Wednesday, January 13, 2016

Cruz and Rubio are Eligible

Why do you reason in circles in order to help Trump avoid being vetted against a Conservative?  Do you know that Trump thought Obama should have selected Hillary as his running mate?  Did you see Trump dodge the question about when he actually became a Republican?  Yes, there are also grounds for questioning and vetting Cruz.  But why are you ready to give it up to Trump, with no one remaining who can effectively vet him?

I fear you may have ingested too much Birther Meth.  The consequence tends to be prolonged inability to reason outside a circle.  Side effects include becoming unable to distinguish between reasoning and barking.  At least you're not alone, since Birther barking seems to draw out all the other barkers, all barking in a circle.  Do you imagine you have actually proven anything more than your assumptions?  My condolences.


See Quoting from the Originalism Blog of Mike Ramsey:

"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.

Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."

A commenter, Margaret Hemenway, noted: "Vattelists commonly fail to mention that Vattel himself (did they read his book?) points out that the English do things differently- the very birth on the soil “naturalizes” the individual- this is our “jus soli” birthright (from English common law traditions which were carried into the colonies). They seldom refer to Presidential candidate Charles Hughes, e.g. whose father was an English immigrant and who ran against Wilson. Under the relevant immigration statute disqualifying Obama as “natural born,” Cruz appears to qualify. The Immigration and Nationality Act of 1952 means that Obama, [IF?] born in Kenya to a Kenyan (as prominent Kenyans have declared, including his own step-grandmother) was born a British subject.

Cruz’s mother, unlike the young Stanley Ann Dunham, appears to have met the requisite age/residency requirements to convey her citizenship to her son– he [Ted Cruz] thus emerged from the womb a US citizen and therefore a “natural born” US citizen. He did not require the process of naturalization that involves paperwork and process to make one become a US citizen. "


"[A]s Blackstone further describes, the rights of natural born subjects were extended by statute early on (under Edward III) to those born abroad of two English parents. Then, in the early eighteenth century, parliament made birth subjects of children born abroad with an English father. According to Blackstone, as a result these children “are now natural-born subjects themselves, to all intents and purposes, without exception.”

Ramsey discusses 3 possibilities:

1) The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (i.e., at common law, meaning people born within the sovereign’s territory).

2) "[N]atural born” in 1788-89 America meant what it then meant in England: born in the territory, or born abroad to an English father. That explains the 1790 Act.

3) [E]ighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute.

"I [Mike Ramsey] find version #3 above the most plausible." I think the CRS report is ... under-inclusive." "[Blackstone] says, it was a policy decision '[t]o encourage also foreign commerce.' "

"Thus eighteenth-century English practice stands... for the proposition that parliament could define by statute who was “natural born,” by saying who was a citizen at birth. And so, again, Ted Cruz wins."

BTW -- Mike Ramsey is an Originalist.

MY COMMENTS: I have been arguing much the same. I have pointed out various instances in which "natural born citizen" and "natural born subject" were findings made on behalf of applicants before Naturalization tribunals. I have listed such episodes multiple times. Also, I have argued, as Mike Ramsey has, above, for the third possibility: That the chief legislative body for the nation (Congress) can expand (or contract, as by conditions subsequent) the category of "natural born citizen" (or citizen at birth).

NOTE: Under this argument, IT IS SIMPLY NOT ON POINT!!! TO REFER TO TO CASES and references to dicta, or cases that did not require the court to rule on eligibility to become President, or references to situations in which the party in question was NOT a full citizen at birth (as where the person/child) had not at birth met a residency requirement (condition subsequent). If Ted Cruz was a full citizen at birth, then HE WAS A NATURAL BORN CITIZEN, within the meaning of English process, and thus within the meaning of the Constitution, insofar as the Founders were mainly guided by English law.


Trump's mother immigrated from Scotland, his father's parents immigrated from Germany. Donald Trump's ancestry in the U.S. is actually pretty new.

Section 1158.1 Section 4 says "Children acquiring U.S. citizenship under the Child Citizenship Act are not eligible for an FS-240, Consular Report of Birth Abroad of Citizen of the United States of America or Form DS-1350, Certification of Birth."

There is no Naturalization involved. The US Gov't document states that Cruz' mother was a citizen as of her birth. Look up the FS-240, Report of Overseas Birth of an American Citizen. Still no naturalization process involved. If there was, there would be naturalization documents involved. But there aren't.


I BEGIN TO BELIEVE THERE IS SUCH A RAT'S NEST ON THE NBC ISSUE THAT I DO NOT THINK IT CAN BE SORTED OUT, NOT EVEN IF THE SUPREME COURT WERE TO TRY TO SORT IT ALL OUT.  Possession is 9/10 of the law.  I suspect that however power was perceived to be spread would affect each piecemeal attempt by courts to sort it out.  Reluctantly, I think it may be best for Cruz to seek a different job.  Likewise with Rubio.  We simply have not previously had a President who fit either of those candidate's particulars.
Mike Ramsey helpfully identifies the natural law conception of the original meaning of “natural born citizen,” which he describes as follows:
  • The “natural” in “natural born” citizen/subject still meant in the eighteenth century (as it had much earlier) a citizen/subject by the law of nature (as opposed to a citizen/subject by statute). For people in the English tradition that would have meant people who were citizens under common law.  That in turn meant only people born within the sovereign’s territory (and children of English ambassadors).  In this view, the statutory expansions gave some children born abroad the same rights and duties as natural born subjects, but those children remained nonetheless only statutory subjects (since a statute could not alter the law of nature).  Notably, only this version gives content to the word “natural” in “natural born.”
And distinguishes that from this conception of original meaning:
  • Another way to look at it is that eighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute….  [I]n any event “natural born” had come to mean those children parliament made subjects at birth, whoever they were.  Translated to U.S. constitutional terms, that would mean whomever Congress chooses (from time to time) to make citizens at birth are natural born.
But an individual conception of sovereignty would also affect who is a natural born citizen. In England, one would be a natural born subject of the King if born on English soil over which the King has jurisdiction.  But, as Sandy Levinson notes: “a child born to British monarchs while travelling abroad . . . would be eligible to become king or queen.”  In other words, because the King is the sovereign, his offspring are his natural born subjects as his children who owe him a natural duty of obedience, just as do those who are born within his territorial jurisdiction.
By contrast, in the United States, if each individual citizen is sovereign, so too are their offspring “natural born citizens.” Because the term “natural born citizen” was invented for use in the Constitution, its public meaning was dictated by theoretical considerations such as these, rather than either by English legal thought or by widespread public usage.  This individualist understanding of natural born citizen simply adapts the English usage to American political theory by recognizing the difference in who is the sovereign in each system.
If this is correct, then the term “natural” in “natural born citizen” is not surplusage, and, in the 1790 Naturalization Act, Congress might well have merely been codifying the underlying popular sovereignty conception of natural born citizen as children born to sovereign American citizens.



The definition of natural born citizen was recalled by Chief Justice Waite in Minor v. Happersett. “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 [88 U.S. 162, 168] 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.”

The definition is not mere dicta. Later in his opinion, CJ Waite says this:
r“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed.”

Note also that in his opinion, CJ Waite said that if either of Mrs. Minor’s parents had been foreign born there would be doubts that she would even be a citizen. CJ Waite clearly (????) distinguishes between citizen and natural born citizen. (?????????)

By the definition in Minor, the following public figures are not natural born citizens and are not eligible to be president: Barack Obama, Ted Cruz, Marco Rubio, Bobby Jindal and Rick Santorum.


There’s no such thing as “the definition in Minor.” Chief Justice Waite expressly declined to state an exclusive definition of “natural born citizen” for ANY purpose– not for any purpose of the case at hand, and certainly not for the entirely unrelated purpose of presidential eligibility.

Read these reports regarding the legal term of art “natural born Citizen” and basic logic, i.e., trees are plants but not all plants are trees. Natural born Citizens are a subset of “born Citizens (citizens at birth)” but not all “born Citizens (citizens at birth)” are “natural born Citizens”: … AND … the Three Legged Stool Test for Natural Born Citizen … AND … Also watch this video by the renowned constitutional scholar Dr. Herb Titus:


Foreigners born in the allegiance were natural born subjects.


On what date did George Washington begin to be a Resident within "the United States?"  (14 years must make "United States" include both the States under the Articles of Confederation and then also under the Constitution.

Citizenship was established when we declared our independence from Great Britain and the signing of the Declaration of Independence on July 4th 1776. A “natural born Citizen” was a person who was born to those “Citizen” parents after the ratification of the Constitution (by New Hampshire) on June 21, 1788. Although those children would only be 12 years old at the time of that ratification and not eligible to serve because of their age, they are considered to be “natural born citizens”.


Re:  “On the other hand, senators and representatives only need to be citizens, not “natural born” ones, so “natural born” must have a special meaning.”

BUT, if you believe this to be true, do you think that the use of “citizen” instead of “natural born citizen” in the text of the 14th Amendment was on purpose?


Except for Purpua v. Obama – “The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.”
Voeltz v. Obama – “In addition, to the extent that the complaint alleges that President Obama is not a “natural born citizen” even though born in the United States, the Court is in agreement with other courts that have considered this issue, namely, that persons born within the borders of the United States are “natural born citizens” for Article II, Section 1 purpose, regardless of the citizenship of their parents. [Citations to Wong, Hollander, Ankeny].”

Allen v. Obama – ““Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co. , 39 Ariz. 45, 54, 3 P.2d 983, 986(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise”
Fair v. Obama – “The issue of the definition of “natural born citizen” is thus firmly resolved by the United States Supreme Court in a prior opinion [US v Wong], and as this court sees it, that holding is binding on the ultimate issue in this case. ”
Tisdale v. Obama – “It is well settled that those born in the United States are considered natural born citizens.”

NOTE:   Could the English Parliament naturalize the foreign born to be natural born subjects?

It may be that the English Parliament could naturalize the foreign born to be natural born subjects.  And Massachusetts was naturalizing some among the foreign born to be natural born citizens.  So, why should we not believe that Congress, given its power to nationalize, why wouldn’t Congress through it power of naturalization have the same right to make classes of persons who were not born in country into natural born citizens because they were made citizens at birth by statute?


FWIW, I thought Trump had the strongest debate performance tonight.  I wish Cruz had more time to address the rapid fire of allegations made by Rubio.  Cruz's response to the NBC issue was less than stellar.  Unless Kasich, Jeb, Christie, and Carson are taken off the stage, we're not likely to see much real vetting.


I appreciate the research.  I would add to some of it.  Obviously, I agree that the candidates who were not elected were not elected.  Still, it cannot be doubted that they were considered as serious candidates. 

Some comments:

1) Chester Arthur (actual President):  His father was not naturalized when he was born.

2) Regarding Spiro Agnew's father (Spiro Agnew was an actual Vice President):

Your cited source refers to Spiro's father as Theodore S Anagnost, a person who immigrated in 1902 and lived in the the Schenectady N.Y. area.  Is there a connection to show this is the same person as Theodore S. Anagnostopoulos, aka Theodore Agnew, who immigrated in 1903, who is listed as Spiro's father in the 1920 census?
 shows a census of 1920 that has Spiro's father listed as an alien.  See also

"[T]he 1920 Census says that [Theodore S. Agnew] was an alien (code “Al”)."

"[A] 1910 Census record from New York for one Theodore S Anagnost [a shortened version of the elder Agnew’s Greek name] that shows him as naturalized."

However, on the 1910 form, there is no listing of a son, i.e.,  little Spiro, to confirm whether the Theodore S Anagnost who was registered on the 1910 census as naionalized was the same as the father of Spiro Agnew, who was Theodore Spiros Agnew, a Greek immigrant who shortened his name from Anagnostopoulos.

Note:  Little Spiro was born in Baltimore and attended High School there.  He became Governor of Maryland before he became Vice President.  Is there anything to indicate that his father ever lived in New York before moving to Baltimore and before Spiro was born?  A 1930 census entry for Maryland identifies the Agnew family (father, mother, and little Spiro).  See
 On the 1920 census, as of 1-7-20, the father was listed as 40 years old.   On the 1910 census, as of 4-18-10, Theodore S Anagnost seems to have been listed as 32.  That would make him 41, not 40, for the 1920 census.  So it seems that the Theodore S. Agnew of the 1920 census, who was 40, may well not be the same person as the Theodore S Anagnostof the 1910 census, who appears to have been 32.

UPSHOT: The consequence is I am not able to confirm the discrepancy.  However, the information from appears likely to provide the more accurate reference.   So chalk this one up as "not confirmed."

3) Regarding Hubert Humphrey (an actual Vice President):   His mother is listed as a Norwegian.   So it seems unlikely he can be considered as a child born of two citizen parents.  Have you eliminated that as a requirement to be a natural born citizen?

4) Regarding John McCain:  You may be mistaken in assuming his being born in Panama constituted being born in the U.S.  See the Foreign Affairs Manual:

Birth on U.S. Military Base Outside of the United States or Birth on U.S. Embassy or Consulate Premises Abroad: 

Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment.  A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth.

The FAM then references Persinger v. Iran, 729 F.2d 835 (D.C. Cir. 1984).  In Persinger, Justice Bork said: A principle revoking sovereign immunity on our embassy grounds abroad would also, presumably, have the same effect as to our military and naval bases around the world, since the United States exercises jurisdiction in such locations. The possibilities are almost endless for tort suits in this country against foreign governments for acts or omissions all over the world. We are persuaded that Congress intended nothing of the sort. Embassies may be, as appellants argue, unique in their inviolability but that does not distinguish them from military facilities, libraries, AID missions, and the like with respect of the criteria of the statute. If the controlling question were only whether the United States had some jurisdiction, all premises controlled by this country anywhere in the world would fit the statutory definition of the "United States." Fidelity to the statutory language would prevent us from picking and choosing among premises subject to some extent of congressional control.

Thus, under Justice Bork's reasoning as set forth in of Persinger v. Iran, John McCain was not born "in the United States" for purposes of the 14th Amendment. So, if John McCain, per Senate Resolution of 4-30-08, was a natural born citizen, it was NOT because of his place of birth. IOW, per the Senate Resolution, it must be that place of birth is NOT determinative of being or not being a natural born citizen.   At least, if the unanimous Senate is to be believed, since it said McCain was eligible.  In that resolution, the Senate did not state that a person who was otherwise a citizen without needing to be naturalized could become President only if born on a Federal base.    Moreover, I suspect allegations that he was born in an off base hospital are more likely true.

5) Regarding territories, see

"The 14th Amendment applies to incorporated territories, so people born in incorporated territories of the U.S. (currently, only the Palmyra Atoll) are automatically U.S. citizens at birth. There are special provisions governing children born in some current and former U.S. territories or possessions, including Puerto Rico, the Panama Canal Zone, the Virgin Islands, Guam, and the Northern Mariana Islands."

Evidently, being born in a territory is not per se automatically the same as being born in the United States.  The 14th Amendment says:  "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  For 14th Amendment citizenship, the conjunctive, "and," imposes an additional requirement, i.e., that such persons born in the United States be "subject to the jurisdiction  thereo."  Surely, not everyone who is born anywhere in the globe that is under some expansive idea of "subject to the jurisdiction" is a U.S. citizen.

6) Regarding Charles Curtis (an actual Vice President):  At some time, provisions were made to recognize certain people who were born in incorporated territories as being citizens at birth.  So, yes, by virtue of those provisions, Charles Curtis is a citizen at birth.  As to Vattel, NBC people who would apply his treatise to Americans say that natives, or natural-born citizens, are those born in the country, of parents who are citizens.  Well, Charles Curtis was born "in the country" of the Kansas Territory, of parents who were citizens of that tribe and/or territory.  So, he was a natural born citizen of the Kansas Territory and perhaps his mother's Indian tribe.  But did that make him a natural born citizen of the United States, even before the statute that made Kansas a state?  In that case, it seems there should not have been any need of any Amendments or statutes that would later have made his mother a U.S. citizen, since he already would have been a citizen when Kansas was made a territory.

So, would you say Charles Curtis became a citizen of the U.S., not just by way of provisions of various Amendments and statutes, but that he was also already a citizen, indeed, a natural born citizen, by way of Vattel's Law of Nations?  Surely, not all persons born in a U.S. territory, whether "organized" or not, will be considered as being among those who are born "in the country?"  

Note:  Charles Curtis was born in 1860 in the Kansas Territory.  I have not seen any indication that his mother, Ellen Papin, ever became an American citizen before her death.  She was 1/4 Kaw, I/4 Osage, 1/4 Potawatomi, and 1/4 French.  His father, Owen Curtis, was of European ancestry, and was a prisoner during the Civil War.  During that time, Charles lived on an Indian Reservation with his maternal grandparents. 

Since Curtis was nearly 1/2 Indian, I am not sure how he would have become a naturalized citizen until various Amendments and provisions were made after the Civl War.  IAE, I have not yet seen an indication that his mother was ever a citizen of the U.S.  So, if NBC status requires both parents to have been citizens, I don't see how he could have been naturally born a citizen of the United States. 

Maybe Vattel would have considered Ellen Papin and Owen Curtis to have been "citizens of the Kansas Territory," and thus able to pass on a claim of citizenship to the U.S.?  But could Indians be considered in 1860 as citizens of the Kansas Territory?  I don't know, but the situation seems problematic.

7) Note that Puerto Rico is a territory.  On March 2, 1917, the Jones–Shafroth Act was signed, collectively making Puerto Ricans citizens of the United States without rescinding their Puerto Rican citizenship.  If every person born in a "territory" that is not a state but that is "subject to U.S. jurisdiction" is already a citizen, then I wonder why the Jones-Shaforth Act was needed?  If people born in Puerto Rico are U.S. citizens, does that. per Vattel, make all their children natural born citizens?


Bill Richardson, a Democrat candidate, claimed citizenship at birth under the 14th Amendment, but his mother was a Mexican and he spent his childhood in Mexico City.  One of his parents was not a citizen.

Charles Evans Hughes (Republican nominee against Woodrow Wilson):   It appears that both his parents were subjects of Britain, and that his father had not been naturalized when he was born.

Under NBC theory, the following FIVE actual office holders do not appear to have qualified as being born in the U.S. or having parents who were both citizens:  Charles Curtis, Chester Arthur, Hubert Humphrey, Spiro Agnew, and Barack Obama.  In addition, the following  TEN candidates do not appear to have been born in the U.S. or to have had parents who were both citizens:  John Fremont, George McClellan, Charles Evans Hughes, George Romney, Lowell Weicker, John McCain, Bill Richardson, Bobbj Jindal, Marco Rubio, Rick Santorum.  That's a total of FIFTEEN, when you add actual office holders and candidates.  If the NBC theory would disqualify persons with dual citizenships or allegiances, there may be more.

COMPARE CRUZ:  The situation of Charles Curtis seems closest to that of Ted Cruz.  He was not born in a state.  He can be argued at birth to have divided loyalty to an Indian tribe.  At least one of his parents was not a citizen.

COMPARE RUBIO:  The situation of Rubio seems not comparable to anyone.  Apart from being born in Florida, he has no claim to being born of a U.S,. citizen.  And, his undivided allegiance can be questioned.  Moreover, a grandparent may have been in country illegally, by remaining after a deportation order.  I have not researched to see whether this may have tained the legality of his parent's residency at the time of his birth.


Some people want to argue that Marco Rubio is not eligible to become President because neither of his parents were citizens when he was born.  I think some history may help.

During the Revolutionary War, New England regiments recruited black slaves by promising freedom to those who served in the Continental Army.   At the time of the ratification of the Constitution in 1789, free black men could vote in five of the thirteen states.  By 1840, virtually all African Americans in the North were free.

However, in the early history of U.S., citizenship depended on citizenship among the states, and most states allowed only white male adult property owners full citizenship rights.  Women usually did not vote and were under various handicaps of patriarchy. Not even free or unindentured immigrants were generally welcomed from Asia, Africa, or Indigenous Americans.  As a practical matter, many among them were unlikely to be considered or treated as full or natural born citizens.

In 1790, federal statutory law excluded American Indians, indentured servants, slaves, free blacks, and Asians from applying for citizenship.  Only later, because of the 14th Amendment and other provisions, did many non-white persons, born in the U.S. and subject to its jurisdiction, become citizens within the meaning of the 14th Amendment.  Such persons are now birthright citizens.

In 1790, no non-white inhabitants could have applied for citizenship, so they could not have passed birthright citizenship on to their progeny. Subsequently, those restrictions were tightened before they were loosened. Virginia required freed slaves to leave the state after 1806. Free blacks in Virginia could not vote, hold office, or testify against whites in courts of law. They were required to carry certification of their free status.


Under the Dred Scot decision of 1857, slaves were considered as property, so they could not become citizens while they were slaves, nor could they pass on citizenship to their progeny.  The Chinese Exclusion Act of 1882 banned Chinese immigration.  Utah’s law preventing Native voting was not repealed until 1957.  The Oriental Exclusion Act of 1924 prohibited immigration from all of Asia. Foreign-born wives and children of American citizens of  Chinese ancestry were thus excluded.

As a result of the 1848 Treaty of Guadalupe Hidalgo, citizens living in its regions were promised U.S. citizenship. However, full citizenship rights were granted only to about 80,000 Mexicans who were considered “white.” Most of the rest of those indigenous people and people of mixed blood were treated as Native Americans under U.S. rule.  They did not receive full citizenship until 1930.

After the 14th Amendment and supporting provisions, non-whites, even when not born in America, could apply for immigration and citizenship and, if granted, their progeny could become birthright citizens.  In 1790, as a practical matter, their progeny could not qualify as natural born citizens to be eligible to become President.


Now, only as a result of many changes in attitudes and provisions in law, the progeny of non-property owning, non-white, non-males CAN become eligible -- even though nothing in the 14th Amendment or other supporting provisions uses the term "natural born citizen."

Before farily recently, as a practical matter and for a considerable period of time, various non-white males who did not own property or who were indentured could be made by state laws to fall in and out of status as full natural born citizens.  That difficulty was not overcome by suddenly passing any Amendment that required that they all be considered and treated as natural born citizens.  That difficulty was overcome in stages, with various Amendments and statutes.  And NONE of those provisions or statutes employed the magic language of "natural born citizen."

THE POINT:  Exact reference to "natural born citizen" is not magic language that blesses some with eligibility and condemns others to go without.  Other ways suffice to say and accomplish the same thing. Otherwise, how many Women, Indians, Blacks, Africans, and Asians who were legally born in the U.S. would be eligible even today?  This is why a person who is, of right, born a citizen is taken as equivalent to a natural born citizen.

Otherwise, what would happen?  Well, many people would argue that nothing in the 14th Amendment and supporting provisions explicitly requires the states to recognize new, non-white citizens at birth as "natural born citizens," eligible to campaign to become President. 

Rather, they would argue that the 14th Amendment only requires the States to recognize CITIZENS, as defined by the 14th Amendment, to be citizens of the state in which they reside.  They would argue that the 14th Amendment does NOT require any state to recognize a born citizen as a natural born citizen.  Thus, they would argue that each state,  by determining for itself who to recognize as a plain citizen versus a natural born citizen, could keep all such persons off the voting roll for the presidency, indefinitely.  Such a notion cannot work.  Modern people will not stand for it.  And they will look for protection and vindication in the clauses in the 14th Amendment that pertain to privileges and immunities and to equal protection.

NOTE:  In practice, various candidates and office holders have had only one parent who was a citizen at the time of their birth.  They probably iinclude Chester Arthur, Charles Evans Hughes, Barack Obama, Bobby Jindal, Marco Rubio, John Charles Frémont, Hubert Humphrey, and Spiro Agnew.

Bottom line:  The argument that a presidential candidate is ineligible unless BOTH of his parents were citizens when he was born is inconsistent with the actual practice. However, Marco Rubio may be the first who had no parents who were citizens of the U.S. when he was born.  Just as Ted Cruz may be the first who both was not born in the U.S. and who has only one citizen parent.

IAE, Rubio's status as a birthright citizen rests on the 14th Amendment. Rubio's parents were (apparently) legally "subject to the jurisdiction" (unless they were under order of deportation), and Rubio was born in the U.S.  Thus, Rubio is a full "first sentence" citizen of birthright under the 14th Amendment.  That status, in practice, has been rendered equivalent to the status of a natural born citizen.  To try to argue otherwise, at this late date, is a non-starter.


It is sometimes thought that, in 1789, there was a clear and general consensus regarding the meaning of "natural born citizen."  Records in Massachusetts, Connecticut, and Delaware, and probably other states, show the contrary.  People who were apparently not born in such states were being found, more or less at random, both before and after the adoption of the Constitution, to be "considered as" natural born citizens and/or natural born subjects.  The fact is that there does not appear to have been a clear idea throughout the land concerning usage for such terms, after all.

Most likely, the meaning of "natural born" was general.  At the time, under English and American practice and law, a child would, generally, until he took action to expatriate himself or to become a citizen of another country, be considered, naturally, to be a citizen at birth of the nation of his or her American father.  In America, with the passage of various Amendments and statutes, and the privileges and immunities clause and the equal protection clause of the 14th Amendment, it has become the practice that, for American citizenship, the citizenship of a child may also, naturally, follow the citizenship of his or her American mother.

This raises a concern that foreigners ought not be entitled to visit America, become "subject to its jurisdiction" only for the length of a visit, give birth in America, and thereby confer upon such child an eligibility upon residing 14 years and reaching 35 years of age, to become President.

The problem is, the way the law has unfolded, that seems to be the consequence.  Unless, that is, the Supreme Court were to recognize that Congress -- through its enumerated power to establish an uniform Rule of Naturalization, and to make all Laws which shall be necessary and proper for carrying into Execution such power -- has power by imposing "conditions subsequent" to withdraw and limit the eligibility of natural born citizens.

The argument would be that the sovereign nation, through power to legislate concerning naturalization, must reasonably be entitled to withdraw or limit "full citizenship," so that certain categories of persons should not be eligible to the presidency.

It would seem an uphill battle so to convince the Supreme Court.  However, if such a case were made, perhaps Congress, by statute, may be induced to provide that no person who was not born of a citizen-parent has "full citizenship" to the extent of being eligible to become President.  Perhaps alos, to provide that no person who is found to have engaged in felonious and foreign conspiracies or intrigues against the nation is entitled to retain full citizenship in the sense of being eligible to become or serve as President.

IOW, a solution may consist less in depriving Congress of power to determine who is a natural born citizen than in recognizing a power in Congress, by legislation of naturalization, to impose limitations on the eligibility of otherwise natural born citizens (citizens at birth).


After the Declaration, the colonies set up as independent states under the Article of Confederation.  Each state, for itself, determined who would be its citizens.  Undesireables were sometimes excluded or banished. At the time the Constitution was adopted, those citizens were the "grandfathered" citizens.  From then going forward, all new citizens would need to be naturalized to the new United States.  For that, Congress was empowered to establish a uniform rule for naturalization.  For all citizens going forward, the sovereign We The People was empowered, by legislation, to establish who should be naturalized as citizens -- both at birth and at application.  Those who were determined by Congress to be citizens at birth would be, naturally enough, natural born citizens.  Those who were not would be citizens at application, often called naturalized citizens.  However, at the beginning of the republic, all citizens who were not grandfathered citizens became naturalized to be citizens.  Under that broader category, some were divided by the process of legislation into citizens at birth and others into citizens at application.

It may be untrue that there was a consensus of clear understanding among the citizens of colonial America regarding a meaning for natural born citizens.  From as early as 1784, records from Massachusetts, Connecticut, or Delaware show that people who were not born citizens in such states were applying to be made citizens, whereupon they were ruled to be "considered as," without much by way of underlying or consistent principle, natural born citizens and/or natural born subjects.  So the idea that the term "natural born citizen" was previously unused or unknown in the states, preceding the drafters resort to the terminology in the Constitution, is simply and factually wrong.

Birthers tend to be wrong, factually, on numerous points on which they build their house of cards.  They are wrong that the colonists were not familiar with the law of nations, under British concepts.  They are wrong in thinking that the French concept of a natural born citizen excluded natural born subjects.  This is because, at the time. aside from the French King, there was no such thing as a French citizen who was not also a French subject.  They are wrong that the drafters are documented to have resorted "extensively" to Vattel at the time the Constitution was drafted, because their only basis is tied to a letter by Franklin that was written more than ten years earlier.  They are wrong that the language in the Constitution suggests a transferred attachment from British legal concepts to French concepts.  The Constitution and Bill of Rights are rife with concepts taken from British law!

They are wrong that the language by Vattel was clear on their point, even if Vattel were to be consulted.  Indeed, it is not clear that any of them even know whether the drafters were relying on a French version or an English translation.  If any of them has shown familiarity to discuss the actual French words, I have not seen evidence of it.  I don't think they have.  I have found online what may be the French words.  Comparing that with the later English translation, I do not find in such words, in either the French or the English version, an unambiguous meaning that the Birthers seek to attach.

Going further, the Birthers cherry pick from various Supreme Court precedents.  When those are reviewed, it becomes evident that Birthers are blinded by their ardently wished for result.  The precedents do not say what they want to read into them. Not in respect of an honest analysis of the ratio decedendi as opposed to (usually misconstrued) obiter dicta.  See  In short, when you pull back the Birthers' covers, their whole construct reduces to a laughable house of cards, that neither connects nor computes.  A potemkin village, inhabited with village dupes, who have been ardently cultivated to REFUSE to read beyond the local locoweed.

Under the Constitution, Congress was empowered to legislate to establish a uniform rule for naturalization. The sovereign determines citizenship. Insofar as the Constitution did not decide the issue, that sovereign question was necessarily left to We The People.  For all citizens going forward, the sovereign We The People was necessarily empowered, by legislation, to establish who should be naturalized as citizens -- both at birth and at application. The sovereign We The People was not mere majoritarian rule, but We The People acting under a system of checks and balances.  Within that system, Congress could legislate.  Within that system, the Constitution itself did NOT define citizenship, nor did it define natural born citizenship.  Moreover, at that time, even though the words "natural born citizen" were in general usage, nothing shows that the general usage was clear or uniform.  And nothing shows that, for a general understanding, reference was made outside the English usage, as generally set forth by Blackstone.  Because rules for defining citizens were not uniform, the Founders prescribed the power to establish an uniform Rule of Naturalization to Congress, thereby to rule who should be a "citizen of the United States." 


A lot of Americans are justifiably "angry beyond description."  Some retain desire to try to reason objectively, while others mainly just want to hit someone.  The hitters tend to jump on feeler bandwagons.  They want to vent their feelings and entertain their anger.  For that, Trump raliies are great.  Also Birther rallies.

However, a lot of people vote who are not prone to bandwagons or rap fests.  If Trump is smart, they will, in the end, require that he demonstrate mastery of a coherent governing philosophy.  I hope the field narrows, so we can get a better opportunity to  more closely examine Trump, Cruz, and Rubio. 

Birthers do not want that.  They want to rush the bandwagon, disqualify the opposition, and steam roll the party.  When people say, whoa, let's narrow this down and get a real debate, they tell us how much smarter they are, that the disqualification of Cruz is obvious, and they trot out Vattel Their Apostle.  When people point out that Vattel was no apostle to the Founders, they get in a very small-minded snit and accuse their opposition of being stupid.

Meanwhile, upon examining the house of cards on which they build their disqualification argument, it shows nearly every day to be flimsier and flimsier.  However, they absolutely are unwilling to look, and they do not want anyone else to look, either!  They fear looking to see whether their Vattel King is clothed!  This leads me to wonder:  Why do they so fear a reasoned debate among Trump, Cruz and Rubio on the important issues?  Are they afraid Trump cannot stand up to the light of closer examination?

Here's a thought on the Birther issue:  Congress was empowered to establish a uniform rule for naturalization. The sovereign determines citizenship. Because the Constitution did not decide the issue of citizenship, that sovereign question was necessarily left to We The People.  For all citizens going forward, the Constitution necessarily empowered the Sovereign We The People, by legislation, to establish who should be naturalized as Citizens of the United States -- both at birth and at application. The sovereign We The People was not mere majoritarian rule, but We The People acting under a system of checks and balances.  Within that system, Congress could legislate. 

Within that system, the Constitution itself did NOT define citizenship, nor did it define natural born citizenship.  Moreover, at the time the Constitution was adopted, even though the words "natural born citizen" were in general usage (people who read beyond the birther plantation know this!), nothing shows that the general usage was clear or uniform.  Nothing shows that, for a general understanding, reference was made outside the English usage, as generally set forth by Blackstone.  Because ideas and rules for defining citizens were not uniform, the Founders gave power to establish an uniform Rule of Naturalization to Congress, thereby to rule who should be a "Citizen of the United States."   Legislation for prescribing who among citizens should be, and remain, Citizens At Birth has been established.  Under that legislation, entrusted to Congress, Cruz qualifies.

If Trump believes otherwise, why does he just talk instead of sue?  Well, he talks to stir up his bandwagon people, who do not read off the plantation.  Trump knows the law will not allow Cruz to get an advisory opinion to set the issue to rest.  He also knows the advisory resolution the Senate gave McCain "back in the day" was without legal effect.  And he knows Cruz, who plays much less friendly with the corrupt Rinos in Congress, will not be able to get such an advisory resolution.  For most people who actually read and think, Cruz needs no such advisory resolution from the corrupt Congress.

When it's time to get past talking to bandwagon people, what will Trump do?  Well, on the eligibility issue that he thinks is important, he won't act.  He won't sue.  He hasn't the guts!  So, on the other issues, the governing issues, when it gets to the point of actually acting rather than merely talking, what will he do, really?  Well, so long as his supporters muck up the water and preclude reasoned debate, we will just have to elect him before we can see what's really in him.  Sounds Pelosian, doncha think?


A Weatherman born in America of American parentage who marries a Weatherwoman should not have children who become President. An American military hero who has a child abroad with his wife ought not have his child subordinated to commie basement dwelling Ivy poisoned scum. Scum of Clinton and Bush is what has largely contributed to bring us to where we are. Ensuring that such scum will supply the main pool for future presidential candidates is not a smart move.

George McClellan (candidate who opposed Lincoln) was born in Paris. Charles Curtis (Veep under Hoover) was born in the Kansas Territory. FDR, Jr. (son of President FDR and a Representative),was born in Canada. Barry Goldwater (GOP candidate against LBJ) was born in the Arizona Territory. George Romney was born in Mexico. Lowell Weicker was born in France. Al Gore (Veep with Clinton and candidate against Bush the Younger) was born in Washington D.C. (not in a state). John McCain was born in Panama.

Candidates and office holders who did not have parents who were both American citizens include the following: John Fremont (the very first Republican candidate), Chester Arthur, Charles Evans Hughes,
Hubert Humphrey (he was the son of Ragnild Kristine Sannes, a Norwegian), Spiro Agnew (his Greek father immigrated in 1903; a census suggests he was an alien in 1920; Spiro was born in 1918 ; see, Barack Obama, Bobbj Jindal, Marco Rubio, Rick Santorum.

Don't you think it's about time you started reading more off the Birther Plantation?


Ann Coulter is an opportunist, albeit an entertaining one, who is in love with Trump. Before she fell in love with Trump, she was in love with Christie. Before she fell in love with Trump, she agreed with Dershowitz that Cruz is eligible. I prefer to read and think for myself, but thank you just the same.

I would rather that the child born in Germany of a dedicated Army soldier, stationed abroad with his dependent famly, be eligible than the home grown and corrupted spawn of Bill Clinton or George Bush. Look what they have done to us!

But there IS good reason, without straining to put a Frenchy cage on the republic. The Sovereign should be entitled to determine who is eligible as a citizen at birth. That begs the question of who or what is the Sovereign?

It makes sense that the Founders led the people to assimilate a republic under a Constitution that facilitated the sovereign expression of the citizen-people. At the creation, the sovereign people were those who were made citizens by the states, up to and just before the time the Constitution was adopted.

Thereafter, subject to and in concert with checks and balances that are established for the republic, We The Sovereign People retain power to determine who shall be or remain a citizen at birth (thus eligible to become President), who shall be or remain a citizen at application, and who shall be or become not a citizen.

I'm good with reasoned discourse. Submitting to string pulling by moderators who work for a corrupt establishment does not make for much reasoned discourse, especially when the stage is filled with excess baggage and flotsam. It's time for JEB, Christie, and Carly to go.

The Founders did not define NBC. They were exempt, so they did not need to define it. The new republic would need to define who should be citizens at birth versus at application. By not defining NBC, and because NBC had no precise definition under all situations, the uniform resolution of the issue was necessarily left to Congress, under the supervision of the Sovereign We The People.

Constitutionally, each American citizen is a part of the Sovereign We The People. Because we are a checked and balanced republic, this is not mere Popular or Majoritarian Sovereignty, as conceptualized by Stephen Douglas. I prefer to think of each of us as carrying a kind of Individual Sovereignty that is assimilated to the republic. This assimilation of individual sovereignties has provided, under Constitutional law as amended, for equal protection of rights, privileges, and immunities. The nature of our citizenship is not defined by any King, but by legislation under our Congressional representatives, as limited to the Constitution and its Amendments. That's just how we roll.

It's possible to be a reasoned birther. It's possible for birthers to read broadly, even off the plantation. But most of the ones I encounter do not! It's often like asking a Bible thumper to read a science book. (I am religious, btw.) Yet, they are so smug. Just unbelieveably unread, yet smug. Truly fundie-evangelistic about their Vattel The Apostle.

We can at least demand an honest debate, can we not? The problem with Pelosianism is that it does not want debate and does not want you to know what is in the bill or how the candidate would reply in an honest debate.


People, even some scholars, are blindly missing the essential point.
But before getting to that, it's plain wrong to say any court has decided the issue, to say that a person who is made a citizen at birth by statute cannot be eligible unless his parents were citizens. The obvious reason there can be no such case is because there has not been any such a decision that bound any actual candidate or office holder. The cases cited do not show any holding that is on point. But put that to the side for a moment.
People are correct in noting that a child who depends on a statute to be a citizen at birth is naturalized, in the broadest sense of "naturalized." Indeed, in broadest sense, Congress is expressly empowered to establish a uniiform rule for naturalization, which includes legislative power to prescribe who shall be a citizen at birth, by statute. So far, so good?
Here is where people are failing to join the issue: Can a person, by a naturalization statute, be made a citizen at birth, thus to be categorized as a natural born citizen within the meaning of Section I, Article II of the Constitution?
Because of confusion based on modern usage, a lot ot people assume, with no proof and little analysis of history, that the Founders intended that a person who was not a citizen at birth, under common law and without need of a statute, could not be a "natural born citizen." However, that is NOT the way the doctrine was applied in the time of the Founders.
I have addressed this several times. But don't just take my word for it. See the blog by Mike Ramsey, at . Until you take that on, you will never join the issue.
The cases Birthers are talking about DO NOT hold that a person who is naturalized by statute to be made a citizen at birth would not be a natural born citizen for purposes of being eligible to serve as President. They COULD NOT hold that, because that was not in issue in those cases. What they held, at most, was that a person who is made a citizen by statute is a naturalized citizen. To which my response is -- And so what?
Now, before you start bemoaning this or that consequence, all that has been bandied about to point of boredom beyond tears. That path leads to nothing rational. Which Birthers would apprehend, if they ever really read and thought beyond the Birther plantation.
The article you cited builds fairie ladders of such a kind as may sustain Wile E. Coyote from falling out of thin air. It contains much rationalization, mostly at the level of GIGO. I would not want to climb on its ladders, Does not compute. Repetitive. Overreaching. Desperate. Painful.
Note: If dicta were good argument, then Rubio, Jindal, Arthur, Agnew, and Humphrey would all be on solid ground to claim to have been "natural born citizens" simply by virtue of having been born in the U.S. and subject to the jurisdiction. For dicta, see elsewhere cited Wong, Hollander, Ankeny.


If it is not for Congress under its power to establish a uniform rule of naturalization to prescribe by statute the class of people who shall be citizens at birth (and thus natural born citizens), then, since the original Constitution does not define the terminology ("natural born citizen"), the only place to look would be either the common law at the time of the adoption of the Constitution, or the 14th Amendment.

But the version of common law to which each state would have had reference when it adopted the Constitution is far from clear and probably not uniform.  Each state under the Articles of Confederation had, for the most part, its own system of governance.  For a definition of "natural born citizen," this would leave only the 14th Amendment, and then only by inference, at best.

So then, if a natural born citizen, under the only definition of citizen as set out in the 14th Amendment, is one and the same as a person who was born in the U.S. (rather than naturalized by means other than birth), and then and there "subject to the jurisdiction," then it is not necessary for any candidate to have even one parent who was a  citizen. 

This would confirm the eligibility of the following previous and current office holders:  Chester Arthur, Hubert Humphrey, Spiro Agnew, and Barack Obama.  It would also confirm the eligibility of the following previous and current candidates who have not been elected:  John Fremont, Charles Evans Hughes, Bill Richardson, Bobby Jindal, Marco Rubio, Rick Santorum.

The upshot would be to confirm the eligibility of all said persons, but it would exclude Ted Cruz and John McCain. McCain was born in the Panama territory.  Despite widespread misinformation, mere birth on or near a military installation does not make one a citizen at birth. Insofar as McCain was a citizen at birth by virtue only of statute, he could not be a "natural born citizen."   That is, if the Birthers are right, or if the only valid definition for a natural born citizen is deemed to be found in the 14th Amendment.  The service of Charles Curtis as Vice President would also be thrown in doubt.  Strictly speaking, Curtis was not born in a state, and his Indian mother was likely not a citizen.  Moreover, his loyalty at birth may well have been deemed divided between loyalty to his mother's Indian tribe and to his father's nation.

In effect, if Birthers win on an argument that Congress cannot, by naturalizing legislation, define who shall be a natural born citizen, then it appears likely the judiciary would need to give up, not just  on the statutory requirement of one citizen parent, but also on the idea of a requirement of any citizen parent.  In effect, natural born citizen would be equivalent to a jus soli citizen.

Thus, tourist born babies would be eligible, but not babies born abroad of citizen-parents serving in our military.  Moreover, Congress would be wihout power to inhibit the eligibility of tourist babies.  Is this not sawing off one's nose to spite one's face?


See  Under the reasoning of Wong Kim Ark:  A child born in the United States, of parents 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, by virtue of the first clause of the Fourteenth Amendment of the Constitution.

Wong's father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established a permanent domicil and residence at San Francisco.

Under the reasoning of Wong Kim Ark, "The 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."

"In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The 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."

"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status."

"[T]he 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."
"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.

"[T]he justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America.

"Two things usually [i.e., not always] concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign."

"[E]ach government had a right to decide for itself who should be admitted or deemed citizen."

The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a "subject of the king" is now "a citizen of the State."

Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.

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

"[C]itizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality."

By statute, it was provided that British nationality would not pass by descent or inheritance beyond the second generation.

"By the Constitution of the United States, Congress was empowered "to establish an uniform rule of naturalization." In the exercise of this power, Congress, by successive acts, beginning with the act entitled "An act to establish an uniform rule of naturalization," passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of ... Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26, 1790 "

If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment [Fourteenth] may safely be trusted to make it void.

The question is now settled by the Fourteenth Amendment itself, that citizenship of the United States is the primary citizenship in this country, and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now ... any power to restrict their citizenship to any classes or persons.

[Regarding dicta] It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

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.

Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

Congress was empowered to regulate commerce not only "with foreign nations" and among the several States, but "with the Indian tribes;" that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more "born in the United States, and subject to the jurisdiction thereof" within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.

The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

From the first organization of the National Government under the Constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time "within the limits and under the jurisdiction of the United States," and thus applied the words "under the jurisdiction of the United States" to aliens residing here before they had taken an oath to support the Constitution of the United States, or had renounced allegiance to a foreign government. 

By the Civil Rights Act of 1866, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed," were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, "not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, "not subject to any foreign power," gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, "subject to the jurisdiction of the United States."

But it [the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.

[N]o sovereignty can extend its jurisdiction beyond it own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto, nor can the municipal law of one State interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign State and without the jurisdiction of their own country. 
It is evident from the proviso in the act of 10th February, 1855, viz., "that the rights of citizenship shall not descend to persons whose fathers never resided in the United States," that the lawmaking power, not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them what pertains to other American citizens -- the right of transmitting citizenship to their children -- unless they shall have made themselves residents of the United States or, in the language of the Fourteenth Amendment of the Constitution, have made themselves "subject to the jurisdiction thereof."

"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it."

"To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States."

"Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked."

"The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution [in the Fourteenth Amendment] to constitute a sufficient and complete right to citizenship."

" No doubt he [Wong] might himself, after coming of age, renounce this citizenship and become a citizen of the country of his parents, or of any other country; for, by our law, as solemnly declared by Congress, "the right of expatriation is a natural and inherent right of all people"


The Fourteenth Article of Amendment declares, among other things, that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Notice that Wong Kim Ark's parents were "subjects" of the Emperor of China.  Notice that, under the reasoning of Kim Wong Ark, it would not matter if the parents were Chinese, Russians, Indians, or Africans.

Vattel is cited only in the opinion of a dissenter, not in the majority opinion.


"Generally speaking, I understand the subjects of the Emperor of China -- that ancient Empire, with its history of thousands of years and its unbroken continuity in belief, traditions and government, in spite of revolutions and changes of dynasty -- to be bound to him by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment, and formerly, perhaps still, their penal laws denounced the severest penalties on those who renounced their country and allegiance, and their abettors, and, in effect, held the relatives at home of Chinese in foreign lands as hostages for their loyalty.  And whatever concession may have been made by treaty in the direction of admitting the right of expatriation in some sense, they seem in the United States to have remained pilgrims and sojourners, as all their fathers were. 149 U.S. 717. At all events, they have never been allowed by our laws to acquire our nationality, and, except in sporadic instances, do not appear ever to have desired to do so.
The Fourteenth Amendment was not designed to accord citizenship to persons so situated and to cut off the legislative power from dealing with the subject."

"I insist that it cannot be maintained that this Government is unable, through the action of the President, concurred in by the Senate, to make a treaty with a foreign government providing that the subjects of that government, although allowed to enter the United States, shall not be made citizens thereof, and that their children shall not become such citizens by reason of being born therein."

" When, then, children are born in the United States to the subjects of a foreign power, with which it is agreed by treaty that they shall not be naturalized thereby, and as to whom our own law forbids them to be naturalized, such children are not born so subject to the jurisdiction as to become citizens, and entitled on that ground to the interposition of our Government, if they happen to be found in the country of their parents' origin and allegiance, or any other."


Wong Kim Ark DOES NOT SAY that a person who is born in the U.S. and subject to its jurisdiction is eligible to become President.  THAT MUST BE ANOTHER CASE!!!???

Friday, January 8, 2016

Blackstone, Vattel, and Natural Born Citizen

There is an informative discussion at  It traces some of the pertinent timing and content of the unfolding debates among the Founders.  I found the following quotes to be particularly interesting:

The term "natural born" citizen has a long history in British common law.(38)  In fact, a law passed in 1677 law says that "natural born" citizens include people born overseas to British citizens. This usage was undoubtedly known to John Jay, who had children born overseas while he was serving as a diplomat.(39)  It also appears to have been employed by the members of the first Congress, who included many of the people who had participated in the Constitutional Convention. To be specific, The Naturalization Act of 1790, which was passed by this Congress, declared "And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens; Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident of the United States."(40) This history suggests that the Founding Fathers used the term "natural born" as an expansive definition of citizenship, that is, as a way to make certain that people born overseas to American citizens would have the full rights of other American citizens.(41)


Other parts of Yinger's analysis are nearly as interesting.

To my reasoning, "citizen" is most inclusive, "natural born citizen" is less inclusive, "native born citizen" is a class that overlaps with "natural born citizen" but is less inclusive than "citizen."  To my reasoning, a person may be a native born citizen without being a natural born citizen, and vice versa.  And, a person may be a citizen without being either native born or natural born.  That is, he may be born in a territory not of a citizen parent under circumstances in which legislation still makes him a citizen.  Or he may be naturalized.

BOTTOM LINE:  For the new republic, reference to Blackstone makes more sense, to me, than reference to Vattel.  Moreover, reference to Blackstone can be better squared with how events have actually unfolded.


To restate some interesting analysis I found earlier today:

Franklin's letter thanking the person who sent him copies of Vattel's treatise was written in English, in 1775 -- before the Declaraton of Independence, not at the time of the drafting of the Constitution more than 10 years later.

From Chapter XIX, 212 (page 248 of 592):
Title in French: "Des citoyens et naturels"
To English: "Citizens and natural"

French text (about citizens): "Les citoyens sont les membres de la societe civile : lies a cette societe par certains devoirs et soumis a son autorite, ils participent avec egalite a ses avantages."
To English: "The citizens are the members of the civil society: linked to this society by certain duties and subject to its authority, they participate with equality has its advantages."
French text (about "natural" born citizens): "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens"
To English, gives this: "the natural, or indigenous, are those born in the country, parents who are citizens"

COMMENT:  This appears to be a matter of grammatical agreement.  The "natural or indigenous" is here used in a plural sense.  By way of grammatical agreement, "parents" also is plural.  With consistency, one may say that the naturals are children of parents who are citizens.  That does not necessarily mean that each child has parents, both of whom were citizens.  If some of the children have a parent who is a citizen, and some have parents who were both citizens, it would still be said that the children have parents who are citizens.  And this is EVEN IF the Founders had the French version.  But I suspect they had an English translation,  and I suspect the English translation did not then contain the formulazation, "natural born citizen."  I will try to find out.

So, not even the French version clearly or unambiguously supports the Borner Argument.

See also  "there does not seem to be record of one single mention of “Vattel” together with the phrase “natural born,” at any time between the years 1758 and 1800, in the entire vast store of books searchable through Google books."

A commenter (Ballantine) astutely noted:

"[T]he Constitution is full of terms that had no meaning other than with respect ot the English common law and that the Court has always defined in accordance with the English common law. Simply a fact that habeas corpus, impeachment, ex post facto, bill of attender, high crimes and misdemeanors, cruel and unusual, the right to bear arms, due process, grand jury, presentment, indictment and on and on are all English common law terms that didn’t exist anywhere else in 1787. Of course, “natural born” didn’t exist anywhere else either which is why the Court looked to the common law to define it."

Another commenter (Woodman) noted:

"[B]y the time of the American Revolution, the study of the English common law (as presented by Blackstone (in his “Commentaries on the Laws of England”), was the foundation of legal training in the United States. As far as the Founders themselves were concerned, Professor Donald Lutz, who researched who the Founders actually quoted from, found William Blackstone nearly tied for most-quoted, with St. Paul and Montesquieu. Vattel was a distant 30th."

“The same question is presented, therefore, in this respect, which arose in Lynch v. Clark… where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own courts, state or national, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the states by which that Constitution was adopted.”

"So the principle clearly stated in Ludlam v Ludlam was that since there was no clear guidance from any other authority, the case could only be decided with reference to English common law."

"It turns out the title of Book 4, Chapter 5, of Blackstone’s Commentaries is:  Of Offenses against the Law of Nations."

SUMMARY:  I think "Borners" (looking for a more polite term) have simply gotten carried away with some kind of self-feeding and mass-hysterical response on account of absolute (and understandable!!!) wariness of Obama.  Given how history has unfolded, I don't think even Superman could turn back the pages.  Permit me to suggest that a better way forward might be with an Article V Convention.



Twenty of the members of the First Congress were among the Founders.  Much of their work took place before the Supreme Court took final power to interpret the Constitution.  Yet, those twenty chose not to oppose or debate the first Act that defined "natural born citizen" by statute.  The Constitutional provision concerning the natural born citizen clause originated within a committee of eleven.  Of that eleven, eight became members of the First Congress.  None expressed any concern that the first Act that defined natural born citizens included some persons not born within the U.S. 

Obviously, those members of the First Congress did not believe the Founders intended the Constitution to preclude children of American citizens from being within the category of natural born citizens.  Clearly, they felt the principle of jus sanguinus was not inconsistent with the American Constitution.  In that, they likely were influenced by similar British law.  Having established the idea of providing for citizenship at birth under Congressional legislation, it becomes surplusage to require the formulazation "natural born" instead of "citizen at birth" -- or the same idea in similar words.

Were this not so, a child born abroad to U.S. military parents would not be a natural born citizen, but a child born at home of legally visiting foreigners would.  Such a situation would not be tolerable.  It is not the law, nor should it be the law.


The original Constitution did not define who is a citizen.  Under the 14th Amendment, a citizen would include a person who is born or naturalized in the United States, and subject to the jurisdiction thereof.  Yet, none of the following were born in a state:  Charles Curtis (Veep under Hoover), FDR, Jr., Barry Goldwater (candidate against LBJ), George Romney (Republican primary candidate), Lowell Weicker (Republican primary candidate), Al Gore (Veep under Clinton), and John McCain (candidate against Obama).

Even so, they were obviously citizens, and they were considered "natural born" enough to occupy or run for higher office (excepting that FDR, Jr., was never a candidate for President or Vice President.

George McClellan (candidate who opposed Lincoln) was born in Paris.  Charles Curtis was born in the Kansas Territory.  FDR, Jr. (son of President FDR and a Representative),was born in Canada.  Barry Goldwater was born in the Arizona Territory.  George Romney was born in Mexico.  Lowell Weicker was born in France.  Al Gore was born in Washington D.C. (not in a state).  John McCain was born in Panama.

Under English law, "natural born" citizens would include people born overseas to British citizens.  Indeed, most of the colonists in America were natural born British citizens! even though born in America. See

The Founders were well familiar with British law and wrote numerous provisions into the Constitution that were in direct reference to terms then common under English law.

 Under the first nationality law written by the First Congress (of which 20 were among the Founders), birth in the U.S. was not required to be a natural born citizen.  Under immigration statutes in effect when Ted Cruz was born, he held a claim of right as a citizen from birth.  Under the prevailing weight of legal opinion, Ted Cruz, like numerous candidates before him who were not born in a state, qualifies as a natural born citizen.  However, this is not an issue on which any court would issue an advisory or declaratory opinion.  So Trump's raising it is merely Trump being disingenous, as typical.

Before long, opponents will be saying about Trump's own misadventures, "Well, I don't know.  Maybe he should explain ..."  Then, were he to take the bait to explain, say, "Well, I don't know.  Maybe he should explain further concerning  ..."  And so on.  It's just a ploy to keep the opposition on defense.  Trump can play that way because his base is so angry at the regime.  IOW, the other candidates let Trump get out in front in milking anger at the regime, and now they cannot likely catch up. 

But how is this continuing ploy by Trump going to translate into an actual governing philosophy?  As to that, I am not too concerned.  Mainly, I want a philosophy for ripping up and tearing out big gov.  Trump is good for that.  Domestic rebuilding can come later -- maybe under Cruz.


cite regarding  Rogers v. Bellei 401 U.S. 815 (1971).  So far, it seems to me to make the rat's nest rattier.  What follows is more than any human being should be required to read.  However, for reference purposes, it sets out my candid assessment of Rogers v. Bellei.

My Preliminary Assessment:   It's a 5 to 4 decision.  It's an addition to rat's nest confusion regarding NBC concerns.  Thankfully, the case does NOT discuss eligibility to become President.  However, it does discuss what types of citizenship can be taken away, such as based on failure to abide by residency requirements

Some of the ideas seem to be:

A person who is a "first sentence" 14A citizen at birth (BORN in U.S. and subject to its jurisdiction) cannot likely be deprived by statute of his citizenship based on failure to meet residency requirements.

A person who is a "first sentence" 14A citizen at birth (NATURALIZED in U.S. and subject to its jurisdiction) might possibly be deprived by statute of his citizenship based on failure to meet residency requirements.

A person who is not a 14A citizen may be accorded citizenship by STATUTE, as by descent through a citizen parent, even if born abroad -- provided, the statute may impose residency requirements such that the child who is thus made a citizen by descent may acquire something less than "full citizenship."

For example, a statute may make the granting or retention of his citizenship conditional on residency requirements. Once the child meets residency requirement, the child would have full citizenship.

If a condition subsequent is imposed by statute and not met, the child's "less than full" (conditional?) citizenship may be lost.

Would such a "less than full" citizen," after meeting his residency requirement, then qualify as a natural born citizen to be eligible to become President?  Under the statute, before such as person, such as Ted Cruz, reached 35, he necessarily would have met the requirement and become a full citizen, from birth.

However, Birthers might argue as follows:  Since he did not become a "full citizen" until he had met the residency requirement, he was not a full natural born citizen at birth. Their argument would be that his having to meet a condition subsequent, i.e., a residencey requirement, would make him only a naturalized citizen, not a natural born citizen at birth. 

The counter argument would be that he had at birth a claim of right to citizenship that could not be taken away, so long as he did not choose to fail to meet the residency requirement.  During the interim, even as a child, he would be entitled to access in country.

Since the 1790 statute would have allowed for status as a natural born citizen, and since a successor to such statute was in effect when Cruz was born, and since the only residency requirement imposed in his case would be on his mother, who had already met it at the time of his birth, Cruz' status would be "full citizenship" as of the time of his birth (in 1970).  Arguably, such status would be within the meaning of "natural born."

[The pertinent statutory provisions are confusing, so I have not yet been able from online resources to confirm the following:  That Cruz' claim to be a citizen at birth who would qualify as a natural born citizen might be stronger if, under 8 U.S. Code Sec. 1401(g), his mother's length of residence already made him a "full citizen at birth, not on a condition subsequent."  This would be because the conditon subsequent had already been satisfied by his mother, before he was born.

Regarding Cruz' situation, see 8 U.S. Code Sec. 1401:
The following shall be nationals and citizens of the United States at birth:
                (a)  a person born in the United States, and subject to the jurisdiction thereof;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;

Note:  In 1972-Subsec. (b). Pub. L. 92–584, §1, substituted provisions that nationals and citizens of the United States under subsec. (a)(7), lose such status unless they are present continuously in the United States for two years between the ages of fourteen and twenty eight years, or the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years, and that absence from the United States of less than sixty days will not break the continuity of presence, for provisions that such status would be lost unless the nationals and citizens come to the United States prior to attaining twenty three years and be present continuously in the United States for five years, and that such presence should be between the age of fourteen and twenty eight years..

In the case of Rogers v. Bellei 401 U.S. 815 (1971), a different version of the statute may have applied.  According to the case cite, that version provided for the Plaintiff to lose his
citizenship for failure to meet a residency requirement imposed by a statute.  The residency requirement in question imposed in that statute was on him -- not on his American parent.  His father was Italian, not an American, and had never resided in the U.S.  His mother was an American who had been born in Philadepphia.  Plaintiff was born in Italy.

The statute made the Plaintiff a "less than full" citizen at birth, because it required that he himself meet a residency requirement before he turned 28 years of age.  The holding allows a person who is a "less than full" citizen as an adult to be stripped of his citizenship upon failure to meet a residency requirement that is reasonably imposed by Congress.  The holding does not directly concern the issue of qualifying as a citizen at birth for the purpose of becoming President.

In any event, that case seems not to pertain to Cruz' situation, since Cruz long ago met any residencey requirement. Moreover, under the statute that was made (retroactively) effective to the time when Cruz was born (of an American mother and Cuban father and while they were in Canada), his mother might (?) have already met the only pertinent residency requirements then in effect. 
If (?) so, Cruz, at birth, would be deemed a "full citizen" at birth -- under the authority of a statutory enactment of Congress.  Moreover, even had any such statute not been made retroactive, he and/or his mother long ago satisfied any residency requirement.

So the QUESTION is:   Did Congress, under law as understood by the Founders/Ratifiers and as provided in the Constitution, aside from the 14A, have authority by statute to provide for conditions that would make Cruz such a "full citizen at birth" as to qualify him to status as a "natural born citizen" for the purpose of making him eligible to become President?

I think the answer is, Yes.

However, this case will incite research and argumentation concerning the following issue:

QUESTION:  Is a person, like Cruz, who is made a full citizen at birth, only a "naturalized" citizen and not a "natural born citizen" for purposes of Section 1 of Article Two of the United States Constitution?

This case does not answer that question.   It does indicate that Congress, by statute, can provide for "full citizenship" at birth.

However, since we have had various candidates and higher office holders who have been born outside the U.S., and various candidates and higher office holders who have had only one American parent, the argument that seems to follow from experience and history and usage is that a person who is by common law or statute made a "full
citizen" at birth is a natural born citizen and qualified to become President.

(If there is a PROBLEM, it may be this:   Apart from suspicions concerning Chester Arthur and Obama, there does not seem to have been any President, apart from grandfathered Presidents, who was born both outside the U.S. and of only one citizen parent.

Justice Story may have mentioned a case of approximately 1830, Young v. Peck, 21 Wendell's Reports 389, which apparently would show that a person born in Britain, whose father established citizenship in the U.S., could also claim such citizenship (naturally), even though not born in the U.S.   It would seem reasonably to be be inferred that, had her father been born in the U.S., and had he traveled to Scotland to visit, and had his daughter at that time been born in Scotland, she would, as of such time, have qualified as a natural citizen of the U.S., at birth.  That is, a natural born citizen.

A number of old cases from Massachusetts, as previoiusly posted, pertaining to years between 1785 and 1791, strike a hammer blow against those who say the words "natural born citizen" had not previously been used in American jurispridence.