Citizenship Debate: CONCLUSION

This is the conclusion of a multi part series.  To properly understand it you need to scroll to or link to the post entitled “Straw Men, Red Herrings, and Big Lies” and read it along with the comments from a reader named “Ellen.”  THen starting with “Citizenship Debate: Introduction” this series attempts to answer her objections.)

CONCLUSION

So, after all of these parts, here is what I see as the bottom line for our little debate.  You have just waded through material showing the contrasting opinions on this topic.  All of this has simply been to show that, in accordance with the first assertion that started this, there is a divergence of thought on it even currently.  After reading the initial assertion along with Ellen’s comments, you, the reader, will have a simple question to answer:  “Did I mislead you when I asserted that this whole topic is a red herring to detract from more important issues, and, (and this is the part Ellen attacked) that it has not been truly settled by the courts?”

As the only judge in the courts of your own personal opinions, each of you gets to make that ruling as you see fit.  You could certainly pick up research where Ellen and I have left off to further enlighten and inform your own conclusions.  Which side you take is not the point of this; the point is that there is, in my opinion, more than one side that is still in play.

But if the only point of continuing or commenting is to post something where you will latch onto the parts you like and denigrate the parts you do not like, that is no longer reasoned discussion or debate.  Personally I’m inclined to quit wasting time on a project that can have no practical value even if my conclusions were accepted as true but will only result in you selecting more quotes to support your position.  All that is really being shown is that each of us can find resources to support our own positions.  I did not think that was ever in question.  Hammer away at it till readers are all brain dead if you wish but I am done with it, over it, and ready to move on.

If anyone, wishes to continue posting comments and arguing it out then I will allow those comments so long as they remain reasoned, civil, and do not resort to ad hominem or personal attacks; those I will excise from the comment list.  I, on the other hand wish to get back to the more important issues of the day and times and do not intend to respond again on this topic since, for me, I am satisfied in the validity of my position that it is unsettled.

But I do want to thank Ellen.  Although this specific issue remains an irrelevant one to me, and a real time waster in and of itself, the research it has inspired – as all good research will do – has brought other things to my attention.  Some of those are simply the kinds of fun stuff someone like me with an insatiable curiosity finds fascinating but some of which feeds into parts of the current political debate that ARE relevant for us.  I would not have done that without the kick her comments inspired so I am grateful to her.

But now, can we get on to questions that actually have an impact?  Even if i am right i am not convinced anyone would take any action in this case, and wsith the precedence set it will be hard to assert it in the future.  But maybe the result will be that an amendment will be created that DOES answer it once and for all in the proper method.

One can only hope…

 

Citizenship Debate: Part 5

(This is actually Part 5 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 PART 4)

OK, lets bring this home and lay it to rest, shall we?  Surely the view of the father of the 14th amendment himself should count for something. In 1866, during a speech before the U.S. House of Represenatives, John Bingham(1815-1900), said that a natural born citizen is one who is born in the United States, of parents not owing allegiance to any foreign sovereignty:

“[I] find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column)”

In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:

“In Lynch v. Clark, the vice-chancellor held that the common-law doctrine — that the place of birth and not the nationality of the father determined the political status of the child — was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. … Birth [in the United States] … does not ispo facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth.” (Collins)

In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard’s opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:

“In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States'” (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)

And to make the terminology even more specific, in 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as “born within the United States,” and natural born as “born of parents who are U.S. citizens.”  In Bridgham’s opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).

“The fact that the Constitution says “natural” instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. …

It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word “native,” which is a much more apt word than natural. …

“A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is “fixed or determined by nature,” the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning.” (Percy A. Bridgham, People’s Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: “native born” does not equal “natural born” for Presidential eligibilty)

Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:

“Is he [Mr. Shurmann], under these circumstances, “a natural-born citizen” in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann’s nomination under any circumstances an impossibility.” (New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS)

In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one’s parents were citizens at the time of one’s birth:

At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)

In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long’s Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:

It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a “natural born” citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a “natural born” citizen of the United States. (Long)

So where did this diuspute come from? There is general agreement concerning state citizenship. When the original thirteen colonies became independent states, some of them (for example, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States.

However, there is disagreement as to whether, in 1787, a person could acquire federal citizenship independently of state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:

• authorities who believe that all persons born on U.S. soil (except the children of foreign ambassadors) are natural born citizens of the United States, regardless of their parents’ citizenship; and
• authorities who believe that one cannot be a natural born citizen of the United States unless one’s parents were U.S. citizens at the time of one’s birth.

The dispute arises, in very large part, from differing understandings of our nation’s founding principles. Those who believe that the Founding Fathers were guided by a somewhat incomplete understanding of 18th century English common law tend to believe that the jus soli principle governs the meaning of “natural born citizen” in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of “natural born citizen” is constrained by the jus sanguinis principle.  Those who accept the founders word that they did NOT intend the new country to be bound to English Common Law can come down on either side for a variety of legal or simply political reasons.

But lest you want to argue that those old cases are just that, old, and therefore of no modern consequence I would bring to your attention a current case.  Well cases, actually, that are winding their way through the courts of several states as I write this.  These are specifically attacking the 14th Amendment Theories.  The plaintiffs are alleging that the defendant, Barrack Obama, has no standing to run for president and therefore should not appear on the State’s ballots because he is not, Constitutionally, a “natural born citizen.”  In the Georgia case, amicus briefs go into a detailed accounting, far more than I have above, showing the realities of 18th century English Common Law, how that law was never adopted as federal law and served only and only on occasion as glossary for terms picked up and used in our own developing legal system, and how in any case, as noted here, there is no conflict between Constitutional sections on presidential eligibility and citizenship definitions because it is clear that “native” and “natural,” what we have called “Statutory” and “Constitutional” citizenship are not the same things even if it has all of the same legal standing except re presidential eligibility.

If the courts themselves believed this to be a long settled question, then they would not have taken on the cases.  The fact that there is a debate at all requires viewpoints from more than one side, ipso facto it is not a settled issue and certainly not one without dissent.

So now I ask you, my gentle and analytical readers a simple question that is the very core of the debate between my position and that of Ellen.  Does it appear to you that the issue of what constitutes a “Natural Born Citizen” as that term is used in the Constitution to define eligibility to be president, is monolithically accepted (on either side) and therefore unquestionable?

Ellen answers in the affirmative and I in the negative.  You get to decide for yourselves.

In the next and mercifully last post of this series, I’ll try to wrap it all up in a conclusion.

(CONTINUED IN THE CONCLUSION)

 

Citizenship Debate: Part 4

(This is actually Part 4 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 PART 3)

And it was erroneous in its understanding of English Law.  In 18th-century England, there was indeed a distinction between “subjects” of the English king and “citizens” of an English town or city. The jus soli principle applied to English subjecthood but did not apply to English citizenship. Anyone born in England or its colonies was an English subject by birth. But, and here is the problem for Gray’s reasoning: a bad premises.  In 18th-century England and its colonies, contrary to his assertion, you could claim citizenship by birth only if your father was a citizen at the time of your birth. Although English “subjecthood by birth” carried a connotation of birth in a particular place, English “citizenship by birth” carried a connotation of inheritance from one’s father.

The Supreme Court’s ruling, in U.S. v. Wong Kim Ark, is U.S. law. However, the Court’s reasoning in that case, given its inherent flaws, is not a particularly solid basis on which to argue in favor of anyone’s eligibility to be president.

Ellen makes much of the concept of Jus Soli, the rule or law of the soil to assert that anyone born on U.S. soil is then de facto a Natural Born Citizen.  That is certainly what Justice Gray implied so it is reasonable for someone using that case to pick up on one of the critical points.  But is it correct?

In U.S. v. Wong Kim Ark, the Court’s reasoning was based largely on the English common law “rule” that, generally speaking, children born on English soil were, at birth, English natural-born subjects, regardless of whether their parents were subjects or aliens. According to the majority’s opinion, this “rule” of English common law was “in force” when the U.S. Constitution was being written and thereafter “continued to prevail” in the United States:

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. 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. (Page 169 U. S. 658, U.S. v. Wong Kim Ark, 1898)

I already noted that in fact, “subject” and “citizen” were not the same thing under that English Law but read here the dissenting note of the same issue.  In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this point. Regarding the “rule” of English common law, the minority and majority disagreed, not over a matter of law, but over a matter of American history:

And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction… (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)

P.A. Madison (a writer for the Federalist Blog) agrees with Justice Fuller’s understanding of American history. When the original thirteen colonies gained their independence and became States, they retained aspects of English common law for their own convenience. But English common law did not “continue to prevail” at the Federal or national level (Madison(2006)).

George Mason (1725-1792), called the “Father of the Bill of Rights” and considered one of the “Founding Fathers” of the United States, is widely quoted as saying:

The common law of England is not the common law of these states. (Debate in Virginia Ratifying Convention, 19 June 1788)

How much clearer does it need to be?

In 1884, the following commentary appeared in the prestigious American Law Review:

In Wheaton v. Peters, the Supreme Court say: “It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption.” (Collins)

 OK, let’s make it even clearer… In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not “control” at the national or Federal level after the United States gained its independence from Great Britain:

The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)

Now the debate was never over or settled however, as many still adhered to the literal jus soli viewpoint. Before Ellen adds another post with such views let me do some work for her.  Here are some opinions in opposition to mine and the ones above.  Later in American history, the Opinion of Lincoln’s Attorney General Edward Bates (1862), the Opinion of U.S. Secretary of State William Marcy (1854), and the dissenting opinion in Dred Scott v. Sandford (1856), echoed the same viewpoint — that you are a U.S. citizen (and presumably a U.S. natural born citizen as well) if you were born in the United States, regardless of your parents’ citizenship at the time of your birth.

In 1864, Edward McPherson wrote that birth alone in the United States is sufficient to confer natural-born citizenship:

And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country constitute the nations, and, as individuals, are natural members of the body politic. If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a [natural born] citizen … (McPherson, p.380)

In 1866, George Bancroft expressed the same viewpoint — that all persons born on U.S. soil are natural born citizens:

“…everyone who saw the first light on the American soil was a natural-born American citizen” (Bancroft, p.201)

Early we noted when, in 1983, Judge Richard Cudahy (U.S. Court of Appeals for the Seventh Circuit) expressed his opinion that US-born children of illegal immigrant parents are “natural born citizens”

So it is clear that various “authorities” (including, but not limited to, those cited above) have expressed the opinion that birth within the United States is, by itself, sufficient to confer “natural born citizen” status. But, throughout U.S. history, other authorities have expressed an opposing opinion — that one is not a natural born citizen unless one’s parents were U.S. citizens at the time of one’s birth.

In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives, at birth, the citizenship of its parents:

“[Birthright citizenship] … is confined exclusively to the children of those who were themselves citizens. … The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. … From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring.” (Ramsay)

Ramsay’s comments were made in connection with a dispute over William Smith’s eligibility to serve as a U.S. representative from South Carolina. Despite their disagreement on the eligibility issue, Smith agreed with Ramsay that a child naturally receives, at birth, the citizenship of its parents, particularly its father:

Vattel, the author we have shown was heavily relied upon by the founders, wrote,

“The country of the father is that of the children, and these become citizens merely by their tacit consent.” (William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.178)

In 1811, the U.S. State Department refused to recognize James McClure as a U.S. citizen (Publius Enigma). McClure was born in the United States, but his parents were not U.S. citizens at the time of his birth. He would have acquired U.S. citizenship at birth if he had been born in a state (such as Virginia) which confers state citizenship to anyone born within its borders. At the time, anyone who acquired state citizenship under state law was automatically a citizen of the United States. But McClure was born in a state (South Carolina) which had not enacted any citizenship laws. In the absence of state citizenship laws, United States citizenship is conferred only to persons born in the United States, of parents who are U.S. citizens:

Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States — he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does — for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen — but the U. States’ act does not go so far. A man must be naturalized to make his children such. (“Case of James McClure”, The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column)

In 1820, Virginia Representative A. Smyth indicated that one’s citizenship at birth is determined by the citizenship of one’s father at the time of one’s birth:

“When we apply the term “citizens” to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.” (Rep. A. Smyth (VA), House of Representatives, December 1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII, 1858, p.30)

In 1845, an article entitled “Massachusetts and South Carolina”, appearing in The New Englander, explained that, in the U.S. Constitution, the term “natural born citizen” means a U.S. citizen not owing allegiance, at birth, to any foreign state. According to the article, all adult U.S. citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth:

The expression ‘citizen of the United States’ occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term ‘natural born citizen’ is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word ‘citizen’ is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. (“Massachusetts and South Carolina”, The New Englander, Volume 3, 1845, p.414)

In 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All adult U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States.

There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. … Here none but a native can be President. … A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. … They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (New York Times: Attorney General Black’s Opinion upon Expatriation and Naturalization, July 20, 1859)

(CONTINUED IN PART 5)

 

Citizenship Debate: Part 3

(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 PART 2)

The reasoning that Ellen and others follow arises, in part, from the Supreme Court opinion in U.S. v. Wong Kim Ark (1898).  As noted before, Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong acquired U.S. citizenship at birth.  The opinion in that case read in part:

“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898).”

Please note the carefully crafted wording in the decision and note it as much for what it does NOT say as for what it does.

• The Supreme Court did not rule that Wong was a natural born citizen.  It merely ruled that he was a citizen.
• The Court ruled that Wong was a citizen because, at the time of his birth, his parents had “permanent domicile and residence” in the United States and was “carrying on business” in the United States. President Obama’s father did not meet these conditions. He was not a permanent resident. He was visiting the U.S. temporarily, to obtain an American education.
• The Court mentioned that Wong’s parents were subject to the Burlingame-Seward Treaty of 1868 between China and the United States. That treaty contains an unusual provision, not found in other U.S. treaties, which grants Chinese immigrants the right to change their “home and allegiance”. Although permanently-resident Chinese immigrants were not permitted to become naturalized U.S. citizens, they had (at least in theory) the right to become “nationals” of the United States; and children born in the United States, of U.S. “nationals”, are citizens within the originally-intended meaning of the 14th Amendment (Objectively Gray). Obama’s father was not subject to any treaty which recognized a change of “home and allegiance” other than by naturalization.

In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1874):

“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.”  (Minor v. Happersett (1874), as quoted in U.S. v. Wong Kim Ark (1898))

 Justice Gray also quoted from an article, by Horace Binney, which used the term “natural born” in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney’s opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled “natural born”:

The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), as quoted in U.S. v. Wong Kim Ark (1898))

The 14th Amendment theorists are quick to point out their interpretation of The Court’s Reasoning. i.e. that even though the Court did not hold (or rule) that natural born citizenship is determined by birthplace alone, Justice Gray’s reasoning seems to support that conclusion.

• Under English common law, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. According to Justice Gray, this English common law rule “continued to prevail” under the Constitution, suggesting that the jus soliprinciple of English common law controlled the Constitutional meaning of natural born citizen.
  • Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York, but at the time of her birth, her parents were not U.S. citizens. In his dicta, the Vice Chancellor expressed his opinion that Julia Lynch was a natural born citizen. (See Question 16: Julia Lynch)
  • Justice Gray also cited Circuit Court Justice Swayne’s opinion in United States v. Rhodes (1866). According to Justice Swayne, the term “natural-born citizen” should be interpreted and understood according to English common law: 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. (Justice Swayne, as quoted by U.S. v. Wong Kim Ark, 1898)

As those familiar with the law know, often the dissenting opinion is as important as the ruling and frequently forms the basis for challenges and overturning of precedence.  In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural born citizenship:

Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)

And from a legal and logical standpoint there are problems with Justice Gray’s reasoning in my opinion.  Among the facts directly opposing the Supreme Court’s reasoning in U.S. v. Wong Kim Ark:

• Justice Gray ignored (deemed “not admissible”) the transcripts of the 1866 congressional debates, which provided direct evidence as to the meaning of “jurisdiction” in the 14th Amendment;
• Justice Gray relied on an erroneous footnote in an article by Horace Binney;
• Justice Gray misrepresented four prior Supreme Court rulings, none of which supported his contention;
• Justice Gray ignored the fact that, in 18th-century English law, the terms “subject” and “citizen” were not synonymous — the manner in which one became an English subject by birth was not the same as the manner in which one became an English citizen by birth.

OK, so that is a pretty bold statement; for a layman observer to challenge a justice’s reasoning.  But we must never forget, at least until the present administration, it was the government who worked for us not the other way around.  The justices, just like representatives and the president, at least back int he day of this decision, worked for the people so the people have a right to question them.

(1) Justice gray ignored (deemed “not admissible”) the 1866 congressional debates:

In his written opinion, Justice Gray admitted that his understanding of the word “jurisdiction” in the 14th Amendment was based on presumption, not direct evidence. The transcripts of the 1866 congressional debates, in which the Framers clearly explained the meaning of “jurisdiction” in the 14th Amendment, were ruled “not admissible”.  What?  That was central to the case and it was inadmissible?

The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment … as the equivalent of the words ‘within the limits and under the jurisdiction of the United States’… Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).

The Supreme Court did not consider evidence showing that the intended meaning of “jurisdiction” was sole and complete jurisdiction, i.e., not subject to any foreign power. (For a discussion of the originally intended meaning of “jurisdiction” in the 14th Amendment, see Question 14: Jurisdiction).  This questioning of the ruling did not start with me by any means. According to the Federalist Blog, the Court’s refusal to consider such evidence was “inexcusable”:

“A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.” (Justice John Paul Stevens, as quoted by Madison(2006))

(2) Justice Gray’s reasoning relied on an erroneous footnote in an article by Horace Binney.  Ellen said I could not rely on as research by one writer (which I have not) but then used a quote of his against me.  Well she was right about having to check for consistency for reliance on writers and here is such an instance. There were three published editions of Horace Binney’s article, The Alienigenae of the United States and there were some substantive differences.  The first two editions were published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.

All three editions cited the Naturalization Act of 1790, which states:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; emphasis added).

Here is one big problem… In the first two editions of Binney’s article, the Naturalization Act of 1790 was quoted incorrectly:

[T]hat the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States shall be considered as natural born citizens — with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (2nd ed.), p.21, emphasis added).

In the misquoted text, foreign-born children do not receive U.S. citizenship solely by descent from their parents. Rather, these children’s U.S. citizenship depends on their subsequent residence in the United States.  Based on the misquoted text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:

The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), footnote, p.22).

Justice Gray cited Binney’s footnote, both in the Opinion of the Court and in the Court’s ruling. But here is the problem, Binney’s footnote was factually incorrect, in large part because it was based on an incorrect quote of the 1790 Naturalization Act. In the final edition of Binney’s article, the 1790 Naturalization Act was quoted correctly and the footnote was deleted).

(3) Justice Gray misrepresented earlier Supreme Court rulings:

Justice Gray’s reasoning relied on four prior Supreme Court rulings:

• Inglis v. Trustees Of Sailor’s of Snug Harbor, 28 U.S. 99 (1830);
• Shanks v. Dupont, 28 U.S. 242 (1830);
• Levy v. McCartee, 31 U.S. 102, 109 (1832); and
• McCreery v. Somerville, 22 U.S. 354 (1824).

Justice Gray misrepresented all four of these rulings. None of them supports his contention (See Appendix 5: Wong Kim Ark reasoning).

(4) Justice gray ignored the fact that, in 18th-century England, the manner in which one became a “subject” by birth was not the same as the manner in which one became a “citizen” by birth.

Justice Gray quoted a North Carolina state supreme court opinion:

Before our Revolution, all free persons born within the dominions of the king of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. … Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European king to a free and sovereign state. … British subjects in North Carolina became North Carolina freemen; … and all free persons born within the state are born citizens of the state. … The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government.  The sovereignty has been transferred from the man to the collective body of the people; and he who before was a ‘subject of the king’ is now ‘a citizen of the state.’ (Justice Gaston, State v. Manuel (1838) 4 Dev. & b.20,24-26, as quoted in U.S. v. Wong Kim Ark).

When the thirteen colonies became independent states, some of them (including North Carolina) chose to base their citizenship laws on the jus soli principle of English common law. This choice was a matter of convenience. It was not dictated by English common law or convention.

(CONTINUED IN PART 4)

 

Citizenship Debate: Part 2

(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)

 

Citizenship Debate: Part 1

(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 INTRODUCTION)

OK, after the preamble in the first section (The Introduction), here is the situation in a nutshell.  Despite out of context quotes culled from decisions, dissentions, and general thoughts on the matter, when the Supreme Court (in 1898) liberalized U.S. citizenship at birth, it did not alter the meaning of natural born citizenship.

Here is the facts: to this day, the Supreme Court has never ruled directly and unequivocally that someone born in the U.S., of a non-citizen parent, is a natural born citizen. In fact, despite how those cherry picked quotes in the rebuttal to me might sound, throughout the history of this country, supreme court references to “natural born citizens” have consistently used the term only when actually referring to persons born on U.S. soil, to U.S.-citizen parents. For example:

• In Scott v. Sandford (1856), the Supreme Court called unexceptionable, the position that: “natural-born citizens are those born in the country of parents who are citizens” (Scott v. Sandford, 1856) (My italics for emphasis).
• In Minor v. Happersett (1874), the Supreme Court defined two classes of persons. The first class consisted of U.S.-born children of U.S.-citizen parents. The second class consisted of all other U.S.-born children. The Court used the term “natural born citizen” only in reference to members of the first class.
• In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural born citizen. He was born in the United States. At the time of his birth, his father was a native-born American citizen, and his mother was a statutory citizen by marriage.
• In Perkins v. Elg(1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States. When she was born, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage.

But it does appear that there are references to a potential difference of opinion as to what might constitute a “Constitutional” natural born citizen and a “statutory” one.

Three years after the U.S. Constitution was adopted, Congress enacted the Naturalization Act of 1790. The Act granted U.S. citizenship, at birth, to foreign-born children of American parents and to the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States.  It said that they shall be considered as (my italics) natural born citizens.

Legal language is very specific and uses terms with great care and specificity.  And when the founding documents were being drafted, the framers made it clear in letters and other writing that they were keenly aware of the magnitude of what they were creating and had long, passionate debates over nearly every word in those documents to make sure they said exactly and precisely what they meant.  It was not an accident or ommision that resulting in saying the President had to be a natural born citizen but others needed only to be citizens.  Following Vattel’s writing closely, the terms, to them, were precise.

It is, therefore, very important to note that the 1790 Act did not say that foreign-born children of American parents are natural-born citizens. It merely said that such children shall be considered as natural born citizens.  For all practical purposes the law would draw no distinction except the Constitutional one regarding the President.

Why is that important to note?  In contrast, the 14th Amendment citizenship clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”.  Note that the wording does not say that such persons are considered as citizens or are declared to be citizens. Instead, the Amendment says that such persons are citizens.  And that has led to a question debated since then with various and sometimes contradictory conclusion.  The question is: is there a distinction between those individuals who actually “are” natural born citizens in fact as opposed to those individuals who are merely “considered as” or “deemed to be” natural born citizens by statute or law?

Before we dismiss such notions as simply semantic hairsplitting, we need to understand that such a distinction already existed in eighteenth-century English law. When aliens were naturalized by Parliament, they did not become natural-born subjects in any factual or literal sense. Instead, they were “taken and reputed” to be natural-born subjects.  Likewise, the Act of Anne did not say that foreign-born children of English fathers are natural-born subjects. The Act merely said that such children shall be “deemed and adjudged” to be natural-born.  In such documents precise language and words is critical; these were educated people and wrote – or left off – precisely what they intended.

The Act did not say or imply in any way that the foreign-born child of natural born parents … was himself a natural born subject. It said that he was to be “deemed and adjudged” to be such, albeit “to all intents, constructions and purposes whatsoever.”  In the statutory sense, therefore, all English subjects (except persons made denizens by the king) were called natural-born subjects. Naturalized subjects and foreign-born children of English fathers were deemed to be natural-born subjects by law. Likewise, in American law, all American citizens, regardless of whether they are naturalized or natural born, have the same rights.

But here is where the issue gets muddy.  There might be a Constitutional difference between naturalized citizens and natural born citizens, but there is no statutory difference between the two. In the statutory sense, all American citizens are considered the same as natural born citizens.  So does this settle the issue in Ellen’s favor?  Well. stick around to find out.

In any case, the Supreme Court long has rejected the notion that naturalized citizens may or should possess rights different from those of other citizens under the law: …

“[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.” (Craig v US — Ruling US Court of Appeals 10th Circuit, 2009). 

Now here you really need to carefully re-read that italicized clause again, “…except so far as the constitution makes the distinction.”  Because that is the crux of the whole debate here.  It is not whether ANY citizen, that is, an individual whose citizenship is derived in any fashion, is to be treated at law vis-a-vis their citizenship.  It is rather, does the Constitution allow one of those categories to become President to the exclusion of the others?  I think it does.  Since this is critical lets delve a little deeper.

For purposes of this discussion, the difference between Constitutional and statutory natural born citizens is defined as follows:

• “Constitutional natural born citizen” refers to the term “natural born citizen” in the context of presidential eligibility. It refers to the meaning of “natural born citizen” in the Constitution, whatever the Supreme Court ultimately decides such meaning to be but initially and until changed refers to an individual born to parents who are already citizens. (But the parents could have attained their citizenship via any lawful means.)
• “Statutory natural born citizen” refers to a person who is deemed to be a “natural born citizen” by someone’s understanding or interpretation of Federal or State law. Under English law, all English subjects (except denizens by royal charter) were natural-born subjects in the statutory sense. Likewise, since all American citizens have the same rights, all American citizens, including naturalized citizens, could be construed as statutory natural born citizens.

So what about today?  Currently, there is no Federal law that explicitly defines “natural born citizen” or explicitly confers “natural born citizenship” to anyone. However, the mainstream news media, based on the perspective evident in their articles and opinions, apparently understands and interprets Federal law as implicitly granting “natural born citizen” status to certain individuals at birth.  For our purposes of discussion however, and to make the distinction clear, if a person is deemed a “natural born citizen” pursuant to a statute, we refer to such person as a “statutory natural born citizen”.

A statutory natural born citizen, therefore, is not necessarily the same thing as a Constitutional natural born citizen.  Am I alone in creating this distinction?  No, I’m not.  The U.S. State Department itself warns against confusing the two concepts:

“…the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” (U.S. Department of State Foreign Affairs Manual — 7 FAM 1130, page 9)

If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”.  Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S. — including children of illegal immigrants — could be regarded as statutory natural born citizens.

At least one lower-court judge has expressed his opinion that the US-born children of illegal-immigrant parents are “natural born citizens”.  But based on the State Department’s view we just noted above, his use of the term “natural born citizen” is statutory, not Constitutional.  For example below is an excerpt from that decision:

Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. … The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983)

So if we take that wording as a quote out of the larger context, it appears to hold a position that is not accurate or not accepted by our own State Department.  That would have  raised a huge ruckus in 1983 so that simple interpretation has got to yield to a more complex one..

Because of the potential mess the granting of Constitutional Natural Born Citizenship could result in, such as electing a president whose true allegiances were to a foreign country, H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants.  If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.  But this would take us into a completely different topic and issue.

Understandably, some Americans question the wisdom of “enforcing the law” and “upholding the Constitution” when the specific provision being upheld or enforced seems to be an antiquated technicality or goes against some policy they favor. In our present situation, the question is asked, as long as Barack Obama is doing his job as president, why should his parents’ citizenship matter?  Obama was elected president, not his parents. His parents passed away many years ago, so how is their citizenship relevant?  Is enforcing a parental citizenship requirement really worth the horrific political chaos and unimaginable governmental disruption that might result if Obama were found to be ineligible?

I would generally agree with that from a practical standpoint.  But to do so without an amendment to the constitution making it clearly OK, leaves us with one more incident where what is supposed to be our guiding document is simply ignored when it does not suit our desires. If the Constitution contains something that is no longer appropriate for modern-day society, the proper remedy is a Constitutional Amendment. If we want to be a nation that is ruled by law and the Constitution, we cannot simply dismiss Constitutional requirements, merely because they are inconvenient or we think they don’t matter anymore. If any one part of the Constitution doesn’t matter, why would any other part of the Constitution matter?

The Constitution affirms, defends and protects many of our rights — free speech, freedom of religion, privacy, trial by jury, and so on. If we say it’s okay to ignore the Constitution regarding one issue such as presidential eligibility, we open the door for someone else to say it’s okay to ignore the Constitution regarding our rights as citizens.

The original purpose of the “natural born citizen” provision was to protect the presidency from foreign influence. A President might pose a national security risk if she or he was born with foreign ties or allegiance.  When we decide, as a nation not as an individual, that such a risk is no longer valid then we ought to change the rules via an amendment.  It is an amendment which, depending on the actual wording, I might well vote for.  But until it is put before us and ratified, that is a moot point.

So lets get a little deeper into the history of these concepts.

(TO BE CONTINUED IN PART 2)

 

Citizenship Debate: Introduction

San Diego — In the last post titled “Straw Men, Red Herrings and Big Lies” I made the assertion that one of the red herrings out there was the flap over President Obama’s eligibility to be President.  Most have high centered on the so-called “Birther” issue where some believe him to have proffered bogus documentation of his birth place and in so doing sent others into paroxysms of appoplexia.

I suggested that it was irrelevant because it centered on the wrong question, that being, even if he WAS born in the U.S., the real question was the citizenship of his father vis-à-vis entitling him to the status of “Natural Born Citizen” as demanded for eligibility to become President.  I further suggested that I believed the answer was “No.”

A reader, “Ellen” (whom I erroneously referred to as “Erin” in responses because I misread her name and for which I apologize profusely) leapt feet first into that assertion and presented, on the face of it, a reasonable case to the contrary even if couched in somewhat patronizing language.

To be honest I thought that was cool.  My whole purpose here is to stimulate thought and reasoned debate; and if my assertion brought that debate about, then I would feel good that I had succeeded. And i guess, now that we are in the political silly season, some overflow of passion is to be expected.

Unfortunately, rather than simply agree to disagree and present a contrary view, Ellen felt so strongly about her position that the status of individuals born on American soil regardless of the allegiances or citizenship of the parents was settled implicitly to be that of a natural born citizen and therefore eligible to be president, that she expressed that I was dead wrong and ignorant of the real facts and that, therefore, I obviously did not know what I was talking about since it was a long-ago firmly settled issue.

(Rather than me putting words in her mouth, I would suggest you jump to that initial post (there is a link in the right hand column or you can just scroll down to access it) and read the comments from her and the short exchange which followed so you can determine for yourself what she is saying.)

I would normally let comments speak for themselves and happily stand back and let commenters rejoin one another in a lively discussion. The problem in this case is that while I am divinely indifferent as to whether someone agrees with my conclusions or not, to maintain some credibility with these posts it is important to make sure that I do have the core facts from which I draw those conclusions in hand and present them as accurately as possible.

It was not my conclusions alone that Ellen challenged however, but the “facts,” the whole underlying premises that I relied on to form the basis of the argument.  That puts me in the sad place of having to spend time defending something that in the end I presented and argued was irrelevant and was being used as a red herring to draw our attention away from the important issues.  So here I am, spending more time than it deserves to be able to show that I did not pull this assertion out of the air or out of some politically incorrect portion of my anatomy.

And so here is this debate’s opposing positions.  I’m quite am sure Ellen will let me know if I am mischaracterizing her position but to me it is that the framers never meant for there to be more than two types of citizenship and the courts, especially the Supreme Court, has ruled on it and settled it definitively with the results that any citizen other than a naturalized citizen, is a natural born citizen, leaving no room for question or debate.

My position was and is that it is NOT a settled issue and that debate continues partially because the writings of the framers and the specifics of the language used clearly (to me and others) indicate the intention of creating three, not two, “levels” or categories of citizenship.  However, in my opinion, court rulings and statutes have muddied the water so severely that the issue is still unsettled leaving us quite justified in arguing which interpretation is best, but not in asserting that it is all settled one way or the other.

I promised in my response to Ellen that I would re-research the issue (because I foolishly did not keep any of my notes after I wrote the post) and, by this weekend, present the reasons I hold to my position.  She denigrated the attempt, declared, as if making a pronouncement from on high, that this had been settled nearly from the first, imply it was simple ignorance on my part not to know and accept that, and went so far as to tell me who not to use as reference because of his flip-flopping on the issue but then proceeded to quote him herself as his conclusions pendulum back and forth but through her position.

OK, with that comment, this has now passed the point of workable debate.  Several of the sites she referenced were also ones from which I drew data.  The problem is, she had cherry-picked the quotes that fit her scenario and on some sites, ignored those that countered them while asserting there is only one side to this.  I have merely tried to show that there is another side, equally passionate and equally relying on historical material and with an equal (or to me, superior) claim to the truth.

Both sides are true believers because each has a vested interest in the outcome due to policies dear to them.  I never tried to say that the other side to my argument did not exist, as she has, but rather that the question is still unresolved and that I believe, personal opinion here, that the position she espouses is in error vis-à-vis the intention of the actual authors based on their own comments and accepted authorities.

That is not the only issue the courts have ruled on that I believe has been newly revised and reinterpreted incorrectly.  Some of those actually result in conclusions I like but I think judicial re-interpretations are not the proper way to make changes to the Constitution, and original intent, rather, proper amendments should be used.

Rulings in law about almost anything get overturned as the political climate changes.  I will concede that more recent rulings have been skewed in favor of Ellen’s argument, that is, that soil is more important as a qualifier of citizenship than blood or even allegiance/jurisdiction over the parent.  But I think that was not the original intent nor was it the original interpretation.  Some like me, prefer that other interpretation not because of Obama or anyone else.  I already noted that it my mind the constitutional uses of the terms would prohibit Marco Rubio from the presidency and I am inclined to like him.

When Ellen cherry picked quotes to support her side while ignoring, from the same context, any quote or ruling to the contrary she used a great debating technique but a bit disingenuous if one is holding themselves out as the purveyor of ultimate truth.  But nevertheless her quotes and citations were good ones and, if only this topic had the least amount of practical relevance, would have properly formed the basis for a marvelous debate.

And who knows, perhaps she was right after all;  since I had deleted my notes I did not have even one citation to throw back at her in my defense.  I know how that has to look to readers so felt forced to take this further whether I saw any real point to it or not.  To maintain credibility I had no option but to take the time to revisit and reassess the material. I will let you decide, at the end of it, if I have made the case that this issue is not fully resolved or not.  I have no real expectation of swaying Ellen’s position but that is not really the point.

And so I re-did and expanded the research.  THe good news was that i discovered quickly i was not, by any means the first to question this (as one would expect if Ellen was correct)) and a wealth of material was out there.  To lend credence to the fact that I am not creating this out of whole cloth, most of the following series is actually made of quotes from other sources wrapped with a few narrative comments of my own.

Still, to my dismay, after cutting and pasting citations and quotes and adding but a few comments of my own I realized that I had created over 50 pages of material.    I do not know what the limits of the sizes of posts on this site are but this surely has to go over it.  And it certainly would go over the attention span of all but the most anal on this topic.  So I have attempted to excise and edit it back down and after severe editing it still is, at 35 pages of MS Word document, in my opinion, too large for a single post so I will post it in a series, titled “Citizenship Debate, Part 1-?”.

As I write this I have not determined, by experimentation, how many pages I can get into a single post.  So to help you know when it is over, I will title the last post as “Citizenship Debate – Conclusion” so you will know when it is over.

As you know, posts are listed with the latest post on top which means the posts in this series will end up being listed and presented from BOTTOM to top forcing you to scroll down to the start if you are to properly follow the material to see where I get my conclusions.  All I ask is that if you actually care about the bottom line (which I must tell you I no longer do) then please wade through ALL of it.  Do not select just parts you like, one way or the other.  To be fair in your analysis, you must also include in your reading, the material Ellen sent as comments to the “Red Herring” post and not just what I write.  Hopefully, with that, I can at least claim to have presented this fairly to both sides and let you all make up your own minds.

So as quickly as I can get the material posted I will start adding posts from this one (“Introduction”) to the last one (“Conclusion”).  It may take a few hours to see how much i can add at once and then start block copying material into the sequence of posts so bear with me.

And then I intend, regardless of comments, to move on to more relevant topics that will have, in my opinion, an impact on our country vis-à-vis the upcoming election.

(CONTINUED IN CITIZENSHIP DEBATE: PART ONE)