Posted on 07/26/2024 7:59:03 PM PDT by CDR Kerchner
(Jul. 26, 2024) — As posted Tuesday by the “X” account @Kancel Kamala, on August 20, 2020, then-Alabama Democratic Party Chairman Christopher John England sent a “Certification” to then-Alabama Secretary of State John H. Merrill naming the party’s 2020 nominees for President and Vice President, respectively, as “Joseph R. Biden” and “Kamala D. Harris.”
The 18-page set of documents remains available at the Alabama Secretary of State’s website.
As part of the “certification” process, each nominee provided a signed and notarized “Consent to Nomination of the Democratic Party” and “affirmed” he or she was constitutionally qualified for the position sought on November 3, 2020 (pp. 8 and 9 below).
(Excerpt) Read more at thepostemail.com ...
Your post is futile. A natural born Citizen is a person born to Citizen US parents, period.
It is your absurd post which is futile. See Vice-President Chester Arthur, President Chester Arthur, President Barack Obama, and Vice-President Kamala Harris.
See also major party candidates Nimrata Haley, Marco Rubio, Charles Evans Hughes, Bobby Jindal, and Vivek Ramaswamy, et al.
Your muttering legal absurdity does not overturn judicial opinions.
In re Wong Kim Ark, 71 Fed. 382, 386 (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 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.
In re Look Tin Sing, 21 Federal Reporter 905, 906, Circuit Court, D. California, September 29, 1884
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 foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This ex-territoriality 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.
https://assets.documentcloud.org/documents/2755257/PA-TedCruzruling.pdf
Elliot v. Cruz, 137 A3d 646 (Pa Cmmw Ct 2016)
Having extensively reviewed all articles cited in this opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a “natural born citizen” includes any person who is a United States citizen from birth.Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States, and the objection filed by Carmon Elliott to the Nomination Petition of Ted Cruz is denied.
There are 2 requirements for citizenship under the 14th Amendment, residency and jurisdiction.
Absolutely false on its face. 14A states "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."
Should they not reside in any State, then they are not a citizen of any state.
https://fam.state.gov/fam/08fam/08fam030101.html
[excerpt]
(2) The Court also concluded that: "The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States." Pursuant to this ruling:(a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and
(b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child's parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.
- - - - -
See Elk v. Wilkins of 1884, clarification of the term "jurisdiction":
Learn how to read a court opinion. Moreover, any imaginary content you imagine resides in Elk, should it be repugnant to anything held in Wong Kim Ark, falls to Wong Kim Ark. Citing real or imaginary content from a prior case to overrule Wong Kim Ark is a legal absurdity, along the line of cite Roe to overturn Dobbs.
In re Wong Kim Ark, District Court, N.D. California, 71 Federal Reporter 382 (1896), Morrow, District Judge.
71 Federal Reporter 391
Nor does the interpretation of the phrase in question in the case of Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, dispose of the matter. There the question was whether an Indian, born within the United States, and who had severed his tribal relations, was a citizen of the United States, within the meaning of the fourteenth amendment.
There goes Elk as precedent.
Just to clarify your position which is basically the same as John Eastman.
Wong Kim Ark was declared a natural born citizen by the Justice Gray’s ruling in US v Wong Kim Ark but it doesn’t cover Harris.
In 1901 the United States Consul General to Italy wrote the following letter about a child born in the U.S. to Italian citizen parents who was returned to Italy as a child.
No. 99. ]
Consulate General of the United States,
Rome, Italy, June 20, 1901.
Sir: I have the honor to report the following: A minor, named Francesco Guarino, born in the United States of Italian parents, not naturalized, applied to our embassy in Rome, through our consul at Palermo, where he is now residing, for a passport. The application was granted by the chargé d’affaires, Mr. Iddings, against my representations, under the plea that the boy was born in the United States and was to be considered a United States citizen, although a minor and his parents being at the time of his birth and still are Italian subjects.
As the question may arise again, I deem it my duty, with the agreement of Mr. Iddings, to respectfully request the Department for a strong legal opinion upon the subject, in order to settle the controversy and to guide our action in the future.
The point is this: Can a minor residing temporarily or permanently abroad, but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?
No. 864 section 992 of title 25 of the Statutes of the United States relating to citizenship reads as follows: “All persons born in the United States and not subject to any foreign power excluding Indians not taxed are declared to be citizens of the United States.” It would therefore appear clear to me that a child born in the United States of alien parents can not be considered to be a United States citizen, especially when said child is outside of the United States, no more than a child born abroad of American parents could be considered a citizen of the country where he happened to be born.
Then again Prof. Alexander Porter Morse in No. 7 of the Treaties of Citizenship, published in Washington, considers “the country of the father is that of the children at least during their minority.”
This point involves the right of a United States legation or embassy abroad to make aliens American citizens, that right lying I believe solely within the power of the United States courts.
All of which is respectfully submitted.
I am, etc.,
Hector de Castro,
United States Consul-General
In August he received a reply.
No. 33. ]
Department of State,
Washington, August 8, 1901.
Sir: I inclose herewith copy of a dispatch from the consul general of the United States at Rome requesting instructions in regard to issuing passports to minors residing in Italy and born in the United States of alien parents, the particular case in point being that of a minor Francesco Guarino to whom a passport was issued by you against the consul general’s representations.
The question raised by the consul general is, in his own words, as follows:
Can a minor residing temporarily or permanently abroad but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?
The position of the Department is that birth in the United States, irrespective of the nationality of the parents, confers American citizenship; that no act of the parent can deprive the child of the status thus acquired, and that consequently such children even though taken abroad by their parents, are entitled to be treated as citizens of the United States. In view of the decisions of our Federal courts, there can be no doubt of the correctness of this position. It has been almost uniformly held by our Federal courts that birth within the dominions and jurisdiction of the United States confers citizenship irrespective of the nationality of the parents. The question was squarely presented to the Supreme Court in 1897 in the case of Wong Kim Ark, who was born in the United States of parents who were subjects of the Emperor of China. In 1890, when he was 17 years of age, he went to China for a visit, returning to the United States the same year. He was permitted to enter the United States, and remained here until 1894, when he again went to China for a visit. He returned to the United States in 1895, but the collector of customs at San Francisco denied his application for admission on the ground that he was not a citizen or the United States. Upon habeas corpus the United States district court ordered him to be discharged on the ground that he was a citizen of the United States. The United States appealed to the United States Supreme Court and that court (169 U. S., 649) affirmed the judgment of the lower court, thus authoritatively settling the question.
The question whether the father by removing the child from the jurisdiction of the United States or otherwise can deprive him of the citizenship conferred upon him by birth has also been passed upon by the Federal courts. In ex parte Chun King (35 Fed. Rep., 354) Judge Deady, in delivering the opinion of the United States circuit court, said:
In my judgment, the father can not deprive his minor child of the status of American citizenship impressed upon it by the circumstances of its birth under the Constitution and within the jurisdiction of the United States. This status once acquired can only be lost or changed by the act of the person when arrived at majority and the consent of the Government.
Your action in granting the passport was correct.
I am, etc.,
Alvey A. Adee,
Acting Secretary
The case of In re Chin King 35 F. 354, 356 cited by Mr. Adee has this paragraph. [ Mr. Adee misspelled the name Chin as Chun]
“ By the common law, a child born within the allegiance— the jurisdiction— of the United States, is born a subject or citizen thereof, without reference to the political status or condition of its parents. McKay v. Campbell, 2 Sawy. 118; In re Look Tin Sing, 10 Sawy. 353; 21 F. 905; Lynch v. Clarke, 1 Sandf.Ch. 583. In the latter case it was held that Julia Lynch, who was born in New York in 1849, of alien parents, during a temporary sojourn by them in that city, and returned with them the same year to their native country, where she resided until her death, was an American citizen.”
https://casetext.com/case/ex-parte-chin-king
“Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen.” Bingham is correct as far as he goes. Natural-born Citizens are born within the limits of the Republic, as are 14A §1 birthright citizens.
.
I do not agree with Eastman, but I do think that it is an open question whether the children born here of “illegals” are natural-born citizens.
I think the great weight of precedence so far would tend to indicate that they are nbcs.
Whatever, it would not affect Harris since at least one of her parents was still here under a valid visa.
Two articles written about the Wong Kim Ark case.
The first written after Judge Morrow’s ruling but before the Supreme Court’s decision - “Citizenship in the United Sates Under the Fourteenth Amendment” by Marshall B. Woodworth.
The second written after the Supreme Court decision by William D. Guthrie and titled - “Lectures on the 14th Article of Amendment of the Constitution of the United States”(his discussion of the subject to the jurisdiction and the Wong decision begins on the bottom of page56)
Guthrie concludes Wong is eligible to be president.
For example, do you believe that the authors of the Student Visa terms within the 1952 Immigration Act, wrote the language in a way that students who violated their study requirements would intentionally be rewarded with "anchor baby" children who could run for President?
Further, do you believe the authors of the Asia nationality quota restrictions (such as limits of 100 immigrants per year for India alone) would be waived specifically for children born in violation of the Student Visa terms of the 1952 Act?
That is what happened with Kamala Harris, and is what you are arguing for.
Woodworth wrote another one, I think, after WKA:
Can you please examine legislative intent?
Certainly. In constitutional or legislative interpretation, it is irrelevant if the words have a generally accepted plain meaning. In the face of words which certainly convey an unintended result, example given below, the words conjveying the unintended result are the law; the intended result is irrelevant. Further action is required to fix the poor wording.
One problem with with quoting what some Framers discussed is that the people never ratified Framer discussions. They ratified the black letter text of the Constitution itself. Neither Framers nor the Federal legislature ratified the Constitution or any of its amendments. That was done by States.
The Supreme Court has spoken to the attempt to infuse the words with suposed intent repeatedly.
Ex Parte Grossman, 267 U.S. 86, 108-09 (1925)
The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.
"A Matter of Interpretation," Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.
Laurence Tribe, pp. 65-6
Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question. To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them. But such thoughts and beliefs can never substitute for what was in fact enacted as law. Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind. And, like the justice, I find little to commend the proposition that anyone ought, in any circumstances I can imagine, to feel legally bound to obey another's mere wish or thought, or legally bound to act in accord with another's mere hope or fear.
Aldridge v. Williams, 44 U.S. 9, 24 (1845)
In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)
In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].
Downes v. Bidwell, 182 U.S. 244, 254 (1901)
In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
There is no possibility of entering a psychoanalysis of Congress into any litigation.
The Act of May 24, 1934, regarding American births in Panama, gave birth citizenship to children of Americans born "outside the territory and ["or" would have worked] jurisdiction of the United States." It was meant to capture all those not captured by the 14th Amendment, "born within the territory and jurisdiction of the United States." The intent was clear as was the plain text of the words. However, children born in the Canal Zone were born outside the territory of the United States, but within the jurisdiction of the United States, as pursuant to treaty, the United States exercised jurisdiction within the CZ "as if" it were the sovereign.
Rep. John Sparkman explained in 1937, "the Canal Zone is not such foreign territory as to come under the law of 1855 and, on the other hand, it is not part of the United States which would bring it within the fourteenth amendment." Congress passed the Act of Aug. 4, 1937 granting citizenship to "[a]ny person born in the Canal Zone on or after February 26, 1904" who had at least one U.S. citizen parent.
Words are adopted; intent is not. If there is a clear meaning to the words adopted, intent is not relevant.
That is what happened with Kamala Harris, and is what you are arguing for.
I am arguing that the words of the Constitution are what was ratified by the people. If the words have a clear meaning, the intent of the drafter is irrelevant.
You are arguing to ignore what the ratified words of the Constitution say, preferring to substitute what you feel is the intent of a drafter, or more probably, seeking to find what you want the law to say in whatever snippet quote you can find.
Your type of argument was struck down in Ankeny as arguments which "fall under the category of 'conclusory, non-factual assertions or legal conclusions' that we need not accept as true."
https://law.justia.com/cases/indiana/court-of-appeals/2009/11120903-ebb.html
Ankeny v Governor Of State Of IndianaNo. 49A02-0904-CV-353.
916 N.E.2d 678 (2009)
Steve ANKENY and Bill Kruse, Appellants-Plaintiffs, v. GOVERNOR OF the STATE OF INDIANA, Appellee-Respondent.
Court of Appeals of Indiana.
November 12, 2009.
Attorney(s) appearing for the Case
Steve Ankeny, New Castle, IN, Bill Kruse, Roselawn, IN, Appellants pro se.
Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BROWN, Judge.
Steve Ankeny and Bill Kruse (collectively, "Plaintiffs"), pro se, appeal the trial court's grant of a motion to dismiss filed by Mitch Daniels, in his official capacity as the Governor of the State of Indiana ("Governor"). Plaintiffs raise nine issues, which we revise and restate as whether the trial court erred by granting the motion to dismiss under Ind. Trial Rule 12(B)(6). [1] We affirm. [2]
[916 N.E.2d 680]
The relevant facts follow. On December 9, 2008, Plaintiffs filed a "PETITION FOR EXTRAORDINARY WRIT OF PROHIBITION" against the Governor [3] to prevent the Governor "from issuing a 'Certificate of Ascertainment,' or any other document, to Congress of the United States containing any popular votes for Barack Obama and Joe Biden for the appointment as Chief Electors . . . [or] John McCain and Sarah Palin for the appointment of Electors." Appellants' Appendix at 6. On January 30, 2009, the Governor filed a motion to dismiss alleging in part that "the Plaintiffs have failed to state a claim upon which relief can be granted." Appellee's Appendix at 1. The Governor also filed a memorandum in support of the motion to dismiss. On February 17, 2009, the Plaintiffs filed their opposition to the Governor's motion to dismiss. On March 16, 2009, the trial court granted the Governor's motion to dismiss after a hearing. On April 13, 2009, the Plaintiffs filed their notice of appeal.
The sole issue is whether the trial court erred when it dismissed Plaintiffs' complaint. A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. General Cas. Ins. Co. v. Bright, 885 N.E.2d 56, 57 (Ind.Ct.App. 2008) (citing Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007)). Thus, our review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. Id. at 58. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Id. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. [4]
[916 N.E.2d 681]
Id. However, a court need not accept as true any "conclusory, non-factual assertions or legal conclusions." Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind.Ct.App. 2007). "Thus, while we do not test the sufficiency of the facts alleged with regards to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred." Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind.2006).
[...]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
B. Natural Born Citizen
Second, the Plaintiffs argue that both President Barack Obama and Senator John McCain are not "natural born Citizens" as required for qualification to be President under Article II, Section 1, Clause 4 [9] of the U.S. Constitution, and that therefore because neither person was constitutionally eligible to become President, "[t]he Governor . . . should [have been] prohibited by order of [the trial court] . . . from issuing any certificate of ascertainment, or any other certified statement, under the State Seal of the State of Indiana. . . ." Appellants' Appendix at 13.
Before addressing the Plaintiffs' specific arguments, we think it helpful to point out the context in which this claim arises. Leading up to the 2008 Presidential Election and in the ensuing months after, a number of lawsuits were filed nationwide challenging both President Barack Obama and Senator John McCain's [10] status as "natural born Citizens" under Article II of the U.S. Constitution. See, e.g., Berg v. Obama, 574 F.Supp.2d 509 (E.D.Pa.2008);
[916 N.E.2d 685]
Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H.2008); Cohen v. Obama, No. 08-2150, 2008 WL 5191864 (D.D.C. Dec.11, 2008), aff'd by 332 Fed.Appx. 640, 2009 WL 2870668 (D.C.Cir. Sept.8, 2009); Wrotnowski v. Bysiewicz, 289 Conn. 522, 958 A.2d 709 (2008). As to President Obama's status, the most common argument has been waged by members of the so-called "birther" movement who suggest that the President was not born in the United States; they support their argument by pointing to "the President's alleged refusal to disclose publicly an 'official birth certificate' that is satisfactory to [the birthers]." Rhodes v. MacDonald, No. 409-CV-106CDL, 2009 WL 2997605, at *1 (M.D.Ga. Sept. 16, 2009), reconsideration denied by 2009 WL 3111834 (M.D.Ga. Sept.18, 2009).
The Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation. Specifically, the crux of the Plaintiffs' argument is that "[c]ontrary to the thinking of most People on the subject, there's a very clear distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance." Appellants' Brief at 23. With regard to President Barack Obama, the Plaintiffs posit that because his father was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the Office of the President.
The bases of the Plaintiffs' arguments come from such sources as FactCheck.org, The Rocky Mountain News, an eighteenth century treatise by Emmerich de Vattel titled "The Law of Nations," and various citations to nineteenth century congressional debate. [11] For the reasons stated below, we hold that the Plaintiffs' arguments fail to state a claim upon which relief can be granted, and that therefore the trial court did not err in dismissing the Plaintiffs' complaint.
Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . ." U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a "natural born Citizen." U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that "[t]hus new citizens may be born or they may be created by naturalization." Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167, 22 L.Ed. 627 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
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.[916 N.E.2d 686]
Id. at 167-168, 22 L.Ed. 627. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen. [12]
Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), the United States Supreme Court confronted the question of "whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subject to the emperor of China. . . becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment. . . ." 169 U.S. at 653, 18 S.Ct. at 458. We find this case instructive. The Court in Wong Kim Ark reaffirmed Minor in that the meaning of the words "citizen of the United States" and "natural-born citizen of the United States" "must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution." Id. at 654, 18 S.Ct. at 459. They noted that "[t]he interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." Id. at 655, 18 S.Ct. at 459 (quoting Smith v. Alabama, 124 U.S. 465, 478, 8 S.Ct. 564, 569, 31 L.Ed. 508 (1888)). The Wong Kim Ark Court explained:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or 'power'-of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, 'Protectio trahit subjectionem, et subjectio protectionem,'—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P.C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.
* * * * * *
Lord Chief Justice Cockburn . . . said: 'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.' Cockb. Nat. 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with Reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: "British subject' means any person who owes permanent allegiance to the crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien, who, because he is within the British dominions, owes 'temporary' allegiance to the crown. 'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.' `Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.' The exceptions afterwards mentioned by Mr. Dicey are only these two: '(1) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person's birth is in hostile occupation, is an alien.' '(2) Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is (though born within the British dominions) an alien.' And he adds: 'The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown.' Dicey, Confl. Laws, pp. 173-177, 741.
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
III. 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. [13]
[916 N.E.2d 688]
Id. at 655-658, 18 S.Ct. at 459-460.
Also, as quoted in Wong Kim Ark, Justice Joseph Story once declared in Inglis v. Trustees of Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 7 L.Ed. 617 (1830), that "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth." Wong Kim Ark, 169 U.S. at 660, 18 S.Ct. at 461 (quoting Inglis, 28 U.S. (3 Pet.) at 164 (Story, J., concurring)). The Court also cited Justice Curtis's dissent in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856):
The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.Wong Kim Ark, 169 U.S. at 662, 18 S.Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).
The Court in Wong Kim Ark also cited authority which notes that:
All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.Id. at 662-663, 18 S.Ct. at 462 (quotations and citations omitted). The Court held that Mr. Wong Kim Ark was a citizen of the United States "at the time of his birth." [14] Id. at 705, 18 S.Ct. at 478.
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizens." [15]
[916 N.E.2d 689]
The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court's interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs' arguments fall under the category of "conclusory, non-factual assertions or legal conclusions" that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120. Thus, we cannot say that the trial court erred when it dismissed the Plaintiffs' case. [16] See generally McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind.Ct.App. 2007) (holding that the plaintiffs' arguments had been sufficiently addressed by Indiana Supreme Court precedent and therefore the trial court did not err when it granted the defendant's motion to dismiss for failure to state a claim upon which relief can be granted); see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir.1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were "natural-born citizens of the United States"), cert. denied 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983).
For the foregoing reasons, we affirm the trial court's grant of the Governor's motion to dismiss.
Affirmed.
CRONE, J., and MAY, J., concur.
- - - - - - - - - - - - - - - - - - - -
FootNotes
1. We note that pro se litigants, such as Plaintiffs, "are held to the same standard as licensed lawyers." Novatny v. Novatny, 872 N.E.2d 673, 677 n. 3 (Ind.Ct.App.2007). This court will not "indulge in any benevolent presumptions on [their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal." Foley v. Mannor, 844 N.E.2d 494, 496 n. 1 (Ind.Ct.App.2006).
Thus, we will attempt to address the issues raised by Plaintiffs. To the extent that Plaintiffs raise additional issues, the Plaintiffs fail to develop a cogent argument and cite to authority. Consequently, the arguments are waived. See, e.g., Loomis v. Ameritech, 764 N.E.2d 658, 668 (Ind.Ct.App.2002) (holding argument waived for failure to cite authority or provide cogent argument), reh'g denied, trans. denied.
2. The trial court also granted the Governor's motion to dismiss on the bases of mootness under Ind. Trial Rule 12(B)(1) and the equitable doctrine of laches. Because we find that Plaintiffs failed to state a claim upon which relief can be granted under T.R. 12(B)(6), we need not address the trial court's alternative grounds for dismissal.
3. The Complaint also named the Democratic National Committee, Barack Obama, the Republican National Committee, and John McCain as defendants. The Plaintiffs state, without citation to the record, that "only the Governor of the State of Indiana accepted Service of Summons." Appellants' Brief at 3. We note that the Plaintiffs' case summary lists only the Governor as appellee, the Plaintiffs' notice of appeal lists only the Governor as defendant, and the Plaintiffs' briefs contain certificates of service indicating that the briefs were served upon only the governor.
4. In his brief, the Governor argues that the motion to dismiss included an affidavit, and therefore because "matters outside the pleadings [were] presented to the court on a 12(B)(6) motion, the motion shall be treated as one for summary judgment under T.R. 56. T.R. 12(B)." Appellee's Brief at 6. While true that the general rule is that when a motion to dismiss for failure to state a claim under T.R. 12(B)(6) is supplemented with materials outside the pleadings it should be treated as a motion for summary judgment, we note that:
[W]hen examination of the face of a complaint alone reveals that the plaintiff will not be entitled to relief under any set of circumstances, consideration of external materials aimed at substantiating or contradicting the complaint's factual allegations is irrelevant, because a fortiori the complaint fails to state a claim upon which relief can be granted under any factual scenario. In that instance, the trial court should exclude material outside the pleadings which are submitted with a 12(B)(6) motion, rather than convert the motion into one for summary judgment, because the external material are irrelevant to the motion.Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind.Ct. App.1996). In this case, there is no evidence that the trial court considered the material contained in the affidavit prepared by J. Bradley King, Co-Director for the Indiana Election Division, which contains nine paragraphs explaining the vote-tallying process actually carried out following the November 4, 2008 election. The affidavit was not relevant to the trial court's order granting the Governor's motion to dismiss. Thus, it was proper for the trial court to exclude this affidavit and handle the Governor's motion as a motion to dismiss for failure to state a claim rather than one for summary judgment. See Trail v. Boys and Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134, 140 (Ind.2006) (affirming the trial court's grant of a motion to dismiss under Rule 12(B)(6) even after the parties "filed several affidavits, exhibits, and briefs").
5. The date of the election was chosen pursuant to Ind.Code § 3-10-2-1, which states that "[a] general election shall be held on the first Tuesday after the first Monday in November in each even-numbered year. . . ."
6. The Democratic Party's candidates for Indiana electors were: (1) Jeffrey L. Chidester, of Valparaiso; (2) Owen "Butch" Morgan, of South Bend; (3) Michelle Boxell, of Warsaw; (4) Charlotte Martin, of Indianapolis; (5) Jerry J. Lux, of Shelbyville; (6) Connie Southworth, of Salamonia; (7) Alan P. Hogan, of Indianapolis; (8) Myrna E. Brown, of Vincennes; (9) Clarence Benjamin Leatherbury, of Salem; (10) Daniel J. Parker, of Indianapolis; and (11) Cordelia Lewis Burks, of Indianapolis. The Republican Party's candidates for Indiana electors were: (1) Chuck Williams, of Valparaiso; (2) Edward Smith, of Galveston; (3) Barbara Krisher, of Fort Wayne; (4) Daniel Bortner, of Bedford; (5) Virginia Marner, of Kokomo; (6) Susan Lightle, of Greenfield; (7) Pearl Swanigan, of Indianapolis; (8) William Springer, of Sullivan; (9) David Buskill, of Jeffersonville; (10) Samual Wayne Goodman, of Greenwood; and (11) Juana Watson, of Columbus. Appellants' Appendix at 21-22; see also 2008 Presidential Elector Candidates, available at http://www.in.gov/sos/elections/files/2008_Presidential_Elector_Candidate_ List.pdf (last visited Oct. 8, 2009).
7. The Archivist of the United States transmits copies "to the two Houses of Congress . . . of each and every such certificate so received.. . ." 3 U.S.C. § 6.
8. The electors prepare the certificates in accordance with 3 U.S.C. §§ 6, 9-11.
9. The Plaintiffs cite the "natural born Citizen" clause as Article II, Section 1, Clause 5 of the U.S. Constitution, but it is properly cited as Article II, Section 1, Clause 4. See also Ind.Code § 3-8-1-6.
10. The United States Senate passed a resolution on April 30, 2008 which explicitly recognized Senator John McCain as a natural born citizen. S.J. Res. 511, 110th Cong. (2008). Also, the supposed authority cited by the Plaintiffs to support their claim as to the meaning of Article II, Section 1, Clause 4 of the U.S. Constitution does not support the argument that John McCain is not a natural born citizen. Plaintiffs state in their brief that the difference between being a "citizen of the United States" and a "natural born Citizen" "involves having [two] parents of U.S. Citizenship, owing no foreign allegiance." Appellant's Brief at 23. The Plaintiffs then concede that "John McCain . . . qualifie[s] as a 'citizen of the United States,' by being born of [two] parents who were in turn 'citizens of the United States,' and owed no foreign allegiance.. . ." Id. Their brief continues that "John McCain was born 'subject to the jurisdiction' of the United States, but he was not born in one of the 50 States of the Union under Article IV of the Constitution, and thus. . . was not a 'natural born Citizen. . . .'" Id. at 23-24. Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we therefore do not address Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 668.
11. Plaintiffs do not provide pinpoint citations to the congressional debate quotations to which they cite.
12. Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.
13. According to Westlaw, Wong Kim Ark has been cited to in over 1,000 cases.
14. We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a "natural born Citizen" using the Constitution's Article II language is immaterial. For all but forty-four people in our nation's history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S.Ct. at 478.
15. We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the only way one can receive natural born citizen status.
16. We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS C. REEVES, GENTLEMAN BOSS, THE LIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a rumor "that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible to become the Chief Executive." Id. at 3. Although President Arthur's status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur's father was an Irish citizen he was constitutionally ineligible to be President. See generally id.
14th amendment is naturalization.
Read my tagline. He said this. It is further clarification of exactly what he meant.
“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.”
No "natural born citizen" in there. It doesn't say that.
“All persons born …in the United States” means all persons including natural born citizens.
No it doesn't. The 14th amendment does not operate on natural citizens. It was only intended for people who would not otherwise be citizens.
It why when Courts read Wong Kim Ark they see it as defining natural born citizen.
Except for the Fueller court itself, which conspicuously left out those words.
Modern courts ignore that specific omission and mentally add "natural born" to "citizen" every time they consider it. This is a leap of faith, and not supported by the evidence.
“From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.” Judge Morrow, US District Court for the North District of California.
Yet when the US Government appealed the case they wrote in their appellant brief that Judge Morrow was wrong to rule Wong Kim Ark a natural born citizen.
Did Judge Morrow use "natural born" or was that the government lawyers that stuck that in there?
In any case, someone getting their citizenship from a man made law is not a "natural citizen", they are a naturalized citizen.
And the *FACT* that they didn't use those words in their holding is completely lost on you.
What does it cost to add two words and for the purpose of a strong clarification?
Rational people can only conclude their omission of those two words was intentional because the Fueller Court would not go so far as to claim Wong Kim Ark was a natural citizen.
He was clearly a 14th amendment citizen. Nothing else.
It is *YOU* people who keep trying to put words in there that are *NOT* in there.
You will get January 6 results. The Courts are warped and ignorant, and even the ones that won't lie have a wrong understanding of the facts.
Look at you! You can't even get the facts correct. You keep adding "natural born" to the Wong Kim Ark decision even though that is clearly not in there.
Every d@mned lawyer in the Country has been taught to engage in that mental extra step of adding those two words to any discussion of "citizen."
They are brainwashed and cannot, or are unwilling to look at just the facts.
There you go again, adding words that are *NOT IN THERE.*
You and others have been hypnotized by repetition to see those two words added, and you cannot comprehend they are *NOT IN THERE.*
In that 1898 case, called United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to parents who were both from China was a U.S. citizen.
Now you've got it right. And he was a "citizen" due to the operation of the 14th amendment, and nothing else.
No he wasn't. As has been pointed out several times, the holding in Wong Kim Ark does not contain "natural born." *YOU* people keep inserting that in there, but it isn't in there.
The Fuller court ruled him a "citizen", and it wasn't even unanimous.
"of parents owing allegiance to no other sovereignty."
Don't forget Bingham clarified his point.
It is a question that only idiots and liars believe in the affirmative.
It is detrimental to the nation to give citizenship to illegals. Therefore it is just common sense to see them as being precluded from 14th amendment citizenship.
If the language can be interpreted in such a way as to deny illegals citizenship for their children, then it is in the best interests of the nation for *THAT* to be the correct way of interpreting the language.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.