and for service as President, and (2) another class of citizenship which does not depend on the circumstances of birth and can be acquired many years after the birth of an individual and which suffices to establish the citizenship component for eligibility for membership in the House of Representatives and Senate, but not for service as President.

For clarity, going forward I will refer to these two classes of citizen as follows:

As to the first class, these are 'natural born'

As to the second class, these are 'naturalized'

This is important: Thus far there is no third class of citizenship discussed, implied or established within the four corners of the Constitution.

 

Instances 5, 6, 7, 8 and 9: Article III, Section 2, Clause 5

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States,— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This clause does not establish a further class of citizen. As for the first four instances mentioned in this clause, these by implication refer to the classes of citizen mentioned in Article 1, Section 2, Clause 2 and in Article 1, Section 2, Clause 3; that is, those mentioned above as natural born or naturalized. As for the fifth instance, this refers to a citizens of a foreign State and therefore not relevant to this discussion.

This is important: Nothing in this clause references or establishes a third class of citizenship.

 

 

Instances 10 and 11: Article IV, Section 2, Clause 1

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This clause, too, does not establish a further class of citizen, and the two instances mentioned in this clause, by implication refer to the classes of citizen mentioned in Article 1, Section 2, Clause 2 and in Article 1, Section 2, Clause 3; that is those mentioned above as natural born or naturalized.

 

Thus we have exhausted every mention of the word citizen and all its derivative forms, plural, etc. that are found in the Constitution of the United States.

It is demonstrated that there are only two classes of citizen established within the Articles, Sections and Clauses of the Constitution.

These classes are:

1.     natural born

2.     naturalized

All citizens must belong to one of these classes. If a citizen is not naturalized only one other possibility has been identified: natural born. All citizens are either naturalized or natural born; there is not other possibility.

Obviously, this analysis will categorize any citizen acquiring citizenship by birth as natural born. Some argue that only SOME citizens acquiring citizenship by birth are to be classed as natural born. They claim that other citizens acquiring citizenship by the circumstances of their birth are a subset of naturalized citizen.

But, all such arguments must be based on suppositions, presumptions and hypotheses that are extraneous to the Constitution itself, for as I have exhaustively shown, the Constitution itself creates no such category of citizen.

I also submit that unless the Constitution is inherently impossible of interpretation or understanding based on its own terms, such extraneous references must not be permitted, or may sometimes be permitted with little weight as set against the Constitution’s own clear provisions.

I submit that all the fevered and tortured bending and twisting, and all the references to this and that while perhaps entertaining are essentially nothing more than a diversion.

The Constitution itself is clear. It establishes two classes of citizen; those that have become citizens through the process of naturalization, and those who are citizens by birth, that is the natural born citizens.

There is no third class of citizen.

[Hang'emAll]

Do you believe the framers knew the difference between Natural Born and Native Born?

Well, Vattel did in 1758.

His work said

The natives, or natural-born citizens, are those born in the country, of parents who are citizens.

[Cboldt]

Bingham's words were carefully chosen, and work in the negative. Parents not owing allegiance to another. This resolves the anchor baby question opposite the way Wong Kim Ark does.

At any rate, the citizenship framework of old does make sense. It's not easy to get a handle on, like rules of inheritance (legal terms of art in wills) are tricky. About 20% of law students "get it" on the inheritance system. citizenship is easier, but there are still a few pieces to put together, and citizenship also has an inter-generational aspect (jus sanguinas).

It took me awhile to come to what I think is a clear understanding. And once there, it makes perfect sense.

Rearranging the analytical framework results in confusion and error. And there is no shortage of people who operate (sometimes subconsciously) on an "desired outcome determines the rule" basis.

[Robert DeLong]

Even if Ted's mother had retained her American citizenship, the question has never been answered as to which parent "natural born" status emanates from, the father, the mother, or must it be both. Back in the days when the Constitution was created, it was the father's citizenship that received overriding consideration.

Now if the courts refuse to hear the case(s), as they did with Obama, then he gets a pass and is deemed eligible. However, it also means that the question of what the original intent of "natural born" actually means, remains unresolved.

Had Obama not come forth with an Hawaiian birth certificate, fake as it was, would the courts have remained silent on the subject? I suggest that the would not have. Of course we know that Cruz was not born in the United States. Will this fact compel the courts to take the case? At this point no one knows, which is why the challenges will be forth coming without a doubt. It is not a settled case as Ted Cruz and others currently claim.

[Cboldt]

I assume Ted's mother was a US citizen. I might be wrong, maybe she became Canadian, but all the evidence points the other way. Conspiracy theory will always be around, but this is one alley I reject, and won't participate in.

I don't think the courts will take the case, and I think they don't have to. The doubt is enough to sink Cruz. There is no need for a definitive answer. If the people have doubts, then the candidate is damaged goods.

Obama's case is different. The anchor baby cases are different. The public more or less accepts that, while not liking it, and the courts are biased to liberally grant rights.

As to "which parent" controls, either. For Cruz, citizenship and residence of the mother matter, and the father is irrelevant. That is a statutory issue, and delivers naturalized citizenship.

[so_real]

Thank you, EternalVigilance.

"The Constitution leaves no room for doubt on this subject."

Exactly!

[Cboldt]

I notice that I didn't respond to your "what makes NBC", one or both parents?

At the time of the founding, as you notice, citizenship of a couple tracked citizenship of the father, so one could figure out NBC by either looking at the couple, or at the father.

These days, with the family structure disintegrating, who knows. I think it would take a few hypothetical examples to figure out a "just" rule. Intuitively, I'd look at the parent who raised the child.

[Robert DeLong]

What you, I, or Cruz think is irrelevant if the courts do indeed inject themselves.

[Robert DeLong]

Well in this case they both raised Ted, so that does not help clarify. Like I said, this case is not settled. Will the courts take it up? No one knows, however, it would not surprise me if they did.

[Cboldt]

-- What you, I, or Cruz think is irrelevant if the courts do indeed inject themselves. --

It's irrelevant to the outcome "as a matter of law," I agree with that.

If he's found eligible, some voters will reject the SCOTUS holding, and withhold voting for Cruz. He's damaged to some extent, no matter what.

And if he's ruled eligible, SCOTUS is going to have students of the law looking at the decision as a pivot point, like Wickard v. Filburn is a pivot point. A reversal of the rule stated in every case that came before.

[Cboldt]

I think the courts will dodge it. No matter which way they rule, it hurts them. I would be shocked if they took it.

If they took it up and followed precedent, Cruz is naturalized. That is easy to see, to a person who has studied the precedents. It's by far the clearest, easiest case I've ever studied. This is settled law. Against Cruz.

[EternalVigilance]

Those who think Cruz is qualified should be asked if they think they know more about the subject than the author of the Fourteenth Amendment.

[Robert DeLong]

No I do not see him as damaged goods for sure, but you may be correct about others. However, I believe that is most likely because they support another candidate already anyway.

[Robert DeLong]

I know of no precedent. Which one are you referring too?

[Ray76]

> His citizenship was acquired at birth. It may or may not be recognized by statute, but statute did not create it.

Why would Congress pass an act to confer an extant status? Moreover, why would Congress, at various points in history, pass acts conferring in the same circumstance differing statuses: “natural born citizen”, “citizen”, not a citizen at all, or citizenship subject to revocation, if the Congressional act was a recognition rather than a grant?

These acts are not an acknowledgement of an extant status but a granting of a status. These acts are naturalization acts.

[Cboldt]

Rogers v. Bellei, 401 U.S. 815 (1971).

I summarized it at A Simple-Minded Reading of the Constitution on the Subject of Citizenship: Post 64, and invite corrections to the summary. I've summarized it in numerous other posts on FR, never in exactly the same words (except the blockquotes are exact cut/paste), and in that thread, have been challenged on my application, see post 165, the post it is a reply to, and following. That discussion remains unresolved, awaiting substantive response from BuckeyeTexan.

[Cboldt]

-- No I do not see him as damaged goods for sure, but you may be correct about others. --

Yea, sorry. I didn't mean everybody would see him as unqualified. Just that some would, and the fact that some would is the extent of the damage.

It's beyond my power to put my sense in your head. You have complete control of that!

[Ray76]

> foreign born American children have not always required what we now think of as naturalization. The most obvious example is the 1790 Naturalization Act.

Note well the title of the 1790 Act “An Act to establish an uniform Rule of Naturalization”, the title of the 1795 Act: “An Act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject.” Both are explicitly stated to be naturalization acts, the each confer a status upon persons.

The act in force at the time of birth controls. The status conferred by the act in force in 1970 is “citizen”. The original grant required the child to come to the United States prior to attaining the age of 23 years and remain there for 5 years or the grant of citizenship was revoked.

The foreign born American children have always required naturalization or they were not citizens. To illustrate, a child born to a U.S. citizen mother in 1874 in Oxfordshire, England was not a U.S. citizen. That child is Winston Churchill, he was proclaimed Honorary Citizen of the United States April 9, 1963 (Pub. L. 88-6). The exact same circumstances as Cruz, the foreign-born child of a U.S. citizen mother, yet Churchill was not a citizen. Why? Because there was no statute to make him one.

[moehoward]

"I think the courts will dodge it. No matter which way they rule, it hurts them. I would be shocked if they took it.

If they took it up and followed precedent, Cruz is naturalized. That is easy to see, to a person who has studied the precedents. It's by far the clearest, easiest case I've ever studied. This is settled law. Against Cruz."

Agreed. It seems the Court do all they can to avoid the citizenship issue.

I also agree this will probably finish Cruz. It's hard to want a return to constitutional principles and support someone whose candidacy is in direct contradiction.

[so_real]

One caveat is that the Court will dodge the issue at least until the presumptive nominee is selected, very likely until the next POTUS is seated, and quite possibly not until well after that. The Court as a rule attempts not to influence future events, and only adjudicates "post facto". The "damages" must have already occurred. And, to be blunt, they have a history of ducking this issue to the point of dereliction of duty.

As such, I do believe Cruz could be seated as POTUS prior to Court deliberation. And I would expect the deliberation to be quite drawn out, if only based on the threads of discussion here at FR. Following deliberation, Cruz would either enjoy the support of Court reasoning, or be deemed ineligible. And ineligibility at that point opens him up to impeachment, for which we've seen the Congress has little stomach. I' say his term would be secure.

Chester Arthur was (allegedly) the first ineligible POTUS. Barack Obama was the second (allegedly) ineligible POTUS. And if Ted Cruz uses this conundrum to his advantage, if he signals to the People that he will use the influence of the Executive Branch as POTUS to encourage the Judicial Branch to put this issue to rest once and for all, and that until that time he is continuing his campaign "in good faith" that like Barack Obama he will be found eligible, then the conservative birthers (like myself) would stand down. Ted Cruz would gain the opportunity to be the last (allegedly) ineligible POTUS. On that course, I see a path to the Oval Office for him. Barring that, however, I think he is taking bad campaign advice and is sinking his own ship using the "nothing to see here" strategy. It's pretty clear there is definitely something to see; something particularly visible to the Constitutional scholar he is reported to be.

[Springfield Reformer]

No, I am first and foremost a Christian. This debate is not worth the spiritual damage it does. Yes, I am well-informed on the subject, relatively speaking. No, I have not reached the zenith of all possible knowledge and am working my way out of the Obama birther nonsense, in which I was wrongly committed to the other side, by following and participating in this conversation. It has been enlightening.

Most enlightening is how when one’s opponent cannot answer a basic question, there arises a presumption of dishonesty. I don’t presume such of you. I assume y’all are doing the best you can, but that you have prior commitments of belief that make it next to impossible for you to consider that the Framers might have intentionally designed this language with some flexibility in meeting their true intent.

Therefore, I understand how it might seem impossible to you that anyone could disagree without being dishonest. But I am being as truthful with you all as I know how to be, and if we were all sitting at a local donut shop you could look me in the eye and see I was telling you the truth.

However, this resort to false personal accusation places us in a position where adult conversation, designed to actually persuade thoughtful persons, becomes impossible, and it devolves into one cultic school of thought against another, each brandishing every weapon they can, rational or otherwise, against those who should be their brothers and sisters at arms against those who would destroy us.

In summary, I have stated my position, and nothing recited by any of you has met the challenge. What else can I do? If any of you claims to be a Christian, I claim to be your brother in Christ, and before God I offer you my friendship and trust, and a willingness to start over. I do not wish for anyone here to come way from this with a lengthened enemies list. That’s not what we’re here for, either as believers or conservatives, and you have my assurance that is not what I will do. The door is always open.

But until such time as it seems worthwhile to reenter, I will be retiring from this discussion. You all know my position. It seems pointless to keep restating it. Meanwhile, I have another writing project which requires my attention.

May God bless each of you,

Peace,

SR