This is the second in a series of Constitution-related posts.
Natural-born, Native-born, and Naturalization
Let’s start this discussion with some definitions, dispel some assumptions, and request some civility in the follow-up discussion. This discussion is going to be, as much as possible, restricted to the qualifications for the Office of President of these United States and the portion of U.S. Constitution, Article II, Section 1 which states “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President”.
Please note that even though the remainder (age and residency requirements) was left out for this discussion that all of the Constitution is extremely precise in the usage of language. This is easily demonstrated in the 60-plus votes it took during the Constitutional Convention just to get the wording and agreement from all parties on the qualifications of, and method for, the election of the President. One final note is that the citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government.
Definitions & References
The two primary concepts involved with the founders version of natural-born citizen are; Jus soli (the law of the soil), a rule of common law under which the place of a person’s birth determines citizenship, and Jus sanguinis (the law of the bloodline), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. There are also two primary legal cases brought before the SCOTUS; Minor v. Happersett, 88 U.S. 162 (1875) [voting rights case] and United States v. Wong Kim Ark, 169 U.S. 649 (1898) [birthright citizenship clause]. Add in references to the 14th (Citizenship following Reconstruction; ratified: July 9, 1868) & 19th (Women’s Suffrage; ratified: August 18, 1920) amendments in addition to other documents and rulings of the time of the Constitutional Convention should provide us solid grounds for discussion.
Eloquently stated by Mario Apuzzo, Esq. ‘When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States ‘ and he continues “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.’
The John Jay Letter (Constitutional Convention)
During the Constitutional Convention, the most direct evidence about the origins of the “natural born citizen” clause comes from a letter that John Jay (1) wrote to George Washington, who was at the time serving as President of the Constitutional Convention. In this letter, dated July 25, 1787, Jay wrote (emphasis in the original): Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american [sic] army shall not be given to, nor devolve on, any but a natural born Citizen. At the point this letter was written Jay had no knowledge that the convention would make the President the Commander-in-Chief; nevertheless, this document explicitly argues for a “natural-born” citizen a requirement of a high executive position.
The Electoral College
The delegates at the Constitutional Convention were deeply concerned about foreign influence on the national government, and in particular on the President therefore selection of the President by the legislature was abandoned for selection by an Electoral College. On March 25, 1800, Charles Pinckney made the only documented statement by one of the Founders connecting the Electoral College and the presidential eligibility clause. The Founders “knew well,” he said “that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible…” These beliefs are reiterated in several of the Federalists papers but none so clearly as Federalist No. 68 “The Mode of Electing a President” by Hamilton
Another founder, Benjamin Franklin, made the point of foreign influence clearly and within his own family when he left none of his assets to William (eldest living son) that were linked to America because of William siding with the British during the revolution whereas his will states in part “The part he [William] acted against me in the late war, which is of public notoriety, will account for my leaving him no more of an estate he endeavoured [sic] to deprive me of” referring to all of his lands and owning’s within the boundaries of the new United States of America. This point is made in part to show that Jus sanguinis and Jus soli were weighted heavily including loyalty to the new America—this was solemn according to the final cost to Franklin’s eldest living son.
The Naturalization Act of 1790
Provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus left out indentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father. This was the only statute that purported to grant the status of natural born citizen.’…’ The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization: “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”. (2)
The Naturalization Act of 1795
Repealed and replaced the Naturalization Act of 1790. The 1795 Act differed from the 1790 Act by increasing the period of required residence from two to five years in the United States, by introducing the Declaration of Intention requirement, or “first papers”, which created a two-step naturalization process, and by conferring the status of citizen and not natural born citizen.
Minor v. Happersett (1875)
In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:
“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” (3)
Wong Kim Ark & the 14th Amendment
Two quotes from Justice Grey on this matter should suffice to give the general gist of this SCOTUS case;
Question: But doesn’t the Constitution use the term “citizen” rather than “subject?”
Justice Gray: “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 governments” hence “subject and citizen are, in a degree, convertible terms as applied to natives.” Accordingly, “[a]ll 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.”
Question: So what was existing law under the original Constitution?
Justice Gray: Well, “[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States.” However,”[t]he Constitution nowhere defines the meaning of these words.” Hence, “[i]t 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….” as “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
What is a “Natural-born” citizen?
Under the language used at the time of the founding this would require two hurdles to be met; 1) Jus soli (the law of the soil) whether within the confines of ‘America’ at the time of adoption, or within the laws as adjudicated later, and 2) Jus sanguinis (law of the bloodline) which in the case of American jurisprudence is the rights of the father transferred to the children (normally the eldest living son.) With consideration that, at the time, the wife received her “rights” from the husband and “rights of the father” also required that he was an active “Citizen of the United States” there are still many questions to be answered and it is a personal belief that the SCOTUS take any case in order to answer once and for all this question.
Footnotes
1. John Jay, although not a delegate to the Convention was a President of the Continental Congress, author of several Federalist Papers, and first Chief Justice of the U.S. Supreme Court among other notable positions. It seems reasonable, therefore, that his letter carried some weight.
2. http://www.ask.com/wiki/Naturalization_Act_of_1790
3. http://puzo1.blogspot.com/2011/02/citizenship-status-of-our-44-presidents.html
Blogs For Victory 
An interesting article taken from World and I: http://www.worldandi.com/subscribers/feature_detail.asp?num=26823
(emphasis mine)
” Federalist Blog author, P.A. Madison, factors in President Washington’s admonition about foreign attachment when formulating what the Founders and Framers meant by natural-born citizen. Our first President warned that a “passionate attachment of one nation for another, produces a variety of evils.”
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. ”
P.A. Madison concludes that that there is no better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. This is because, “Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues.”
With confidence, P.A. Madison subscribes to the idea that a natural-born citizen of the United States can only mean those persons born whose father the United States already has an established jurisdiction over, i.e., born to fathers who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.
Would P.A. Madison’s logic hold up in court? Would the court system consider such reasoning when determining who is eligible to be President of the United States?
What is the difference between a citizen and a natural-born citizen?
Framer James Wilson said, “A citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.
Jurisdiction over citizenship via birth within the several States was part of the ordinary course of affairs of the States that only local laws could affect. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State.
Congress was vested with the power to make uniform rules of naturalization in order to remove alienage from those who were already born abroad (outside of the States) who had immigrated to any one of the individual States. Congress could declare children born abroad to fathers who were already a citizen of some State to be a citizen themselves. Naturalization only provides for the removal of alienage and not for the creation of citizens within individual States.”
I am intrigued by the comment, so clearly stated here, that “natural born” can only apply to a citizenship which exists not due to an affirmative act but due solely to the condition of birth to citizens. The 14th Amendment was an “affirmative act” as is the naturalization process. While people who have been declared to be citizens due to the implementation of these “affirmative acts” are certainly citizens, their citizenship depends exclusively on “affirmative acts” which were put into place after the Constitution was written, signed and ratified.
At that time, national citizenship was created by the new Constitution, as all citizens of the individual states at that time were granted citizenship, and a separate and temporary category was created to address those who were needed to be eligible to serve in the presidency but who were only citizens due to the “affirmative act” of Article IV, Sec. II of the U.S. Constitution. Following this, aside from birth to citizen parents (natural law) the only path to citizenship was through an act of Congress, or another “affirmative act”.
Re: “Vattel was not writing a national constitution. Therefore, he did not make statements about what a national constitution should or should not say.”
This refers to the leaders of a country not being citizens. Vattel gives several examples of countries picking their leaders from the nobility of other countries, even countries that do not speak the same language. And he never said that that was a bad thing.
Re: “Nor do his other beliefs have anything to do with the simple fact that the Framers understood his ideas on natural law. ”
I have pointed out before that the Framers read a lot of other things besides Vattel. They read a lot of the works of natural law philosophers, who often disagreed with each other. The ones who were of great influence were Locke and Montesque, who did not say anything about parents being required for NBC status. And they read the common law, which said that birth in the country was sufficient for NBC status. The fact that they read Vattel does not mean that they adopted his definition.
Re: “are you aware that at the time of the signing, and then of the ratification, of the U.S. Constitution several of the states of the new nation DID have state religions? That is why the 1st Amendment was so important——it allowed the states to have state religions if they so desired, but prohibited the national government from either interfering in them or establishing a national religion or religious requirement.”
And, as I said, the 1st Amendment is in direct contravention of what Vattel recommended. He recommended a single state religion for the country. We banned it.
Re: “If there was no intent to differentiate between native citizens and natural born citizens, then why did the Founders grandfather in those people who became citizens by nature of being inhabitants of the states in the new nation at the time the Constitution was ratified? ”
The reason that they used Natural Born and not native born was that Natural Born was the common phrase at the time, native born was very rarely used at the time, as a search of the writings will show.
Re the grandfather clause: It was NOT to make the American-born leaders eligible. It was to make the foreign-born leaders eligible. Such leaders as Alexander Hamilton, who was born on Nevis, and James Wilson, who was born in Scotland. These men became US citizens by being naturalized by states, but they were not Natural Born.
Re: “At this point, they were citizens, right? So why did they take the additional step of setting themselves, the sons of people who were not citizens at the times they were, themselves, born, apart by specifically creating a separate category for themselves?”
Once again, the reason for the grandfather clause was not to make native-born Americans eligible. It was to make foreign-born, naturalized citizens eligible.
Re: “This document was not tossed off over a couple of drinks, on a cocktail napkin. It took months of agonizing debate and discussion.”
No question about it, but in those debates, and in the Federalist Papers, and in the other writings of the American leaders at the time, there is absolutely NO mention that Natural Born Citizen refers to the parents of a citizen or that Vattel’s definition was used.
Re: ““That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the UnitedStates when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague.” and your comment that that was a misquotation of the Constitution.
It is not a misquotation. He is saying, as he did in the other quotation I showed, that native born citizens were natural born citizens. In the earlier quotation that I showed, he said that Natural Born Citizens were “those born within the state”–which, of course, is the common law meaning of the term. That is an example of how other people at the time wrote, and there are no examples that I can find–or that any birther has found–that show Adams or Washington or Jefferson or Madison or ANY of the leaders of the time referring to citizen parents being required.
Re: “Accordingly, “[a]ll 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. . .”
Precisely. Rubio was born in the USA and hence is a natural-born citizen and has allegiance to the USA.
Madison put it this way: “It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.”
Madison is saying that in other countries the criterion of allegiance is the parents, but that the certain criterion (in his opinion) is the place of birth, and it is the only criterion that applies in the USA. Hence not only is Rubio a NBC, but he has allegiance to the USA.
Re: “Why was President Chester Arthur ineligible? Because of his allegiance. ”
Assuming that Chester Arthur was born in the USA–and there is absolutely no evidence that he wasn’t (the fact that some of his enemies said it does not make evidence), the rule was that he had allegiance to the USA, as Madison said. Hence he was eligible, as was Buchanan.
Re: “Chester a child with dual citizenship.”
We have had a LOT of presidents with dual citizenship. Jefferson and Madison were because France made them citizens, full voting citizens. Wilson and Eisenhower were dual citizens at birth, Wilson because his mother never relinquished British citizenship and hence Wilson was considered by Britain to be British–until the age of 21, I think. Eisenhower was considered a citizen of Germany (yes, the country that Eisenhower fought against) at birth because of old laws that made the grandchildren of German citizens citizens at birth. The thing about dual nationality is that it only means that two countries both THINK that you have allegiance to them. In the USA, our principle is that there can be only one real allegiance, and it is—as Madison said—to the place of birth.
Re: “Let me restate from Gray “all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together”
You are making my case. Rubio was born in the USA and hence has allegiance to the USA and natural born citizen status.
Re: “the questionable integrity of our electoral system is in jeopardy when we ignore the laws that are established…the way the last congress and this congress have done..”
There is nothing in the US Constitution or any law that says: “two citizen parents are required to be president.”
Re: “the common meaning of natural born citizenship “as the founding fathers understood it to mean” can NOT be derivitive of the British Monarchy…”
If the definition were different, they would have told us in what way it differed.
Re: “the Founding Fathers had use of Vattels Law of Nations…”
Yes they read it, but did they follow it? If they did, why didn’t they say so?
Re: “A natural born citizen can ONLY be created through the indigenous population. BOTH parents must be citizens, or indigenous to, the US in order for thier children to be eligible for POTUS.”
That is your theory, but there is no evidence for it.
Re: “Ellen seems to be passionately wound up about this subject. ”
At one time I collected stamps. I was passionate about that too.
Re: “when someone argues that the is “simply no evidence” to support a contrary POV, you can usually bet that there is.”
There is simply no evidence that my mother was the quarterback for the New York Jets when they won the Superbowl. In by far most cases, when there is no evidence for something, and the courts and the constitutional scholars say that it is not true, it’s not true.
When you come up with a quotation saying “We followed Vattel,” or “two citizen parents are required,” then it may be true. Until then, the constitutional rule affecting Rubio, Jindal, and Obama (and, at one time, millions of Americans who had foreign parents) is that if they were born in the USA, they are Natural Born US Citizens.
Re: “P.A. Madison concludes that that there is no better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father.”
That is his opinion. But you notice that he did not say that any of the Americans at the time of the writing of the Constitution said that the US-born children of foreigner are foreigners or that the US-born children of foreigners were less likely to be reliable citizens than the US born children of US citizens. And he also did not write that in any law or article did it say “US citizen father is required.”
Re: “there is PROOF, in the careful creation of a TEMPORARY category of eligibility which allows people born to non-citizens to serve in the presidency.”
No. The grandfather clause was created to allow foreign-born naturalized citizens, such as Alexander Hamilton and James Wilson, to become president.
Re: “Well, we have to focus on the large and significant word “IF” in Ellen’s post—“ IF Natural Born meant born on AMERICAN soil..” And here is where it all falls apart, because she starts with an opinion, not a fact—that “natural born” means “native born”.
The IF was rhetorical. There is PLENTY of evidence that Natural Born came from the common law and included every person born in the country. George Washington, born in Virginia, became a US citizen with the Declaration of Independence, but he was always natural born due to his birth in Virginia. The evidence of this is the common law and the quotations of the writers of the time, and there are no quotations from any of the writers of the time saying “two citizen parents are required.”
more hot air from ellen…
in the term citizen were all inclusive…the term natural born citizen would have have been used in Art II sect I clause 5 of the US Constitution…this being said…the term citizen as used in the 14th Amendment has been used to include the children of both legal and illegal aliens in the USA, neither of which can be said to have established the intent to permanetntly stay in this nation…hence the addition to the qualifications for POTUS…to insure that this would not be an issue…so that only “NATURAL” born citizens were qualified for that office….
the founding fathers understood that the NATURAL ALLEGIANCE of the children followed the fathers….this is the purpose of the term natural born citizen…to preclude the influence of foreign sovereigns into the head of state for the United States…such as has been demonstrated in the catastrophe of the current admin…
“To understand what an Article II “natural born Citizen” is, we have to revert to the Founding era to determine what the Founders and Framers intended that clause to mean. In analyzing what meaning the Framer’s gave to the “natural born Citizen” clause, we must remember that they wrote the Constitution in the historical context of having won a Revolution and in having to constitute a new society. They were inspired by and found justification in the political philosophy of natural law and the law of nations and not that of the English common law in going forward with that Revolution and they relied on that same law when defining national citizenship. Article II, Section 1, Clause 5 of the Constitution grandfathered all persons to be eligible to be President who were “Citizens of the United States” at the time the Constitution was adopted. These persons would have been adults who were born in the colonies, children born in the new states, or adults inhabiting or naturalized under the naturalization laws in either place, at the time that the Constitution was adopted, provided they all adhered to the American Revolution. Justice Gray in United States v. Wong Kim Ark, 169 U.S. 649 (1898) explained that under English common law that prevailed in the colonies these original citizens included persons who were born in the colonies or new states to alien parents. These original citizens, whether born in the country or out of it, were all naturalized to be “citizens of the United States” by simply adhering to the American Revolution. The Founders in Article II grandfathered these “citizens of the United States” to be eligible to be President, provided that they were such at the time of the adoption of the Constitution which we know occurred on September 17, 1787. The grandfather clause is obsolete today.” mario apuzzo “natural born citizen” blog
“The bottom line is that there is no evidence that the writers of the Constitution thought that the US-born children of foreigners should be barred from the presidency”
Wrong. There is not only evidence, there is PROOF, in the careful creation of a TEMPORARY category of eligibility which allows people born to non-citizens to serve in the presidency.
And, to repeat the words of George Washington, “Our first President warned that a “passionate attachment of one nation for another, produces a variety of evils.”
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. “
Again, from Ellen:
“Sure, but what does this have to do with Natural Born Citizen status. If Natural Born meant born on AMERICAN soil, meaning the 13 colonies, then the people who were born on it were Natural Born, and when the US became independent, on July 4, 1776, they automatically became US citizens. George Washington was a US citizen; he was never naturalized. What kind of a citizen was he? He was a Natural Born Citizen, due to his birth in a colony, in Virginia “.
Well, we have to focus on the large and significant word “IF” in Ellen’s post—“ IF Natural Born meant born on AMERICAN soil..” And here is where it all falls apart, because she starts with an opinion, not a fact—that “natural born” means “native born”. And as we have already shown, “native born” did not appear as a matter of law till the passage of the 14th Amendment, an amendment which was clearly seen as necessary to convey a new basis for citizenship other than that of natural law, or heredity.
Ellen is correct, though, in stating that Washington was a naturalized citizen, if we include the affirmative act of Article IV, Section I, which states “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
This is clearly an affirmative act, and it was clearly understood as such by the Founders, which is why they also understood that to be able to have people eligible for the presidency they would have to create a temporary status of eligibility for naturalized citizens—those made citizens not by natural law but by this affirmative act—until enough time had passed for the newly created status of US citizen to then, in the course of time, create actual “natural born citizens” and then time for these offspring to become at least 35 years old.
If simply becoming a citizen by the “naturalization” process of Article IV, Section II had been adequate to convey eligibility for the presidency, the temporary category of eligibility, the grandfathering in of certain people whose citizenship in the new United States was not due to natural law but to an affirmative action, would not only not have been necessary, it would have been superfluous. And the Founders did not waste words on superfluous and unnecessary verbiage.
Re: “If simply becoming a citizen by the “naturalization” process of Article IV, Section II had been adequate to convey eligibility for the presidency, the temporary category of eligibility, the grandfathering in of certain people whose citizenship in the new United States was not due to natural law but to an affirmative action, would not only not have been necessary, it would have been superfluous. And the Founders did not waste words on superfluous and unnecessary verbiage.”
The reason for the grandfather clause was not to make George Washington or the other American-born leaders eligible. It was to make Alexander Hamilton, James Wilson, and the other foreign-born, nationalized leaders eligible.
Ellen clearly has no concept at all of the process of determining the intent of the framers of the Constitution. Anyone who has studied the process knows that the contemporaneous writings of the Founders, and in some cases of the laws and concepts that were clearly the basis of the writings of the Founders, are always examined and taken into consideration, to be able to put the actual writings in context.
are always examined and taken into consideration, to be able to put the actual writings in context.
Unless, of course, you simply claim that such writings don’t exist.
They do not exist. There are no writings that say “two citizen parents are required” (There aren’t even any that say “one citizen parent is required.”) There is nothing that says: “We are following Vattel in this definition”
Evidently in an Ellen-centric world, what she does not know does not exist.
We have examples of American leaders using the term Natural Born the way that it was used in the common law. If there are any that say “two citizen parents are required”–or anything like it–then please show them. Of course, before you begin your search, you should know that people have been looking before you, and that if there had been any such statement, it would have been shown.
By the way, I am hardly alone in this.
Meese, and four state courts and one federal court, and the US Electoral College and the US Congress all hold that the meaning of Natural Born Citizen comes from the common law and that every US citizen who was born in the USA is a Natural Born US Citizen.
big deal ellen…millionairs wipe thier butts with $100 dollar bills…that doesnt renegate the established currency to the value of toilet paper…
the only thing that matters is the US Constitution, and the Supreme Court precedent that follows the Constitution…not gossip and rumor…nor lesser courts…or descenting opinions in the SC…striclty Dicta, the primary determination of the meaning of natural born citizen, which is, factually, confirmed in Minor…
no…ellen…you dont have a leg to stand on…
“The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.” Chief Justice John Marshall, 1814
I am going to repost part of dbschmidt’s post, above, with slightly different emphasis.
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Justice Gray on Wong Kim Ark & the 14th Amendment: “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 governments” hence “subject and citizen are, in a degree, convertible terms as applied to natives.” Accordingly, “[a]ll 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. . .”
***********************************************
I find it helpful to go through a statement like this and apply emphasis to different parts of it, at different times, to really get to the heart of its meaning, when there is so much meaning compressed into such a short paragraph.
This paragraph is important, as it reinforces the common law that children of British subjects were, therefore, natural born subjects, and children of American citizens are, therefore, natural born citizens.
The Justice himself stated that in terms of common law, which he clearly said is “..the common law of this country, as well as of England…” we can substitute the word “citizen” for that of “subject” without changing the meaning of the law.
This is quite significant, as it admits pre-Constitutional common law which is based on natural law into discussion of Constitutional law.
Gray, and five other justices, ruled that EVERY child born in the USA, except for the children of foreign diplomats, is a Natural Born Citizen.
From Gray’s opinion;
“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 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.”
Citizen, not natural-born citizen.
Sure it was a citizenship case.
But the ruling also said:
“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, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
Notice EVERY CHILD. Notice that it applied in the English colonies and the United States AND under the Constitution.
what you have just told us ellen…
is that if king george would have sent his concubine to the United States to have his child…that the founding fathers would have accepted that child and allowed him to become President….
you are so far from reality that its…laughable to thing thing…you are serious…
Re: “…if king george would have sent his concubine to the United States to have his child…that the founding fathers would have accepted that child and allowed him to become President….”
What gives you the idea that the founders wanted to protect us from the child of the concubine of King George? Didn’t they think that we are smart enough to make that decision?
Once again, they were not trying to protect us. They allowed Natural Born US criminals to be president (no ban on criminals). They allowed Natural Born atheists to be president (no ban on atheists). They allowed Natural Born Tories (people who actually fought against the Revolution) to be president.
What are the citizenship requirements for members of the US Supreme Court? There are NONE. The age requirements for members of the US Supreme Court? There are NONE.
The principle was obvious. We will allow our successors to make the decisions. We cannot micromanage. So the president and congress are allowed to pick 15 year old foreigners to be members of the Supreme Court. And we the voters are allowed to vote for criminals, atheists, and Tories. We are allowed to make our own mistakes.
Why shouldn’t we be allowed to vote for the US-born daughter or son of King George? Or, put it another way, why shouldn’t we be allowed to vote AGAINST the son or daughter of King George?
This speculation, by the way, does not change the fundamentals of the situation. There are quotations from the period showing that the meaning of Natural Born Citizen comes from the common law and includes all the US citizens who were born in the USA–excluding only naturalized citizens. And there are NO quotations from the time saying that parents affect Natural Born Citizen status–not two parents, not even one.
That is also what the US Supreme Court ruled in Wong Kim Ark, and what the four state courts and one federal court and the Electoral College and the US Congress all have confirmed. IF you do not like it, there is a method to change the situation. It is to pass a Constitutional Amendment (two-thirds vote in both houses of Congress and three-quarters of the state) that says: “Two citizen parents are required.”
Gray, and five other justices, ruled that EVERY child born in the USA, except for the children of foreign diplomats, is a Natural Born Citizen
Then why, as I noted several days ago, if a child born in this country of alien parents is synonymous with a “naturan-born citizen, did Chief Justice Gray, in the majority opinion, differentiate between the two:
Spook, wouldn’t the operative phrase in your quote be: be as much a citizen…? Doesn’t that phrase mean “at least equal to?” Likewise, the Yinger article you posted makes a strong case for the argument that “native born” is a more stringent criterion than “natural born”, not the other way around. Specifically, “native born” allows only those who satisfy the “jus soli” requirement whereas “natural born” allows for either (but not necessarily both at the same time) the “jus soli” and the “jus sanguini” requirement. Virtually all of the documentation provided which shed light on what the founders may have been thinking suggest that they did not intend for both requirements to have to be met. That would have been too “nativist”, and they very clearly wanted to avoid that.
It could be argued that that’s just my opinion, and rightly so. What is a fact is that the federal courts have established a pretty strong precedent vis-a-vis the “jus soli” requirement as being sufficient in and of itself. The “jus sanguini” argument in and of itself, on the other hand, not so much. To my knowledge they have never clearly ruled on exactly what that means. That distinction speaks to Ed Meese’s comment as well as the motivation behind the Congress feeling it necessary to provide a (non-binding) resolution to the effect that John McCain satisfied the requirements of eligibility.
you need to read up on the federalist papers ellen…you so contradicted them that its not funny…the first 5 are on foreign influence on our government…the founding fathers set the qualifications to insure that the POTUS could not unduely influence the US Government…read…and stop blowing your smoke at us….PHUUULLEEEZ….source your information instead of making claims like that that are without foundation…
Spook, wouldn’t the operative phrase in your quote be: be as much a citizen…? Doesn’t that phrase mean “at least equal to?”
What does “at least equal to” mean? That it COULD be MORE than equal?
Seriously, if Wong Kim Ark had been an Article II, Section 1 case, then you might have a point. It’s actually the point that Ellen has been trying to make for 5 days. But Wong Kim Ark was a “citizenship case” and only has Article II, Section 1 ramifications because historians and Constitutional scholars have agreed that it’s one of two S.C. cases that have come closest to defining “natural-born citizen”. In light of the fact that it WAS a citizenship case, logic dictates that Justice Gray was comparing the citizenship rights of an individual born in this country of alien parents to the citizenship rights of a “natural-born child of a citizen”, and he concluded that they were equal. Clearly Justice Gray thought of the “natural born child of a citizen” as the gold standard, or he wouldn’t have made such a comparison.
Keep in mind that I only play a Constitutional scholar on this blog, and not in real life, so I could be completely wrong.
Re: “Then why, as I noted several days ago, if a child born in this country of alien parents is synonymous with a “natural-born citizen, did Chief Justice Gray, in the majority opinion, differentiate between the two:
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.”
The answer is simple, when you talk about rights you stress the equality of the differences. You say that X is equal to Y. You do not have to say that X IS Y.
In fact the US-born child of alien parents is as much a US citizen as the Natural Born child of US citizens. That does not mean that she or he is not Natural Born, it just means that in this discussion the stress is on the equality of the two. Only if they were not equal, if the US-born child of a foreigner was considered a lower grade of citizen, would there be any point in thinking that she or he were NOT natural born.
The key quotation remains:
“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, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
It also quoted this, favorably:
“In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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 [p663] 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”
It also quoted this, favorably:
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, ‘strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;’
In short the rule was that if you were born in Britain you were a Natural Born Subject, and if you were born in the USA, you were a Natural Born Citizen. And, notice, there is no mention of parents. None at all.
dbschmidt said “Ellen claims “In particular, they read Blackstone, who was far more popular reading and was used far more in quotations that Vattel.”
Please validate that claim.”
Sure:
http://www.constitution.org/primarysources/influences.html
The above research shows that St. Paul was actually quoted most. Blackstone was only third. But Blackstone’s quotations made up 7.9% of the total quotations, while Vattel’s made up only 0.5%. The 7.9 percentage is about 15 or 16 times more than 0.5%.
By this I am not saying that Vattel was not an influence or that Blackstone automatically was more of an influence.
But you cannot say that simply because the framers had read Vattel they relied upon him. It is far more likely, based on the statistics alone, that they relied on Blackstone. In any case knowledge of and use of Blackstone was more common.
And when this is combined with the evidence that the writers and others at the time actually used Natural Born Citizen the way that Blackstone did, and no example of them using it the way that Vattel did, the evidence is overwhelming.
The common law was cited about twenty times in the Federalist Papers. Blackstone only twice. Vattel not at all. Here are the searchable Federalist Papers (http://www.foundingfathers.info/federalistpapers/fedi.htm)
nice try
citizenship is citizenship….however…the latch in the constitution…is that only a natural born citizen can be POTUS…you gloss over the obvious to make a mute point there…
a natural born citizen has no more rights than a naturalized citizen…it is only a qualification…quoting british law…and circuit court rulings…have no effect on the issue…the SC ruling overrules them all…Minor set the precedent…Kim Ark did not change that precedent…no lower courts rulings are superior to those two case…period…
The common law was cited about twenty times in the Federalist Papers. Blackstone only twice. Vattel not at all.
Ellen, I went to your searchable Federalist Papers and did a search for “Law of Nations”, “common law” and “Blackstone”. My search yielded 6 of the first and 5 of the second, and 2 of the third. The 2 occurances of Blackstone we agree on, but how did you get to “about twenty” for common law and “not at all” for Law of Nations?
Its pretty basic RS…Ellen makes up whatever she needs so she remains a legend in her own mind. Its no dif than what the arse clowns from hells half acre have been doing for years…you know that.
Another controversial opinion concerns U.S. v. Wong Kim Ark. The majority opinion is 55 single spaced pages long, and the dissent weighs in at 27. The majority opinion was composed by Justice Horace Gray, aka – the Legal Historian of the Supreme Court, and Father of the Historical Method. At first glance, his opinion appears to have tracked down every relevant piece of information and law necessary to a proper resolution of the case.
Indeed, Gray goes all the way back to English statutes in 1351, continues through Calvin’s Case in 1608, and drives right to the newest state court cases of the day. Nothing was avoided. That depth of research is what made the Supreme Court an icon of justice, and is severely lacking from the flimsy opinions of lower courts that have weighed in on POTUS eligibility.
Bad ass research and an intellectual capacity to delicately do ballet thereupon is what makes the Supreme Court’s opinions stand out in contrast to their lower court peers. The SCOTUS gives the appearance of true legal authority. And it’s this patented appearance of legal authority that the stability of the nation is grounded upon.
When that appearance of authority was humiliated in the Dred Scott case, all hell literally broke loose upon this country.
Unfortunately, in U.S. v. Wong Kim Ark, we have the second worst piece of stinky refuse the Court has ever passed wind upon. And the appearance of true justice has once again been utterly humiliated. Consider that Justice Gray was appointed by Chester Arthur, a man born of an alien father. And in 1898, when Wong was decided, had the public at large, and the Court at large, known that Arthur was born a British subject in the U.S., then there would have been no need to determine the citizenship fate of anyone else born in the country to alien parentage.
If alien parentage didn’t stop old Chet from being President, why should it stop anyone else from being a citizen?
Yet, Justice Gray never mentions the citizenship status of the man who appointed him. Gray controlled his own fate by presiding over an opinion, the outcome of which decided the very legitimacy of his appointment to the Supreme Court. And the appearance of impartiality has been destroyed by this sordid history. Whether Justice Gray knew Arthur was born of alien parentage is not as important as the objective appearance.
(re: Leo Donofrio)
Re: “Unfortunately, in U.S. v. Wong Kim Ark, we have the second worst piece of stinky refuse the Court has ever passed wind upon. ”
You are entitled to your opinion. However, two points. When the US Supreme Court makes a decision it is the law of the USA unless and until it is overturned, and the chance of the US Supreme Court overturning Wong Kim Ark is nil.
Why no chance? Because (1) the historic research on which the decision is based is in fact correct; (2) The members of the US Supreme Court have no desire to make some US-born citizens superior to other US-born citizens.
I know its hard for someone with a reprobate mind to understand, but I really dont care how much BS you inject. Donofrio totally documented the facts in the post I made, beyond any reason, and just because you pay lip service to gossip and rumors does not change the facts, history speaks LOUD…and you…well…the flush of a toilet drowns you out libtard…
your lip service is like raw sewage…totally useless and an offense to good people everywhere…
Today, we shall strip another foundational building block from the opinion in Wong Kim Ark. I refer to the mysterious “paper” written by Philadelphia attorney, Horace Binney, in 1853. My research has revealed that his paper, The Alienigenae of the United States Under the Present Naturalization Laws, was published in three editions, not two, as was erroneously suggested by Justice Gray. Furthermore, Gray’s suggested chronology of publication is false.
The most important section of Binney’s paper, as it relates to Justice Gray’s opinion from Wong Kim Ark, was deleted in the third and final revision, while Justice Gray wrongly suggested that the second edition was the final one, thereby appearing to justify his reliance upon it. This is absolutely false.
The deleted section of the Binney paper was relied upon, and quoted by Gray twice in the Wong Kim Ark opinion. He quotes the passage in the body of the opinion, as well as in the very holding of the case. While Justice Gray acknowledges that the passage did not appear in the peer-reviewed American Law Register (precursor to the University of Pennsylvania Law Review) version, he suggests that the ALR version was the first edition, and that it came before the second edition relied upon by the Court so heavily in Wong Kim Ark. As you will see below, Justice Gray got that very very wrong. My research has now established with absolute certainty that the ALR version was the third and final version of the Binney paper.
Mr. Binney and his editors at the ALR deleted the infamous passage relied upon by Justice Gray in the Wong Kim Ark opinion. It did not survive the peer review process and was gutted in the third and final edition of the paper. Furthermore, the necessity for their being three versions of the same paper – all published within three months of each other – was caused by two consecutive screw ups by Binney in quoting the U.S. Naturalization Act of 1790. As we shall discuss in detail below, Binney not only misquoted the statute in the first edition, but he compounded the error by applying speculative analysis to the statute as if it contained the misquoted provision.
Imagine analysis of a statute which does not exist. That’s exactly what happened in the first edition. Then, in the second edition (relied upon so heavily by Justice Gray), Binney appears to have offered the infamous page-long footnote (on pg. 22 of the paper) as a counter-analysis to the first edition’s mistaken conclusions. Unfortunately, Mr. Binney failed to correct the misquote in the second edition as well.
Both the first and second editions, therefore, contain analysis of a statutory provision which did not exist. This, of course, makes the analysis useless. It’s based upon a fictional statutory provision, so the analysis of that non-existent provision cannot be a legal authority for anything, let alone the majority opinion of the U.S. Supreme Court in the very case which set our citizenship path for the last 114 years.
In the third and final edition of the paper, as published by the ALR, Binney’s name was deleted along with that part of the footnote relied upon twice by Justice Gray. Welcome to the wonderful world of Wong Kim Ark.
We have the sad reality of the highest court in the nation relying upon – in the most important citizenship decision in our national history – a legal authority which was deleted by the concerned author and his esteemed editors. When we add this new evidence to all of the other anomalies in the Wong Kim Ark opinion, as framed by the strange history of Chester Arthur’s citizenship status, the stench becomes unbearable. And the current United States Supreme Court should really clean it up.
(re: Leo Donofrio)
There are two United States Supreme Court decisions that show that the meaning of an Article II “natural born Citizen” is not found in the Fourteenth Amendment or in any other part of the Constitution, but rather in the common law. The Supreme Court decided these cases after the Fourteenth Amendment was adopted in 1868. In the first case, the Court decided whether the person was a “natural-born citizen” and in the second one whether the person was a “citizen of the United States.”
Chief Justice Waite, in Minor v. Happersett, in 1875, stated: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens,as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Minor v. Happersett, 88 U.S. 162 (1875). Additionally, it is important to note that, even though the Fourteenth Amendment was already in place, Justice Waite stated that there is doubt as to whether a child born in the United States to foreign parents is a citizen (Id. at 167-68) and that the Fourteenth Amendment did not affect the citizenship of men or women. Id. at 170. It is also critical to note that Justice Waite did not refer to the English common law when defining a “natural born citizen,” for we shall see that the English common law did not consider the citizenship of the child’s parents when declaring that child a “natural born subject.” Rather, Justice Waite refered to the “common law” that as we shall see below has its origins in the law of nations and natural law and which became U.S. common law.
Justice Grey, 23 years later in U.S. v. Wong Kim Ark (1898) repeated what Justice Waite said in Minor about the need to resort to common law when defining “natural born Citizen:” “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision.” U.S. v Wong Kim Ark, 169 U.S. 649 (1898).
In both of these cases, the Supreme Court did not look to the Fourteenth Amendment to define what a “natural born Citizen” is. Rather, both courts said that the meaning of that term must be found by resort to the “common law.” What do both of these Supreme Court decisions tell us? First, they show that there is a difference between a Fourteenth Amendment “citizen” and an Article II “natural born Citizen.” If the two terms were the same, the Supreme Court in both of these cases would not have said that the meaning of a “natural born Citizen” is not contained in the Constitution, for the Fourteenth Amendment was already part of the Constitution and the Court could have easily said that the definition of a “natural born Citizen” is contained right in the Fourteenth Amendment. Second, the Supreme Court in both of these cases also said that the meaning of an Article II “natural born Citizen” is not contained in the Constitution but rather in the “common law.” Here we have clear evidence that the United States Supreme Court itself has recognized that the Fourteenth Amendment does not define what an Article II “natural born Citizen” is and has stated that its definition may be found only in the “common law.” Hence, we can see that simply being declared a “citizen” under the Fourteenth Amendment does not make one an Article II “natural born Citizen.” Neither the Fourteenth Amendment nor Congressional Acts has changed the meaning of a “natural born Citizen,” for these sources address only the question of what is a “citizen” and do not touch upon what is a “natural born Citizen.” “The Fourteenth Amendment and the domestic citizenship statutes necessarily mean that Congress left determination of what categories of citizenship are “natural born” to other law. . . .” Gabriel J. Chin, Why Senator McCain Cannot Be President: Eleven Months and Hundred Yards Short of Citizenship, Arizona Legal Studies Discussion Paper No. 08-14 (2008). Also, for one to be declared an Article II “natural born Citizen,” one must satisfy the “common law” definition for that term. The question then becomes to what “common law” are we to look for the definition of an Article II “natural born Citizen?”
(re: Mario Apuzzo)
Given the profound differences between the citizenship rules associated with the English common law and those connected with American national citizenship, it is evident that the Founders did not use English common law to define what an Article II “natural born Citizen” is but rather used the law of nations for that purpose which became incorporated into and became federal common law. George Mason, the “Father of the Bill of Rights” and one of the “Founding Fathers” of the United States, proclaimed: “The common law of England is not the common law of these states.” ( Debate in Virginia Ratifying Convention, 19 June 1788). To the extent that the English common law was relied upon in the colonies and States, that law was at the time that the Constitution was adopted “to a greater or less extent, recognized as the law of the States by which the Constitution was adopted.” The English common law would, however, be applied to determine questions of citizenship only if the written law was silent, i.e., there was no statute or federal or state court decision on the subject. Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863). But the Founders did not rely upon the English common law to define the new national United States citizenship that they created for the new Constitutional Republic. Rather, the Founders replaced the English common law with the law of nations which became the new U.S. federal common law and the law of the federal government.
Upon independence from Great Britain, the United States “were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). In The Nereide, Justice Marshall stated that the “Court is bound by the law of nations, which is part of the law of the land.” 13 U.S. 388, 423 (1815). “The courts have always considered the law of nations to be part of the law of the United States.” M. J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press 1990), at 245. There are numerous other authorities that state that the law of nations became the national law of the United States. Even William Blackstone recognized the importance of the law of nations which he considered “universal law” and the life blood of a nation wanting to be part of the “civilized world.” 4 W. Blackstone, Commentaries on the Laws of England 67 (1769). Hence, the law of nations, when not codified into any Act of Congress, became the common law of the United States.
The Framers did not define an Article II “natural born Citizen” because they did not see a reason to. It was a term that was well defined by the law of nations and well-know by civilized nations. Given that citizenship affects “the behavior of nation states with each other” (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), all civilized nations knew what the definition of citizenship was. The Founders believed that the common law was discoverable by reason and was forever present, a “discoverable reflection of universal reason.” Sosa. So since the Constitution did not define “citizen” or “natural born Citizen,” “resort must be had to the customs and usages of civilized nations” found in the law of nations, as defined by scholars, jurists, and commentators of the time who devoted “years of labor, research and experience” to the subject. The Paquete Habana, 175 U.S. 677, 700 (1900).
We know from the historical record and from the way the Constitution is framed that the Founders relied heavily upon Emmerich de Vattel and his highly acclaimed treatise, The Law of Nations or Principles of the Law of Nature (1758), as a crucial and fundamental guide in knowing what the law of nations was. Alexander Hamilton was the key organizer of the movement to hold the Constitutional Convention that produced the Constitution. No one played a more important role than Hamilton in the adoption of the Constitution. Of all the Founders, he was the one most influenced by Vattel. http://east_west_dialogue.tripod.com/vattel/id5.html. In 1784, Hamilton, as the lawyer for the defense, arguing in the case of Rutgers v. Waddington, quoted prolifically from E. Vattel’s, The Law of Nations. The Waddington case shows how Vattel shaped Hamilton’s thinking. Hamilton argued that the law of nations was part of the common law and that the decisions of the New York Legislature must be consistent with the law of nations. Hamilton used Vattel as the standard for defining the law of nations. Hamilton argued that state law was superseded by national law and the law of nations. He also argued that the intent of the state legislature had to be that their laws be applied in a fashion that was consistent with national law and the law of nations. Judge James Duane in his ruling described the importance of the new republic abiding by the law of nations, and explained that the standard for the court would be Vattel. He ruled that the New York statue passed under the color of English common law must be consistent with the law of nations.
Thomas Lee (University of Chicago Law), in his essay, “The Safe-Conduct Theory of the Alien Tort Statute,” said: “The treatise by the Swiss thinker Emmerich de Vattel entitled The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns was the supremus inter pares of the international law texts the founding group used during the crucial decade between 1787 and 1797. The Founders also read and cited other leading authorities, most notable Hugo Grotius and Samuel Pufendorf, but Vattel was their clear favorite. ”
(re: Mario Apuzzo)
“No one played a more important role than Hamilton in the adoption of the Constitution. Of all the Founders, he was the one most influenced by Vattel.”
In 1795, Hamilton wrote a legal brief about direct and indirect taxes. He wrote,
“What is the distinction between direct and indirect taxes ? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none.”
And he finishes by saying
“where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
So while he may have been influenced by Vattel, he told us to look for the meanings of terms in the Constitution in English Law.
context is everything…and without the “ENTIRE” excert…its pretty lame to assume that the man credited with doing so much to create the constitution…to risk everything including his life…that he would omit the intent to assume english law under the US Constitution…if that is what he meant to do….
Brit common law is not mentioned in the Constitution 1 time…but the law of nations is….get that…its in writting…in the constitution itself
Art. 1, Sect. 8 Clause 10 “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;”
and the most obvious truth is…that British Common Law was not mentioned in the US Constitution 1 time….but the law of nations was…hence…”common law” and British Common law…are 2 different topics in totality…both being by precedent…not inclusive…but exclusive to the territory/sovereign it exists in…
much like the weapons laws in Britain…being well established in the UK….but never existeded into the USA…as such…demonstrating absolutely…that Brit Common law DOES NOT APPLY….period…
Actually when James Madison drafted the billof rights he incorporated the Common law into the 7th amendment.
Clause A = “Only a natural born Citizen may be President.”
Clause B = “Anyone born in the United States is a Citizen.”
(While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as “Clause A” and “Clause B” for now.)
The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.
Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.
Clause A is a specific clause that says only those members of the nation who are “natural born” may be President.
According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.
It’s truly that simple. This is not some crazy conspiracy theory. It’s not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. Any attorney who denies this rule, is lying. The rule cannot be denied. And its simplicity cannot be ignored.
(RE: Leo DOnofrio)
its very easy to see the error of the rulings in many of the ballot challenge rulings recently…when the judges sit there and claim that anyone born in the US is a natural born citizen…they have failed to use basic judicial restraint and construction…which is demanded of them for thier rulings to be valid…
pretty well every one of them are currently on appeal…and each new ruling based on those in appeal…are relying upon the same faulty jurisprudence….
Obama was born a Citizen of Britain in accordance with Intl’ Law, the the British Naturalization Act of 1948. He “cant be” a natural born citizen of the USA, because of his birthright citizenship and natural allegiance to his fathers nation.
Who told you that? It is wrong. There have been quite a few US presidents who had dual citizenship including Thomas Jefferson and James Madison, who were made full voting citizens of France, and Woodrow Wilson and Dwight D. Eisenhower at birth, the former because of his mother, the latter because of his grandparents–which was the law in Germany at the time. (Yes, Eisenhower, who fought against Germany, was a dual US/German citizen at birth).
In addition to these historic facts there are these points: The writings of the founders shows that they believed, with Blackstone, that a person could have only one allegiance, not a divided allegiance or an allegiance to multiple countries, and that the criterion for allegiance in the USA is the place of birth.
James Madison said: “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.’
Birth is what applies in the United States. In the USA, Madison says, birth is the criterion of allegiance. (http://press-pubs.uchicago.edu/founders/documents/a1_2_2s6.html)
So they did not worry about divided loyalty because they believed that a person could have only one allegiance, to the country where he was born. Why are not naturalized citizens allowed to be president? Not because of divided allegiance, but because Madison and the other founders thought that they would have one allegiance–to the other country, the place that they were born. And vice versa too. The people born in the USA would have allegiance to the USA and only to the USA no matter if a foreign country considered that they were also citizens of that country.
The second point is that IF dual nationality had any effect on NBC status countries could just pass laws saying that Candidate X is a citizen of that country, and she or he would not be eligible. We cannot, and never have, allowed foreign countries to jerk us around that way. What would happen if Mexico passed a law saying that all the babies born in Texas were also citizens of Mexico, would they suddenly not be NBCs?
Of course not.
SSDD…your ignorance is only exceded by your…error…
is this all ya got…lip service?
your lip service is like raw sewage…totally useless and an offense to good people everywhere…
ellen you are ignorant…
Jeffereson AND Madison were covered by the exclusionary clause of the Constitution…your BS on that is far more than KNEE DEEP…STOP WASTING OUR TIME ON IGNORANT BANTOR
eisenhowers parents were both US Citizens at the time of his birth…it doesnt matter what nationality his grandparents were….you suck when it comes to reality
Wilsons father was born in the USA as well…and the laws being what they were at the time of Woodrow Wilsons BIRTH…the wife of a US Citizen automatically became a US CITIZEN HERSELF immediately upon her marraige…so without any evidence to prove your BS…it IS MEANINGLESS TO DISCUSS ITS LACK OF MERRIT AS A TOPIC ON THIS BLOG
actually…because of the bimbo that you are ellen…you inject information about what hamilton said…out of context…and that…is as much of a lie as any that you have attempted here before…ignorance or not…it doesnt matter…becaus ethe context you removed the statement from was dealing SOLEY with the condition of citizenship as to the patriots who resided in the colonies at the time of the revolution…and that was clearly limited to…the place of birth….
it has nothing to do with the actual meaning of naturla born citizneship…or the citizenship status of aliens children who were born while they were in a transient status residing within US Jurisdictions…
so the lie…does fly…your lip service is like raw sewage…totally useless and an offense to good people everywhere……again
Five courts currently (four state and one federal, and actually two appeals of those rulings, which were refused) and the Wong Kim Ark decision have determined that every child born in the USA except for the children of foreign diplomats is Natural Born. Natural Born is different from being a citizen. it is NOT a synonym of citizen because it does not include naturalized citizens. And it may be broader than simply native born citizen–although all of them are included. Some congressional scholars hold that the children of US parents born outside the USA are also Natural Born.
your lip service is like raw sewage…totally useless and an offense to good people everywhere…
The Founders knew that the States had their own laws on how they defined citizens and how they naturalized aliens. United States v. Rhodes, 27 F.Cass. 785, 791 (1866). They also knew that these laws were not uniform. The Founders in Article I, Sec. 8, cl. 4 took away from the States the power to naturalize a person and gave it exlusively to Congress so that it could make uniform the laws of naturalization. The Founders also wanted a uniform definition of “citizen” and “natural born Citizen,” for how could they have wanted uniform laws regarding naturalization and not the same for citizenship. Further evidence that they wanted this uniformity may be found in Article IV, Sec. 2 which states: “The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States.” This clause shows that the Founders also wanted to take away from the States not only the power to naturalize but also the power to define citizenship, for “a person becoming a citizen in one State, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the State.” Gibbons v. Ogden, 22 U.S. 1, 36 (Wheat) (1824). The law of nations provided them with those definitions which were also accepted by other civilized nations and which allowed them to establish a national standard for citizenship that would be incorporated and become part of United States national law.
Article I, Section 8, cl. 4, which gives Congress the power to make uniform the naturalization laws, also provides further evidence that the Framers were not influenced by English law (statutory and common) in defining what a “natural born Citizen” is. Prior to the Founding and throughout its period, English Parliament had the power to and did exercise that power to declare children born in or out of the Kingdom to English “natural born subject” parents “natural born subjects” themselves. But the Framers gave to Congress in Section 8 the power to only make uniform the naturalization laws and no power to make anyone a “natural born Citizen.” The “natural born Citizen” part of the Naturalization Law of 1790 was probably only a stopgap measure to grandfather children, born abroad to U.S. citizens during that time period, to be eligible to be President. It had the same effect as the “citizen” grandfather clause of Article II. It used the words “natural born Citizen” rather than just the word “citizen” because the Constitution had already been adopted and its Article II grandfather clause which used the word “citizen” no longer applied for children born after 1787 and its effect would only be retroactive, for those children were declared “natural born Citizens” only retroactively. Since its effect was only retroactive, only to cover a small period of time, and needed to grandfather additional children to be President, Congress probably saw no harm in declaring those children “natural born citizens,” even though it had no constitutional authority to do so. Hence, by the time 1795 arrived, the Third Congress, knowing well its limited powers on the subject matter probably decided that there was no longer any need for the grandfather effect that had been needed in 1790, removed the words “natural born,” and left in just “citizen.” At that point, whether a child born out of the country to U.S. citizen parents was a “natural born Citizen” would be decided, like what an Article II “natural born Citizen” was, not by any Act of Congress or the English common law but by the law of nations (jus gentium) that was based on natural law and which became incorporated into our federal common law. The Third Congress would not have removed the words “natural born” from the clause if the Framers and Congress accepted the English notion that Parliament had the authority to declare who was a “natural born subject.” The Framers had to view “natural born Citizen” differently than how the British viewed a “natural born subject.” Such a different view of the term explains why the Framers only gave Congress the power to naturalize and not the power to declare anyone a “natural born Citizen.”
(RE: Mario Apuzzo)
JS,
Fascinating topic, eh? Researching it is addictive. I spent a couple hours surfing history and constitutional sites this morning, and ended up in the same place you did. Loved your expose on Wong Kim Ark.
Ive been tracking this for over 3.5 years.
The 2 most notable authorities that I recognize are listed here. These 2 men should probably sit on the SC but they chose thier own paths. The quality of the legal work they have done is undenaibly the best this nation has.
Total speculation, not supported by any other authorities, not supported by any articles written at the time, not supported by any document saying “two citizen parents are required,” not supported by any reference in any of the law or in any articles to “THE Law of Nations” (Vattel’s book).
If the framers “had to view “natural born Citizen” differently than how the British viewed a “natural born subject.” (which is what the Supreme Court has said they did NOT do) in terms of the number of parents required, none, one or two–they would have told us.
your lip service is like raw sewage…totally useless and an offense to good people everywhere…
I have really enjoyed the give and take with Ellen, and I thank you, Ellen, for the way you have participated.
Your conclusions are certainly not mine, but you have actually presented cogent arguments to support them, and in my more than six years on this blog this is the first time I have seen someone so obviously from the far Left approach a topic not only with coherence but with courtesy.
I think this is the most productive thread I have experienced on this blog, and I learned a lot.
I repeat, I am in an odd position here. On one hand, I find such compelling evidence of the definition of ‘natural born citizen’ as the offspring of two citizens that I can’t turn away from this idea—an idea that I rejected for at least three years when I heard it..
On the other hand, this definition removes from consideration for the presidency two men I find to be exciting, competent, new blood in the Conservative Movement, which I consider a great loss.
One thing I believe MUST be addressed is the need for a definitive, conclusive, legal opinion on the topic. But. and this is a new concept for me, there is an opinion in what I think is the first of the two videos linked by neo, that once a decision has been reached it is conclusive. So maybe the situation is complicated by a need to have a ruling on whether a ruling has been handed down, since we can’t even seem to agree on this.
It’s certainly not an easy or simple topic. But again, thanks to Federalist for posting the thread, and thanks to all for the valuable contributions. js03, your quotes are great.
And again, Ellen, thanks for the way you have participated, even though I don’t agree with you.
I’ve seen Ellen be remarkably courteous as well, even to people who’ve been quite rude to her.
As far as the two-citizen-parent theory goes, it’s entirely without foundation, either legally or historically. It is simply a false theory supported only by fallacy upon fallacy upon fallacy.
And some of the fallacies sound pretty good at first blush. But I’ve yet to see a single one that doesn’t fall apart when you really look at it.
I know that’s immensely disappointing to some, but those are simply the facts. And I know there are people here who will argue and produce all kinds of variations on the fallacies and twisted quotes taken completely out of their original context, that appear to back up the fallacies, but that’s all they are. And I know some of the folks here will undoubtedly call me all kinds of names for telling the simple truth. But the simple truth it is.
Oh, and I’ve already been called all of those names before, and worse besides.
A brief bit of commentary on the “rule of statutory construction” stuff:
The Supreme Court has held that the purpose of the 14th Amendment was not to change the basic rules on citizenship. The purpose was merely to make sure that the existing rules on citizenship were applied to ALL persons who were born on US soil, and subject to the jurisdiction thereof, especially including the slaves who had recently been freed, and other American blacks.
“Subject to the jurisdiction thereof” included everybody except for children of ambassadors & foreign royalty, invading armies, and the Indians, who were regarded as being part of separate nations living in the territory of the United States.
Those who authored the Civil Rights Act of 1866 and the 14th Amendment stated repeatedly that they understood the Act and Amendment they were creating to be merely declaratory of the law as it already was.
And the rule that had always applied in regard to natural born citizenship was that people born in the US were natural born citizens, including the children of non-citizens (with the exceptions above).
Nobody ever contended that the children of white European immigrants who were not themselves citizens were anything other than natural born US citizens.
That the 14th Amendment did not specify that such persons were “natural born” DOES NOT mean that they weren’t. To know whether they were or were not, we have to look elsewhere. And the totality of ALL other evidence tells us CLEARLY that IF they were citizens, born on US soil, then they were clearly NATURAL-BORN citizens.
As far as the “rule of statutory construction” is concerned, the Presidential eligibility clause DOES tell us something more. It tells us that natural born citizenship is a requirement for Presidential eligibility.
That rule would perhaps be best applied the other way around, though, since the 14th Amendment was passed after the Constitution itself.
And the 14th Amendment DOES tell us something more than the Presidential eligibility clause. It tells us that Congress wanted to make sure that all of the benefits of citizenship were applied equally regardless of skin color. It tells us that Congress wanted to make SURE that black people were not denied all of the benefits of citizenship.
But it creates no new rule regarding natural born citizenship. Nor does it destroy any rule that existed at the time that the 14th Amendment was passed.
Specifically, it DOES NOT destroy the existing rule as to who were natural born citizens.
Anyone is free to disagree with that assessment, but it’s kind of like arguing that the earth is flat, because that’s how our courts, judges and legal scholars understand the issue.
I’ve done a bunch of research into the issues and written on some of them, with a guide to those writings available here:
http://bit.ly/IVaR52
There are a number of additional issues and claims that I’ve researched but not written on. But like I say, I haven’t found any claim yet that stands up to real scrutiny. Speaking personally, every claim I’ve ever investigated that purported to support the two-citizen-parent theory has turned out to be invalid.
So, flame away. I may or may not respond. I don’t really have a lot of time to devote here. And the truth is out there for those who are really interested. Those who aren’t will continue to repeat fiction, and nothing I’m going to say is likely to stop that anyway.
Haa…!!.. John Woodman from Mario’s web site.
Same lies. Different place. Libtard after libtard have tried, every one of them recede into history. They cant defend the lie. Its like “Oh well”, the 14th Amendment failed to detail this Natura Born Citizen issue…but then again…the 14th Amendment didnt change it…and you see how they operate…out of context quotes dont mean SHxT….so JohnnyBOy has brought his FAILED ARGUEMENT to this blog after he COULD NOT DEFEND IT on Mario’s…
thats the cue for the mental midget badge…GRAATZ JOHNNYBOY…you got your first award…@@!!@@
Mario’s Essay on NBC.
Excerts;
E. Vattel stated in 1758, as translated into English in 1797: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.” E. Vattel, The Law of Nations or Principles of Natural Law, Sec. 212 Citizens and natives. In Footnote 1 at the end of Sec. 212, Vattel stated that “as a general rule” the child inherits his father’s citizenship, or his mother’s but only if she is not married.
The first thing that we have to understand about what Vattel wrote is that he made a distinction between a “citizen” and a “natural born Citizen.” A citizen is simply a member of the civil society who is bound to the society by certain duties and subject to its authority. “Citizens” also participate equally in all the advantages the society has to offer. On the other hand, a “natural born Citizen” means much more than just “citizen.” Vattel required that for a child to be a “natural born citizen,” or what he called in French in his 1758 first edition of The Law of Nations or Principles of Natural Law, les naturels, ou indigenes (the “natives or indigines”-The Venus, 12 U.S. (8 Cranch) 253 (1814)), the child must be born in the country to both parents who are also citizens of the same country.
In the beginning of his definition, Vattel required that the children be born of “parents” who are citizens. The use of the word “parents” refers to both mother and father. If he required only one parent such as the father, he would have said “of fathers who are citizens” and not “of parents who are citizens.” He did later refer to “fathers,” but only because wives automatically acquired the citizenship of their husbands the same way children did. Hence, if Vattel meant to focus only on “fathers,” he would have used “fathers” throughout his definition and never mentioned “parents” when he first defined “natural born Citizen,” for there would not have been any need to use the word “parents” when “fathers” would have sufficed. Hence, Vattel would have focused on the citizenship of the father since that citizenship would determine that of both the mother and child. It is also noteworthy that Vattel had no problem allowing the child to inherit the citizenship of the mother when the mother was not married to the child’s father. Given that Vattel in effect really focused on the citizenship of both the child’s father and mother in defining a “natural born Citizen,” Vattel’s definition of a “natural born Citizen” does not violate the equal protection guarantee embedded in the Fifth Amendment’s Due Process Clause. Miller v. Albright, 523 U.S. 420 (1998); Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001).
There is also United States Supreme Court support for the position that Vattel’s “Parents” meant mother and father. In the case of Dred Scott, Justice Daniel in his concurring opinion substituted the word “parent” for “father” and “parents” for “fathers.” Dred Scott v. Sandford, 60 U.S. 393 (1856).
In the case of The Venus 12 U.S. 253, 289 (1814), Justice John Marshall said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”
Dred Scott v. Sandford, 60 U.S. 393 (1857), did not directly deal with Article II “natural born Citizen.” But there are parts of the Dred Scott decision that are relevant to the question of what is a “natural born Citizen.” The case clearly defined “natural born citizen.” While as repugnant as slavery was and still is, no court or amendment has over turned the meaning of “natural born citizen” from Dred Scott. The main point is that in deciding what a “citizen” was in 1857, both the majority and dissent went back to 1787 to examine what the Framers and the people of that time considered a “citizen” to be. The Court said that the Constitution must be understood now as it was understood at the time it was written. The judges did not disagree that one had to look back to the Founding Fathers. What they disagreed on is what the public opinion was at that time as to whether a freed slave was a citizen.
John, you make absolute assertions of fact that, when examined, are really nothing more than absolute assertions of your opinions. Constantly referring to them as “simple fact” does not make them fact, simple or not. They are still your opinions.
You assert “As far as the two-citizen-parent theory goes, it’s entirely without foundation, either legally or historically. It is simply a false theory supported only by fallacy upon fallacy upon fallacy”
But this is simply not true. We have cited many examples of the belief that citizenship is inherited through the father, and observation that in that time a woman automatically assumed the citizenship of her husband, thereby making both parents citizens of the same nation.
(Even recently, Barack Obama Junior was entitled to UK citizenship thanks to the citizenship status of his father when he was born, though he was not born in England and as far as I know never set foot in the UK, and was given Indonesian citizenship due to his adoption by an Indonesian citizen. And Michell Bachmann’s husband was given Swiss citizenship due to his family heritage—-which, by the way, entitled her to the same, though she was born in the United States. This is by no means an archaic concept.)
You assert “Subject to the jurisdiction thereof” included everybody except for children of ambassadors & foreign royalty, invading armies, and the Indians, who were regarded as being part of separate nations living in the territory of the United States.”
But there is no evidence that the framers of the Constitution did not believe that a citizen of a foreign nation was, therefore, subject to the jurisdiction of the nation in which he held citizenship and not the one where he was physically present at the time. “Subject to the jurisdiction thereof” referred to the parents, not the children. If the parents were “subject to the jurisdiction” of the United States then they were not “subject to the jurisdiction” of a foreign nation, and were therefore citizens of this nation. And vice versa.
Unless you are planning to mount a “Man Without A Country” argument you will have to argue that “subject to the jurisdiction thereof” applies to location and not allegiance, which would be another topic.
You claim “And the totality of ALL other evidence tells us CLEARLY that IF they were citizens, born on US soil, then they were clearly NATURAL-BORN citizens.”
But this is not true. There IS no totality of all other evidence which absolutely defines either position. There is only a preponderance of evidence and argument about which evidence should be considered and which is not relevant.
On the contrary, the simple use of two terms within just a few words of each other state that there were, in the minds of the Founders, two types of citizenship—that conveyed by grandfathering in citizens of the existing states, and “natural born citizen”. There had to be a reason to use a different term to define presidential eligibility, just as there had to be a reason for a separate clause grandfathering in a certain temporary class of citizen which would be eligible. If mere citizenship was the only criterion, then establishing that citizenship would be conveyed to all current citizens of the various states would have accomplished that, and excluding naturalized citizens would have been all that was necessary to make sure that only people born in the country would be eligible.
Reading accounts of the writing of the Constitution makes it clear that these men agonized over every word, every phrase, every implication in every statement they included. They edited they winnowed, they whittled, they did everything they could think of to make the document as concise, precise, and uncluttered as they could, without losing important meaning. This tells me that the separate sentence describing the specific qualifications of citizenship of people eligible for the presidency, IN ADDITION to the clause saying current state citizens would be given all the rights and privileges of national citizenry, exists for a reason.
(CONT)
Chief Justice Waite, in Minor v. Happersett, 88 U.S. 162 (1874), stated: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Here we can see that the U.S. Supreme Court in all three of these cases adopted Vattel’s definition of what a “natural born Citizen” is, and specifically repeated his two U.S.-parent test. Dred Scott even removed the word “father” and replaced it with the word “parents.”
The Civil Rights Act of 1866 (Act of April 9, 1866) first established a national law that provided: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” Civil Rights Act of April 9, 1866 (14 Stat. 27). Not being subject to a foreign power includes being free from any political and military obligations to any other nation and not owing any other nation direct and immediate allegiance and loyalty. The primary author of this Act was Senator Trumbull who said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.” In order for this requirement to be satisfied, clearly both parents of the child must be U.S. citizens, for if one is not, the child would inherit the foreign allegiance and loyalty of foreign parent and would thereby “belong to a foreign Government.” Rep. John A. Bingham, who later became the chief architect of the 14th Amendment’s first section, in commenting upon Section 1992 of the Civil Rights Act, said that the Act was “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” (emphasis supplied). Rep. Bingham said “parents.” He did not say “one parent” or “a mother or father.”
Now let us turn to the Fourteenth Amendment. Senator Trumbull, when commenting on that Amendment declared: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.” Sen. Howard added: “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” On May 30, 1866, Senator Howard continued: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Govern- of the United States, but will include every other class of persons.” Congressional Globe, 39th Congress, 1st Session, May 30, 1866, P. 2890, col. 2. Again, only if the both parents of the child were citizens at the time of birth could the child be subject to the complete jurisdiction of the United States, not owe allegiance to any foreign power, and not be a person “born in the United States who are foreigners [or aliens].”
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Govern- of the United States, but will include every other class of persons.” Congressional Globe, 39th Congress, 1st Session, May 30, 1866, P. 2890, col. 2. Again, only if the both parents of the child were citizens at the time of birth could the child be subject to the complete jurisdiction of the United States, not owe allegiance to any foreign power, and not be a person “born in the United States who are foreigners [or aliens].”
(repeated a significant point of one of the authors of the 14th amendment)
see John…you can run…you cant hide…the truth, however, will set you free son….get with the program and the the WHOLE TRUTH…dont live your life knee deep in BS and expect respect…
““This amendment which I have offered is simply declaratory of what I regard as the law of the land ALREADY, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens , who belong to the families of ambassadors or foreign ministers accredited to the Govern- of the United States, but will include every other class of persons.””
This statement makes it clear that citizenship in the United States is conveyed by birth here, as long as the person is not a “foreigner” or an “alien”. (For purposes of this discussion, let’s consider “alien” to mean a non-citizen of the United States, without regard to planetary origin.)
So the question is, clearly, is the offspring of a foreigner or an alien automatically a citizen just by being born here? Foreigners and aliens are, of course not included in the class of citizenry established by being born in this country, which to me is a clear statement that being born to non-citizens, or to put it another way to “foreigners” or “aliens”, makes the offspring also a “foreigner” or an “alien”.
The only way I can see to argue this is to claim that the terms “foreigner”, “alien” “ambassadors” and “foreign ministers accredited to the Govern. of the United States” all refer to the same class of person, not four different classes.
So now, to examine this statement, we have to parse semantics.
Did Senator Howard mean “foreigners” AND “aliens” AND “ambassadors” AND “foreign ministers accredited to the Govern. of the United States” or was he just very extremely repetitious and redundant?
So, back up a little, to the previous statement, in which he was kind enough to actually DEFINE a term, that term being “subject to the jurisdiction thereof”. What did Senator Howard say?
““……the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department ; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now .” “
Hmmm. He was careful to include jurisdiction by all three branches of government, which means not just the jurisdiction of the law (people couldn’t break our laws just because they were foreigners, etc.) and then he went on to clarify it even more by saying as applies to every citizen of the United States now
CONSTITUTIONAL POWER, not just legislative power. But the Constitution only has power over citizens.
Are there any laws that apply only to citizens and not to foreigners? I think so. For example, acting to bring down the government is seen as treason if done by a citizen, but not if it is the act of a foreigner. One can only commit treason against one’s own country.
So, according to Senator Howard, in his addendum to the comments of Senator Trumbull, “subject to the jurisdiction thereof” is extremely narrow in scope and meaning and virtually identical to citizenship. Factoring in the laws and customs in place for most if not all of history, citizenship by heredity, it would be consistent to say that the child of a foreigner, an alien, an ambassador or a foreign minister would not be considered to be under the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States,……..the same jurisdiction in extent and quality as applies to every citizen of the United States now because it would actually be the citizen of the nation of its parents. (See earlier reference to historical assignment of citizenship to wives of that of their husbands.)
Keep in mind, I don’t have a dog in this hunt. If it were not for being bothered by what I see as compelling evidence, I would prefer to have Marco Rubio an eligible candidate for the presidency.
Obama has already been legally declared president, and inaugurated. I don’t think we can unring that bell. This is not a partisan issue as it may have been recast prior to the emergence of Rubio and Jindal as potential candidates for the presidency.
But we went through a very divisive and damaging period, recently, when people who were just interested in following the law were falsely and spitefully labeled as partisan, dishonest, crazy, and worse, as racist. Now we face the possibility of another rancorous series of attacks and questions, and I just can’t see how this is good for the nation.
Why can’t we just assemble the evidence and have it adjudicated, once and for all, not indirectly through mention of certain words or phrases in other rulings (which carry no weight of law but only indicate a possible leaning in one direction or another if this particular issue were to have been heard and ruled upon, at that time, by whoever made whatever comment) but in a clearly stated, specifically argued, and specifically addressed stand-alone ruling ON THIS ISSUE?
The Supreme Court ruled, in Wong Kim Ark, that anyone not born to an ambassador or foreign minister, in the United States, is a citizen no matter what the citizenship status of the parents, though the contemporaneous explanation by Senator Howard did provide a strenuous argument against this idea.
I quote Senator Howard not to disagree with the Supreme Court decision, but to point out that there was hardly unanimous acceptance of the idea that the citizenship of the parents was considered irrelevant, subservient to the location of the birth of the child.
The Wong Kim Ark decision was not on the definition of the term “natural born citizen” but on the single matter of whether he was a CITIZEN by nature of his birth in the United States. While the phrase “natural born citizen” did appear, once, in the ruling, it was incidental to the focus of the case, which did not ask the Court to define that term but merely to establish the citizenship status of the man.
A court can only rule on the case in front of it, and in this instance the Court was not charged with defining the term “natural born citizen” but only the citizenship status of Wong Kim Ark.
It will be necessary to ask the Court to rule specifically on the definition of the term.
talk about being rude for a second…this is based on moral principal….
when folks come to a blog like this…and spread propaganda…like taking quotes out of context and drawing conclusions on that out of context statement that are completely and certifiably lies without any question…it is far more than rude…the indignity we must go through by exposing these oft repeated and debunked fallacies is without any excuse a needless excursion into debunking lies that the poster already knows is fallacious…reasonably speaking…taking quotes out of context is direct evidence of such intent…
out of basic human dignity we deserve to be respected…are we above such games that mental midgets can show up and spread propaganda filled with lies of both commission and omission…that when we assail the same…become fools for calling the perp’s out for what they are? do those who carry this false message even deserve our recognition…let alone…respect…when they come into this house and lie to our faces?
you determine right or wrong in your own conscience…but me…i will continue to call a spade a spade…and will not hold back the offense against dignity of such things that these liars bring…so when i kick their shins and spit in their faces…it is the only level of respect they deserve…none
Moderator note: We have seen courteous and thoughtful responses here and have decided to be more discerning about leaving posts which are primarily attacks or insults. Some expression of dislike is acceptable but gratuitous insults and attacks will be deleted and it is possible that posters will be deleted automatically if they continue to post in attack and insult modes instead of offering content. Speculation about the identity of moderators is futile. //Moderator
I suppose everything that could be said has been said on this topic, except perhaps this: who is the proper claimant to bring the issue of what, exactly, constitutes a “natural born citizen” to the Supreme Court? It seems to me that a congressperson of either chamber might do it, but it doesn’t appear any bill offered by any of them gets any traction whatsoever. So why not? Could it be that the vast majority consider it a sufficiently settled issue as to be irrelevant? And if that’s not the reason, what is?
Can you un-ring a bell? Both sides of the aisle have corrupted this, as many other issues and until we get people who are real Constitutionalists into office nothing will get settled.
Several of us have had discussions about this. rico. If, as is suggested, the Supreme Court is not set up to respond to queries such as “What do think of this?” then what is the proper and legal procedure?
Courts have refused to hear similar cases based on what they call lack of standing. Does this mean that someone directly affected—Rubio or Jindal, for example—–has to file some sort of suit in a lower court and then take that ruling all the way to the top?
Congress held a
show trialhearing on the McCain issue, but where does it say that Congress has the authority to determine a Constitutional matter?Is the Court restricted to only hear matters brought to it after a lower court ruling is challenged?
If it’s “sufficiently settled” then how, and who settled it?
I think the courts have ducked the issue because for so long it appeared to be a political hot potato, but now that it affects both parties there might be more of a willingness to look into it. If Rubio is tapped for VP, the issue takes on some urgency.—-otherwise it probably makes sense to wait till Obama is out of office, since a ruling that says both parents, or the father, have to be a citizen to allow the child to be considered “natural born” would have an impact on the election, something an ethical court would try to avoid.
This should have been settled back in 2006-2007 or early in 2008, when it first came up regarding Obama.