ANCHOR BABIES:
Under the 14th Amendment, should an anchor baby (born of non-citizen parents who are not legally residing in the country) who is born "within" the jurisdiction, on that account alone, without necessarily being "subject" to the jurisdiction, be a citizen? Bureaucratic practice, guidelines, and manuals have tended to the affirmative, even though there is no clear law.
Does Congress have power to determine who, among persons not born of parents that are citizens or legal residents, shall be citizens at birth? If so, does any statute, as opposed to mere bureaucratic policies, specifically say that children born in the U.S. of parents that are neither citizens nor legal residents shall themselves be citizens? If not, why has this charade been allowed to go on so long?
If there is no Amendment or Statute that confers citizenship based solely on native birth, then could the President, via executive order or agency regulation, clarify that native birth does not confer citizenship unless a parent is an American citizen or a sufficiently legal domicilliary? Perhaps all that is needed is a test case to establish a precedent to clarify existing law: That being native born, without more, does not make one a citizen. Because Congress tends to be politically stalemated on such concerns, the clarification will probably have to come via Executive Order and/or judicial precedent.
(This would not affect Ted Cruz, because his mother was a U.S. citizen and he and his parents were legally domiciled.)
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Nothing in any Amendment specifically says, in the words of "natural born citizen," that women, blacks, or indians qualify. So, how do you square that circle? Do you mean to tell them they are citizens of their respective states who have the right to vote but not the right to become President, if the electorate were to vote for them?
In general terms, the very process of being born entails a process of naturalization, in that a fetus does not become a citizen until being born. But place of birth, in itself, does not determine citizenship.
Among the enumerated powers of Congress is the power to provide for a uniform system of naturalization. Power to determine citizenship is an attribute of sovereignty. One cannot very well claim to be a natural born citizen unless one can claim to be a citizen. Yet, the Constitution leaves the determination of who shall be a citizen, whether at birth or upon application, to Congress.
Before the 14th Amendment, Congress, by legislation, could, if it were so inclined, provide that not even a child born in the U.S. of parents who were both citizens would be a citizen of right at birth. But for the 14th Amendment, Congress could provide that birthright citizenship should be limited to children born of parents who themselves had citizenship as a matter of birthright. But for the 14th Amendment, Congress, if it so desired, could provide that a child may not apply for citizenship if born of parents who were not citizens at birth, until such child had resided within the U.S. some determinate period of time before making application.
Restricting consideration to the original Constitution, Congress' power to provide for citizenship (apart from grandfather provisions), under its enumerated power to provide for naturalization, would necessarily encompass power to determine who should be considered a natural born citizen (i.e., a citizen of right at birth).
Given how precedents and facts have unfolded, I don't see another way to square the circle or to make consistent sense of the various provisions regarding citizenship. Given how precedents and facts have unfolded, it makes sense to suppose the vision of the Founders was to entrust to Congress the power to make law for determining citizenship of right at birth versus citizenship upon application. That makes more sense than to suppose the Founders intended instead to rely on ambiguous and specious reasoning by politically compromised advocates.
After all, if the Founders had wanted to say that the President must be a person who was born in the U.S. and whose parents were at the time both citizens, then the Founders had only to say so. But they did not. If they had some special shorthand meaning in mind for the term "natural born citizen" by which they meant to accomplish the same thing, then they had a duty to convey that understanding to the Ratifiers. Yet, nothing shows that the actual Ratifiers clearly understood any such shorthand meaning.
Given how precedents and facts have unfolded, the implication is that the Founders thought it better to leave the matter to Congress, subsumed under its power to provide for naturalization. After all, at the beginning of the republic, every citizen had to be naturalized anew. That is, no one could have been a citizen of the new republic until after, or concurrent with, the establishment of the republic. Nowadays, we think of "naturalization" as usually pertaining to citizenship being granted to a foreigner. But, at the beginning, everyone who was not grandfathered was a foreigner -- until the republic was established. To become citizens, all persons not otherwise grandfathered in the new republic had to be "nation-alized" as such by Congress in the exercise of its enumerated power to provide for naturalization.
Contrarians who would disqualify the relatively long line of preceding office holders and candidates, or who would disqualify women, blacks, and indians, make themselves look ludicrous.
One could not very well claim to be a natural born citizen unless one were first and foremost a citizen at birth. However, the Constituton does not establish who shall be a citizen at birth. To define that, it commissions Congress. In that respect, the Constitution necessarily confers power in Congress to expand or reduce the set of who shall be a natural born citizen.
When Congress acts, reference is made to superior provisions in the Constitution and most recent Amendments. Reference is made to statutes, insofar as they are not in violation of the Constitution, as Amended. Insofar as gaps that may not be answered in the Constitution, Amendments, or statutes, the Constitution adopts the method of the *Common Law. The common law is precedential, but it is more practical than hidebound. In common law, precedents change as justices and times change.
*See the Seventh Amendment and see https://en.wikipedia.org/wiki/Law_of_the_United_States#Constitutionality: "[I]t is universally accepted that the Founding Fathers of the United States, by vesting "judicial power" into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified. Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies."
For the strength of a Scotus precedent, much depends on whether Scotus is only interpreting a Congressional statute, or whether Scotus is interpreting a constitutional limit on a statued. When Scotus is only interpreting a Congressional statute, Congress can re-enact, to make its intentions clear, without needing a Constitutional Amendment.
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It makes no good sense to argue about whether a dog is a domesticated canine or a domesticated canine is a dog. That kind of quibble makes no pertinent sense. Cruz is constitutionally eligible.
The Constitution makes NBC's eligible. It necessarily gives authority to Congress to define who is a citizen (including a citizen at birth), because it, in itself, does not define a citizen, except for "grandfather" purposes. Nor did it incorporate Vattel to define citizen. Nor did it deny to Congress the authority to define citizen.
For those reasons, "in the beginning," the authority in Congress to provide for matters of naturalization necessarily encompassed defining both citizens at birth (NBC's) and citizens upon application and oath (thereafter, naturalized citizens). The power to define NBC's (citizens at birth) was necessarily made a legislative power.
Moreover, the First Congress recognized such authority when it wrote the first immigration related statute. Moreover, Amendments since then (which certainly are part of the Constitution, btw) also relate.
The upshot is that women, blacks, and indians who are citizens at birth are now eligible to become president. Any argument that they are not would be laughed out of court, and every good woman would throw rocks at men who argued otherwise.
Cruz is a citizen at birth. That is all the NBC provision can reasonably be interpreted to require. Regardless of how anyone may want to play with the words, no Court is going to disqualify Cruz. I suspect the only problem is brain freeze. But, the freeze brains ye shall always have among ye.
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LIST OF OFFICE HOLDERS AND CANDIDATES FOR PRESIDENT AND VICE PRESIDENT WHO WERE EITHER NOT BORN IN THE U.S. OR WHO HAD AT LEAST ONE PARENT WHO WAS NOT AN AMERICAN CITIZEN AT THE TIME:
(I rather value the opinions of most of the A.T. regulars. However, for the love of Pete, I wish fewer among the valued regulars would please stop being so obtuse about our actual history!)
Not Born in U.S.:
JOHN JAY’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility."
GEORGE MCCLELLAN, JR., who ran against Lincoln for his second term, was born in Saxony while his parents were on vacation.
GEROGE ROMNEY was a candidate who was born in Mexico City.
BARRY GOLDWATER was born in the Arizona territory, not in the U.S.
LOWELL WEICKER entered the race for the Republican party nomination of 1980, but dropped out before voting in the primaries began; he was also suggested as a possible vice-president candidate in 1976. He was born in Paris, France.
CHARLES CURTIS was Vice President under Hoover. Curtis was born in Kansas when it was a territory. As such, he was not born in the U.S. (Constitutional requisites for qualification to be Vice President are the same as to be President.)
JOHN MCCAIN: Under the reasoning of Persinger v. Iran, John McCain was not born "in the United States" for purposes of the 14th Amendment. 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, place of birth is NOT determinative of being or not being a natural born citizen. The Senate resolution confirmed that 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 McCain was not born on a Federal base, but in an off base hospital.
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At least One of Parents Not An American:
ANDREW JACKSON (Need to research to determine whether either or both of his parents had become naturalized citizens before he was born, and whether he was born aboard ship or in the U.S. Assuming he was born in the U.S., he likely qualified under the grandfather provisions.)
CHESTER A. ARTHUR was born in Vermont to a Vermont-born mother and a father from Ireland, who was not naturalized as a U.S. citizen until 1843, 14 years after Chester was born. While he was born in the U.S., only one of his parents was a citizen at the time.
CHARLES EVANS HUGHES was nominated by the Republican Party to run against Woodrow Wilson in 1916, even though Hughes' father was not an American citizen when he was born.
BARACK OBAMA (His avowed father was not a U.S. citizen. Moreover, there are other concerns that have not been vetted because of the opaqueness of his records.)
BOBBY JINDAL was born in Baton Rouge. His parents immigrated from India. I assume they were legal domiciliaries at the time of his birth. I suspect neither had by then been naturalized. He is born an American citizen, but some would argue he cannot qualify if neither of his parents was a citizen at the time of his birth.
MARCO RUBIO was born in Miami, but his parents were Cubans at the time. If they had been in Miami illegally, Marco would have been an anchor baby.
EDIT:
John Charles Frémont, the first Republican Presidential candidate, was the son of a non-U.S. citizen father.
Hubert Humphrey and Spiro Agnew: It is possible they may have had a non-American parent. Further research is needed.
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I don't think the Constitution by itself makes sense on the issue of "natural born citizen." Moreover, I suspect it could not reasonably have been expected to make sense on that point by itself.
For an analysis I incline in considerable respect not to agree with, that leads me perhaps to share (your) despair of ever finding consistent sense in the Constitution on this subject, see
http://www.constitution.org/abus/pres_elig.htm.
I see so many worms in that analysis, that I can arrive only at this: If Congress is thought not to have been entrusted to clarify the meaning of "natural born citizen," then, since the definition was not provided by the Founders, and since the idea behind the provision is so inherently ambiguous, I see no non-despotic hope for it.
Absent a clarifying Amendment, there simply is not enough information to avail a reasoned interpretation, unless the provision were deemed to implicate an intention in the Founders and Ratifiers to convey authority to Congress to flesh out the definition of natural born citizen.
In that case, the task before us is three fold:
- Support Trump in taking care by his administration to execute the provision consistent with the following: that anchor babies do not become citizens by mere birth; and that persons who are made by statute citizens of right at birth are natural born citizens.
- Pressure Congress to provide consistently therewith (or at least not to provide to the contrary);
- Support a COS to inject clarity to such ends.
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Issues of rights of nationals and citizens of territories, states, and the United States have taken a long and winding trail. A couple of Supreme Court Justices have (playfully?) suggested they may be inclined to find that a Puerto Rican would be eligible to run for President. I traced a history of what some courts have said over the years, and how statutes have changed.
Factors include: Pre 14A versus post 14A; pre Louisiana Purchase and post; evolution of concepts of organized versus unorganized territories and incorporated versus unincorporated territories; histories of American Samoa and the Phillipines; unincorporated area of Panama Canal Zone; unincorporated Kansas versus incorporated Kansas; Gitmo; readjudicated and changed boundaries between the U.S. and Canada and Mexico; shifts in the Rio Grande River; and probably many others.
Suffice to say, being born in a territory, without more information, does not provide enough information to say whether a person would be a national, a citizen, or a natural born citizen.
Different analysts reach differing conclusions about the eligibility (under challenge and if Scotus were to take the case) concerning whether a person born in a territory, such as Puerto Rico, pre-state Hawaii; Phillipines; Samoa; pre-state Kansas; or pre-state Arizona, would be constitutionally eligible to run for the presidency.
I don't think birthplace should be a factor, unless Congress makes it one. (To avoid anchor babies, I prefer that Congress not make it one.) IAE, failing a clarifying Amendment, I think the determination of status of being a national, citizen, or natural born citizen, should be for Congress to determine. Moreover, I don't think any clear or coherent analysis of the Constitution, history, precedents, or statutes can objectively answer the question.
What can be done is to set out the practical history and the effective and legitmate concerns. When one does that, one sees that various persons have been candidates, elected and defeated, for the presidency and vice presidency who were not born within the United States, and who were not born of parents who were both citizens at the time.
The upshot of this is as I said to Butch ("Pedro Zappa"):
I don't think the Constitution by itself makes sense on the issue of "natural born citizen." Moreover, I suspect it could not reasonably have been expected to make sense on that point by itself.
If Congress were thought not to have been entrusted to clarify the meaning of "natural born citizen," then, since no clear definition was provided by the Founders, and since the idea behind the provision is so inherently ambiguous, I see no non-despotic hope for it.
Absent a clarifying Amendment, there simply is not enough information to avail a reasoned interpretation, unless the provision were deemed to implicate an intention in the Founders and Ratifiers to convey authority to Congress to flesh out the definition of natural born citizen.
In that case, the task before us is three fold:
1)- Support Trump in taking care by his administration to execute the provision consistent with the following: that anchor babies do not become citizens by mere birth; and that persons who are made by statute citizens of right at birth are natural born citizens.
2)- Pressure Congress to provide consistently therewith (or at least not to provide to the contrary);
3)- Support a COS to inject clarity to such ends.So far, I see nothing in law or history that disqualifies Cruz merely because he was not born in the U.S. or had a father who was not a citizen at the time. Charles Curtis (Vice President, with same prerequisites as President) was not born in the U.S. Chester Arthur and Barack Obama had a parent who was not a citizen. And that pattern has been oft repeated among main contending candidates. The chance that Scotus would delve into this political thicket to unseat an elected person who was a citizen of right at birth is, I believe, precisely zero.
From http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/:
"The Naturalization Act of 17908. Ch. 3, 1 Stat. 103 (repealed 1795). provided
that “the children of citizens of the United States, that may be born
beyond sea, or out of the limits of the United States, shall be
considered as natural born citizens: Provided, That the right of
citizenship shall not descend to persons whose fathers have never been
resident in the United States . . . .” Id. at 104 (emphasis omitted). The
actions and understandings of the First Congress are particularly
persuasive because so many of the Framers of the Constitution were also
members of the First Congress. That is particularly true in this
instance, as eight of the eleven members of the committee that proposed
the natural born eligibility requirement to the Convention served in the
First Congress and none objected to a definition of “natural born
Citizen” that included persons born abroad to citizen parents.
....
John
Jay’s own children were born abroad while he served on diplomatic
assignments, and it would be absurd to conclude that Jay proposed to
exclude his own children, as foreigners of dubious loyalty, from
presidential eligibility."
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CITIZENSHIP: There is no complete and unified field theory or standard model of
citizens, cultures, and nations. There are angry and fluxing zoos of sub-zoos, particulars of sub-particulars, and contending agencies of sub-agencies. In earlier times, issues about citizenship may have been less frequent or contentious because people who were not citizens were not attracted to come
and live among foreigners, especially where there were no significant attractants,
like public welfare.
When we became a republic instead of a number of colonies of a monarchy,
the idea of citizenship as opposed to subjectship became more
important. But to what do we now look to confirm, on challenge, whether a
person is a citizen? I would say the factors may include long
residence, evidence of unquestioned allegiance, and perhaps military
service. If we don't recognize such as grounds for citizenship, then we
are in danger of becoming a nation of stateless children and refugees,
leading to a permanent and inferior class of helots, with a legal right
to be here, but no right to representation or to vote as citizens. This
would plant seeds of a kind that the Civil War should caution us
against.
NATURAL BORN CITIZEN: The Constitution does not define the phrase natural-born citizen.
Various opinions have been offered regarding its meaning. Many believe
the term encompasses people born "subject to the jurisdiction" of the
United
States, often including those who are born in the United States or born
abroad to U.S. citizen parents. Some suggest the precise meaning of the
natural-born-citizen clause in the Constitution may never be decided by courts, because presidential eligibility is a non-justiciable political question that can be decided only by Congress.
Some argue that a property of natural birthright citizenship makes such citizenship such that not even Congress can take it away, based on political reevaluations after the fact. Fine. That need not mean that Congress lacks power to define how citizenship (natural or naturalized) is to be obtained for children born thereafter. To say that Congress cannot change law to forfeit certain status or rights, ex post facto, after the fact of their having become vested is not to say that Congress cannot change the rules for how such status or rights are to become vested in the future. Constitutionally, Congress cannot criminalize acts that were legal when committed. So, Congress may not, based on facts that were sufficient at the time conferred, deprive a status of citizenship so as to transform a legal citizen into an illegal alien after the fact.
Some of the Founders recognized a concern, which they
recommended for consideration, wherewith they gave to Congress power to
determine who else would be a citizen at brith, who would need to be
naturalized, and how. Congress did so consider. However, never did the Founders
or Congress say that any particular version of Vattel must be adopted
at any time, much less for all time. Never has anyone said that a
person a citizen at birth could never be eligible to be President unless
both his parents had been citizens at birth. Never has Congress said
that the President must be born in America of parents who were both
natural citizens. To qualify a person to
become President, no provision clearly provides that there is some
constitutional distinction between a citizen whose allegiance is to the
U.S., who was born of an American parent, versus a citizen who was born
in the U.S. of two parents who were both then and there American
citizens.
See http://www.politifact.com/truth-o-meter/article/2008/may/12/born-usa/
VATTEL: Vattel discovered that
different nations had different precedents, traditions, understandings,
or provisions on the subject of citizenship, with variations of jus soli and jus
sanguinis. See http://www.migrationpolicy.org... "These outlines of jus
soli and jus sanguinis citizenship policies are, as noted, ideal types.
In fact, most countries, while generally emphasizing one or the other,
have increasingly blurred the distinction between the two by including
elements of both in their broader procedures." (Who has a right of
citizenship without having to earn it, and who must, by naturalization,
earn it?)
14th AMENDMENT (1868): It appears the drafters intended a meaning for "subject to the
jurisdiction" that was different from "under the jurisdiction" or "within the jurisdiction." But a
one-world Scotus may hardly notice.
14th Amendment, Section 1.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No 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."
How clear is the line between citizens who are "subject to the jurisdiction" versus residents who are only "under" or "within" the jurisdiction? To whom does the Constitution and 14th Amendment imply should have trump power to draw that line -- Scotus or Congress? To the extent the 14th Amendment does not specify clear distinctions between "subject to the jurisdiction" versus "under" or "within" the jurisdiction, it, by itself, does not clearly confirm who is rightfully a citizen at birth. If neither the Constitution nor the 14th Amendment clearly specifies who is a citizen, then what treaty, statute, or lawful regulation does so specify? How do we define who is a citizen? What authority does Congress have, to legislate guidance?
BIRTHRIGHT: By statutes and interpretations, being born in the U.S. has in certain circumstances been made ground for presuming citizenship. However, apart from poorly reasoned opinions, I know of no present statute that makes such birth, in itself, automatic ground for confirming citizenship.
EVIDENCING CITIZENSHIP: Resort must be found, to separate out who is a citizen, because otherwise we lack a clear way to determine among many of our migrant and other residents which are "citizens" or entitled to the rights of citizens.
IRCA: The Immigration Reform and Control Act of 1986 (IRCA) does not appear to define citizenship. Rather, it provides ways to claim AMNESTY. Amnesty for 3 million illegal immigrants, in return for increased border
security and penalties for companies "knowingly" hiring illegal
immigrants. Aside from creating the H-2A visa for seasonal employment, Reagan's IRCA was supposed to solve most of the problem of massive illegal immigration. However, the Act increased problems.
The Act did did not resolve what to do with children born in America of parents who
are here legally only because they have been amnestified. Should amnestified parents be deemed to be here "subject to the jurisdiction," or are they only here "under the jurisdiction?" Should their children born here be considered "subject to the jurisdiction" as birthright citizens, or are they themselves only amnestified under the jurisdiction," like their parents? Who has power to say, and until they say, who has binding power to rule in individual hearings, contests, cases, and appeals, and based on what guidance? (Note: The bureaucratic practice among immigration agencies is to recognize citizenship in most persons born in the U.S. Current law prevents anyone under age 21 from petitioning for their non-citizen parent to be lawfully admitted into the United States for permanent residence. However, parents of citizen children who have been in the country for ten years or more can also apply for relief from deportation. The burden of hearings and appeals renders much enforcement unlikely.)
The promises
under the IRCA have been rendered laughable. The government has made no serious effort to
control our borders. Employers continue knowingly to hire illegal
immigrants without any real fear of punishment. This has increased the
Underground Economy, so that minorities can afford to not act white,
to go polar bear hunting, and to attack police. They are content with
their economic and political situation. They like the psych reward of
feeling tattooed and superior on the cheap and the down low. So the
producing class works and pays taxes for the privilege of being
parasited, hated, and accused of being mean and privileged.
CONSTITUTIONAL CITIZENSHIP -- GRANDFATHER PROVISION: It would have been impossible for a person who became a citizen contemporaneous with the U.S. having become a nation to have been born in the U.S., because the U.S. would not have existed at the time of their birth. Their U.S. citizenship would have occurred simultaneous with the birth of the nation of which they became citizens. It would be nonsensical to require persons who were citizens at the creation to have previously been born in the creation. Thus, such persons were grandfathered, so that they need not have been born in the U.S. to have acquired citizenship.
What, then, did Americans need, contemporaneous with the creation of their nation, to be citizens and to be qualified to run for President? Well, it appears they had to be white. And they had in some capacity to be in the foreign, military, or domestic service or residence of the U.S. White people known in their communities to have been loyal and responsible residents, workers, and taxpayers, not solely allegiant to another nation, would likely have been recognized in some respect as regular or registered citizens. Such people, provided they were 35 years of age and 14 years a resident within the organized colony and later confederacy that became the U.S., would have equal right with white citizens born in the U.S. and similarly situated to run for President. Provided they were citizens of right or at birth, they would have, if 35 years of age and 14 years a resident, been qualified to run for President. (The times were racist. How much non-white blood would have disqualified them from running and from being citizens? Upon challenge, would they have to prove their whiteness to be eligible?)
STATUTORY CITIZENSHIP BY WAY OF BIRTHRIGHT: The United States Naturalization Law of 1790 provided the first rules for granting national citizenship. It provided that "the children of citizens of the United
States, that may be born beyond sea, or out of the limits of the United
States, shall be considered as natural born citizens." It has been superceded at various times, in 1795, 1798, 1902, 1870, 1924, 1940, and 1952. It limited naturalization to immigrants who were free white persons of good character. It excluded American Indians, indentured servants, slaves,
free blacks, and Asians. It provided for citizenship for children of U.S. citizens born abroad, but specified that the right of
citizenship did "not descend to persons whose fathers have never been
resident in the United States". It specified that such children "shall
be considered as natural born citizens" — the only U.S. statute ever to use the term "natural born citizen."
It is not reasonable to suppose that Congress, by later replacing the
statute of 1790, in which
it had partially defined the term "natural born citizen," with
subsequent statutes that deployed the concept without using the exact
same language, thereby revoked the understanding as expressed in the
first definition in favor of reverting to some
supposed definition under Vattel. Neither the Founders nor
Congress ever clearly or affirmatively said they intended either to
adopt or to revoke any version of Vattel. Even though Congress did not
again use the term "natural born citizen," it did establish measures for
claiming citizenship of right based on family and birth. Under power
necessarily delegated to Congress, Congress in effect determined that a
person, born of an American parent, who would under its statutes be a
citizen of right at birth, without having to be
naturalized, would qualify as a natural born citizen.
STATUTORY RIGHT TO APPLY FOR NATURALIZATION: Article I of the Constitution gives Congress power to establish (enact) a "uniform rule of naturalization." Moreover, insofar as "natural born citizen" was not well defined, Congress must be inferred to have a right, prospectively, to determine the qualificatons for such a classification. The distasteful alternative would be to argue that the Founders and Ratifiers intended some then and there version of Vattel to be the law of the land. This begs questions: Which version, which interpretors of it, to what extent, and how frozen? Should the ratifiers be supposed to have written a blank check to future interpretors of Vattel to apply the entire treatise to all issues of citizenship? What other nation had, or would, so blindly and so permanently, entrust such fundamental concerns?
CHILDREN OF UNKNOWN PARENTAGE: We do have a Statute of 2011, at 8 U.S.C. § 1401, under which Congress
undertook, among other things, to statutorily define a citizen at birth
to include a person of unknown parentage found in the United States
while under the age of five years, until shown, prior to his attaining
the age of twenty-one years, not to have been born in the United States.
That statute confers a kind of "deferred birthright citizenship."
What
is needed is a way to clarify that this statute does not by itself
confer full birthright citizenship. This needs to be done in a way that
does not purport to toss abandoned children out of the country without
fairly attending to them. That can be done readily enough, given
Executive guidance and a central registrar.
Notice that the
statute talks about a child of "unknown parentage." A fair implication
is that Congress recognized that to establish parentage by non-Americans
may be an alternative ground for denying citizenship, notwithstanding
place of birth. Respect is needed for two concerns: Care for children, and care for not incenting
anchor babies.
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TED CRUZ: Ted Cruz is a citizen, jus sanguinis, because his mother was a citizen. He is a natural born citizen, because he was born a citizen-of-right, without having to earn status of citizenship by naturalization. Nothing in the Constitution says that a person who is born a citizen, who does not have to undergo naturalization to become a citizen, is not a "natural born citizen." Professor Chin, former Solicitor General Paul Clement, former Acting Solicitor General Neal Katyal, and Professor Peter Spiro of Temple University Law School believe Cruz meets the constitutional requirements to be eligible for the presidency. Per briefing by Theodore B. Olson and Laurence H. Tribe, Obama was eligible even though one of his parents was not a U.S. citizen and would have been eligible even if he had been born while Hawaii was a territory and before it became a State.
"NBC people," to determine who is a "natural born citizen," often think they have some simple test that is "clearly" set forth in the Constitution. ( Even though, to state their test, they presume to refer to a version of Vattel that was not published until after the Constitution was ratified.)
John Jay recommended, in a letter to Washington, a need to help guard against intrigue by foreign princes to become head of state in America. In Jay's letter, the only word underlined was "born." The word "natural" was not underlined. The Jay letter did not refer to Vattel.
In 1904, Frederick van Dyne (1861–1915), the Assistant Solicitor of the US Department of State (1900–1907) (and subsequently a diplomat), published a textbook, Citizenship of the United States, in which he said: "There is no uniform rule of international law covering the subject of citizenship. Every nation determines for itself who shall, and who shall not, be its citizens ...."
In 2012 WL 1205117, a pro se plaintiff challenged Obama's presence on the presidential ballot, based on his own interpretation that "natural born citizen" required the president "to have been born on United States soil and have two United States born parents." To this, the Court responded, " Article II, section 1, clause 5 does not state this. No legal authority has ever stated that the Natural Born Citizen clause means what plaintiff Strunk claims it says. .... Moreover, President Obama is the sixth U.S. President to have had one or both of his parents not born on U.S. soil." [listing Andrew Jackson, James Buchanan, Chester A. Arthur, Woodrow Wilson, and Herbert Hoover].
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HISTORY OF CANDIDATES, PRESIDENTS, AND VICE PRESIDENTS WHO WERE NOT BORN IN THE U.S. OR WHOSE PARENTS WERE NOT BOTH CITIZENS:
GEORGE WASHINGTON: Washington’s father died a British Subject before the American Revolution. If parental citizenship matters, then George Washington was not a natural born citizen. Absent a grandfather proviso, he would have been excluded from the office of Commander in Chief of the United States.
ANDREW JACKSON was born in 1767 in Waxhaws, Colony of North Carolina. His parents were not born on U.S. soil, being from Ireland, but they presumably became legal domicillaries when they arrived by ship shortly before Andrew was born. Presumably, Andrew would thus be a legal domicilliary of the Colony of North Carolina at the very time he was born. Was there law or precedent then to make him a citizen? Did he at any time before or after renounce his Irish citizenship or allegiance and become a citizen of the United States -- either under the Articles of Confederation (1781) or the Constitution (1789)? He served informally, while a teenager, during the Revolutionary War. That would not seem to renounce Irish citizenship, since Ireland did not become a legislative part of Great Britain until 1800. So, before the ratification of the Constitution in 1789, had Jackson become an allegiant citizen of the United States under the Articles of Confederation? Nothing evidences that he renounced citizenship in Ireland. If he had Irish citizenship, he would under the circumstances have needed to be naturalized to become a U.S. citizen. If he were naturalized after ratification of the Constitution, he could not have been eligible. So, was he naturalized before 1789, to claim benefit of the grandfather proviso for citizenship? What was the law and procedure for naturalization under the Articles of Confederation? Was Jackson the first dual-citizenship President, when he commenced office in 1829?
CHESTER A. ARTHUR was born in Vermont to a Vermont-born mother and a father from Ireland, who was not naturalized as a U.S. citizen until 1843, 14 years after Chester was born. While he was born in the U.S., only one of his parents was a citizen at the time.
GEORGE MCCLELLAN, JR., who ran against Lincoln for his second term, was born in Saxony while his parents were on vacation.
CHARLES EVANS HUGHES was nominated by the Republican Party to run against Woodrow Wilson in 1916, even though Hughes' father was not an American citizen when he was born.
BARRY GOLDWATER was born in the Arizona territory, not in the U.S.
LOWELL WEICKER entered the race for the Republican party nomination of 1980, but dropped out before voting in the primaries began; he was also suggested as a possible vice-president candidate in 1976. He was born in Paris, France.
BOBBY JINDAL was born in Baton Rouge. His parents immigrated from India. I assume they were legal domiciliaries at the time of his birth. I suspect neither had by then been naturalized. He is born an American citizen, but some would argue he cannot qualify if neither of his parents was a citizen at the time of his birth.
MARCO RUBIO was born in Miami, but his parents were Cubans at the time. If they had been in Miami illegally, Marco would have been an anchor baby.
CHARLES CURTIS was Vice President under Hoover. Curtis was born in Kansas when it was a territory. As such, he was not born in the U.S. Pehaps the most important function for a Vice President is to be ready to assume the presidency in event of the death or incapacity of the President. Yet, there does not appear to have been significant debate that Curtis would have been disqualified for not having been a "natural born citizen."
(According to Downes v. Bidwell, 182 U.S. 244, 266 -267 (1901),
the net effect of incorporation is that the territory becomes an
integral part of the geographical boundaries of the United States and
cannot, from then on, be separated. Indeed, the whole body of the U.S. Constitution is extended to the inhabitants of that territory, except for those provisions that relate to its federal character. Prior to January 13, 1941, there was no statutory definition of “the United States” for citizenship purposes. The phrase “in the United States” as used in Section 1993 of the Revised Statues of 1878 clearly includes states that have been admitted to the Union. (See 7 FAM 1119 b.))
JOHN MCCAIN: Under the reasoning of Persinger v. Iran, John McCain was not born "in
the United States" for purposes of the 14th Amendment. 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, place of birth is
NOT determinative of being or not being a natural born citizen. The Senate resolution
confirmed that 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 McCain was not born on a Federal base, but in an off base hospital.
See the Foreign Affairs Manual (FAM):
Birth on U.S. Military Base Outside of the United States or Birth on U.S. Embassy or Consulate Premises Abroad:
(1) 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 ofthe
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.
**************
THE ANCHOR BABY PRACTICE THAT HAS BEEN FED BY CRONY ESTABLISHMENTARIANS SHOWS WHY A CONVENTION OF STATES IS VITAL:
The opinion in United States v. Wong Kim Ark, 169 U.S. 649 (1898) dealt with the citizenship of a child born
of legally resident parents. No sensible interpretation
of it would support finding that an anchor baby born of illegal invaders would be a
citizen.
WHAT NEEDS TO BE DONE: A better interpretation of existing law would be that a child born of
illegal invaders (an anchor baby) is not a citizen. Whoever is elected President should see to it that the guidance in the Foreign Affairs
Manual is changed in that respect.
Contemporaneously, the law
regarding citizenship needs to be clarified. If Scotus proves balky, the
Constitution should be amended, to convey to Congress complete
authority by legislation to determine, going forward, who is a citizen and who is
eligible to become President.
The standing situation is intolerable, because it promotes uncertainty. It also promotes disrespect for the law and for office holders, whose offices depend
on appointments from potential presidents, whose own offices are of dubious
legality. Our situation is a republic being built up, on sand. Our situation is also intolerable
because it promotes confusion about the citizenship of persons born in
America of illegal invaders, visitors, temporary workers, long term visa
workers, and legal
We desperately
need a competent President, a loyal Congress, an adult Scotus, an
awakened electorate, and a Convention of States. Otherwise, our house
cannot much longer stand on the sand that is shifting beneath our feet. The establishment believes that to allow the confusion to
continue will put time on its side, in its goal of replacing the republic
with one worldism. (See Phillip K. Dick's dystopian novel, Time Out of
Joint.)
Plyler v. Doe, 457 U.S. 202 (Supreme Court -- 1982), practically forces states, cities, and school districts to provide paid sanctuaries for illegal alien children. Scotus interpreted the phrase in the 14th Amendment, "subject to the jurisdiction," to confirm that the Amendment's equal protection extends to anyone, citizen or
stranger, who is subject to the laws of a State. All
Scotus needed to say was that the Equal Protection Clause of the
Fourteenth Amendment applies to aliens who, after their illegal entry
into this country, are for that purpose physically subject to and under the
jurisdiction of a state. Scotus did NOT say, nor need it have imputed, that children
born in the U.S. of alien invaders should be considered as being citizens because "subject to the jurisdiction." At most (although it is quite enough), Scotus decided that alien children who were not born in the U.S. have a right while in America to equal treatment as persons under the 14th Amendment (without needing to make them citizen "subjects").
NOTE: The opinion of the 4 dissenters, written by Chief Justice Burger, noted that the Equal Protection Clause does not mandate identical treatment of different categories of persons.... The importance of a governmental service does not
elevate it to the status of a "fundamental right" for purposes of equal
protection analysis.... To the extent this Court raises or lowers the degree of
"judicial scrutiny" in equal protection cases according to a transient
Court majority's view of the societal importance of the interest
affected, we "assum[e] a legislative role, and one for which the Court
lacks both authority and competence.... The Federal Government has seen fit to exclude illegal aliens from numerous social welfare programs.... The Constitution does not provide a cure for every
social ill, nor does it vest judges with a mandate to try to remedy
every social problem....
It does not follow... that a state should bear
the costs of educating children whose illegal presence in this country
results from the default of the political branches of the Federal
Government.
One-worlders bent on destroying the republic by providing sanctuaries everywhere will run with Plyler v. Doe, 457 U.S. 202 (Supreme Court -- 1982) and argue that the words
in the 14th Amendment, "subject to the jurisdiction," are surplusage. That is, they will argue that a person who is born WITHIN a jurisdiction is
necessarily SUBJECT TO the jurisdiction, so that his birth within the U.S., in and of
itself, makes him a citizen. If presented with this issue, Scotus is likely (and improperly) poised so
to confirm.
This is why a Convention of States is vital. Trump
needs to inspire major disgust against some of the immigration-related
decisions by Scotus. He needs to proceed as much as he can on several
fronts. Executive orders. Strong cabinet appointees. Inspire a
legislative agenda. Build a wall. Enforce the border. Inspire support
for amendments to strengthen the republic. Groundwork needs to be laid for how the new President may reasonably
correct the problem concerning anchor babies. That problem must be
corrected, because otherwise the meaning of citizenship will very soon
be swept and eroded out to sea. Second, if we can get a Convention of
States, per Mark Levin, we may yet turn back Progressive dystopian one
worldism in a lasting way.
Cruz seems to be slightly modifying his understanding of birthright
citizenship to come closer to Trump's. IOW, the Negotiator (Trump) was
in front of one of the foremost Debater/Scholars (Cruz).
**********
GUIDANCE NEEDED UNDER AUTHORITY OF THE EXECUTIVE BRANCH:
GUIDANCE REGARDING ANCHOR BABIES: Presumably, the drafters of the 14th Amendment had a purpose when
they differentiated language for (citizens and legal subjects) "subject
to the jurisdiction" versus (illegal and undocimented persons ) "within
the jurisdiction." Under the 14th Amendment, should an anchor baby who is born "within" the
jurisdiction, on that account alone, without necessarily being "subject" to the jurisdiction, be a citizen? Bureaucratic practice, guidelines, and manuals have tended to the affirmative, even though there is no clear law.
There does not appear to be any Amendment or Statute that
confers citizenship based on native birth, absent evidence of legality of
domicile. A competent executive (President) could, via executive order or agency
regulation, clarify that native birth does not confer
citizenship unless a parent is an American citizen or a sufficiently legal domicilliary. Let him direct Fed Agents to provide for the registrar, status
determination, or deportation of everyone under the age of 18 whose
citizenship is in doubt because of lack of certificate or proof of long
established or legal domicile
Congress has not used its naturalization power to make citizens of
children born of undocumented parents. It has used its power to create a
presumption that abandoned children found in America were born of an
American parent, and that presumption becomes conclusive after a number
of years.
Advocates for anchor baby citizen status would claim the 14th
Amendment makes all native born persons into automatic citizens.
However, the 14th Amendment does not do that. It requires, for native
born citizenship status, that the person be "subject to the jurisdiction"
of the U.S.
Thus, in theory, no legislation is needed to stop the practice of certifying citizenship based only on birth in the U.S.. All that
is needed is a test case to establish a precedent to clarify the
existing law: That being native born, without more, does not make one a
citizen.
However, this would be unattractive, politically. Our
establishment press would make very unpopular any party or person who
sought to deport a recently birthed and abandoned baby or a child of
long residence in the U.S.
So, the easier political path may be for a popular President to induce Congress to legislate to provide that no child born in the U.S. of
parents who are not then and there legally domiciled in the U.S. is not a
citizen. (Birth certificates should not, by themselves, indicate
citizenship.) Then, require employers to use e-verify before they hire
employees. As much as possible, proceed with ways to encourage self
deportation and to prevent future border jumpiing.
Otherwise, evil establishmentarians will win the day by lying and twisting the arguments to useful idiots.
Congress should not need to try to paint the lily to define what "subject to the jurisdiction" means.
Or, Congress may pass a law to specify that children born in the United States or any
of its territories, that are born of biological parents neither of whom are at the time
citizens, lawful domiciliaries, or lawful residents, are not thereby to
be deemed to be citizens of the United States or any State thereof. Nor are children born to students, tourists, visitors, or diplomats while residing in the United States or any of its territories to be deemed merely on that account to be citizens.
GUIDANCE REGARDING NATURAL BORN CITIZENS: Various philosophical arguments can be made concerning who "should" be a natural born citizen. However, I
doubt any such argument would receive universal acclamation. Among the drafters or
ratifiers of the Constitution, I
doubt there was much "meeting of the minds" concerning such subject. The only meeting
of the minds that seems to be documented is that they worried about
potential abuses from conniving and meddlesome foreign princes. (Had
the Founders more foresight, they would have worried more about home grown,
establishmentarian-inbred, basement-dwelling, poison-ivy educated,
entitlement-minded, socialistic trustafarians.)
Philosophically, I think a child, born of an American parent, who
resides in the U.S. for at least 10 years before reaching age 21, should
be considered a natural born citizen in respect of being qualified to
run for the presidency. However, nothing in the Constitution provides
for or against such factoring.
Why is solving these problems so hard? I submit a big part of the
reason is because central regulators
do not want the problem solved! They do not want an independent America.
They want, or work for, one-worlders. If one-worlders wanted to design a
system that would dissolve nations, they could hardly have found better
ways than are already in place.
***********
CONGRESSIONAL POWER AND COHERENCE: We need a coherent
understanding about what it takes to make a citizen. The issue has
never, until the Mexican, Muslim, and Chinese, invasion, been considered important enough to
be examined closely and competently. If we are going to have a coherent
policy for citizens, then we need a coherent definition for what a
citizen is. To say a citizen is a person born of a citizen parent is
merely to regress the question concerning what makes the parent a
citizen. To regress a question is not to answer it. If the President is
to proceed in a principled way to protect citizenship, without waiting
on a useless Congress and a twisted Scotus, then the President will need
to explicate a coherent and reasoned interpretation of "citizen."
The Founders seem to have "grandfathered" and considered most white people who were living in the colonies at the time of the ratification of the Constitution to have been citizens. The Constitution
empowered Congress to provide for how naturalization would occur. The
necessary implication was that merely living here would no longer be
sufficient. At some point, modernity cut off merely-living-here or having-been-born-here as practical bases for asserting citizenship.
Congress began to provide that persons merely living here, who came
after ratification of the Constitution, were not citizens
unless born of a citizen (jus sanguinis). Nothing in the Constitution
says progeny of non-citizens would become citizens merely because
of birth here (jus soli). Something more would thenceforth be required,
unless a child were born of a shown-to-be, or well-known-to-be, citizen.
And that something more, at least until the 14th Amendment, was to be
determined by Congress, under its power to determine requisites for
naturalization.
So, did the 14th Amendment clarify the situation?
Did it take from Congress the power to determine in any way that a
person born in the U.S., but not born of a citizen, would or would not
be entitled to claim citizenship?
Well, the 14th Amendment did
NOT provide that birth here would, in itself, be sufficient to confer
citizenship. This is because it also requires that a person born here be
"subject to the jurisdiction." Now, it had already been commonly
recognized that a child's citizenship would be influenced, jus
sanguinis, by the citizenship of his father. So, the words "subject to
the jurisdiction" were not needed to establish that. What, then, was the
purpose of those words, "subject to the jurisdiction"?
The
purpose must have been to require some status in a child's parentage
that was more than illegal, but less than citizenship. This is because
nothing clearly shows an intention to confer citizenship on a child of
an invader. And it was not necessary to provide for citizenship when a
child's parents were already citizens. So, what was the purpose of the
words, "subject to the jurisdiction"? Was the purpose to invite Congress to provide clarifying specification?
RECKONING BIRTH FROM CITIZEN PARENT: Was one of the purposes of the 14th Amendment to provide that a child would be a citizen if born in the U.S. of parents who, even though not citizens, were legal domiciliaries? If
so, what sort of legal-domiciliary status should be necessary to confer status
that could allow a parent to transmit citizenship? If mere invader
status was not sufficient, then what about having a long recognized
residence and employment? What of being here under authority provided by
Congress for a work visa? For an education visa? For a work visa with
permission to bring family? The precise line for what the drafters of
the 14th Amendment and its ratifiers intended does not seem to be
clearly established.
Under a most conservative interpretation, a
child born here of an invader should not be supposed to be a citizen.
Nor should a child born here of a person merely visiting or passing
through. But what of a child born of a person under some short term work
permission?
If you and your parents and their parents were not
naturalized, and if no one can trace lineage to anyone who resided in
the U.S. under the Articles of Confederation, leading up to the time of the ratification of the Constitution, and if birth here
is not in itself sufficient to confer jurisdiction, then, apart from
hearsay on some certificate: What Is Your Basis For Claiming You (Or Any
Person In Such Situation) Are A Citizen Or Born Of A Parent Citizen?
I think a basis has to be on
long term residence, during which there has been no question to the contrary. However, how much
time in residence should policy need, to establish a presumption of citizenship? That is a fuzzy issue for which, until the
Mexican invasion, no one in Congress or Scotus appears to have felt any
need to provide clarification. Must citizenship be like squaters'
rights, so that open and notorious claim of citizenship for a number of
years, during which no authority brought an action for deportation,
should be ground for proving citizenship? Can such long established
"squaters" (helots?) become parents of a child who would be eligible to run for
president?
***********
DATE OF RECKONING: Some aspects of the citizenship quandry may be so hairballed that Scotus
may appreciate a reasoned attempt by Congress to provide some clarity.
Was one of the purposes of the 14th Amendment to provide that a child would be a citizen if born in the U.S. of parents who, even though not citizens, were legal domiciliaries? If so, what sort of legal-domiciliary status should be necessary to confer status that could allow a parent to transmit citizenship? If mere invader status was not sufficient, then what about having a long recognized residence and employment? What of being here under authority provided by Congress for a work visa? For an education visa? For a work visa with permission to bring family? The precise line for what the drafters of the 14th Amendment and its ratifiers intended does not seem to be clearly established.
Under a most conservative interpretation, a child born here of an invader should not be supposed to be a citizen. Nor should a child born here of a person merely visiting or passing through. But what of a child born of a person under some short term work permission?
A lot of Americans
are not naturalized. They rely on being supposed
citizens at birth, based on presumptions under official certificates
regarding their places of birth and the identities of their parents.
Regressively, their parents likewise rely. And so on. But, absent a
certificate of naturalization somewhere in the chain, who would have
proof of a chain back to an originally grandfathered citizen-parent?
How would such Americans claim citizenship, if birth in America were not
a sufficient claim of citizenship-by-birthright, if they and their
ancestry lacked naturalization, and if they could not trace ancestry
back to a grandfathered citizen? In such cases, circumstances of proof
or presumption should be sufficient, to the effect that their parents
were legally resident and "subject to the jurisdiction" (rather than
merely having been "under the jurisdiction"). But what if no convenient
databank, passport, or census yet exists to document all that is requisite to
evidence the citizenship of a nation's residents? Could most such
persons benefit from some "comprehensively legislated presumption" --
based on proof of long residence established after some time of
reference?
Many residents of America cannot trace
their ancestry
back to parents who were naturalized. Absent some provision for
presuming or grandfathering citizenship of their ancestors, they may not
always, on challenge, absent passport, be able to show that they were born of a lineage
that
originated here legally.
Not enjoying citiizenship based on a line of naturalization or grandfathering, they would need one of two things:
(1) A proper regulation or statute that creates a presumption that persons of long residence are natural citizens; or
(2)
Some implication, interpretation, or precedent under the Constitution that makes
their residence under a long enough line of ancestral residents into a ground
for natural citizenship.
For example:
Whereas the issue of national citizenship has not been entirely clear; and
whereas Congress has among its enumerated powers a responsibility to provide for naturalization;
Now therefore be it enacted as follows:
All
persons documented by appropriate state or lawful authority to have
been born in the United States before 1/1/2000 shall henceforth be
deemed naturalized citizens. If born of a parent who also is a citizen,
they shall in addition be deemed a native born and natural born citizen.
All
persons not born before 1/1/70 who are not shown or documented to have
been born of an American citizen shall be recognized as citizens of the
nation or nations of their parents.
All persons not being naturalized
or native born citizens shall have a right to apply to become
naturalized citizens only by provisions of Congress elsewhere enacted.
*********
DUAL ALLEGIANCE AND CITIZENSHIP: When, if ever, should being "subject
to," "under," or "within" the jurisdiction require
exclusive jurisdiction and allegiance as a subject? May it sometimes
require
only superior, or coequal allegiance? If exclusive, then no one could be
a dual citizen. But we know some can. So something less than complete
allegiance is required, at least for persons who are born citizens
without needing to be naturalized. A person can more likely be a
citizen of two nations than he can be co-equally allegiant to both.
Should citizenship rights for any child of foreign nationals be
probationary until the child has
come of age and either sworn allegiance or shown himself to have been
lawfully domiciled for some number of years?
***********
REGISTRAR: Up to and including now, there have not been affirmative and reasonable means for
establishing, confirming, or certifying citizenship. Going forward,
nation of citizenship ought not be indicated via birth certificates. It
ought to be confirmed via federal passport or identification that shows either that a
parent was an American citizen or that the child was born in the U.S.
while the mother was subject to and under the jurisdiction of the U.S., within the
meaning of the 14th Amendment. For example, identification that showed
the mother was in country under a valid work permit could show that she
was under the jurisdiction. Mere status as a diplomat or a visitor
under a passport would not. The U.S. needs to have in place some central
registrar to show citizenship status on a continuing basis. Absent
special permission to the contrary, employers should be required to
confirm that they have verified citizenship status of all employees, on
pain of legislatively imposed substantial fine.
************
FROM THE JACOBSON ARTICLE:
See http://legalinsurrection.com/2013/09/natural-born-citizens-marco-rubio-bobby-jindal-ted-cruz/
"Most of the counter-arguments are historical conjecture, at best, and
rely on speculation not connected to the text of the Constitution or any
demonstrable actual intent or understanding of the Framers."
"[T]he English translation of the 1758 edition [of Vattel] did not use
the term “natural born Citizen.” That term did not appear until the
1797 edition, a decade after the Constitution was ratified."
"Two of the leading attorneys challenging Obama’s eligibility admitted
that the term was not in the edition available in 1787, and they make
the illogical bootstrap argument that the later change in the Vattel
verbiage somehow applies retroactively"
"It is, at best, highly speculative to assert that the Framers looked to Vattel for the definition of “natural born Citizen.”"
"It seems likely that the virtually contemporaneous coloration provided
by the 1790 act lends support to the view that the constitutional
reference to natural-born citizens was intended to include those who
acquired United States citizenship by descent, at birth abroad."
"Even if there were a holding that “all children born in a country of
parents who were its citizens” were “natural born Citizen[s],” that
would not exclude other situations giving rise to being a “natural born
Citizen.”"
"The weight of legal and historical authority indicates that the term
“natural born” citizen would mean a person who is entitled to U.S.
citizenship “by birth” or “at birth,” either by being born “in” the
United States and under its jurisdiction, even those born to alien
parents; by being born abroad to U.S. citizen-parents; or by being born
in other situations meeting legal requirements for U.S. citizenship “at
birth.” Such term, however, would not include a person who was not a
U.S. citizen by birth or at birth, and who was thus born an “alien”
required to go through the legal process of “naturalization” to become a
U.S. citizen."
"The burden should be on those challenging otherwise eligible candidates
to demonstrate through clear and convincing historical evidence and
legal argument why such persons should be disqualified. That has not
happened so far, and if two hundred years of scholarship is any
indication, it never will happen."
Wong Kim Ark deals explicitly only with children of legally admitted
aliens. The undocumented alien population then was much smaller and may
well not have seemed significant........
Acceptance of the Wong
Kim Ark precedent therefore cannot be said to involve explicit
acceptance of jus soli citizenship for aliens not legally present in the
United States, either by the Court or the American public.
....
[A]
number of organizations favoring immigration restriction have
repeatedly advocated either for congressional legislation denying
birthright citizenship to children of undocumented aliens, or for a
constitutional amendment to achieve that result, or for both.
....
In
the 110th Congress, one hundred and four Congressmen have co-sponsored
the Birthright Citizenship Act of 2007, which would legislatively
interpret the Fourteenth Amendment not to provide citizenship to those
born to parents not legally present in the United States, beginning
after the date of the law’s enactment.
....
These efforts have all
failed. Indeed, none has come anywhere close to winning congressional
approval or broader popular support.
****************
Nothing in the language of the Constitution requires that both parents be citizens. If that were required, then the elections of Obama and Arthur would have been illegal. No serious person who holds any kind of power is ever going to hold that. That ship has sailed. The most incautious thing a person could do now would be to hold that those presidencies were illegal. If caution is the guide, it would follow the weight of the scholarly majority; not the weight of the fringe. Frankly. I don't apprehend logic in the fringe. More like a huge stretch. For what effective purpose, I do not discern in the practice.
Some of the NBC literature gets really silly! Some say that, at the time the natural born citizen clause was inserted, neither blacks nor women could be considered natural born citizens eligible to become President. Therefore, absent amendment, they claim that blacks (Ben Carson) and women (Clinton and Fiorina) remain ineligible today. See http://natural-borncitizens.net/catoinstcruznotnaturalborn.html. Aside from being silly, this is not "cautious." Look at the webpage to see all the persons such people would find ineligible, even including Donald Trump, whose mother was born in Scotland.
At this point, I do not believe any cautious person should espouse ineligibility in Cruz, Trump, Fiorina, or Clinton. Rather, any cautious persons who thought those people should be ineligible in modern context should be the ones required to obtain an amendment so to state. I think cautious people who want to preserve the republic should look more to Mark Levin. Imo.
**********
Trump has anchor babies under control. Different topic. A person born of invader parents has no citizenship in the U.S., much less NBC status. The practice has been wrong on that, but it is unsupported in law. Trump will change that with executive order. He will coordinate with legislation and/or amendment, as needed, if needed, to convince any activists on Scotus who may think otherwise. Levin is right about two things: anchor babies are not citizens; and Cruz is eligible.
**********
The history of the 12-14th Amendments delineates a path along which blacks, women, and Indians became citizens.
It does not explain how they became eligible to become President --
unless you concur that Congress, in its various acts concerning
citizenship, has and had authority so to provide. Unless, that is, one means that they remain ineligible. But that would be radical,
would it not?
**********
Like it or no, we have to live with checks and balances, and Scotus plays a role. Levin has some good ideas for reining them in, in his Liberty Amendments. I agree with Levin, that anchor babies born of invaders are not citizens, and that Cruz is eligible. I also agree with Trump, that he can stop anchor baby citizenship with an executive order, but that to nail that down he can supplement with legislation and/or amendment, as needed. With a mandate, he will put hot fire to some dirty feet.
*********
As a term, "citizen" is broader than (encompasses) (1) people who
acquired citizenship even though they did not have it of right at birth,
and (2) people who acquired citizenship of right at birth, If a person
wants to, he can add various sub-sub sets, such as dual citizens,
former (expatriated) citizens, Female citizens, Black citizens, Indian
citizens, spliced gene citizens, borrowed womb citizens, etc. A
reasonable reading is that a person who acquired citizenship of right at
birth is a natural born citizen.
If John Jay had had a son in
Europe after the passage of the Constitution, I doubt anyone would have
said he could not run for the presidency. You say "a" difference. As
if there were contemplated some difference that Congress could never
have in any way reformed. That belies what they did in 1790. And, if
it cannot be reformed, then you will have a lot of explaining to do, to
convince women and blacks that they have no eligibility for the office.
(The words "natural born" are not used in that way in the 14th
Amendment. So how and when did Blacks and Women acquire eligibility to
become President, unless the Founders had wisdom to confer such
authority in Congress?)
The real issue is what the Ratifiers
intended. I doubt they can all, before ratification, have had the
understanding you wish to impute to them. The more "natural" reading of
the words, "natural born citizen," by themselves, would seem to be to
describe a person who would be a citizen of right, at birth. No serious
person has, or would, suggest that Congress has no authority to expound
or expand on that.
**********
Obama would not be disqualified simply because his father was not an
American, nor even if he had not been born in Hawaii. Those are rabbit
trails. This is because his mother was an American.
However, if
Obama's mother had not lived in America for a requisite number of years
before Obama's birth, or if she renounced American citizenship before
Obama became old enough to prevent his citizenship from being determined
by that of his parents, then, depending on the pertinent legislation at
the time, he may not have retained American citizenship.
Since
Obama's mother appears to have been legally in Hawaii ("subject to the
jurisdiction"), Obama would probably have acquired citizenship at birth.
But did he lose it? Was he adopted and moved to Indonesia, where his
parents were or became citizens, before he was 5? That may be why Obama
has been less than forthcoming concerning his birth certificate. The
certificate he provided seems to be a fabrication. Why? What's he
hiding? I don't know.
**********
See https://en.m.wikipedia.org/wiki/United_States_presidential_line_of_succession. The 20th and 25th Amendments clarify most of that. The cited article from Wikipedia mentions only one cabinet official who would be disqualified on account of not being a natural born citizen. Sally Jewell, Secretary of Interior, was naturalized. It is interesting that no one else in line is indicated to be disqualified, even though it is not clear that they all had two parents who were citizens at the time they were born. IOW, it appears the precedent of Obama has in practice removed any question of ineligibility on account of having only one citizen parent.
So far, I have not found information to be readily available to identify both parents of a number of the cabinet members. For examples: I don't find a profile to identify the parents of the Secretary of Veteran Affairs, nor of the Secretary of Agriculture, who was adopted. Regarding the Secretary of Transportation, all I have found is that he was raised by his mother. His father is not readily identified, so it is not yet apparent where the father may have been born or whether he was naturalized before the birth of Anthony Foxx. Yet, the cite lists Anthony Foxx in the order of succession.
The father of the Secretary of Labor, Thomas Perez, born 7 October 1961, was an immigrant from the Dominican Republic. Thomas Perez' mother was a daughter of the Ambassador to the U.S. under Trujillo, who was assasinated in May of 1961, a few months before Perez was born. It is not apparent whether Perez' mother was naturalized as an American citizen before he was born. Yet, Perez is listed in the order of succession, with no indication of questionable qualification.
If you want an example for why the NBC provision is not much of a guarantee of loyalty to American borders, look to the Secretary of HUD, whose mother helped establish La Raza Unida. (Is there anything non-radical or loyal to America about Obama?)
