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Citizenship Debate: Part 2

02 Mar

(This is actually Part 2 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)

(CONTINUED FROM THE Part 1)

Edwin Vieira, one of this nation’s leading Constitutional scholars, warns that issues of Presidential eligibility, if left unresolved, could become precedent and justification for unraveling Constitutional authority in the future:

There is a counter theory often called into play.  The so-called  “14th Amendment natural born citizen” theory asserts that the 14th Amendment conferred “natural born citizen” status to anyone born on American soil at the time of his birth. This theory appeared in Obama’s “Fight the Smears” website as follows:

“Lie: Obama Is Not a Natural Born Citizen. Truth: Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1951. Obama became a [natural born] citizen at birth under the first section of the 14th Amendment. (Fight the Smears — June 2008)

“According to the “14th Amendment natural born citizen” theory, the 14th Amendment, ratified in 1868, implicitly redefined, or at least clarified, the meaning of “natural born citizen”; and under the new or clarified meaning, Barack Obama is a “natural born citizen” eligible to serve as president.”

The 14th Amendment Citizenship Clause states, as we noted above but which bears repeating here:

“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.” (Constitution – Amendment 14)

As with all Constitutional rights and restrictions, a clue to understanding the true meaning can be found in the context of why the section or amendment was written.  The reason for this specific amendment was that before the 14th Amendment was enacted, each State had the right to determine the citizenship of children born within its borders. Confusion abounded because citizenship laws varied from State to State, but as a general rule, free white children born within a State (except the children of vagrants and foreign ambassadors) were, by State law, citizens of that State. Anyone who was born a citizen of any State was automatically a citizen of the United States.

The 14th Amendment Citizenship Clause defines a particular group of people, which we call the “14th Amendment Citizen,” or 14AC, class. This class consists of every person who was both:

  • born or naturalized in the United States; and
  • subject to U.S. jurisdiction at the time of his or her birth or naturalization.

The Citizenship Clause, in the 14th Amendment, says that all 14AC-class members are citizens. It does not say whether citizenship extends to anyone else [35]. The Citizenship Clause requires each State to recognize 14AC-class members as citizens. Each State retains the right to grant or deny citizenship to non-14AC-class members.

Further, the 14th Amendment mentions citizens. It does not mention natural born citizens. Nevertheless, 14th Amendment natural born citizen theory argues that the Citizenship Clause implies that a “natural born citizen” is anyone who is born in the United States and is subject to U.S. jurisdiction at the time of his or her birth.  But that meaning can be derived only out of context. Its point was specifically to justify the situation in the case of the current President.

Let us assume, to avoid other arguments, that Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was residing in the United States legally. Therefore, Barack Obama, at the time of his birth, was under the territorial and legal jurisdiction of the United States, and thus (according to the theory) met the requirements of natural born citizenship according to the 14th Amendment.

Three objections have been raised against this “14th Amendment natural born citizen” theory:

  • It is not consistent with the meaning of “jurisdiction” as defined by the framers of the 14th Amendment.
  • It is not consistent with the Supreme Court opinion in Marbury v. Madison (1803) regarding Constitutional interpretation.
  • It is not consistent with Supreme Court statements implicitly rejecting the notion that the meaning of “natural born citizen” can be ascertained or derived from the 14th Amendment.

Since it is this 14th Amendment Theory that seems to be at the heart of the argument against my assertions about a distinction in citizenship, lets look at those objections a little closer to see if they have any validity.  The theorists would assert they do not, i would assert otherwise.

To understand it, all terms are important but several terms are critically important, among them the use of the tyerm “jurisdiction.”  it means more than just being in the territory governed by the U.S.  According to transcripts of the 1866 Congressional debates regarding the 14th Amendment, the word “jurisdiction”, as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power.

President Obama publicly admits that his citizenship status at birth was “governed” by the laws of a foreign country (FactCheck.org, as quoted by Obama’s ‘Fight the Smears’ website).  Since his birth, in his own words, was not subject to sole and complete U.S. jurisdiction, President Obama does not qualify for citizenship under the 14th Amendment as explained and clarified in 1866 by the Framers of the 14th Amendment.

President Obama may have acquired U.S. citizenship, at birth, by modern-day statute, but he did not acquire U.S. citizenship from the 14th Amendment, according to its originally intended meaning.

This conclusion derives from a relevant argument in the landmark Marbury v. Madison (1803) case. The “14th Amendment natural born citizen” argument is not consistent with the Supreme Court’s opinion in Marbury v. Madison (1803). In that opinion, Chief Justice Marshall stated:

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” (Marbury v. Madison, 1803)

All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States. If the word “jurisdiction”, in the 14th Amendment, is interpreted to mean territorial and legal jurisdiction only, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. But logically and practically this would mean that the phrase, “subject to the jurisdiction thereof,” is superfluous and without effect.

In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Erler, pp.191-192)

According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that renders another portion of the Constitution to be without effect.

To address any idea that the Supreme Court has ruled despotiviely on this matter we only have to take them at their word.  In in doing so we see an Implicit Supreme Court rejection.  In Minor v Happersett (1874), the Supreme Court indicated that the meaning of “natural born citizen” is not found in the U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1874)

In 1898, the Supreme Court repeated the same point — that the meaning of “natural born citizen” cannot be determined from the U.S. Constitution alone:

The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” … The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it 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. (U.S. v. Wong Kim Ark, 1898)

In Minor v. Happersett (1874) and in U.S. v. Wong Kim Ark (1898), the Supreme Court rejected the notion that the meaning of “natural born citizen” can be ascertained from the Constitution, without reference to sources outside the Constitution. The framers were consistent in their assertion that the reference for such things was Vattel.

Both cases, it must be noted, were decided after the 14th Amendment was ratified in 1868.  If the meaning of “natural born citizen” cannot be determined from the Constitution, it cannot then be determined from the 14th Amendment which is part of the Constitution.

In summary, the 14th Amendment does not explicitly say anything about the meaning of “natural born citizen”. The term “natural born citizen” does not appear anywhere in the 14th Amendment. The notion that the 14th Amendment implies that Barack Obama is a natural born citizen is not consistent with the originally-intended meaning of “jurisdiction” as used in the 14th Amendment, is not consistent with the Supreme Court opinion in Marbury v. Madison (1803), and is not consistent with Supreme Court opinions asserting that the meaning of “natural born citizen” is not found in the Constitution, hence is not found in the 14th Amendment.

And to add fuel to my premises that this is a debatable issues, in 1885, nearly two decades after the 14th Amendment was ratified, Thomas F. Bayard, while serving as the United States Secretary of State under President Grover Cleveland, ruled that the son of German immigrants, though born in the United States, was not a U.S. citizen as per the 14th Amendment. Since his parents were foreign citizens at the time of his birth, the boy was, at birth, “subject to a foreign power” and therefore “not subject to the jurisdiction of the United States” (The Nation, Vol.59, No.1521, August 23, 1894, p.134).

Then comes the already referenced case Ellen relies on so heavily.  In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, ruled that Mr. Wong had acquired 14th Amendment citizenship at birth, even though his parents, at the time of his birth, were Chinese immigrants not citizens of the United States. Wong was born in the United States in 1873. The Birlingame-Seward Treaty of 1868, between China and the United States, was in effect at the time. Although it did not permit each country to naturalize the other country’s citizens, the treaty contained an unusual provision — not found in other U.S. treaties — recognizing “the inherent and inalienable right of man to change his home and allegiance”. By treaty, Wong’s parents, though not U.S. “citizens”, nevertheless qualified as U.S. “nationals”, owing allegiance to the U.S. exclusively and not owing allegiance to any foreign power according to the ruling.

But according to the framers of the 14th Amendment, sole and complete U.S. jurisdiction was a core requirement for 14th Amendment citizenship.  We have a clear historical precedence for this notion—our own American Indians.  The 14th Amendment granted citizenship to emancipated slaves and their descendants, because they were subject to sole and complete U.S. jurisdiction. Native American Indians, however, were subject to tribal jurisdiction, thus were not subject to sole and complete U.S. jurisdiction.  Consequently, the 14th Amendment did not grant citizenship to Native American Indians, even though they were, in nearly all cases, born in the United States.

On his web site, President Obama himself claims that his father was a British subject and that, in 1961, the citizenship status of children of British subjects was “governed” by the British Nationality Act of 1948. If Obama’s citizenship status at birth was “governed” by the laws of a foreign country, how could he, at birth, be subject to sole and complete U.S. jurisdiction as that term is properly defined?

In my opinion, the Wong Kim Ark decision does not make someone born in the same circumstances as our president a “natural Born Citizen” as required in the constitution to be eligible for the presidency.

The modern-day consensus opinion’s logic that Ellen relies on is this:

  • When the U.S. Constitution was being written, anyone born in England or its colonies was a natural-born subject.
  • The word “subject” in English law is precisely analogous to the word “citizen” in American law.

It therefore follows that anyone born in the United States is a natural born citizen.  But is that a supportable position?  Do, or rather did those words really mean that?  You’ll have to read the next part to find out.

(CONTINUED IN PART 3)

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Posted by on March 2, 2012 in Uncategorized

 

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