Re: All persons born or naturalized in the United States, and subject to the jurisdiction thereof
I think that language was also intended to exclude Indian Tribes and illegal aliens bent on dropping anchor babies.
The word "subject" is also consistent with the British idea of being a natural born "subject." Another reason to prefer Blackstone to Vattel. When the Founders spoke of born citizens, they were not insensible to the obligations of a citizen as a subject of his country.
Probably because Congress was given authority to enforce the Amendment with legislation, it was able thereafter to confer citizenship to the Indigenous Americans through the Indian Nationality Act. Since then, Congress has frquently legislated to expand natural born status. It gave birth citizenship to certain persons born in Panama. Also in Puerto Rico and in various territories and in subsequently admitted states. For awhile, it also contracted citizenship rights, as in the Alien and Sedition Acts and Acts to Expatriate certain persons who compromised their allegiance by marrying foreign spouses. And it expanded a definition for Natural Born Citizens in its first act concerning immigration and naturalization. So it's hard for me to see how even Superman could turn back so many changes over time.
I think a more sensible and likely approach would be to press for an Article V Convention. That and keep your powder dry.
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Rubio needs to show that he was a citizen at birth. If he was born of illegal aliens, rather than legal domiciliaries, then he was not a citizen at birth. Moreover, if that is true, and if he never undertook naturalization, then he might not be a citizen at all. It may be necessary to look at the Reagan amnesty to determine whether he is a citizen or a mere denizen.
I think a court case found that a Chinese baby born in the U.S. of legal domiciliaries who were not citizens was a citizen by virtue of the 14th Amendment. I will need to review, then, why legislation concerning Blacks was thought necessary after the passage of the 14th Amendment.
There is a rat's nest of confusion and overlap. It does not help that much of the so called scholarship on this topic seems to be in the vein of small minded and sneering advocacy, on all sides. We need more people like you who will take a step back, take a breath, and try to look at it objectively. This means: Don't swallow just because someone says so and so. Especially if they are not willing to look at all the pertinent factors, amendments, legislation, and history. We need to get square with these concerns.
For a national debate, someone needs to set out a best interpretation under all known facts. Then, since even that interpretation will not likely keep our republic safe, we need a better amendment to clarify who is eligible to become President and Vice President. As things stand, there has been too long a line of questionable candidates and office holders. For example, anyone who advocates for anything more than minimal tolerance for Islam should be disqualified from all political offices under the government.
EDIT:
Quotes from https://en.wikipedia.org/wiki/Natural-born-citizen_clause:
In 1875, U.S. Attorney General Edwards Pierrepont was presented with a query from the Secretary of State, Hamilton Fish. A young man, named Arthur Steinkauler,[31] had been born in Missouri in 1855, a year after his father was naturalized a U.S. citizen. When he was four years old, his father returned to Germany with him and both had stayed there ever since. The father had relinquished his American citizenship. The young man was now 20 years old and about to be drafted into the Imperial German army. What was this young man's situation as a native-born American citizen? After studying the relevant legal authorities, Pierrepont wrote:[32]
Under the treaty [of 1868 with Germany], and in harmony with American doctrine, it is clear that Steinkauler the father abandoned his naturalization in America and became a German subject (his son being yet a minor), and that by virtue of German laws the son acquired German nationality. It is equally clear that the son, by birth, has American nationality, and hence he has two nationalities, one natural, the other acquired... Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of 21, and in due time, if the people elect, he can become President of the United States .... I am of opinion that when he reaches the age of 21 years he can then elect whether he will return and take the nationality of his birth, with its duties and privileges, or retain the nationality acquired by the act of his father.
Most of this passage, including the line about being elected President, was quoted approvingly by the U.S. Supreme Court in its 1939 decision in Perkins v. Elg,[33] a case involving a similar question about an American-born girl in Sweden.
In 1904, Frederick van Dyne, the Assistant Solicitor of the U.S. Department of State (1900–1907), published a textbook, Citizenship of the United States, in which he said:[34]
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.... By the law of the United States, citizenship depends, generally, on the place of birth; nevertheless the children of citizens, born out of the jurisdiction of the United States, are also citizens.... The Constitution of the United States, while it recognized citizenship of the United States in prescribing the qualifications of the President, Senators, and Representatives, contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866.... Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed natural-born citizens.
It appears to have been assumed by the Supreme Court of the United States in the case of Murray v. The Charming Betsy (1804) 2 Cranch (6 U.S.) 64, 119, 2 L.Ed. 208, 226, that all persons born in the United States were citizens thereof. ... In M'Creery v. Somerville (1824) 9 Wheat. (22 U.S.) 354, 6 L.Ed. 109, which concerned the title to land in the state of Maryland, it was assumed that children born in that state to an alien were native-born citizens of the United States. .... The Federal courts have almost uniformly held that birth in the United States, of itself, confers citizenship.
NOTE TO QUOTE FROM SAME SOURCE REGARDING BIRTH IN A TERRITORY AS NOT NECESSARILY CONSTITUTINT BIRTH IN THE U.S.:
On July 9, 2010, a three-judge panel of the United States court of appeals for the Fifth Circuit held that a Philippine-born litigant could not claim U.S. citizenship on the basis of his parents, who lived all their lives in the Philippines, because they were born while the Philippines was U.S. territory prior to being given its independence. The Courts for the Second, Third, and Ninth Circuits have also held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth "in the United States" under the Citizenship Clause, and thus did not give rise to United States citizenship.
QUESTION: Given the 14th Amendment, was this case wrongly decided?
QUOTES REGARDING THE INSULAR CASES https://en.wikipedia.org/wiki/Insular_Cases:
The Insular Cases are a series of opinions by the U.S. Supreme Court in 1901, about the status of U.S. territories acquired in the Spanish–American War. The Supreme Court held that full constitutional rights do not automatically (or ex proprio vigore—i.e., of its own force) extend to all places under American control. This meant that inhabitants of unincorporated territories such as Puerto Rico—"even if they are U.S. citizens"—may lack some constitutional rights (e.g., the right to remain part of the United States in case of de-annexation).
QUESTION: Did the 14th Amendment make all persons born legally in all territories, whether incorporated or not, into citizens of the United States?
Common sense suggests that a person born in a territory that is not a state would be "subject to the jurisdiction," thus would be a "national," but could not claim to have been born "in the United States." A person born in D.C. pre-2012 Arizona, Puerto Rico, American Samoa, and pre-independence Phillipines would not have been born "in a state." A person born in Puerto Rico would be accorder status as an American citizen, at birth, by virtue of Statute. This is another example of the qualifications for becoming President being modified by statute. It may be, because of other statutes concerning incorporated territories, that Barry Goldwater, born in the Arizona territory before 1912, would qualify as having been a citizen of the United States (or perhaps under an argument of being a grandfathered citizen along with all other citizen inhabitants at the time of Arizona's being "adopted" to the Constitution). So, most concerns could probably be rationalized.
WASHINGTON D.C.:
See Article 1, Section 8, Clause 17: "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."
Washington D.C. is an independent territory, subject to the ultimate authority of Congress. Al Gore was born in D.C. Was he eligible only because of the citizenship of his parents and not because of his place of birth? People born in D.C. are born "subject to the jurisdiction," so they would seem at least to be nationals. But, not being "born in a state," what makes them "born citizens of the United States"? Is to be born in the "seat of the Government of the United States" equivalent to being born in the United States? Who do we rely on to rule on that? Vattel? Blackstone? Congress, through legislation? Scotus, through tea leaf reading? Common law?
DUAL CITIZENSHIP -- UNQUESTIONED ALLEGIANCE: Note that a Yankee White security clearance includes requirements for U.S. citizenship and unquestionable loyalty to the United States. However, it seems to be an administrative requirement that does not apply to the President himself.
INTERESTING QUOTES CONCERNING TERRITORIES: -- See http://www.usconstitution.net/consttop_citi.html:
Separate sections handle territories that the United States has acquired over time, such as Puerto Rico (8 USC 1402), Alaska (8 USC 1404), Hawaii (8 USC 1405), the U.S. Virgin Islands (8 USC 1406), and Guam (8 USC 1407). Each of these sections confer citizenship on persons living in these territories as of a certain date, and usually confer natural-born status on persons born in those territories after that date. For example, for Puerto Rico, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President (June 27, 1952). Additionally, all persons born in Puerto Rico on or after January 13, 1941, are natural-born citizens of the United States. Note that because of when the law was passed, for some, the natural-born status was retroactive.
The law contains one other section of historical note, concerning the Panama Canal Zone and the nation of Panama. In 8 USC 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother and/or father who is a United States citizen, was "declared" to be a United States citizen. Note that the terms "natural-born" or "citizen at birth" are missing from this section.
In 2008, when Arizona Senator John McCain ran for president on the Republican ticket, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it should be noted that section 1403 was written to apply to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(c): "a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person." Not everyone agrees that this section includes McCain — but absent a court ruling either way, we must presume citizenship.
NOTE SINCE MCCAIN HAS INJECTED HIS WHACKOBIRD SELF: See http://us.wow.com/wiki/Natural-born-citizen_clause#Christopher_Sch.C3.BCrmann:
A lawsuit filed by Fred Hollander in 2008 alleged McCain was actually born in a civilian hospital in Colón, Panama.
McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court's Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[105] The U.S. State Department's Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.
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For constitutional interpretation, whether we like it or not, absent enactment of the Liberty Amendments, Scotus is the court of last resort. So, what Scotus will say most certainly will be determinative.
I continue to favor Trump, and I waver on other grounds with regard to the best choice for VEEP. I certainly would not write Cruz off on Birther grounds. We are going to need at least 16 good years of leadership. This is no time to forsake some of our best people. Before I would do that, NBC Birthers, to claim to be "principled," would need to explain:
Q: Are NBC Birthers in agreement about whether a WOMAN, BLACK, INDIAN, or person born at a military base or emabassy abroad, would be eligible to become President?
Q: Are NBC Birthers consistent or clear with regard to whether both parents of a natural born citizen must themselves have been citizens, or only the FATHER? If only the father, how can they square that with subsequent provisions in the 14th Amendment that relate to equal protection and privileges and immunities? How many subsequent Amendments, statutes, and constitutional precedents would have to be grossly rewritten, to return to the thrilling state of confusion of yesteryear as sought by Birthers?
Q: Are NBC Birthers in consistent and principled agreement about whether TRUMP should be disqualified, if he fails to produce proof that his Scotish mother actually took the oath of naturalization before he was born?
Q: Are NBC Birthers in consistent agreement about whether the following should not have been qualified to run for the presidency: Andrew Jackson, John Fremont, George McClellan, Chester Arthur, Charles Evans Hughes, George Romney, Barry Goldwater, Lowell Weicker, Charles Curtis, Hubert Humphrey, Spiro Agnew, John McCain, Barack Obama, Bobbj Jindal, Marco Rubio, Rick Santorum.
Q: If NBC Birthers are not in agreement, then what is their basis for presuming the Ratifiers intended to ratify their preferred interpretation of "natural born citizen"? Do Birthers deny that the language in Vattel that they rely on, regarding "natural born citizen," was not even translated into an English edition until after the Constitution was adopted? Do they have any evidence that their interpretation was even communicated to, much less considered by, the Ratifiers?
Q: Regardless of whether NBC Birthers are or are not not in general agreement, what is their basis for presuming the Ratifiers intended to ratify their preferred interpretation of "natural born citizen"?
Q: Arguing from purpose and history, on what empirical basis should any reasonably informed Founder/Ratifier have expected that people born in circumstances similar to Cruz, Rubio, Jindal, and Santorum would tend to be less reliably devoted to the interests of the the people of the republic than people born in circumstances similar to Huckabee, Christie, or Fiorina?
Q: On what principled basis would NBC Birthers "square the circle" so that they can consistently apply their test with regard to the eligibility of each of the following to have run for the presidency or vice presidency: John Fremont, George McClellan, Chester Arthur, Charles Evans Hughes, George Romney, Barry Goldwater, Lowell Weicker, Charles Curtis, Hubert Humphrey, Spiro Agnew, John McCain, Barack Obama, Bobbj Jindal, Marco Rubio, Rick Santorum. IOW, are the Birthers reliably principled about their test in actual cases?
Q: If Birthers do not reliably share a common application for their test, then what person or purpose is driving their joint animosity against Cruz? Among them, how many are really principled, poorly informed, useful dupes, or enemy agents? Given the precarious situation in which the republic finds itself, are they dangerous to hopes of recovery of the representative republic?
Q: How did ANDREW JACKSON qualify? Even if not a citizen or inhabitant of any particular state, was he a Citizen of the United States, AT THE TIME of the Adoption of the Constitution?
Jackson was born in 1767, in the colonial period, before the Declaration of Independence of 1776 and before the Articles of Confederation were ratified in 1777. His father died in 1767. His mother died in 1781. Neither of his parents were born in the colonies. Neither became naturalized. After the death of his parents, Andrew Jackson, at age 29, moved in 1787 to Tennessee -- before it was a territory or a state. The Constitution was not ratified until 1789. Tennessee did not become a state of the U.S. until 1796. Andrew Jackson was elected President in 1829.
His parents were not citizens of the U.S. At the time of the ratification in 1789 of the Constitution (and the nautral born citizen clause), he could not have been a resident of the United States, as such, even under the Articles of Confederation, for 14 years. The Constitution of 1789 has a "grandfather provision," so that persons who were citizens (such as under the Declaration of Independence of 1776 or the Articles of Confederation of 1777) as of the founding of 1789 were eligible to run for the presidency -- provided they were white males who had been residents for at least 14 years. However, as of 1789, Jackson resided in Tennessee, which was not a state.
So, how did Jackson qualify to run for the presidency? Did he somehow qualify under the grandfather proviso of the original Constitution? Or did he qualify only as a result of LEGISLATION enacted by and after the First Congress? Or did he qualify by subsequently LEGISLATIVELY ACCEPTED ADMISSION of the State of Tennessee, to effect for its inhabitants a new "time of adoption" of the Constitution, to grandfather the newly admitted inhabitants?
Was it by some retroactive or automatic effect of a statute by Congress that Jackson would have qualified as a newly "grandfathered" or "natural born citizen" (or a citizen at birth -- even though, at the time of his birth, the nation did not even exist)?
Admission of new states by Congress is authorized by Article IV, Section 3, of the United States Constitution, the first paragraph of which says: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
Notice that the Constitution itself does not require or specifically authorize Congress to allow all White inhabitants of such new states to become citizens. However, when Congress does so legislate, the effect appears to be to allow such new citizens and states to then and there "adopt" the Constitution, anew.
Tennessee was the first state created, in 1796, from territory under the jurisdiction of the United States federal government. See e.g., http://www.tngenweb.org/tnletters/territories/sw-terr.html, regarding the 1790 Congressional enactment for the government of the country south-west of the river Ohio. See also https://en.wikipedia.org/wiki/Northwest_Ordinance, regarding the Northwest Ordinance. This was legislation passed by the Confederation Congress that established the precedent by which the Federal government would be sovereign and expand westward with the admission of new states, rather than with the expansion of existing states and their established sovereignty under the Articles of Confederation. See Downes v. Bidwell, 182 U.S. 244, at 321-322 (1901), where the first mention of incorporation is made: "[I]t cannot ... be doubted that the United States continued to be composed of states and territories, all forming an integral part thereof and incorporated therein, as was the case prior to the adoption of the Constitution. Subsequently, the territory now embraced in the state of Tennessee was ceded to the United States by the state of North Carolina. In order to insure the rights of the native inhabitants, it was expressly stipulated that the INHABITANTS of the ceded TERRITORY should enjoy all the rights, privileges, benefits, and advantages set forth in the ordinance 'of the late Congress for the government of the western territory of the United States."
The Northwest Ordinance had provided as follows for the admission of several new states: "Art. 5. There shall be formed in the said territory, not less than three nor more than five States . . . And, whenever any of the said States shall have sixty thousand FREE INHABITANTS therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an EQUAL FOOTING with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles."
Thus, it appears, with the admission of a new state under such ordinances that the free (white) inhabitants thereof would automatically be citizens of the United States. So, if they were not born citizens, would they thus be considered by STATUTES subsequent to the Constitution to have been a species of "grandfathered citizens," comparable in rights to the original grandfathered citizens? Does their admission constitute an adoption of the Constitution that relates back to the grandfather clause of the Constitution in Art. II, Sec. 1, Clause 5, which makes eligible to become President "a Citizen of the United States, at the time of the Adoption of this Constitution"? In this way, Congress, by admitting a new state, appears to have authority to provide grandfather eligibility, anew.
The Dred Scott case recognized that
As to Andrew Jackson, a question begged is: Was Jackson a citizen of any state at the time of the adoption of the Constitution? IOW, when the Constitution was adopted, was Tennessee a state, and was Jackson a citizen of it? Well, Jackson had moved to Tennessee in 1787, before it was a territory or a state. It was not until 1789 that North Carolina ceded its western lands to the United States. Congress did not accept the lands until 1790, when it created the Territory South of the River Ohio. It was not until 1796 that Tennessee County gave its name to the new state of Tennessee.
Tennessee did not become a state of the U.S. until 1796, after the Constitution had been adopted in 1789. Thus, in 1789, it seems that Jackson may not have been an inhabitant or a citizen of the United States for purposes of the original grandfather provision. If so, apart from subsequent Congressional action, he would not seem to have qualified to run for President as either a natural born citizen or as a grandfathered citizen. So, apart from Congressional action, how could Jackson have qualified?
On what reasoning do Birthers say Andrew Jackson was (or was not) qualified? Do they say he became a citizen of some kind of "proto or inchoate United States" merely by being born of alien parents in a land that at the time was a colony? Or, in Birther conceptualization, is it imagined that he carried some kind of Carolina citizenship with him when he emigrated in 1787 to Tennessee? Or, should everyone who inhabited the land mass in 1776 (Declaration of Independence) or 1777 (adoption of Articles of Confederation) be imputed to be a "Citizen of the United States" (even those inhabitants who fled to or traded with Canadians)? If, in 1789, Jackson was then and there neither a citizen nor an inhabitant of any state, how could he be considered a citizen of the United States under any grandfather provision?
Well, one way appears to have consisted in the inhabitants of Tennessee becoming grandfathered as citizens upon the admission of their state.
Apart from becoming a citizen by being an inhabitant of a newly admitted state, the Naturalization Act of 1790, the country's first naturalization statute, provided for citizenship for unindentured WHITE males, provided they had lived in the U.S. for two years before becoming citizens. (The Act excluded the following from citizenship: American Indians, indentured servants, slaves, free blacks, and Asians.) Tennessee became a state of the U.S. in 1796. Regardless, under whatever the changing nature of STATUTES of the time, Andrew Jackson was somehow eligible when he was elected President in 1829.
If Jackson, without aid of statute, had not been made a grandfathered or natural born citizen, then his eligibility necessarily depended on STATUTORY authority. In that case, Congress must be recognized to have authority to legislate to change or add to the definition of a "grandfathered citizen" and/or a "natural born citizen" (person with claim of right to citizenship at birth).
This would be CONSISTENT with later recognition of Congress' right to LEGISLATE to make Indians eligible. It would also be consistent with the people's right to make Blacks eligible, via the 13th and 14th Amendments (which do not in themselves make reference to "natural born citizen"), and subsequent legislation.
NOTE: Vattel's treatise is long and ANTIQUATED. It contains many general provisions that would not be suitable for legislation. For examples, many provisions pertain to the respective duties of nations, legislators, citizens, and subjects, generally. Consider various references in Vattel and in our Declaration and our Constitution -- to nation, legislature, citizen, currency, speech, traitors, religion (toleration of all religions which contain no tenets that are dangerous either to morality or to the state), natural rights, supreme courts, allowable punishments, self defense, revenue, commerce, taxes, territories, eminent domain, (corporate and private) property, inheritance, river and navigation rights, the sea: How many such references and terms should the Founders be thought to have strictly limited and adopted, as opposed to leaving it to Congress to flesh them out under the "necessary and proper" clause?
VATTEL:
§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their FATHERS, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the FATHERS is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a FATHER who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their FATHERS, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the FATHER has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
§ 217. Children born in the armies of the state.
For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are REPUTED born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and SUBJECT TO ITS JURISDICTION, cannot be considered as having quitted its territory.
(COMPARE: The First Congress, in effect, provided for who should be "reputed" to have been "natural born citizens.")
VATTEL, ON VAGRANTS:
§ 219. Vagrants.
Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement (§ 122), or it is the state of which his FATHER was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual INHABITANT, if not with all the privileges of a CITIZEN. We may, however, consider the country of a vagrant to be that of his CHILD, while that vagrant is considered as not having absolutely renounced his natural or original settlement.
Q: Given this discussion by Vattel of "citizen," whenever our Constitution refers to "citizen," must it, if taken to incorporate Vattel, be read to constitutionally preclude Congress from ever allowing vagrant children to become citizens? Of course not! Reductio ad absurdum.
GENERAL NOTE: Given the myriad of details discussed in Vattel's treatise, which vary widely in applications among the nations of the world, it cannot reasonably be interpreted that the Founders intended to adopt any strict accord to it, as if to incorporate it as part of the strict constitutional law. Rather, it is a general treatise, not a clear or sharp legislation. The numerous and general subjects as discussed by Vattel cry out for each nation to adopt means, checks, and balances for finding its own way.
VATTEL REGARDING MANHOOD:
As soon as the son of a citizen attains the age of MANHOOD, and acts as a CITIZEN, he tacitly assumes that character; his OBLIGATIONS, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. When a society has not been formed for a determinate time, it is allowable TO QUIT it, when that separation can take place without detriment to the society. A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury.
Q: Should anyone imagine this provision is a strict and clear law, incorporated as a constitutional requirement? Of course not!
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COMMENTS REGARDING AUTHORITIES:
The Dred Scott case ruled that African Americans had no claim to freedom or citizenship. Not being citizens, they lacked standing to bring suit in a federal court. Because slaves were private property, Congress could not regulate slavery in the territories.
The 13th Amendment freed the slaves. Under the 14th Amendment: 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.
The Congress shall have power to enforce, by appropriate LEGISLATION, the provisions of this article.
NOTE: The effect of the 13th and 14th Amendments (and subsequent legislation) has been to make most Blacks eligible not only to vote, but to become President. These Amendments have this effect -- EVEN THOUGH they do not purport, in any direct reference, to modify the words of the "natural born citizen" clause in the original Constitution. The 14th Amendment does NOT say that all persons born in the U.S. of parents both of whom were citizens shall be natural born citizens. It simply says they shall be citizens. Yet, no sane person should argue that Blacks, because of their African ancestry, remain ineligible to become President.
The 19th Amendment, ratified in 1920, provides:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of SEX.
Congress shall have power to enforce this article by appropriate LEGISLATION.
NOTE: The original Constitution did not deny women the right to vote. It was at the state level that women were denied their right to vote. The states lost power to exclude citizens from voting on the basis of sex with the passage of the 19th Amendment. Evidently, a woman could have qualified to become President, as a citizen of right at birth, if only enough people qualified to vote within the states would have voted for her. While the 14th Amendment was needed to allow Blacks to be natural born citizens, and the Indian Citizenship Act was needed to allow Indians to be natural born citizens, such were not needed to allow women to become natural born citizens.
The 1924 Indian Citizenship Act, codified in the United States Code at Title 8, Sec. 1401(b), provides:
That all non citizen INDIANS born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
NOTE: The effect is that Congressional LEGISLATION in 1924 allowed most Indians to be considered as natural born citizens. Charles Curtis, Vice President in 1929, was 1/2 Native American Indian. (Elizabeth Warren has also claimed Indian ancestry.) This is an example of Congressional legislation providing, in effect, for status as a natural born citizen (citizen of right, at birth -- even if retroactive in the case of Charles Curtis (who was born in 1860).
Amendments often confer power to Congress to provide for enforcement via enabling legislation. For example, see, e.g., the 15th Amendment:
Section 1. The right of citizens of the United States to VOTE shall not be denied or abridged by the United States or by any State on account of RACE, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate LEGISLATION.
The CONSTITUTION, in Article I, Section gives CONGRESS power:
3: To regulate COMMERCE with foreign Nations, and among the several States, and with the Indian Tribes;
4: To establish an uniform Rule of NATURALIZATION, and uniform Laws on the subject of Bankruptcies throughout the United States;
18. To make all Laws which shall be NECESSARY AND PROPER for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
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."
BOTTOM LINE:
To be elected a REPRESENTATIVE or SENATOR, a person must at the time have been a citizen and an INHABITANT of the state from which elected.
However, to be elected PRESIDENT, a person need not at the time be a citizen or inhabitant of any particular state -- provided he is a citizen (of right at birth) of the United States.
The way for such a person to be a citizen of right at birth without being an inhabitant of any particular State would be for such person to be a citizen of right at birth under provisions as LEGISLATED by Congress. Such a natural born citizen may be qualified to run for the presidency, even though not a citizen or inhabitant of any particular State (such as if such person were born of a citizen, such as in the District of Columbia, a territory, or even a foreign land) -- provided he/she was born with a right to claim citizenship under provisions as enacted by Congress.
This interpretation provides the ONLY REASONABLE WAY TO SQUARE the words, history, and subsequent unfolding of the Constitution and the United States.
MASS HYSTERIA: The Birther phenomenon appears to be secondary to mass (and justified!) concern about the candidacy of Obama -- an anti-American, chooming, pansexual, crony commie with subhumanizing and Islamic sympathies. Regardless, the nation's infestation will not be well treated by bulldozing all legal precedents since the 12th Amendment. What we need is clear thinking. Not madhouse bludgeoning that tries to throw in doubt the candidacies of all women, blacks, indians, as well as Andrew Jackson, John Fremont, George McClellan, Chester Arthur, Charles Evans Hughes, George Romney, Barry Goldwater, Lowell Weicker, Charles Curtis, Hubert Humphrey, Spiro Agnew, John McCain, Barack Obama, Bobbj Jindal, Marco Rubio, Rick Santorum, and maybe even Donald Trump.
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ASIDE: "[T]here are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories…"
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NEXT:
The NBC Birther position Does Not Compute. There is nothing objectively "principled" about stubbornly insisting on a meaning having been communicated in words of the Constitution that simply was and is not communicated.
As originally drafted, the Constitution did not make Blacks or Indians citizens of the U.S. It made women citizens, but did not guaranatee to them a right to vote. However, it did not preclude the subsequent enfranchisement and enablement of women, blacks, and indians to vote and to run for the presidency, without specifying that they are "natural born citizens." Clearly, subsequent Amendments and legislation have given them that capacity, without calling them "natural born citizens" and without specifically overruling the natural born citizen clause in the original Constitution.
The only way to square that circle is to take the drafters and ratifiers of the 13th, 14th, and 15th Amendments, supported by subsequent legislation, as meaning, when they made African American blacks citizens at birth, to recognize that status as being equivalent to natural born citizen status. Given such Amendments and subsequent Congressional enactments, it would be ludicrous -- not principled -- to argue as if *Women, **Blacks and ***Indians are not qualified to tun for the presidency.
Moreover, even without the subsequent Amendments and enactments, the position of NBC Birthers does not compute. The creation of the United States under the Constitution was something new. It established a NEW CONCEPT of equality before the law among citizens whose rights were protected by a written Constitution and a system of checks and balances. Except in theory, that concept of "citizen," to be applied to the new republic, was not well known among other nations in actuality. The more common concept among other nations was one of "subject" -- and not particularly equal subjects.
Indeed, an English interpretation of language used by Birthers to bootstrap an interpretation from Vattel to apply to U.S. citizens was not even published until after the Constitution had been ratified. Moreover, nothing shows that such interpretation was clearly or meaningfully communicated to or adopted by the Ratifiers of the Constitution. The creation of the United States created a new kind of sovereign republic. Apart from a grandfather provision for recognizing citizens, the Constitution left the definition of requisites for citizenship to Congress.
An argument is often suggested that a natural born citizen is one who does not need to be made naturalized under authority of Congress. However, Congress has power to provide for who is a citizen of right at birth, versus who must apply, pass examination, and take oath of loyalty. Thus, status of post-"grandfathered" generations is not superior to the power of Congress. Rather, Congress' power to define requisites for becoming a citizen are encompassing of power to determine who, after the grandfathered generation, should be considered a natural born citizen of right at birth. To be a natural born citizen, one must first and foremost be a citizen. Because the Constitution itself does not define "citizen," it necessarily gives to Congress power by LEGISLATION to prescribe who shall be a citizen and who shall not. That power was thus made to reside in legislation, excepting only the extent to which such power was removed by subsequent Amendments.
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, by itself, does not determine citizenship. Other factors are required, either under immigration statutes or under Amendments. For example, birth in the U.S., of illegal alien parents, does not confer a legal, statutory, or Constitutional right to 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. After the grandfathered generation and 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 an automatic citizen of right at birth. For example, but for the 14th Amendment, Congress could have provided 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 have provided that a child may not apply for citizenship, where 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 by legislation to provide for citizenship (apart from grandfather provisions), under its enumerated power to LEGISLATE to provide for naturalization, would necessarily ENCOMPASS ****power to determine who should be considered a natural born citizen (i.e., a citizen under claim of right at birth).
Given how precedents and facts have unfolded, no other way is apparent for how 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 and Ratifiers 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 our situation has unfolded in time and place, to argue that "principle" requires that such "birther intention" be imputed is to carry a blinkered conceptualization to the point of absurdity and nonsense. This is not how law works. Nor is it even how science works. (Good and "principled" engineers do not blindly follow conceptual models once experience shows that they are inapplicable to facts on the ground. They don't insist on building a bridge to old specifrications of science that have since been shown by experience to be dangerously inadquate and incomplete.)
Given how precedents and facts have existed and unfolded, the reasonable implication is that the Founders surely realized it was better to leave to Congress, subsumed under its power to provide for naturalization, the matter of defining citizenship -- both at birth and at application. The natural way for Congress to exercise its power of prescribing citizenship and naturalization is to define who is to have, at birth, a right of citizenship. After all, at the beginning of the republic, every citizen who was not grandfathered 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. However, at the beginning of the republic, everyone who was not grandfathered was like a foreigner -- until the republic was established. To become a citizen, every person 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 ridiculous.
When Congress acts, reference is made to superior provisions in the Constitution and to its most recent Amendments. Reference is also made to statutes, insofar as they are not in violation of the Constitution, as Amended. Insofar as GAPS that may not have been clearly provided for 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. As to 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 statue. 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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*The Dred Scott case ruled that African Americans had no claim to freedom or citizenship. Not being citizens, they lacked standing to bring suit in a federal court. Because slaves were private property, Congress could not regulate slavery in the territories.
The 13th Amendment freed the slaves. Under the 14th Amendment: 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.
The Congress shall have power to enforce, by appropriate LEGISLATION, the provisions of this article.
NOTE: The effect of the 13th and 14th Amendments and subsequent legislation has been to make most Blacks eligible not only to vote, but to become President. These Amendments have this effect -- EVEN THOUGH they do not purport, in any direct reference, to modify the words of the "natural born citizen" clause in the original Constitution. The 14th Amendment does NOT say that all persons born in the U.S. of parents both of whom were citizens shall be natural born citizens. It simply says they shall be citizens. Yet, no sane person should argue that Blacks, because of their African ancestry, remain ineligible to become President.
NOTE: Barack Obama is not descended from slaves freed under the 13th Amendment, but from, among others, foreign Blacks. However, the Naturalization Act of 1870 allows "aliens of African nativity" and "persons of African descent" to become U.S. citizens. Thus, even had he been born of African parents who were both naturalized, he would have been eligible.
**19th Amendment, ratified in 1920, provides:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of SEX.
Congress shall have power to enforce this article by appropriate LEGISLATION.
NOTE: The original Constitution did not deny women the right to vote. It was at the state level that women were denied their right to vote. The states lost power to exclude citizens from voting on the basis of sex with the passage of the 19th Amendment. Evidently, a woman could have qualified to become President as a citizen of right at birth, if only enough people qualified to vote within the states would have voted for her. While the 14th Amendment was needed to allow Blacks to be natural born citizens, and LEGISLATION under the Indian Citizenship Act was needed to allow Indians to be natural born citizens, such were not needed to allow women to become natural born citizens.
***The 1924 Indian Citizenship Act, codified in the United States Code at Title 8, Sec. 1401(b), provides:
That all non citizen INDIANS born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
NOTE: The effect is that Congressional legislation in 1924 allowed most Indians to be considered as natural born citizens. Charles Curtis, Vice President in 1929, was 1/2 Native American Indian. (Elizabeth Warren has also claimed Indian ancestry.) This is an example of Congressional LEGISLATION providing, in effect, for status as a natural born citizen (citizen of right, at birth -- even if retroactive in the case of Charles Curtis (who was born in 1860).
****Amendments often confer power to Congress to provide for enforcement via enabling LEGISLATION. For example, see, e.g., the 15th Amendment:
Section 1. The right of citizens of the United States to VOTE shall not be denied or abridged by the United States or by any State on account of RACE, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate LEGISLATION.
The CONSTITUTION, in Article I, Section gives CONGRESS power:
3: To regulate COMMERCE with foreign Nations, and among the several States, and with the Indian Tribes;
4: To establish an uniform Rule of NATURALIZATION, and uniform Laws on the subject of Bankruptcies throughout the United States;
18. To make all Laws which shall be NECESSARY AND PROPER for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
*****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."
BOTTOM LINE: For a new republic, the set of naturalized citizens entirely encompasses the set of natural born citizens. This is because citizenship is an attribute of sovereignty, and there is no citizenship under a sovereign republic until the republic is first created. When the repubvlic is first created, its precedents and laws (common law and written law) will first recognize citizens. Such citizens may be of two main types: Persons who are citizens pursuant to claim of right at birth, and persons who become citizens only upon undergoing a process of application, acceptance, and/or loyalty oath. Except for laws (whether precedential or written) under the republic that recognize persons with claim of right to citizenship at birth, there would be no "natural born citizens."
In respect that Congress is given Constitutional power by way of legislation to provide for a uniform system for naturalization for the new republic, Congress has power by the process of LEGISLATION to define and change requisites for who shall be considered as persons with claim of right of citizenship and birth versus persons who must make application, be accepted, and take a loyalty oath. A Constitution and its precedent-making and founding leaders may recognize that some persons should be "grandfathered" to recognize them as citizens contemporaneous with the creation of the republic, based on then prevailing notions of citizenship. But this does not militate that Congress, given power to provide for a uniform ordering of naturalization, may not, in the process of sovereign and written lawmaking, change, lessen, or increase the prevailing notions for what may constitute a citizen contemporaneous with the beginning of the republic.
Thus, no part of a category of "natural born citizens" need be considered to lie outside the set of naturalized citizens, the defining of which is entrusted to the legislative process. Certainly, nothing in the Constitution precludes Congress, in representing the legislative sovereignty of the republic, from adding to the defining of natural born citizens.
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Say Ronald Reagan were to have been visiting a foreign dignatary when Nancy went into premature labor and delivery with little Ron. Should he have been not a natural born citizen? I doubt Jay or the other Founders would have thought so. Sometimes we try so hard to make things compute that we forget to make things practical.
Rubio needs to show that, plus that he was a citizen at birth. If he was born of illegal aliens, rather than legal domiciliaries, then he was not a citizen at birth. Moreover, if that is true, and if he never undertook naturalization, then he might not be a citizen at all. It may be necessary to look at the Reagan amnesty to determine whether he is a citizen or a mere denizen.
I think a court case found that a Chinese baby born in the U.S. of legal domiciliaries who were not citizens was a citizen by virtue of the 14th Amendment. I will need to review, then, why legislation concerning Blacks was thought necessary after the passage of the 14th Amendment.
There is a rat's nest of confusion and overlap. It does not help that much of the so called scholarship on this topic seems to be in the vein of small minded and sneering advocacy, on all sides. We need more people like you who will take a step back, take a breath, and try to look at it objectively. This means: Don't swallow just because someone says so and so. Especially if they are not willing to look at all the pertinent factors, amendments, legislation, and history. We need to get square with these concerns.
For a national debate, someone needs to set out a best interpretation under all known facts. Then, since even that interpretation will not likely keep our republic safe, we need a better amendment to clarify who is eligible to become President and Vice President. As things stand, there has been too long a line of questionable candidates and office holders. For example, anyone who advocates for anything more than minimal tolerance for Islam should be disqualified from all political offices under the government.
Can anchor babies who marry anchor babies ever produce citizens? Reagan's amnesty did not come along until later. So it needs to be determined whether the whole Rubio clan was here illegally. If Rubio's roots are illegal, and he was never naturalized, then what result? Hmmm.
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I agree that Rubio twists to dupe a lot of people. He is trying to twist as if Cruz were for his attempts at comprehensive immigration reform with the Gang of Eight. Even as he tends now to say he would first enforce the border. That story about Rubio's maternal grandfather came out before the 2008 election. It did not seem to argue for his disqualification, but for closer consideration of him by Romney as a running mate.
I'm no expert on Rubio. Are you suggesting the only reason for his legal status rested on the fraudulent refugee status of his maternal grandfather? If that is true, then he is not much higher on the respectability ladder than an anchor baby. It may be unwise for him were he to decide to join Trump in throwing status stones against Cruz. At least Cruz seems to have had a mother who was a natural born American.
Regardless of the status of his grandfather, would not his parents have qualified for legal amnesty under Reagan's program?
I suspect that a naturalized American who had to take an oath of allegiance may sometimes be expatriated upon subsequently taking allegiance to another country.
As to Cruz, if his mother was an American at birth, then she could retain dual allegiance. Example: Andrew jackson was apparently Irish by birth, and I am not aware of his ever having to renounce that dual allegiance.
SIDE INTEREST: Did Congress intend, by the 14th Amendment, to make everyone who was born in America "subject to its jurisdiction" both a naturalized citizen at birth and a citizen entitled to become President? If not, what was the nature of subsequent legislation regarding Blacks, and was it authorized under the 14th Amendment for the purpose of making Blacks born of citizens into citizens at birth? This is an area that perhaps needs further exploration.
The 14th Amendment to the Constitution was not ratified until July 9, 1868, Before its passage, the 1866 Civil Rights Act had provided:
Civil Rights Act
April 9, 1866
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
Q: Where are African American descendants of slaves given status to qualify to run for President? Would first generation freed blacks be qualified? Or would only such descendents qualify as had been born after their parents had been conferred with citizenship? Did the 14th Amendment give authority to Congress to legislate so to provide, later, both for Blacks and for Indians?
*****
Our American Constitution was drafted during the time of King Louis XVI in France. French society was still hierarchical. There was not the individualism found in colonial America. Whatever the idea of "citizenship" that was then in vogue in France, I suspect it was quite unlike that being experienced by the new Americans. It seems implausible that the Americans would be looking that much to either Britain or the European Continent to rule on who should be considered a natural or naturalized citizen. I suspect they would be looking more to philosophers of ideal governance than to philosophers of then existing law. Somehow, I suspect much would be lost in translation. Especially if a recognized translation into English were not then even available concerning the terms of art in contest.
In America, the population was being increased by ships carrying the unwanted surplus from Britain, Ireland, and other nations. Thousands were kidnapped and shipped out. Thousands were indentured. No doubt, many ended up serving off their indenture and then marrying locals. I doubt much attention was paid to processing, ensuring, or inspecting for proof of citizenship. No doubt, many locals married or set up house with spouses who were not formally naturalized. For example, I doubt Andrew Jackson's parents from Ireland were ever nationalized to colonial Carolina. Fortunately, other arguments may support his eligibility. But many were probably in a similar situation even after the Constitution was adopted. I doubt a local citizen who took up house with a wife who had worked off her indenture would expect that his progeny should be considered as other than natural born citizens. I don't think niceties of French high society would be particularly appropriate to such citizenship issues in America. And I suspect the Founders well knew that.
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At the time of the drafting of the Constitution, was any edition of Vattel that was published in English in Franklin's possession, that used the words "natural born citizen"?
I believe Professor Jacobson's answer was, no. From an online search, I find this: "Vettel’s Law of Nations was translated into English in 1760, based on the French original of 1758. A Dublin translation of 1787 does not include notes from the original nor posthumous notes added to the 1773 French edition. Several other English editions were based on the edition of 1760. However, an English edition from 1793 includes Vattel’s later thoughts, as did the London 1797 edition. The 1797 edition has a detailed table of contents and margin titles for subsections."
If Jacobson is correct, the implication is that the words "natural born citizen" did not appear in any English edition that was available to the Founders.
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SIMPLICITY: Most simply put, the natural born citizen language was not published in an English edition of Vattel at the time the Constitution was adopted. What was better known at the time was Blackstone, under which Ted Cruz and others would qualify as natural born subjects.
The Founders were mostly British subjects, conversant in British common law. However, because we switched to a representative republic without a king, we substituted citizen for subject.
Yes, we did not adopt in whole British common law. Nor, for that matter, did we adopt in whole Vattel. But rest assured that our case precedents, especially in the early days, are rife with references to English common law -- not by way of holistic adoption, but by way of guidance.
Of course we did not adopt English common law, as a whole. This is because we were setting up our own republic, under which we would, to fill gaps, derive our own common law. But it would be absurd to suggest we chose to be guided more by French or Swiss expositons than by considerations of English experience and law. We were mainly British, after all.
That's the simplicity of it. But there's also a logic to it. A republic is an artificial, not a natural creation. There cannot be new citizenship under a new republic without the creaton of a republic.
LOGIC: Yes, it is important that leaders be loyal to the values of their followers. As followers, "we the people" have an ongoing and sovereign interest in determining qualificatons for who shall lead us. Much more so than the dead hand of the past. We look faithfully to the past to guide us, not to keep us hidebound. A way to process that is by entrusting matters of naturalization to legislators. Yes, it is important to caution representatives to set qualifications that will help select (without being able to guarantee) good and loyal leaders. It is for that process to define who shall qualify as a natural born citizen.
HISTORY: But wait, there's more. There's history. As mentioned innumerable times, there has been a history of numerous candidates and office holders who would not have qualified under the Birther approach. (That's meant as shorthand, not as slur. If there's a better shorthand, I will adopt it. Even though there does seem to be a substantial tendency in that movement to utterly ignore the actual history of candidates and office holders.)
COURTS: To sell the Birther position in the courts, it would be necessary to convince them that all those candidates and office holders were in fact not qualified. Most simply put, that is not going to happen.
BOTTOM LINE: Birthers would do better to fashion a new formula and endeavor to pass it, as with an Article V Convention.
For example, I think a better test for our age would consist in this: "No person shall be eligible to be elected as President or Vice President unless he or she is a citizen who has resided in actual state(s) of the United States for a cumulative period of not less than 35 years. No person shall serve as President or Vice President unless he or she renounces all such other national citizenships and titles of nobility as he or she may hold."
Under the Birther formula, a person could have been born in Puerto Rico (or worse, Washington DC), of U.S. citizens, never having lived in any actual state of the union, and still be eligible. Permit me to ask: What's so great about that?
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McCain: Your analysis concerning McCain is wrong under the authorities I previously listed and see no reason to list again. If McCain had not had a parent who was an American, his birth in the Canal Zone would not have made him a citizen of any kind -- natural or naturalized. His birth on the base adds nothing, for the same reason that a foreigner who happened to have a baby on that base would not thereby confer U.S. citizenship (of any kind) on such baby.
Rubio: There is a good argument he would not be a citizen of any kind, natural or naturalized, if his parents had been illegal invaders instead of legal domiciliaries. However, so long as they were legal domiciliaries to the extent sufficient to qualify as being "subject to the jurisdiction" for purposes of the 14th Amendment, that Amendment seems to make him a birthright citizen -- not an anchor baby.
The Amendment does not require that his parents have been naturalized. Only that they be "subject to the jurisdiction." Being legal domiciliaries, the argument is that they were subject to the jurisdiction for purposes of the 14th Amendment. There have been judicial precedents, so it would be hard to turn that page back.
Notice that the grandfather clause only required that persons be citizens at the time of the adoption of the Constitution -- not that they be allegiant.
That said, I am sympathetic to the argument concerning allegiance of the parents. In Cruz' case, there was a period of residency by his parents that would have established identification with American values. For Rubio, that is less the case. However, that is a consideration that seems better placed before the electorate, especially given Rubio's propensity for saying one thing to an English audience and a different thing to a Cuban-Latino-Hispanic-Mexican-Aztlan audience. But I don't see the Courts providing any relief, apart from entertainment.
Two Classes: Yes, there are two main classes, not three. The two classes are citizen at birth and citizen at application. Citizen under claim of right at birth is the same as natural born citizen. Except in Amendments, the Constitution does not set out any additional classes that are altogether removed from the purview of legislative modification.
It is entrusted to legislation by the sovereign authority, when it determines who is a citizen at birth versus a citizen at application, to divide the citizenry between those who are eligible to run for the presidency and those who are not. Thus, the people, through their representatives, retain ongoing sovereignty to determine that.
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Well, maybe Borner would be better? Or one-eye open Constitutionalist? Have you noticed some of the slurs against people who like Cruz? Cruzbots. Traitors. And probably worse. You're a very smart, capable and entertaining guy. I much doubt that names cause you to need a safe space. Have you heard the old one about the difference between a lawyer and a catfish? The people who tell it often relish the telling! But it's nothing to jet blood out the eyes about.
*****
Yes, there has probably been a lot of overlap over the years among various immigration and naturalization statutes. In McCain's case, all he needed to be a citizen was to be born of American parents. Unless a parent failed to meet some requirement for a term of residency within the U.S., McCain did not need the provision cited in 8 USC 1403 in order to be a citizen of right at birth. Nor does such provision mention the words "natural born citizen."
What made McCain a natural born citizen was the fact that he was a citizen of right at birth. Would foreign workers in the Canal Zone who were legally domiciled there and who had a child there be entitled to claim such child was a citizen of right at birth? What about a foreign worker on a military base in Japan who happened to go into emergency labor and delivery while on the base -- would the baby be entitled to claim birthright citizenship? I don't think so.
*****
Re: "A natural born Citizen needs no laws recognizing their citizenship in this republic"
When the republic was created, the effect of the grandfather clause in the Constitution was to make eligible citizens out of people who are citizens of the various states among the Confederacy at the time the Constitution was adopted. It is true that those people did not need to be natural born citizens. At that time, there were only grandfathered citizens -- no natural born citizens.
However, as to natural born citizens, none of them existed until they were born after the establishment of the republic. Thus, they needed laws, under the republic, to become natural born citizens. In the beginning, the establishment of the republican system of laws is what in effect naturalized the natural born citizens. Until the enactment of laws and passage of amendments thereafter, there was no legal definition for a citizen. Legislative action combined with subsequent amendments has at various times expanded or contracted the classes of who shall be a citizen upon birthright versus who shall be a citizen upon application.
In the beginning, not every person who was born of a grandfathered citizen would be a citizen, even if born in country. Would a person born of a citizen father and a non-free, non-white, or indigenous native mother at that time have been recognized as a citizen of the U.S. (regardless of whether the mother may have been recognized as a citizen of her state)?
The grandfather clause says: No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
So, who was "a Citizen of the United States, at the time of the Adoption of this Constitution"? The Constitution does not define citizen. Presumably, reference would be made to who were recognized to be citizens by the various states. However, the states had applied different tests and standards to that purpose. Notwithstanding different tests among the states, Congress, until various amendments later limited it, has at different times legislated to preclude or hobble certain classes of persons in their quests to become or remain citizens of the U.S. -- such as indentured persons, non-whites, indians, and persons who married foreigners or swore loyalty to other nations. In limiting who could be or remain a citizen, Congress has a history of legislating to affect classes and progeny that can acquire or retain birthright citizenship. As a result of that history, we have had a number of candidates and higher office holders who were not born in the U.S. and/or who were not born of parents who were both citizens. No one can just wave a wand and reverse that history.
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"And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:"
Re: "And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States."
Notice: In this sentence, "person" is singular.
Re: "And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:"
Notice: In this, the following sentence, both "children" and "citizens" are plural. This is simply proper grammar. Citizens is plural in order to agree with children, which also is plural. For example, in the case of a number of children who were born beyond the sea of fathers who were citizens but whose mothers were not, that would still be a case of children of citizens.
Notice: Ted Cruz's father cannot be said to have never resided in the U.S. before he was born.
Bottom line: The 1790 Act, in providing for natural born citizenship status, is not inconsistent with the pertinent modern Act that provides for citizenship status at birth based on one parent being a citizen and where both the mother and father had met residency requisited before their child's birth.
Regarding being natural born versus being considered as natural born: If Vattel is the reference, there is no distinction that makes a difference. Compare:
VATTEL -- § 217. Children born in the armies of the state.
"For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are REPUTED born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory."
Notice: Here, Vattel cites a situation in which a person is born out of country, yet is to be "reputed" as born in the country. In the 1790 Act, where Congress used the words "considered as," it may just as well have used the word "reputed." The consequence is the same: The person's status is as if he had been born in country.
I don't believe the Ratifiers meant to adopt Vattel for any purpose of requiring a person to be born in the country, of parents who were both citizens. I don't believe even Vattel was clear on that point. Regardless, the Congress that enacted the 1790 provisions, among whom a number were among the Founders, therein provided for who would be "considered as" (reputed as) natural born citizens --- in much the same way as Vattel had provided. So an attempt to distinguish between natural born citizens and persons who are to be "considered as" natural born citizens is a distinction without a difference. Rather, it is just fairie counting.
Note: See http://www.cafeconlecherepubli..., concerning Blackstone:
"Blackstone defined “natural born subjects” as those born within the dominions of England, as amended by statute. In a monarchy, citizens are called “subjects” while in a Republic, “subjects” are called “citizens.” Americans stopped calling themselves “subjects” and began calling themselves “citizens”, consistent with the change in form of government from monarchy to republic. Blackstone’s commentaries was the most authoritative source on English Common law for over a century."
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The Constitution frequently accords broad authority to the legislative process to flesh out general provisions. If such were not necessary, then the Founders could have written the Constitution in set, immutable, and exhaustive terms. They did not. They provided a framework -- with checks, balances, and "flex words" (such as general welfare and necessary and proper).
Many people consider it wise, necessary, and proper for a sensible representation of sovereign authority that the legislatively checked and balanced process be accorded a right to expand or contract the meanings of "citizen upon birth" versus "citizen upon application."
IAE, you invalidly assume what you want to prove: That the Ratifiers shared the meaning you want to attribute to the words "natural born citizen."
As to Vattel, are you aware of any place where he said that a legislature should be precluded from expanding or contracting an understanding of "natural born citizen?" In a formulation not then published in English, he appears to have given an example of what would constitute a "natural born citizen." But did Vattel say (or have authority to say) that all nations had agreed (and should agree) that such understanding could not, under the naturalization authority of a legislature, be expanded or contracted?
Apart from the founding generation, which was grandfathered, was not everyone who was born thereafter subject to legislative authority to determine who should be accorded status of being a citizen (and retaining citizenship) -- based upon birth versus based upon application?
When a statute makes a person a citizen at birth, is it not in the exercise of Congress' enumerated powers to establish an uniform Rule of Naturalization and to to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof?
For example (before the passage of the 14th Amendment), had Congress so desired, would it not have had power to legislate that all, excepting grandfathered citizens, who were citizens (even at birth) should lose such status upon committing treason or formally accepting citizenship in another country?
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I used the words "able and eligible" in respect of women. Unlike Blacks and Indians, the Constitution did not preclude women. What stymied them was the chauvenism of the states. Subsequent amendments, statutes, and regulations have put a stop to that.
Regarding, Indians, yes, I said that. The point is, the Indians became eligible both to vote and to acquire office as a result of LEGISLATION. No additional Amendment was needed.
As to Blacks, you are mostly right. Except as to the part about needing both parents to have been citizens. No interpretation of the Constitution, Amendments legislation, and history of actual events, taken together, can reasonably support or square with that.
We now have a history of authority being recognized in Congress, through the LEGISLATIVE process, to modify who is and who is not to be characterized as being a citizen at birth who is eligible to become President.
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The argument that Trump makes about anchor babies, with which I agree, amounts to this: A baby born of illegal invaders is not a citizen. Not by Constitution, not by Amendment, not by legislation, and not even by authorized regulation. The only reason such babies are recognized as citizens is because of adopted bureaucratic practice. Which Trump can change, even without legislation. Cruz is more cautious. I don't know if he is more cautious because he thinks the law is contrary, or if he only thinks the judiciary, as presently comprised, would incline to twist the law otherwise.
So, no, such anchor babies are arguably not even citizens. Thus, they cannot be natural born citizens (or persons with valid claim at birth to status of citizenship). The argument against anchor babies is an argument that place of birth is not determinative. Rather, what is and should be determinative to distinguish between "citizens upon birth" versus "citizens upon application" pertains to the citizenship and length of residence of a parent, as determined by Congressional enactment.
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Yes, that's the point! The 14A does not mention "natural born citizen." Yet, persons who previously were unable or ineligible to run for the office of President now are able and eligible. If the authors "intended no change to the qualifications" to become Potus, then how is it that women, blacks, and indians are now eligible?
While some believe that the Fourteenth Amendment to the United States Constitution defined as citizens any person born in the U.S., the amendment had been interpreted to restrict the citizenship rights of most Native people. The Indian Citizenship Act of 1924 was considered necessary to grant all indigenous people the rights of FULL citizenship. This was a STATUTE, and its effect is to make Indians eligible to become President, is it not?
If so, it is another example of Congress exercising power, by legislation, to broaden the original understanding of who is eligible to run for President, as a "natural born citizen."
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Before the 13th Amendment, Slaves were not citizens. See the Dred Scot decision. Nothing in the original Constitution would have allowed them to vote. Nowhere in the Amendments 13, 14 or 15 is reference made to "natural born citizen" Yet, Blacks are now eligible to become President, are they not? How is that so, unless the Amendments made it so, without even making reference to "natural born citizen" or "authority to run for President"?
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So then, let us read and consider what Vattel said and what he did not say, what he published, and what he did not publish.
Re: ‘The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
First, even Obama's attorneys admitted they could not find the words "natural born citizen" in any English translation that was available to the Founders at the time the Constitution was ratified.
According to Professor Jacobson:
"[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.”"
Second, nothing shows that any such purpose in the use of such words was conveyed to the Ratifiers.
Third, such an interpretation is inconsistent with subsequent Amendments, legislation, precedents, and history.
REGARDING BIRTH IN THE U.S.:
The First Congress, some of whose members were among the original Founders, in the Naturalization Act of 1790, 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 [reputed?] as natural born citizens.
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.
The reasonable implication is that birth in the U.S. is not essential to the status.
REGARDING VATTEL -- Re: "§ 215.
Children of citizens born in a foreign country.
"It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their FATHERS, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the FATHER has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also."
So, even to impose a throwback to Vattel, children would follow the condition of their FATHERS, and enter into all their rights.
The father does not become a member of another society unless the father quits his country to settle elsewhere and fix his abode there.
And, if he does, his children will be members of it also. IOW, a child who followed to reside with his father in a foreign land, permanently, would become a member of such foreign society. The effect would be much as if the child were deemed to have quitted the old society. That is, the child, because of the changed intention and action of his father, would no longer be a citizen of it -- in any capacity.
QUESTIONS BEGGED: A man a citizen of a nation that confers citizenship only in respect of jus sanguinis decides to travel to America, where he meets and marries a local citizen. There they have a child. Thereafter, the father changes his mind and abandons his family and returns to his native land.
Per Vattel, in which nation was the child a citizen? Was he a "Schrodinger's Cat" kind of natural born citizen, whose status died when his father changed his intention? Was he half NBC, half not, depending on how his father's intentions may crystalize? Does Vattel say that the father had first to be naturalized in America before he could impart citizenship status to his child there, or does he only say that the father needed to form a present intention to quit his old country and permanently inhabit another?
Did Vattel even consider the result were the father later to change his mind concerning such intention? If not, how could the Ratifiers be presumed to have considered it? Did the Founders and Ratifiers really pre-decide such concerns, or did they leave them to Congress?
And what is the effect of Amendments, legislation, and precedents thereafter?
I think there is a way to square the circle of confusion. But I don't think the Birthers yet comprehend it.
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Andrew Jackson is only a minor sidenote to the argument, albeit an interesting one. But since you blithely ignored all the other arguments, let's consider Andrew Jackson.
How did JACKSON qualify? Was he a Citizen of the United States, AT THE TIME of the Adoption of the Constitution?
Jackson was born in 1767, in the colonial period, before the Declaration of Independence of 1776 and before the Articles of Confederation were ratified in 1777. His father died in 1767. His mother died in 1781. Neither of his parents were born in the colonies. Neither became naturalized. After the death of his parents, Andrew Jackson, at age 29, moved in 1787 to Tennessee -- before it was a territory or a state. The Constitution was not ratified until 1789. Tennessee did not become a state of the U.S. until 1796. Andrew Jackson was elected President in 1829.
Jackson was not born in the U.S. His parents were not citizens of the U.S. At the time of the ratification in 1789 of the Constitution (and the nautral born citizen clause), he could not have been a resident of the United States, as such, even under the Articles of Confederation, for 14 years. The Constitution of 1789 has a "grandfather provision," so that persons who were citizens (such as under the Declaration of Independence of 1776 or the Articles of Confederation of 1777) as of the founding of 1789 were eligible to run for the presidency -- provided they were white males who had been residents for at least 14 years. However, as of 1789, Jackson resided in Tennessee, which was not a state.
So, how did Jackson qualify to run for the presidency? Did he somehow qualify under the grandfather proviso of the original Constitution? Or did he qualify only as a result of LEGISLATION enacted by and after the First Congress? Or did he qualify by subsequently LEGISLATIVELY ACCEPTED ADMISSION of the State of Tennessee, to effect for its inhabitants a new "time of adoption" of the Constitution, to grandfather the newly admitted inhabitants?
Was it by some retroactive or automatic effect of a statute by Congress that Jackson would have qualified as a newly "grandfathered" or "natural born citizen" (or a citizen at birth -- even though, at the time of his birth, the nation did not even exist)?
Admission of new states by Congress is authorized by Article IV, Section 3, of the United States Constitution, the first paragraph of which says: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
Notice that the Constitution itself does not require or specifically authorize Congress to LEGISLATE to allow all White inhabitants of such new states to become citizens. However, when Congress does so legislate, the effect appears to be to allow such new citizens and states to then and there "adopt" the Constitution, anew.
Tennessee was the first state created, in 1796, from territory under the jurisdiction of the United States federal government. See e.g., http://www.tngenweb.org/tnlett..., regarding the 1790 Congressional enactment for the government of the country south-west of the river Ohio. See also https://en.wikipedia.org/wiki/..., regarding the Northwest Ordinance. This was legislation passed by the Confederation Congress that established the precedent by which the Federal government would be sovereign and expand westward with the admission of new states, rather than with the expansion of existing states and their established sovereignty under the Articles of Confederation. See Downes v. Bidwell, 182 U.S. 244, at 321-322 (1901), where the first mention of incorporation is made: "[I]t cannot ... be doubted that the United States continued to be composed of states and territories, all forming an integral part thereof and incorporated therein, as was the case prior to the adoption of the Constitution.
Subsequently, the territory now embraced in the state of Tennessee was ceded to the United States by the state of North Carolina. In order to insure the rights of the native inhabitants, it was expressly stipulated that the INHABITANTS of the ceded TERRITORY should enjoy all the rights, privileges, benefits, and advantages set forth in the ordinance 'of the late Congress for the government of the western territory of the United States."
The Northwest Ordinance had provided as follows for the admission of several new states: "Art. 5. There shall be formed in the said territory, not less than three nor more than five States . .. And, whenever any of the said States shall have sixty thousand FREE INHABITANTS therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an EQUAL FOOTING with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles."
Thus, it appears, with the admission of a new state under such ordinances that the free (white) inhabitants thereof would automatically be citizens of the United States. So, if they were not born citizens, would they thus be considered by STATUTES subsequent to the Constitution to have been a species of "grandfathered citizens," comparable in rights to the original grandfathered citizens? Does their admission constitute an adoption of the Constitution that relates back to the grandfather clause of the Constitution in Art. II, Sec. 1, Clause 5, which makes eligible to become President "a Citizen of the United States, at the time of the Adoption of this Constitution"? In this way, Congress, by admitting a new state, appears to have authority to provide grandfather eligibility, anew.
The Dred Scott case recognized that "every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body." To determine that, "we must recur to the Governments and institutions of the thirteen Colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations."
As to Andrew Jackson, a question begged is: Was Jackson a citizen of any state at the time of the adoption of the Constitution? IOW, when the Constitution was adopted, was Tennessee a state, and was Jackson a citizen of it? Well, Jackson had moved to Tennessee in 1787, before it was a territory or a state. It was not until 1789 that North Carolina ceded its western lands to the United States. Congress did not accept the lands until 1790, when it created the Territory South of the River Ohio. It was not until 1796 that Tennessee County gave its name to the new state of Tennessee.
Tennessee did not become a state of the U.S. until 1796, after the Constitution had been adopted in 1789. Thus, in 1789, it seems that Jackson may not have been an inhabitant or a citizen of the United States for purposes of the original grandfather provision. If so, apart from subsequent Congressional action, he would not seem to have qualified to run for President as either a natural born citizen or as a grandfathered citizen. So, apart from Congressional action, how could Jackson have qualified?
On what reasoning do Birthers say Andrew Jackson was (or was not) qualified? Do they say he became a citizen of some kind of "proto or inchoate United States" merely by being born of alien parents in a land that at the time was a colony? Or, in Birther conceptualization, is it imagined that he carried some kind of Carolina citizenship with him when he emigrated in 1787 to Tennessee? Or, should everyone who inhabited the land mass in 1776 (Declaration of Independence) or 1777 (adoption of Articles of Confederation) be imputed to be a "Citizen of the United States" (even those inhabitants who fled to or traded with Canadians)? If, in 1789, Jackson was then and there neither a citizen nor an inhabitant of any state, how could he be considered a citizen of the United States under any grandfather provision?
Well, one way appears to have consisted in the inhabitants of Tennessee becoming grandfathered as citizens upon the admission of their state.
Apart from becoming a citizen by being an inhabitant of a newly admitted state, the Naturalization Act of 1790, the country's first naturalization statute, provided for citizenship for unindentured WHITE males, provided they had lived in the U.S. for two years before becoming citizens. (The Act excluded the following from citizenship: American Indians, indentured servants, slaves, free blacks, and Asians.) Tennessee became a state of the U.S. in 1796. Regardless, under whatever the changing nature of STATUTES of the time, Andrew Jackson was somehow eligible when he was elected President in 1829.
If Jackson, without aid of statute, had not been made a grandfathered or natural born citizen, then his eligibility necessarily depended on STATUTORY authority. In that case, Congress must be recognized to have authority to legislate to change or add to the definition of a "grandfathered citizen" and/or a "natural born citizen" (person with claim of right to citizenship at birth).
This would be CONSISTENT with later recognition of Congress' right to LEGISLATE to make Indians eligible. It would also be consistent with the people's right to make Blacks eligible, via the 13th and 14th Amendments (which do not in themselves make reference to "natural born citizen").
NOTE: Vattel's treatise is long and ANTIQUATED. It contains many general provisions that would not be suitable for legislation. For examples, many provisions pertain to the respective duties of nations, legislators, citizens, and subjects, generally. Consider various references in Vattel and in our Declaration and our Constitution -- to nation, legislature, citizen, currency, speech, traitors, religion (toleration of all religions which contain no tenets that are dangerous either to morality or to the state), natural rights, supreme courts, allowable punishments, self defense, revenue, commerce, taxes, territories, eminent domain, (corporate and private) property, inheritance, river and navigation rights, the sea: How many such references and terms should the Founders be thought to have strictly limited and adopted, as opposed to leaving it to Congress to flesh them out under the "necessary and proper" clause? To suppose the Founders meant to incorporate Vattel as some strict source of clear law is ridiculous on its face.
EDIT: REGARDING DUAL CITIZENSHIP -- Andrew Jackson probably carried Irish citizenship. There appears to be nothing to show that he ever renounced it. Did anything in Irish law ever take it away from him?
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Whatever a base is, to be born on a base outside the U.S is not to be born in the U.S. for purposes of the 14th Amendment. The American citizenship of a child born of an American parent on a base in a foreign land does not in the least depend on its status as a base.
All other things being equal, Cruz would be a NBC even if his father had been a gigolo on a bender in Taiwan. If you don't like that, tell Congress to change the rules for who has a claim of right to be a citizen at birth. BTW, suppose that gigolo had been in America on a STEM visa at the time of impregnation?
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Split allegiance may be attractive as a disqualifying attribute in some cases. However, I am not aware of any recognized authority that would debar a person who was a citizen of right at birth merely because he was also a citizen of another state, on only that account. Expatriation might, as where a person renounces or gives up his citizenship, or were Congress to take it from him, or where he gives it up as a requirement imposed by another nation to accept its citizenship.
This may occur in cases where a person's citizenship was not of right, but conditioned on a loyalty oath. However, as to a person who is a citizen of claim of right at birth, I am unaware of any authority that would disqualify him so long as he retained that status -- even if he has joint citizenship. Provided, that is, that he is willing on election to take an oath of fidelity to uphold the Constitution. Of course, that may change to the extent Congress has power by legislation to expand or contract the class of persons who have or retain claim of right to citizenship at birth.
My sister was born in Japan in 1956, when my Dad was stationed at Kisrasu AFB and my Mom and I and my brothers were living there with him. As best I can reason, she is eligible to run for President. Scary thought. :)
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Yes. NBC is the subcategory. Citizen is the encompassing category.
But where does Vattel say that birth in the country is NECESSARY to qualify as a natural born citizen?
I see where he says this:
"By the law of nature alone, children follow the condition of their FATHERS, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him."
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The THEORY was that Scotus does not change the Constitution, but only provides the final imterpretation when there are gaps, ambiguities, or uncertainties in its meaning. Unfortunately, activist Justices acted like Obama with his pen and started talking about a living Constitution (with penumbras and emanations). So they "found" federal rights to regulate abortions, marriages, and newly invented categories for conferring "equal" rights and regulating every imaginable relation under the sun. They have thus made the Constitution an Orwellian travesty.
There are evolving areas where resort to judgment is needed, as where there are gaps that were not addressed by the Founders, but where resort is needed to try to read the minds of long dead men, to somehow intuit how they would have meant the problem to be addressed. This is akin to reading spit in the hand. In many cases, Congress is necessarily given power to flesh out the intentions. Unfortunately, power corrupts, and corrupt people seek to corrupt it. For this, the Founders provided for an Article V convention, recognized the tree of liberty, and some of them saw the need for nullification.
What we have now is an out of whack system that is manipulated by disloyal interests, often by baiting young, senile, illegal, and corrupt minds made into mush by the propaganda apparatus. We need a miracle. We badly need good people to step up.
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You are arguiing as if Fathers, without reference to Mothers, were still solely determinative of a child's constitutional based claim to citizenship at birth.
First, you fail to show where the Ratifiers would have adopted such a notion. Second, you fail to notice that the Constitution has been amended since the original enactment. IOW, you fail to address the effects of Amendments 13, 14, and 15. Third, you fail to apprehend that citizenship is an act of sovereignty and that the Constitution was creating a new sovereign, whose Constitution did not adopt Vattel. (Absurd effect would have unfolded if it had.) You fail to notice the necessary implications to powers given to Congress in the process of legislation to define who is a citizen and, within that, who is a citizen at birth.
If you deny the republic the right by legislation to define Indians as having claim of right to citizenship at birth, then you implicate a throwback position that indians, including Charles Curtis, were and remain ineligible. Building on your atavistic approach, some birther sites go so far as to argue that blacks and women remain ineligible. Good luck selling that.
Your argument that Cruz remains a subject of Britain through his birth in Canada and that such fancied allegiance so compromises him as to render him ineligible is unsupported by anything except armies made out of wistful fairies.
Your attempt to discount the numerous episodes of previous candidates and office holders by making reference to McCain is as wrong as it is ineffectual.
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:
(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 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. 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, it appears McCain was not born on a Federal base, but in an off base hospital.
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In some places, Vattel refers to parents. In others, to the Father. So, which did he mean? And which, if either, did the Ratifiers mean? Vattel also says that the (different) regulations of the several countries must be followed.
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VATTEL:
§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their FATHERS, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the FATHERS is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a FATHER who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their FATHERS, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the FATHER has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
§ 217. Children born in the armies of the state.
For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are REPUTED born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and SUBJECT TO ITS JURISDICTION, cannot be considered as having quitted its territory.
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Since Vattel, there have been the following: Constitutional limitations favoring white people, immigration statutes by Congress, Amendments 13 and 14 and 15, the Indian Citizenship Act, the various acts of acceptance of new territories as states, various court challenges and precedents, the equal protection clause of the 14th Amendment, and a history of candidates and office holders who were not born of parents who were both citizens and who were not born within the U.S.
The Birther interpretation of the NBC clause does not compute. Without an army of fairie contrivances, it cannot be supported.
The Birther phenomenon appears to be secondary to mass (and justified!) concern about the candidacy of Obama -- an anti-American, chooming, pansexual, crony commie with subhumanizing and Islamic sympathies. Regardless, the nation's infestation will not be well treated by bulldozing all legal precedents since the 12th Amendment.
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If you wanna rely on Vattel, then you needa taka da full dosa da confusion and non-computation. Vattel wrote mainly of birth to a father. To rely on Vattel as birthers have is to presume the Founders intended that white babies born of citizen fathers would themselves be citizens -- provided their mothers were also white. Then you're gonna needa square that with the 13th, 14th, and 15th Amendments and the Indian Citizenship Act. You're gonna needa square it with equal protection. And you're gonna needa 'splain Andrew Jackson, John Fremont, George McClellan, Chester Arthur, Charles Evans Hughes, George Romney, Barry Goldwater, Lowell Weicker, Charles Curtis, Hubert Humphrey, Spiro Agnew, John McCain, Barack Obama, Bobby Jindal, Marco Rubio, Rick Santorum, Herman Cain, Ben Carson,Carly Fiorina, Hillary Clinton, Geraldine Ferraro, Sarah Palin, and Barack Obama.
To maka that compute, you're gonna have a lot of 'splaining to do. And you're prolly gonna agitate a lotta da women, blacks, and indians. You're gonna rida with Trump while he jumpsa da shark. Don the Fonz is cool, but he needs to stop trying to jump sharks if he wants to get elected. If Donald persists, he's gonna needa produce actual proof that his momma tooka da naturalization oath before he was born.
I believe Donald is very smart. But Cruz is the one who was awarded the *National Merit Scholarship.
Trump/Cruz (unless Donald jumps the shark).
*BTW: Despite Obama's pretensions to brilliance, he did not even make the grade for the affirmative action version.
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You're confusing the more encompassing category of fruits with the less encompassing category of oranges. Even Vattel was doubtful about birthright citizenship.
VATTEL -- § 215. "Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens?
The laws have decided this question in several countries, and their regulations must be followed. (59) By the law of nature alone, children follow the condition of their FATHERS, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him;"
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The fruit is what defines a citizen. The orange is what defines who is eligible to become President. Before you can be a natural born citizen, you must first be a citizen. To allow citizenship to be based purely on birth is to invite anchor babies, which is to quickly destroy every healthy nation.
The present bureaucratic practice is to recognize nearly all persons who are born in the U.S. as if they were automatically citizens. In light of how the bureaucratic practice has evolved, Cruz thinks an Amendment or at least a clarifying statute is necessary, to stop the anchor baby practice. Trump thinks the practice is unsupported on its face, so that it does not require an Amendment, and it may even be reversed by simple administrative regulation or executive order. On this, I side with Trump.
However, neither Trump nor Cruz believe it is necessary in order to be eligible to become President or to become a citizen that one be born in the U.S. Many opinions being expressed on this topic seem to be the confused product of uninformed blather, perhaps secondary to emotional turmoil on account of the treachery and insanity that abound in our political situation. Like getting emotionally invested in a chariot race. It's understandable, but still wrong.
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The Legislation I am talking about does not "amend" the Constitution. It constitutes the exercise of authority that is reasonably interpreted as being conferred under the Constitution, as necessary and proper for the sovereign operation of the republic.