Must an American who holds dual citizenship with another country renounce that other citizenship to qualify to become President? I do not think the precedents are clear. Since they are not clear, I think SCOTUS, if it had to decide, would mar its decision based on politics. The political make-up of SCOTUS just before Obama was elected may have been determinative, had the issue been presented.
In any case, such concern is not frivolous. So, Trump did a service by questioning Obama's qualification. Especially given Obama's high handed disinclination to be forthcoming regarding his birth certificate. There does seem to have been something flaky about the proof Obama offered. I think Obama likely was born in Hawaii. But I also think he is still obscuring something.
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Reasons I do not think the issue of NBC status v. Dual Citizenship is clear:
LIST OF SIGNIFICANT PERSONS WHO MAY NOT HAVE RENOUNCED DUAL CITIZENSHIP: James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio, John McCain, George Romney, Lowell Weicker, Andrew Jackson.
PERSINGER V. IRAN: 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
PERKINS V. ELG: Suppose a child of naturalized or inchoate citizenship had continued to reside in a foreign country beyond his age of majority, without timely reasserting his claim to U.S. citizenship by re-residing in the U.S. By such action, he may be deemed to have relinquished, forfeited, or expatriated his claim to U.S. citizenship. While such minor child was residing abroad, his U.S. citizenship may sometimes have been thought to be unperfected, or "inchoate." See Perkins v. Elg, 307 U. S. 325, 307 U. S. 329 (1939), wherein the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.
LYNCH V. CLARKE: Was the New York Court of Chancery case of Lynch v. Clarke properly decided? See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
NATURAL BORN CITIZEN: LINE BETWEEN NATURAL BORN VERSUS BORN NATURALIZED IS NOT SO CLEAR: Under Blackstone, persons who are made citizens at birth are considered to be natural born citizens. The status for being natural born was a proper status for being legislated. So, the questions become: Does the Constitution give such legislative authority to Congress, and has Congress exercised such authority?
MICHAEL RAMSEY: See http://www.libertylawsite.org/... Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
So the question isn’t whether Ted Cruz was naturalized. He was – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born.
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Bottom Line: In any case, the concern is not frivolous. So, Trump did a service by questioning Obama's qualification. Notwithstanding the treasonous Press and its corrupt establishmentarian paymasters.
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In that Congress can establish a rule that recognizes or organizes a territory as being part of the sovereign U.S. for 14th Amendment purposes, it is obvious that Congress, by statute, can establish a rule for extending birthright citizenship to persons thereafter born in such a territory. Such persons would be considered natural born citizens. That is, they would be citizens from birth, without needing to undertake naturalization procedures, i.e., procedures after their birth.
Because Congress has power by statute to extend birthright citizenship to persons born in a territory recognized and organized for such purpose, there is little reason to suppose Congress should lack power, by statute, to extend birthright citizenship to certain classes of citizens born, in venues abroad, of parents who are U.S. citizens -- without making such venues into part of the U.S.
In either case, Congress would be extending birthright citizenship (i.e., natural born status) by statute.
This is consistent with Congress' enumerated power to establish a uniform rule of naturalization and with Congress' power to make all laws which shall be necessary and proper for carrying into executon such power.
In the broadest usage of "naturalization," Congress has power, by statute, to make citizens at birth. In the more narrow usage of "naturalization," persons are more commonly considered to be naturalized when they are brought into a country and made citizens at some time after they were born.
In the common usage, a person who is a citizen at birth is not naturalized. However, in the broadest usage, under the enumenrated powers delegated to Congress, Congress has power, by statute, "to naturalize" such classes of persons as may thereafter be born under its provisions.
For making citizens at birth, Congress has always been recognized as having naturalization power under the broad sense. For persons who are citizens at birth, the common usage, however, has not considered such persons as being naturalized unless they are brought into the country at some time, after their birth, for the purpose of making them citizens.
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It becomes more and more obvious that, when the Founders sent consuls to the negotiations for the Treaty of Paris, they selected persons from the pool of those who were "natural born" to the American Cause in the Blackstone sense -- not the Vattel sense.
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Do you think Obama planned his show for himself, or was it mainly packaged by establishmentarians with a corporatist-crony-commie agenda?
Do any of the established institutions produce persons who still hold to the American Ideal of individual freedom and dignity? Do we home grow any such persons? If not, where do we get them? Where do we get individuals who still seek the opportunity of the American Dream? Not from commie cultures that mainly seek to come and sign up for the welfare. So where? Maybe self selected from the most intelligent, energetic, down trodden, liberty seeking orientals. Among oriental immigrants, how many such families learn the language, grow a business, and succeed -- often within a single generation?
So, if the American Ideal is NOT inspired, celebrated, or worked among home grown, professionally indoctrinated, commie cultured, Anchor Babies, Hood Babies, and Establishment Babies, why then do Birthers think it such a good idea to render ineligible for the Presidency everyone who is not a product of Anchor, Hood, and Establishment cultures?
There was good reason why the British favored their natural born citizens, i.e., citizens born abroad to British parents, for higher office. But Birtherbrains apparently prefer to remain more inbred for failure.
So where do Birthers go to get their faux best and brightest? Well, they belly up to all the places that perpetuate the NWO. The same kind of NWO our oriental immigrants worked so hard to escape.
The reasons America is falling and failing are rotted into the core of all our institutions. Including Birthermania. We are being royally set up and had by some of the most disreputable, conniving, cannibalizing, faithless, subhuman minds ever contrived.
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Do you have any clue how probability works? The Establishment is flipping the demographic, if it has not already done so. It DOES NOT FEAR BIRTHERS. IT USES THEM!
I think you've gotta be delusional. Obama has filled us with foreigners who have had or will be having children in the U.S. There is no question that Scotus would find such children to be NBC. Babies having babies. Absent fathers. All eligible if born in the U.S., and there's nothing you can do about that!
The only ones who might (I say might) not be deemed natural citizens under the 14th Amendment would be children born of illegal invaders. And that will take some luck. So, by excluding citizens born of Americans abroad, you increase the odds for the Hood Babies and Anchor Babies.
By eliminating the middle class and building up the choomer class, your Birthers are left with no chance so long as they play stupid birther games.
So what else you got? Well, you got all the numbskull elite kids sent to the Ivies by corporatist and establishmentarian parents. And you increase their odds. Good luck finding many good Americans among them. Snort! So that's the Establishment Babies.
Did you not notice: Out of more than 17 candidates, we had two that might be called non-establishmentarian. Three or four others leaning. Hmm. Wonder why that is? Did you like JEB, Christie, Huckabee, Kasich, Graham, etc.? Great choices, huh? Never fear. If Trump implodes, they could choose Ryan. Spit.
Well, not so great, actually. Could that have something to do with bleeding off the talent and replacing it with establishmentarian raised drones and crooks? Nah, couldn't be that. S/
The Establishment fed us a half black, pansexual, chooming, anti-American, Muslim sympathizing, family destroying pos. Do you really think the Establishment, with more than 47% of the U.S. now consisting of illegals, idiots, felons, crony crooks, and commie morons, will not be engineering another such feat? They've got your number, and you have no clue!
London just got a Muslim mayor. If the Establishment wants to collapse us, it will be serving up a black, lesbian, chooming, commie, Muslim. And you will run whom against her? Kasich? Huckabee? JEB? Whatcha got, that the Establishment cannot destroy, one way of another? Meanwhile, Birthers will be running around, worried about only God knows what. Useless!
When you cut out the talent, you're left with the dregs. It's pretty simple. Who tends to go overseas to do high tech work and often returns with foreign brides? Well, that would be independent, competent, brainy people. Who goes to defend us? That would be loyal Americans. So, you want to cut their children out to make a clear path for crony-commie floaters? Anchor babies, Hood babies, Establishmentarian babies. Great. Brilliant! S/
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The rule we are following is the same rule we have almost always been following: A child of an American citizen is a citizen at birth, under jus sanguinus. It is the trend of modern nations. It is the way to avoid anchor babies. It ensures to some extent that a child will have American influences. The 14 year residency requirement adds to that.
By cutting off people like Cruz, you increase the chances for people like anchor babies, hood babies, and establishmentarian babies. You know: The people in Congress. Keep it up and we will have a female Muslim President sooner than most Americans would like. I can just see the Establishment Cronies yuking about that one!
The "rule" specially invented in Birthers' imaginations has had the opposite of any good effect. I suspect your intentions are good. It's your lack of insight that hurts. But for Birthers, I doubt Obama would have been elected. Even without Birthers, I think Trump would have prevailed. But more likely in a way that did not harm future talent.
I'm sure the doctors who bled Washington meant well. But bleeding a republic of its candidates out of some elitist notion is not good. The road to hell is paved with the good intentions of elitists. Just stop! Let America be America.
Or don't. Scotus will probably decide at some point and that will be the end of this nonsense. Or, if Scotus declines to rule, it may be for reasons related to who is really funding this nonsense. The Establishment has confabulated so many ways to keep the republic off balance. The last thing the Establishment would want would be a free thinker. Where do you get smart free thinkers? Well, not from basement dwelling NBC kids or street homeys.
The Birther NBC rule does not do what Birthers want. It does not compute. Does not connect. Is not the law. It is favored mainly by marginal characters. Is built on little more than tissues of deception and shell games. It is not as good as the citizen-at-birth rule. The parade of horribles that Birthers imagine they are protecting us from just gets worse the more Birthers do their BS.
Birthers are completely helpless with logic or reason. All they do is repeat assumptions, wishful thinking, and fantasy reasoning. They cannot refute any of the facts and precedents against them. They are helpless except to load the republic with BS. Birthers have been had. An investigative reporter should follow the money and the connections. I don't think you are working for the people you think you are working for.
The really not-so-cute thing Birthers say is, "Well, it's how I think the law should be." Uhhh. OK. So we should just encourage cronies to mislead everyone into doing what has been planted in Birthers' minds as what the law should be? Think what that means: 300 M people deprived of substantive debates because of what Birthers have been misled to believe "should be" the law -- all judges to the contrary to be ignored! Wow! That's some "brave new republic." Anarchists rejoice!
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Regarding the CRBA: The paperwork is only evidentiary of the fact. Everyone can be subjected to having to prove a right, especially when crossing borders.
Example: When you apply for a passport, you have to fill out forms. But that does not mean that you did not have the right to the passport. The forms are the method for recording the facts by which to exercise the right.
John McCain did not forfeit citizenship because his parents failed to file a form. You would have the right to obtain your passport before you filled out the forms. The forms make it convenient for you to prove and exercise the right.
But if you found yourself in a foreign country and lost your passport, I'll bet an embassy would assist you in reclaiming your right. You would not forfeit your citizenship for not having the passport.
In years past, Congress passed various citizen forfeiture statutes. Most of those have been repealed or voided. How Congress and the Judiciary exercise authority in that regard seems to wax and wane. I don't see how that can in any reasoned way have to do with determining whether a person who is born with a claim of right to citizenship qualifies as a natural born citizen.
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Philosophically, no one can be a citizen unless a society has established laws or precedents for recognizing such a social relationship.
Early in our republic, our precedents and practice came to be to recognize every free white person born in country as a natural born subject or citizen. That was a practice we inherited from Britain. By Statute, Britain expanded natural born status to persons born abroad of a British father. We adopted a similar statute in 1790.
The point is, we inherited the British idea that NBC status was a matter that could be expanded by statute. Later, by statute, we expanded to make a child born abroad of an American mother a citizen at birth. Under British practice, all citizens at birth were natural born citizens, and vice versa.
Obviously, people can define terms in different ways for different purposes and contexts. English and American language and law are filled with examples. In broad sense, "naturalization" may pertain to having been made a citizen by a particular statute or law -- whether at birth or after birth. In practice, when most people think of applying to be naturalized, they think of applying to become a citizen after birth. "Applying" usually connotes a possibility of being turned down. Not so with being a citizen at birth.
In the 1782 lead up for negotiating the Treaty of Paris to formalize the end of the Revolutionary War, it was necessary to have various consuls from various nations. It was agreed that "The consuls and vice consuls respective may be considered that among the natural subjects of power which will appoint them."
In France, this would have been interpreted as "subjects natural." I doubt France had an idea of everyone born abroad of a French citizen being himself of French citizenship. Regardless, England did! So England interpreted this as calling for consuls who were, under its law, "natural born subjects." America also sent its "natural born subjects."
So, who did the U.S. consider to be proper consuls and "natural born subjects"? Well, we sent Benjamin Franklin, John Jay, Henry Laurens, and John Adams. So I ask: Were all of those American consuls born of parents of the U.S.?
No, they were not! Benjamin Franklin was born to Josiah Franklin and his second wife, Abiah Folger. Josiah was born in the village of Ecton, Northamptonshire, England on December 23, 1657. And Henry Laurens' mother was Hester (or Esther) Grasset, a Huguenot refugee (probably from Southern France). Evidently, we did not then consider the status of being "natural born" to have required that the consuls' parents have been born in the territorial U.S.
But the main point is that the agreement, for the French, was taken to mean "subjects natural," while for the English and Americans it was in that context taken to mean "natural born subjects." This had to do with sending agents with proper authority to represent their sovereign powers. Not with a word for word translation of "Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera...."
By itself, "sujects naturels" only means subjects natural. It was the context and purpose that affected the way the different parties interpreted to send their consuls. Apuzzo, however, took this as some kind of absolute proof that "sujets naturel" meant "natural born" subjects.
That is pathetic, because anyone can plug "sujets naturels" into a translator and see that, depending on context, it need mean no such thing. Rather, the direct translation is more like "natural objects" or subjects natural.
It is also pathetic, because it shows, in the very negotiation of the Treaty of Paris, after we had long been the U.S., we considered our consuls to be our "subjects." So much for Birthers' claims that Americans no longer considered themselves to be any kind of subjects!
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Now you're on the cusp of perpetuating a flat out lie. Your "definition" was not in Vattel. Vattel was dead 30 years before your "definition" was published. Everyone who can read and think knows this. You're either suffering from or perpetuating the Big Lie Technique.
Yup. Let's appoint a commission of birtherbrains to go in and mark every American who they think should be ineligible. The only reason Trump finds favor with birthers is because his Scottish mother (probably) got herself naturalized before he was born and his father never claimed his Irish citizenry. Good grief. Birthers would have disqualified FDR, Jr.
Nowadays, many modern states, in determining citizenship, are more concerned with parentage than with place of birth. Nowadays, most people do not like patriarchy that would confer citizenship based on a father's origin but not a mother's.
All this has been hashed before. It is easily available to anyone who can think and read. There is simply no intelligent life among birthers that is worth communicating with.
There is no such thing as any citizen who is so pure as not to have any ties with a foreign country. There is a difference between eligibility and electability. When dimbulbs are allowed to render ineligible some of the best among us, the choices we are often left with tend to be, well, dim. Your "solution" is akin to the quackery that bled out and killed Washington.
You could not be more hopelessly deluded. Birthers will never stop until they run the nation into the ditch, burn the car, and throw away the keys. You have no facts, no logic, no precedents, no sense. When birther "analysis" is not based in flat out lies, it is based in legal illiteracy stretched to all fubar by inapplicable dicta. But if it makes you feel good, keep telling yourself you're a legal eagle.
If birthers were to convince 3-5 million voters that Cruz was legally disqualified on account of having dual allegiance to Mars, then he loses.
But that does not alter the fact that such birthers are suffering from a bad case of legal illiteracy. Nor does it alter the fact that 300 million Americans were probably deprived of a reasoned choice because of over wrought lunacy.
ALL the Courts that have ruled on this issue have based their reasoning in ways that foreshadow Cruz' eligibility.
I hope DJT is elected. He will serve 4 years. I doubt he will be up to 8. By that time, I hope the birthers are safely tucked in. Maybe then we can get something closer to adult analysis. Instead of bum steers.
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You can't change the fact. The words you rely on were not published until 1797, which was 30 years after Vattel died and 10 years after the Constitution had been drafted. Those words simply did not appear as such in any edition available to the Founders, nor were they a reasonable translation of the French edition the Founders actually had.
The words, "natural born citizen," were put in Vattel's treatise long after his death. In all likelihood, the reason the English translation of 1797 said "natural born citizen" was because, in Britain and in the U.S., that terminology ("natural born") had been used in various STATUTES.
Maybe birthers have a license to time travel and change history? Either fess to the facts or admit you are a liar or an unread rube.
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From Massachusetts statute of 1784: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.” [This was before the Constitution was drafted and before the 1797 edition of Vattel's Treatise.]
The most direct or word for word translation of the original ("Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens") would likely be more like this: "The natural, or indigenous, are those born in the country, parents of whom are citizens."
The word "Citoyens" in the original treatise refers to the "parens" -- not to the children. The words referred to the children are "Les Naturels ou indigènes."
To say that children of parents who are citizens will be "naturals or indigènes" is not to say that such children themselves will be citizens, much less "natural born citizens." To suggest that such children should "succeed" to the rights of their parents (or father) is not to specify when such succession should occur, or whether it may be forfeited. After all, not every nation need guarantee status of citizenship, whether "natural" or "artificial." Indeed, nations often think it natural or reasonable to require that status of citizenship be earned at some point after reaching an age of responsibility.
In any event, the term, "natural born citizen," simply does not occur in a direct translation of Vattel. Rather, what was available to the Founders of 1787 with regard to the terminology of "natural born" citizen was in the the New York Statute of 1700, the English Statute of 1731, and the Massachusetts Statute of 1784. NOT in Vattel.
REGARDLESS, even if one swallowed the reconstructivist 1797 translation of Vattel ("The natives, or natural-born citizens, are those born in the country, of parents who are citizens"), such would not preclude of any nation a right, whether by statute or otherwise, to extend such definition to a wider circle. Which, under English law and the Colonists' adoption of it, HAD ALREADY BEEN DONE by the Americans. See the 1700 Statute of New York and the 1784 Statute of Massachusetts.
BOTTOM LINE: Trump and his supporters played, and got away with, a dirty game of mudslinging and tarnish laying. Right out of the pages of Alinsky. No one beats Trump for slinging the mud or confounding the foolish and the bitter.
Yes, a person born in the U.S. of parents who were both citizens would be a natural born citizen -- both under Vattel and Blackstone. What Birthers don't get is that, under Blackstone, persons who are made citizens at birth are also natural born citizens. When Birthers say the U.S. did not take most of its common law and ideas about being natural born from Britain as opposed to France, they are in a river of deep ignorance and denial. Judges tend to understand this, which is why not a one has swallowed the birther legal illiteracy.
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The words Birthers rely on were not published until 1797, which was 30 years after Vattel died and 10 years after the Constitution had been drafted. Those words simply did not appear as such in any edition available to the Founders, nor were they a reasonable translation of the French edition the Founders actually had.
The words, "natural born citizen," were put in Vattel's treatise long after his birth. In all likelihood, the reason the English translation of 1797 said "natural born citizen" was because, in Britain and in the U.S., that terminology ("natural born") had been used in various STATUTES.
Maybe birthers have a license to time travel and change history? Either fess to the facts or admit you are a liar or an unread rube.
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From Massachusetts statute of 1784: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.” [This was before the Constitution was drafted and before the 1797 edition of Vattel's Treatise.]
The most direct or word for word translation of the original ("Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens") would likely be more like this: "The natural, or indigenous, are those born in the country, parents of whom are citizens."
The word "Citoyens" in the original treatise refers to the "parens" -- not to the children. The words referred to the children are "Les Naturels ou indigènes."
To say that children of parents who are citizens will be "naturals or indigènes" is not to say that such children themselves will be citizens, much less "natural born citizens." To suggest that such children should "succeed" to the rights of their parents (or father) is not to specify when such succession should occur, or whether it may be forfeited. After all, not every nation need guarantee status of citizenship, whether "natural" or "artificial." Indeed, nations often think it natural or reasonable to require that status of citizenship be earned at some point after reaching an age of responsibility.
In any event, the term, "natural born citizen," simply does not occur in a direct translation of Vattel. Rather, what was available to the Founders of 1787 with regard to the terminology of "natural born" citizen was in the the New York Statute of 1700, the English Statute of 1731, and the Massachusetts Statute of 1784. NOT in Vattel.
REGARDLESS, even if one swallowed the reconstructivist 1797 translation of Vattel ("The natives, or natural-born citizens, are those born in the country, of parents who are citizens"), such would not preclude of any nation a right, whether by statute or otherwise, to extend such definition to a wider circle. Which, under English law and the Colonists' adoption of it, HAD ALREADY BEEN DONE by the Americans. See the 1700 Statute of New York and the 1784 Statute of Massachusetts.
BOTTOM LINE: Trump and his supporters played, and got away with, a dirty game of mudslinging and tarnish laying. Right out of the pages of Alinsky. No one beats Trump for slinging the mud or confounding the foolish and the bitter.
Yes, a person born in the U.S. of parents who were both citizens would be a natural born citizen -- both under Vattel and Blackstone. What Birthers don't get is that, under Blackstone, persons who are made citizens at birth are also natural born citizens. When Birthers say the U.S. did not take most of its common law and ideas about being natural born from Britain as opposed to France, they are in a river of deep ignorance and denial. Judges tend to understand this, which is why not a one has swallowed the birther legal illiteracy.
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See https://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789
QUOTING FROM SELECTIONS AT https://www.scribd.com/doc/63745074/Absolute-Proof-Founders-Translated-French-Word-Naturels-to-English-Term-Natural-Born:
In 1781, before Congress, "A memorial from the honorable. the Minister of France was read, accompanied with the plan of a convention for regulating the powers and duties of consuls and vice consuls."
ARTICLE III [said]:
Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera. Tous seront appointés par leur souverain respectif, et ilsne pourront en conséquence faire aucun trafic ou commerce quelconque ni pour leurpropre compte, ni pour le compte d’autrui.
[TRANSLATING:] This memorial and plan of convention were entered only in the manuscript Secret Journal, Foreign Affairs. The following translation, in Charles Thomson's hand,was the paper considered by Congress. It is in the Papers of the Continental Congress, No. 25, II, folio 21.
The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them. They shall all be appointed by their respective Sovereign, and in Consequence of such appointment they shall not exercise any traffic or commerce whatsoever either on their own account, or on account of any other.
MY COMMENTS: The blogger leaps to argue that "sujets naturels" must have been taken by the Pre-Founders in 1781 to be precisely equivalent to "natural born subjects." But the French were still at that time a monarchy, while the Americans were not. Yet, the Americans also translated to refer to themselves as "subjects." Birthers sail by this, even after having long argued that Americans no longer were subjects and no longer had need for the term. The blogger fails to consider that legal concepts in French, under monarchial usages, needed to be translated to concepts in America, under democratic usages as filtered through common law inheritance from Britain (Blackstone). The natural agents or consuls of a monarchy (such as Britain or France) may or may not be considered the same as the natural agents of a republic. So, contrary to the blogger, this "leap to argue," given its failure to consider context, proves no necessary one-on-one permanent equivalence between French "naturels" and English "natural born subject."
Moreover, the topic at hand was NOT the definition of "citizen"! Rather, the topic had only to do with whom each side to the negotiations would select as consuls.
MOREOVER, I WOULD WAGER THAT PERSONS SELECTED ON THE AMERICAN SIDE WERE NOT ALL PERSONS WHO HAD BEEN BORN OF CITIZEN PARENTS! SO, WHO WERE THE CONSULS CHOSEN BY THE AMERICANS IN 1781?
Well, according to Wikipedia, the consuls at the Treaty of Paris during the peace negotiations of 1782 for the Americans were Benjamin Franklin, John Jay, Henry Laurens, and John Adams. So I ask: Were all of those American consuls born of parents of the U.S.? No, they were not! Benjamin Franklin was, per Wikipedia,one of seventeen children born to Josiah Franklin, and one of ten born by Josiah's second wife, Abiah Folger; the daughter of Peter Foulger and Mary Morrill. Josiah was born in the village of Ecton, Northamptonshire, England on December 23, 1657. And Henry Laurens' mother was Hester (or Esther) Grasset, a Huguenot refugee.
Moreover, when I run the quoted French through the Google translater, I do NOT get "natural born subjects." Rather, I get "natural subjects" -- as follows: The consuls and vice consuls respective may be considered that among the natural subjects of power which will appoint them. All will be appointed by their respective sovereign, and ilsne may therefore be no traffic or any trade for their own account, or on behalf of others.
Verdict: Pants On Fire!
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Under the Pre-Founders' own translation, the "natural born subjects" they considered appropriate to negotiate the Treaty of Paris included Benjamin Franklin (father born in England) and Henry Laurens (mother a Huguenot refugee, probably born in Southern France). Likely, they would have considered such "natural born subjects" to be appropriately qualified to become President.
John Jay was among the American consuls negotiating the treaty. He was an eminent lawyer from New York, A New York statute, as early as 1700, had referred to "natural born subjects." Jay would have been familiar. Seeing that "natural born" was thought appropriate to New York law and for selecting agents for negotiating treaties, it is hardly surprisinig that he would consider that a qualification to be President should include being "natural born." Seeing that Benjamin Franklin and Laurens were considered "natural born" and fit to serve as consul for America, Jay would not have considered such status to require that both of one's parents have been a citizen. More likely, Jay would have been concerned that persons born abroad and of no American or landed parentage (like Von Steuben) not be eligible (especially to have command of the military).
But Jay would NOT likely have wanted to disqualify children of persons, like Franklin, Laurens, or himself, who may be born abroad (especially while their parents were in the service of their country).
In short, Birtherism is of a piece with nonsense.
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From https://www.scribd.com/doc/33676461/Founder-and-Historian-David-Ramsay-Defined-Natural-Born-Citizenship-in-1789-by-Atty-Mario-Apuzzo:
"In 1965 Professor Page Smith of the University of California at Los Angeles publishedan extensive study of [David] Ramsay's History of the American Revolution in which he stressed the advantage that Ramsay had because of being involved in the events of which he wrote and the wisdom he exercised in taking advantage of this opportunity. “The generosity of mind and spirit which marks his pages, his critical sense, his balanced judgment and compassion,'' Professor Smith concluded, “are gifts that were uniquely his own and that clearly entitle him to an honorable position in the front rank of American historians.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id.at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….”"
From https://www.scribd.com/doc/33676461/Founder-and-Historian-David-Ramsay-Defined-Natural-Born-Citizenship-in-1789-by-Atty-Mario-Apuzzo:
"In 1965 Professor Page Smith of the University of California at Los Angeles publishedan extensive study of [David] Ramsay's History of the American Revolution in which he stressed the advantage that Ramsay had because of being involved in the events of which he wrote and the wisdom he exercised in taking advantage of this opportunity. “The generosity of mind and spirit which marks his pages, his critical sense, his balanced judgment and compassion,'' Professor Smith concluded, “are gifts that were uniquely his own and that clearly entitle him to an honorable position in the front rank of American historians.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id.at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….”"
MY COMMENT: I READ THE ARTICLE BY DAVID RAMSAY. It is found at: https://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789.
In it, I do NOT FIND Ramsay to have referenced Vattel. Nor do I find where he is purported to have said that the the original citizens were defined as “natural
born citizens,” being the children born in the country to citizen
parents. Read the article for yourself!
Show me where David Ramsay ever said that a natural born American citizen would not include a child born abroad of American parents! Never Trust A Birther to state the true facts or to understand legal holdings!
It appears from reading the actual article that Birthers are, once again, "speeding on the facts."
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Regarding a quote from Schneider v. Rusk , https://supreme.justia.com/cases/federal/us/377/163/case.html: "[T]he
naturalized and the native or natural born person have the same dignity
and are coextensive, the difference drawn by the Constitution is that
only the natural born person is eligible to be President'.."
FACTS: The Appellant was born in Germany and came to the U.S. as a child, with her parents. She lived awhile in the U.S., while her parents became naturalized citizens. After becoming an adult, she returned to Germany for more than 8 years. A statute at the time provided for expatriation unless such a naturalized citizen timely restored residence in the U.S. So she was found ineligible for an American passport. She was NOT a citizen of the U.S. at birth. Rather, as a dependent of her parents, she was derivatively naturalized as a U.S. citizen AFTER her birth in Germany and after her previous acquisition of German citizenship.
The quote Birthers like is dicta that they cherry pick to apply overbroadly to an inapplicable situation. They quote: "[T]he naturalized and the native or natural born person have the same dignity and are coextensive, the difference drawn by the Constitution is that only the natural born person is eligible to be President'.."
However, the Appellant was NOT running for the Presidency. She was not a U.S. citizen at birth. The Court did NOT HOLD THAT no category of naturalized citizens can be considered as being natural born. The Court did NOT take issue with the practice, inherited from the British, whereby the category of natural born was expanded by statute. The Court did NOT say that a person made a citizen at birth by Congressional enactment cannot be categorized as a natural born citizen.
So when Scotus is eventually presented with a pertinent set of facts, what will it hold? How will it define "naturalized" and "natural born"? Will it mean to say that a person naturalized by statute to be a citizen at birth is not of the category of being natural born? Will it mean only to recognize that a person who must apply to become a citizen after birth cannot be considered to be a natural born citizen? (If a Court did mean that, to be naturalized is to be made a citizen only because of statute or law, then it would be philosophically illiterate and nonsensical, since no member of any legal society can be a citizen without reference to law.) Will the Court really mean to discredit the British precedent, whereby status of being "natural born" was determinable by reference to statute making a person a citizen at birth? (Very doubtful!)
Well, without a full exploration or necessary relation to the holding, no informed person should agree with anyone who "speeds" on the extent of the meaning of Schneider, with regard to whether one who is made a citizen at birth via statute is thereby made or not made a natural born citizen.
FACTS: The Appellant was born in Germany and came to the U.S. as a child, with her parents. She lived awhile in the U.S., while her parents became naturalized citizens. After becoming an adult, she returned to Germany for more than 8 years. A statute at the time provided for expatriation unless such a naturalized citizen timely restored residence in the U.S. So she was found ineligible for an American passport. She was NOT a citizen of the U.S. at birth. Rather, as a dependent of her parents, she was derivatively naturalized as a U.S. citizen AFTER her birth in Germany and after her previous acquisition of German citizenship.
The quote Birthers like is dicta that they cherry pick to apply overbroadly to an inapplicable situation. They quote: "[T]he naturalized and the native or natural born person have the same dignity and are coextensive, the difference drawn by the Constitution is that only the natural born person is eligible to be President'.."
However, the Appellant was NOT running for the Presidency. She was not a U.S. citizen at birth. The Court did NOT HOLD THAT no category of naturalized citizens can be considered as being natural born. The Court did NOT take issue with the practice, inherited from the British, whereby the category of natural born was expanded by statute. The Court did NOT say that a person made a citizen at birth by Congressional enactment cannot be categorized as a natural born citizen.
So when Scotus is eventually presented with a pertinent set of facts, what will it hold? How will it define "naturalized" and "natural born"? Will it mean to say that a person naturalized by statute to be a citizen at birth is not of the category of being natural born? Will it mean only to recognize that a person who must apply to become a citizen after birth cannot be considered to be a natural born citizen? (If a Court did mean that, to be naturalized is to be made a citizen only because of statute or law, then it would be philosophically illiterate and nonsensical, since no member of any legal society can be a citizen without reference to law.) Will the Court really mean to discredit the British precedent, whereby status of being "natural born" was determinable by reference to statute making a person a citizen at birth? (Very doubtful!)
Well, without a full exploration or necessary relation to the holding, no informed person should agree with anyone who "speeds" on the extent of the meaning of Schneider, with regard to whether one who is made a citizen at birth via statute is thereby made or not made a natural born citizen.
*********************
From David Ramsay, at https://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789:
"Minors who were not old enough to be parties to the declaration of independence, or to take oaths of fidelity to the states ad the time they were imposed, became citizens in consequence of their continuing to reside in the United States adter they had arrived to mature age, especially if at the same time they claimed the protection, and performed the duties of citizens."
"At twenty-one years of age, every freeman is at liberty to chuse his country, his religion, and his allegiance. Those who continue after that age in their allegiance under which they have been educated, become, by tacit consent, either subjects or citizens, as the case may be. In this manner, young men are now daily acquiring citizenship, without the interventon of an oath."
"[N]o man can be born a citizen of a state or government, which did not exist at the time of his birth. Citizenship is the inheritance of the children of those who have taken a part in the late revolution; but this is confined confined exclusively to the children of those who were themselves citizens."
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TEST FOR BIRTHERS:
Q: From what source came the statute of 1700, which said: "BE IT THEREFORE ENACTED by his Honor ... and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects ... enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within ...."
Was the statute from France, England, Denmark, New York, or Maine?
Q: From what source came the statute of 1784, which said: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.”
Was the statute from France, England, Denmark, Massachusetts, or Kentucky?
Q: From what source came the following legal language: [T]he children of citizens of ... that may be born beyond Sea, or out of the limits of ... , shall be considered as natural born Citizens.
Was that legal language from the French, the Swiss, the British, the Confederate Constitution of the U.S., or the United States?
Q: Which of the following persons did not qualify as natural born citizens of the U.S.: Andrew Jackson, James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John McCain, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio, Ted Cruz, George Romney, Lowell Weicker, Barry Goldwater.
COMMENTS:
Neither the original of Vattel's treatise nor any English translation before 1797 used the terminology "natural born citizen."
Suppose the person who translated the 1797 version of Vattel's treatise, 30 years after his death, had translated to say "those who are native citizens at birth are those who are born in the country of parents who are citizens."
Had that been the translation, it would have been encompassed within, and not inconsistent with, British law and precedent from 1731, which extended frther to provide that the status of being "natural born" applied as follows: "A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
Had Vattel been thus translated, clearly, it would not have precluded Americans from having a broader understanding of who shall naturally be a "citizen at birth," in the ordinary course of the common law as inherited through Britain. Such a translation would have been at least as faithful to the original French as the translation of 1797, 30 years after Vattel's death, that, in reconstructivist approach, took into account the American Revolution, the American Constitution, the drafting of the Rights of Man, and the French Revolution. Indeed, before the French Revolution, ordinary Frenchmen were hardly more like citizens or less like subjects than their British counterparts. Simply put, the words "natural born citizen" were not in Vattel's original, nor in any English edition that was available to the American Founders at any time between 1775 and 1790.
Rather, the most direct or word for word translation of the original ("Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens") would likely be more like this: "The natural, or indigenous, are those born in the country, close relations of whom are citizens." The word "Citoyens" in the original treatise refers to the "parens" -- not to the children. The words referred to the children are "Les Naturels ou indigènes." However, to say that children of parents who are citizens will be naturals or indigènes is not to say that such children themselves will be citizens, much less "natural born citizens." To suggest that such children should "succeed" to the rights of their parents (or father) is not to specify when such succession should occur, or whether it may be forfeited. After all, not every nation need guarantee status of citizenship, whether "natural" or "artificial." Indeed, nations sometimes think it natural or reasonable to require that status of citizenship be earned at some point after reaching an age of responsibility.
In any event, the term, natural born citizen, simply does not occur in a direct translation of Vattel. Rather, what was available to the Founders of 1787 with regard to the terminology of "natural born" citizen was in the the New York Statute of 1700, the English Statute of 1731, and the Massachusetts Statute of 1784. NOT in Vattel.
REGARDLESS, even if one swallowed the reconstructivist 1797 translation of Vattel ("The natives, or natural-born citizens, are those born in the country, of parents who are citizens"), such would not preclude of any nation a right, whether by statute or otherwise, to extend such definition to a wider circle. Which, under English law and the Colonists' adoption of it, HAD ALREADY BEEN DONE by the Americans. See the 1700 Statute of New York and the 1784 Statute of Massachusetts.
BOTTOM LINE: Trump and his supporters played, and got away with, a dirty game of mudslinging and tarnish laying. Right out of the pages of Alinsky. No one beats Trump for slinging the mud or confounding the foolish and the bitter.
Q: From what source came the statute of 1700, which said: "BE IT THEREFORE ENACTED by his Honor ... and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects ... enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within ...."
Was the statute from France, England, Denmark, New York, or Maine?
Q: From what source came the statute of 1784, which said: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.”
Was the statute from France, England, Denmark, Massachusetts, or Kentucky?
Q: From what source came the following legal language: [T]he children of citizens of ... that may be born beyond Sea, or out of the limits of ... , shall be considered as natural born Citizens.
Was that legal language from the French, the Swiss, the British, the Confederate Constitution of the U.S., or the United States?
Q: Which of the following persons did not qualify as natural born citizens of the U.S.: Andrew Jackson, James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John McCain, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio, Ted Cruz, George Romney, Lowell Weicker, Barry Goldwater.
COMMENTS:
Neither the original of Vattel's treatise nor any English translation before 1797 used the terminology "natural born citizen."
Suppose the person who translated the 1797 version of Vattel's treatise, 30 years after his death, had translated to say "those who are native citizens at birth are those who are born in the country of parents who are citizens."
Had that been the translation, it would have been encompassed within, and not inconsistent with, British law and precedent from 1731, which extended frther to provide that the status of being "natural born" applied as follows: "A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
Had Vattel been thus translated, clearly, it would not have precluded Americans from having a broader understanding of who shall naturally be a "citizen at birth," in the ordinary course of the common law as inherited through Britain. Such a translation would have been at least as faithful to the original French as the translation of 1797, 30 years after Vattel's death, that, in reconstructivist approach, took into account the American Revolution, the American Constitution, the drafting of the Rights of Man, and the French Revolution. Indeed, before the French Revolution, ordinary Frenchmen were hardly more like citizens or less like subjects than their British counterparts. Simply put, the words "natural born citizen" were not in Vattel's original, nor in any English edition that was available to the American Founders at any time between 1775 and 1790.
Rather, the most direct or word for word translation of the original ("Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens") would likely be more like this: "The natural, or indigenous, are those born in the country, close relations of whom are citizens." The word "Citoyens" in the original treatise refers to the "parens" -- not to the children. The words referred to the children are "Les Naturels ou indigènes." However, to say that children of parents who are citizens will be naturals or indigènes is not to say that such children themselves will be citizens, much less "natural born citizens." To suggest that such children should "succeed" to the rights of their parents (or father) is not to specify when such succession should occur, or whether it may be forfeited. After all, not every nation need guarantee status of citizenship, whether "natural" or "artificial." Indeed, nations sometimes think it natural or reasonable to require that status of citizenship be earned at some point after reaching an age of responsibility.
In any event, the term, natural born citizen, simply does not occur in a direct translation of Vattel. Rather, what was available to the Founders of 1787 with regard to the terminology of "natural born" citizen was in the the New York Statute of 1700, the English Statute of 1731, and the Massachusetts Statute of 1784. NOT in Vattel.
REGARDLESS, even if one swallowed the reconstructivist 1797 translation of Vattel ("The natives, or natural-born citizens, are those born in the country, of parents who are citizens"), such would not preclude of any nation a right, whether by statute or otherwise, to extend such definition to a wider circle. Which, under English law and the Colonists' adoption of it, HAD ALREADY BEEN DONE by the Americans. See the 1700 Statute of New York and the 1784 Statute of Massachusetts.
BOTTOM LINE: Trump and his supporters played, and got away with, a dirty game of mudslinging and tarnish laying. Right out of the pages of Alinsky. No one beats Trump for slinging the mud or confounding the foolish and the bitter.
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In Tuan Anh Nguyen v. INS, Scotus recently recognized that federal law now defines “naturalization” as the “conferring of nationality of a state upon a person AFTER birth.” Thus, it is arguable that the current understanding in federal law is that one who is entitled to U.S. citizenship automatically “at birth” could NOT be considered to be “naturalized."
So, when Congress recognizes who is not an alien because of being a citizen at birth, is Congress legislating beyond its delegated power regarding naturalization? Or is Congress only declaring what it takes to be the understanding of "natural born citizen" under "evolving" common law?
In the early days of the republic, patriarchy reigned. Those days are gone. Nowadays, we have a 14th Amendment, as well as various statutes in support. Under our republic, We The People are the sovereign. As We The People change the law, the law changes. Under old law, a British child's citizenship followed his father. Under newer law, we have the equal protection clause and supporting legislation. That has made children born abroad of an American parent citizens at birth -- regardless of whether the parent is male or female.
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To be a citizen of a sovereign, there needs to be a nation to be a citizen of. To be a nation, there needs to be a way to draft, invite, and define citizens. To define citizens, a sovereign nation must assume power to accomplish such definition.
A nation can assume power to define citizens by referring such power to the fiat power of executives, to the reasoning power of judges, or to the lawmaking power of legislatures. To refer such power to the fiat of executives would be despotic, and thus inappropriate for a representative republic. To refer such power to a judiciary would necessitate an assimilated appreciation of the ways of common law or of so-called natural philosophy.
A philosophy of natural law is a philosophy whose adherents seek to "prove by assumption," usually by citcular contortions of self deception. The idea of "natural citizenship" does not exist as a thing in itself, apart from the imaginations of members of a society. Regardless, a society that has not assimilated a common philosophy of so-called natural law with regard to a so-called natural definition of citizen will not share an idea of a natural citizen. The idea that a person who is born in the land of a nation is a natural citizen of such nation is not necessarily a commonly shared existent in itself. For example, some sub-societies may claim a right to render other persons born in their lands as inchoate citizens (pending satisfactory proof of loyalty and worthiness), subordinate works in progress, servants, quarantines, or even untouchables.
The idea that only a person who is born of parents who are both citizens, in the land of which they are citizens, is a natural born citizen thereof and not an inchoate subordinate, and that a child born elsewhere, as in a land of which his parents are not citizens, cannot be considered a natural born citizen of any land, is ultimately mere artifice. A notion that pagan Nature somehow promulgates "natural born citizens" is an artificial invention, not an existent in itself. It is not an idea to which reasoned judges can make reference without being arbitrary. Especially if there is no clear indication that such idea is commonly shared among the leading and non-despotic lights of a particular nation.
For a nation of citizens to define itself, it needs somehow, in words or in assimilation of practice, to define its citizens. A nation can assimilate a practice for defining its citizens by reference to the despotism of executives, the holdings and diktats of judges, the traditions that have assimilated into common law, and/or the statutory pronouncements of its legislature.
To form a new nation among people who disdain a despotic sovereign, who have not assimilated a clear expression or shared understanding in philosophy, tradition, or common law concerning who should be citizens, such nation, if it is to continue to exist, will need to defer and delegate such determination to its legislature.
At the 1789 founding of the constitutional U.S.A., the new nation of federated states and societies did not share a "natural philosophy" concerning who should be a natural citizen, apart from that of the existing nation, Britain, from which it was then separating.
In main, that mother nation had provided that persons born within its jurisdiction were natural born subject-citizens. That mother nation had also provided that persons born nearly anywhere were its natural born subject-citizens, provided only that their fathers were also citizen-subjects. That is the philosophy, legal tradition, and common law that was implicitly accepted and understood by the participants in the new nation, provided only that the new citizens thus determined would be considered natural born subject-citizens of the new republic, instead of the mother monarchy.
In our case, as the new nation, the USA, evolved, it assimilated a strong belief that fathers should not be favored over mothers with regard to a right to confer a status of natural born citizenship upon offspring. The consequence is that, under modern interpretations of amendments and statutes, begrudgers to the contrary notwithstanding, children born of mother citizens abroad are themselves classed as natural born citizens at birth. And no amount of unreasoning pretense, irrational rationalizing, chauvenism, and begrudging posturing to the contrary will change that one iota.
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Courts have recently declared Cruz to be a natural born citizen and thus eligible. And McCain. And Obama.
As for weakness in their reasoning and case, Birthers are deathly anemic. They bet most of their marbles on an English translation of words out of Vattel's text that do not constitute a fair translation of the original French, that were not translated as such by Vattel himself, that were not put into the 1797 edition until 30 years after Vattel had died, and that did not exist in any translation available to the Founders until more than 10 years after the Constitution had been drafted. Pathetic!
Birthers put this pathetic and monstrous Rube Goldberg apparatus together because some "heroic" lawyers wanted to "save" us from Obama an easy way, without having to defeat him in the electorate. In hindsight, they helped Obama more than Brer Wolf helped Brer Rabbit by throwing him into the briar patch. Now, they continue their berzerkian rampage against even the good guys.
Yes, a person born in the U.S. of parents who were both citizens would be a natural born citizen -- both under Vattel and Blackstone. What Birthers don't get is that, under Blackstone, persons who are made citizens at birth are also natural born citizens. When Birthers say the U.S. did not take most of its common law and ideas about being natural born from Britain as opposed to France, they are in a river of deep ignorance and denial. Judges tend to understand this, which is why not a one has swallowed the birther legal illiteracy.
The real lawyers (the ones whose brains are not short-circuited in birtherism) who say there is an issue about this tend not to do so on the "reasoning" of birthers. Rather, their reasoning tends to relate to whether Cruz, McCain, and Obama would be natural born citizens under Blackstone. Blackstone relied on the citizenship of the father. At the time Ted was born, his mother was an American (birther horse apples to the contrary notwithstanding), but his father was not.
Under British law, that, by itself, would not have made Cruz a natural born citizen. The reason that does not by itself resolve the issue is explained by Michael Ramsey (Birthers never read or understand him, because they want to rave). Ramsey explains that the British saw status for being natural born as being a proper subject for legislation. So, the real question is whether America adopted British common law and practices that would recognize status for being natural born as a proper subject for legislation.
Birthers want to say that a person who was a citizen at birth only by virtue of legislation cannot be considered natural born. However, we inherited most of our common law from Britain, and that IS NOT what Blackstone said! Since the Constitution delegated to Congress the power to establish a uniform rule of naturalization, that power, under our inheritance of legal practice from the British, includes power by legislation to determine status for being natural born.
When most people think about the process of being naturalized, they think about needing to apply to become a citizen AFTER having been born. They don't tend to think of a person who is born a citizen as needing to apply to be naturalized. Rather, he is naturalized a natural born citizen, at birth. Ted Cruz never had to apply to be be naturalized.
The nonsense about having to file a CRBA to become a U.S. citizen is nonsense. (McCain did not file one, either.) Nothing but more horse apples, of which raving birthers never tire of spreading. It's what they live for. The nonsense about McCain being a different kind of case has also been exploded. McCain was a citizen at birth only because of a statute. Like Cruz.
It may help make this clear by understanding that the Revolutionary War was in many respects like our Civil War. We were like the South trying to secede from the North. While the South was thus engaged, it did NOT search out French precedents for its law or Constitution. Rather, it simply adopted most of the U.S. law and precedents, with adjustments to safeguard the institution of slavery. Just so, the colonists, who had applied English common law for centuries, did not suddenly abandon that inheritance. No sane or competent lawyer or judge would argue to the contrary. Birthers, however, will cherry pick hign and low among the fields of dicta and abject idiocy.
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REGARDING ANDREW JACKSON:
I am not entirely satisfied that the legal history with regard to Jackson is clear, other than to say that, whatever the basis for his eligibility to become President, it was not under Vattel. Nor is it entirely clear, without some legal dot-skipping, that he would have been eligible under a grandfather clause.
Andrew Jackson was a natural born British subject-citizen of the Carolina Colony, under British law. Not Vattel. When the U.S. declared Independence, Jackson became a U.S. citizen, based on American practice and precedent. Not Vattel. The end of the Revolutionary War and the Treaty of Paris were not necessary to confer Jackson's status as a U.S. citizen. That status was a product of American practice and precedent, as generally inherited from the British. That effect was eventually recognized by Britain, but that recognition was not a condition to the effect.
The Treaty of Paris that ended the Revolutionary War confirmed most of the Western Land Claims by the U.S., which would have included the lands in Tennessee and Kentucky.
When Jackson emigrated in 1788 from North Carolina to Tennessee, he became a permanent resident and inhabitant of Tennessee. At that time, Tennessee was still territory of North Carolina. Thereafter, in 1792, it was ceded to the U.S. as part of the Southwest Territory and was admitted to the Union in 1796. Similarly, in 1792, Kentucky was ceded by Virginia and became a State of the Union. IAE, in as of 1792, after Jackson had immigrated to Tennessee, neither the lands in Tennessee nor in Kentucky were States.
When Jackson left North Carolina and stayed into 1792, he became no longer a citizen of North Carolina. Instead, he became an inhabitant-resident of Tennessee. Indeed, Jackson served in the administration of the Southwest Territory. Per Wikipedia, members of the territorial House of Representatives (the lower chamber of the legislature) were elected in December 1793, and the first House session convened on February 24, 1794. There was much land speculation, so business for lawyer Jackson was probably very good.
Because Tennessee and Kentucky were then no longer part of any State of the U.S., Jackson would have retained status as a U.S. national, but he would have become no longer a citizen. Rather, he would have become a national-inhabitant.
It remained true that, "once an American, always an American." However, Jackson, by 1792, was an American by nationality, but not by citizenship of any State. This is because he substituted to become a Tennessee inhabitant-national in place of his status as a Carolina-U.S.-citizen. Not long after Jackson emigrated to Tennessee, he would have become a U.S. national instead of a U.S. citizen.
As a U.S. national, he was not precluded from serving in public office, especially for the territories. Jackson's eligibility for such offices was entirely derivative of American law. No reference to Vattel was needed.
Between 1772 and 1789, the "ownership" of Tennessee by North Carolina was tenuous, at best. Thus, basing U.S. citizenship on North Carolina citizenship on account of permanent residence in Tennessee would likewise have been legally tenuous. So, is it clear whether Jackson, by emigrating to Tennessee in 1788, retained U.S. citizenship as opposed to mere status as permanent inhabitor? If Jackson was no longer a citizen of the U.S. as of 1789, then, under Article II, Section 1, Clause 5 of the Constitution, he did not qualify as a citizen of the United States at the time of the Adoption of the Constitution.
Private persons were speculating on buying land from the Indians, and various Whites were trying to set up a separate state of Franklin. IAE, in 1790, Congress passed An Act to Accept a Cession of the Claims of the State of North Carolina to a Certain District of Western Territory. Shortly thereafter, Congress organized the land as "Territory of the United States South of the River Ohio" (the Southwest Territory). The act merged the office of territorial governor with the office of Superintendent of Indian Affairs for the Southern Department. See https://en.wikipedia.org/wiki/Southwest_Territory.
Q: Did the cession of Tennessee convert its inhabitants from citizens of Carolina to mere inhabitants of the Tennessee territory? By taking away status as citizens, did it take away status as persons who could be grandfathered to be eligible to become President? If so, could such status be restored later, by later admitting Tennessee as a State?
In 1789, was Jackson still a citizen of the U.S. at the time the Constitution was adopted? If the land in Tennessee was then considered part of North Carolina as opposed to being a mere territory, then he would still have been a citizen of North Carolina, and thus of the U.S. Otherwise, he would have been only an inhabitant-national. If that were the case, on what basis could his eligibility have been preserved by a grandfather clause regarding persons eligible to become President?
Jackson was a person who had been a natural born citizen-subject of Britain, who, under the Articles of Confederation, became a citizen of North Carolina and thus of the U.S., who, upon permanently moving to Tennessee, eventually quitted his Carolina citizenship and became a Tennessee-inhabitant-national. At the time the Constitution was adopted, was he still a citizen of any State? At that time, was he no longer a citizen of the U.S., but only a national of the U.S.? It appears that Jackon was a citizen of a State at the time the Constitution was drafted, but is it clear whether he was a citizen as of the time it was adopted?
If not, under what theory, then, can Jackson be rationalized to have been eligible to become President? Was he a natural born citizen of Britain whose status for being natural born simply transitioned to status as a natural born citizen of the U.S. upon the switch in sovereignty? Or, since Jackson was a citizen before the Constitution was adopted, did his status "relate back" when Tennessee was later admitted to the Union as a State? Or, is every person who is a national of a territory that is admitted as a State immediately made a citizen of the U.S., whose status, in legal effect, is taken to be equivalent to having been a natural born citizen? Is the answer now in a condition of moot legal limbo?
Regardless, no matter which theory may be applied, none depend on Vattel. Under Vattel, Jackson was not a natural born citizen of the U.S. Under Vattel, at some point after Jackson quitted Carolina, he became no longer a citizen. Under Vattel, when Jackson became a resident of Tennessee, he became a permanent inhabitant of Tennessee. If Jackson was still a citizen of the U.S. at the time the Constitution was adopted, it was not on account of Vattel. However, under British and American practices and precedents, Jackson was originally a citizen of Carolina, became a national of Tennessee, and became eligible to become President. All under American practices and common law. Not under Vattel.
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See Boyd v. Thayer, 143 U.S. 135, at page 163: "All white persons or persons of European descent who were born in any of the colonies, or resided or who had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were by the declaration invested with the privileges of citizenship."
See Kent's Commentaries, Vol. 2, Lecture XXV entitled "On The Rights of Aliens and Natives", sums up the well established principle of law on the subject at page 88: "Natives are all persons born within the jurisdiction of the United States, If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation."
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To be a citizen of a sovereign, there needs to be a nation to be a citizen of. To be a nation, there needs to be a way to draft, invite, and define citizens. To define citizens, a sovereign nation must assume power to accomplish such definition.
A nation can assume power to define citizens by referring such power to the fiat power of executives, to the reasoning power of judges, or to the lawmaking power of legislatures. To refer such power to the fiat of executives would be despotic, and thus inappropriate for a representative republic. To refer such power to a judiciary would be to necessitate as assimilated appreciation of the ways of common law or of so-called natural philosophy.
A philosophy of natural law is a philosophy whose adherents seek to "prove by assumption," usually by citcular contortions of self deception. The idea of "natural citizenship" does not exist as a thing in itself, apart from the imaginations of members of a society. Regardless, a society that has not assimilated a common philosophy of so-called natural law with regard to a so-called natural definition of citizen will not share an idea of a natural citizen. The idea that a person who is born in the land of a nation is a natural citizen of such nation is not necessarily a commonly shared existent in itself. For example, some sub-societies may claim a right to render other persons born in their lands as inchoate citizens (pending satisfactory proof of loyalty and worthiness), subordinate works in progress, servants, quarantines, or even untouchables.
The idea that only a person who is born of parents who are both citizens, in the land of which they are citizens, is a natural born citizen thereof and not an inchoate subordinate, and that a child born elsewhere, as in a land of which his parents are not citizens, cannot be considered a natural born citizen of any land, is ultimately mere artifice. A notion that pagan Nature somehow promulgates "natural born citizens" is an artificial invention, not an existent in itself. It is not an idea to which reasoned judges can make reference without being arbitrary. Especially if there is no clear indication that such idea is commonly shared among the leading and non-despotic lights of a particular nation.
For a nation of citizens to define itself, it needs somehow, in words or in assimilation of practice, to define its citizens. A nation can assimilate a practice for defining its citizens by reference to the despotism of executives, the holdings and diktats of judges, the traditions that have assimilated into common law, and/or the statutory pronouncements of its legislature.
To form a new nation among people who disdain a despotic sovereign, who have not assimilated a clear expression or shared understanding in philosophy, tradition, or common law concerning who should be citizens, such nation, if it is to continue to exist, will need to defer and delegate such determination to its legislature.
At the 1789 founding of the constitutional U.S.A., the new nation of federated states and societies did not share a "natural philosophy" concerning who should be a natural citizen, apart from that of the existing nation, Britain, from which it was then separating.
In main, that mother nation had provided that persons born within its jurisdiction were natural born subject-citizens. That mother nation had also provided that persons born nearly anywhere were its natural born subject-citizens, provided only that their fathers were also citizen-subjects. That is the philosophy, legal tradition, and common law that was implicitly accepted and understood by the participants in the new nation, provided only that the new citizens thus determined would be considered natural born subject-citizens of the new republic, instead of the mother monarchy.
In our case, as the new nation, the USA, evolved, it assimilated a strong belief that fathers should not be favored over mothers with regard to a right to confer a status of natural born citizenship upon offspring. The consequence is that, under modern interpretations of amendments and statutes, begrudgers to the contrary notwithstanding, children born of mother citizens abroad are themselves classed as natural born citizens at birth. And no amount of unreasoning pretense, irrational rationalizing, chauvenism, and begrudging posturing to the contrary will change that one iota.
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Actually, courts HAVE declared Cruz to be a natural born citizen and thus eligible. And McCain. And Obama. I have previously referred to the sources. Anyone can easily find them online.
As for weakness in their reasoning and case, Birthers are deathly anemic. They bet most of their marbles on an English translation of words out of Vattel's text that do not constitute a fair translation of the original French, that were not translated as such by Vattel himself, that were not put into the 1797 edition until 30 years after Vattel had died, and that did not exist in any translation available to the Founders until more than 10 years after the Constitution had been drafted. Pathetic!
Birthers put this pathetic and monstrous Rube Goldberg apparatus together because some "heroic" lawyers wanted to "save" us from Obama an easy way, without having to defeat him in the electorate. In hindsight, they helped Obama more than Brer Wolf helped Brer Rabbit by throwing him into the briar patch. Now, they continue their berzerkian rampage against even the good guys.
Yes, a person born in the U.S. of parents who were both citizens would be a natural born citizen -- both under Vattel and Blackstone. What Birthers don't get is that, under Blackstone, persons who are made citizens at birth are also natural born citizens. When Birthers say the U.S. did not take most of its common law and ideas about being natural born from Britain as opposed to France, they are in a river of deep ignorance and denial. Judges tend to understand this, which is why not a one has swallowed the birther legal illiteracy.
The real lawyers (the ones whose brains are not short-circuited in birtherism) who say there is an issue about this tend not to do so on the "reasoning" of birthers. Rather, their reasoning tends to relate to whether Cruz, McCain, and Obama would be natural born citizens under Blackstone. Blackstone relied on the citizenship of the father. At the time Ted was born, his mother was an American (birther horse apples to the contrary notwithstanding), but his father was not.
Under British law, that, by itself, would not have made Cruz a natural born citizen. The reason that does not by itself resolve the issue is explained by Michael Ramsey (Birthers never read or understand him, because they want to rave). Ramsey explains that the British saw status for being natural born as being a proper subject for legislation. So, the real question is whether America adopted British common law and practices that would recognize status for being natural born as a proper subject for legislation.
Birthers want to say that a person who was a citizen at birth only by virtue of legislation cannot be considered natural born. However, we inherited most of our common law from Britain, and that IS NOT what Blackstone said! Since the Constitution delegated to Congress the power to establish a uniform rule of naturalization, that power, under our inheritance of legal practice from the British, includes power by legislation to determine status for being natural born.
When most people think about the process of being naturalized, they think about needing to apply to become a citizen AFTER having been born. They don't tend to think of a person who is born a citizen as needing to apply to be naturalized. Rather, he is naturalized a natural born citizen, at birth. Ted Cruz never had to apply to be be naturalized.
The nonsense about having to file a CRBA to become a U.S. citizen is nonsense. (McCain did not file one, either.) Nothing but more horse apples, of which raving birthers never tire of spreading. It's what they live for. The nonsense about McCain being a different kind of case has also been exploded. McCain was a citizen at birth only because of a statute. Like Cruz.
It may help make this clear by understanding that the Revolutionary War was in many respects like our Civil War. We were like the South trying to secede from the North. While the South was thus engaged, it did NOT search out French precedents for its law or Constitution. Rather, it simply adopted most of the U.S. law and precedents, with adjustments to safeguard the institution of slavery. Just so, the colonists, who had applied English common law for centuries, did not suddenly abandon that inheritance. No sane or competent lawyer or judge would argue to the contrary. Birthers, however, will cherry pick hign and low among the fields of dicta and abject idiocy.
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As for Jackson, I did answer my own question, thusly: Jackson was a citizen of the North Carolina Colony, by birth, under British law. When the sovereignty switched from Britain to the U.S., so did his citizenship. This is because, under British and American law, "once an Englishman (or American), always and Englishman (or American)".
Vattel does not work like that. Which is why Vattel did not at any time apply to Jackson. Not even in 1788.
As for Buchanan, the ONLY evidence regarding his father is to the effect that he was never naturalized. Now, if you say that is weak, then you are putting the burden of proof and persuasion on those who would disqualify him.
Actually, I agree with that! So I say the burden of proof and persuasion on those who would disqualify Cruz is on them! And (talk about weak!) relying on a reconstructivist translation that was not in print until 10 years after the Constitution was drafted and 30 years after the original author was dead is, well, deathly weak.
As for the 3 Vice Presidents, I notice you skipped right over them. The record regarding Charles Curtis is quite clear. Not much doubt there.
Regarding "my boy": I have always favored Trump. You did not know that? My concern is for Cruz to be mentored -- for after Trump leaves office.
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MISCELLANEOUS NOTES:
Labels aside, it may be worth considering whether the War of Independence was more like a revolution or more like a civil war.
See https://earlyamericanists.com/2014/02/18/was-the-american-revolution-a-civil-war/
The assumptions that underpin that story are worth challenging: that the division between British and American became absolute at the moment of the Declaration, that a new nation was born in that instant, and that the only distinction that mattered was the one between the United States and its enemies. Of course that’s the story early patriot historians told. It was a story that projected backwards the unity and sovereignty they wanted to foster in the new nation. That picture may have looked accurate for Massachusetts, at least until disorder in the western country overtook the state in the 1780s, but on the coast of Rhode Island, in the Hudson Valley and the New Jersey “Neutral Zone”, on the Delmarva peninsula, and all across the South, things were quite different.[2] The Revolution was a story of dissolving sovereignty and contested authority, lawless violence and the search for security. Its true theorist was not John Locke, but Thomas Hobbes.[3]
Once we consider the American Revolution as a civil war, it’s easier to integrate the broader world of violence and division that often gets left out of the Revolutionary narrative: the Regulator movements of South and North Carolina, the march of the Paxton boys, land riots in Maine and New York, separatist movements in Vermont and Franklin, and the rural insurrections that swept the west up to the conquest of the Whiskey Rebels in 1794. As imperial sovereignty broke down, first in the borderlands and then in the heart of the colonies themselves, it left a disparate set of ex-colonists to construct new forms of authority. They did so in overlapping and piecemeal ways, creating struggles in the process that would continue for decades and centuries. New authorities won the allegiance of anxious Americans by offering protection for persons and property: in doing so, they promised to crush Indians and open new land for white ownership; in the south, they fought to restore the slave regime and reverse the effects of the slaves’ own “revolution within a revolution.”[4] Among themselves, they struggled to allocate power—and to locate sovereignty—within the federal union.
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See http://www.differencebetween.com/difference-between-revolution-and-civil-war/:
A civil war is defined as a war that takes place between two organized groups within the same nation state.
....
The most important difference between a revolution and a civil war is that civilians directly revolt against the government in a revolution whereas factions wage a war against each other in a civil war.
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MY OBSERVATIONS:
Of course, the War of Independence involved both civilians (irregulars and Minutemen) and organized troops (regulars). It also involved numerous colonies and states with varying and different interests and objectives. And even with victory in sight, they did not want to form one central nation, but a confederation. Mainly, each State/Colony wanted to be free of rule by the central authorities in England. In that sense, it seems comparable to what the South wanted to accomplish by seceding from the North in the American Civil War. In some ways, it seems apt to compare the War of Independence with the Civil War.
So, imagine if the South had won the Civil War Between the States. Would the South have thrown off all vestiges of legal traditions and common law as inherited from its common situation with the North? No, it would not!
Would the South, overnight, have looked to a new source for defining who should be a citizen or who should be eligible for higher office? Seems unlikely.
Would the South and all its States have applied any law of nations in such a way as to have recognized everyone who had operated within its borders during the Civil War, whether or not in support of the belligerancy, as having some "natural right," merely by lingering in the territory, to be considered as a citizen of the Confederacy? I rather doubt it.
See https://en.wikipedia.org/wiki/Confederate_States_Constitution AND http://avalon.law.yale.edu/19th_century/csa_csapro.asp [regarding the provisional government].
The Confederate Constitution followed the U.S. Constitution for the most part in the main body of the text, with some changes.
Article I [Differences]:
Amended Article I Section 2(1) to prohibit persons "of foreign birth" who were "not a citizen of the Confederate States" from voting "for any officer, civil or political, State or Federal."
NOTE: This did not prevent a foreigner from applying to be naturalized.
[Provisional:] Section 6(4): [The Congress shall have power] To establish a uniform rule of naturalization [See http://avalon.law.yale.edu/19th_century/csa_csapro.asp]
[Permanent:] Section 8(4):To establish uniform laws of naturalization [See http://avalon.law.yale.edu/19th_century/csa_csa.asp]
Article II [Provisional]:
Section 1(3) No person, except a natural born citizen, or a citizen of one of the States of this Confederacy 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 the age of thirty-five years, and been fourteen years a resident of one of the States of this Confederacy.
NOTE: [T]he Confederate State Supreme Courts often used United States Supreme Court precedents. The jurisprudence of the Marshall Court, thus, influenced the interpretation of the Confederate Constitution. The state courts repeatedly upheld robust powers of the Confederate Congress.
CURIOSITY: Would persons who had become mere inhabitants of the South, upon readmission of the Southern States to the Union after the War, automatically become citizens of the U.S.A.? And, would persons (if any) who had by Confederate judicial process been naturalized to become citizens of a (or the) Confederate State(s), upon readmission of the Southern States to the Union after the War, automatically become citizens of the U.S.A.?
NOTE: The following provision appears to have been retained:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise reexamined in any court of the Confederacy than according to the rules of the common law.
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YOU SAY ONLY TWO: By your definition of natural born citizen, we have had only two (non grand-fathered) Presidents who did not qualify, you say? Are you as sure of that as whatever else you say?
You might be thinking of Chester Arthur and Barack Obama. If so, you may be neglecting James Buchanan -- as well as skating past 3 Vice Presidents! Charles Curtis, Hubert Humphrey, and Spiro Agnew. That makes 6 -- who actually held office and whose parents were not both citizens at the time of birth.
If Vattel were considered to have been adopted by the Founders for providing the definition for natural born citizens, exclusive of Blackstone, then all children who became citizens only by virtue of being born in the country would be naturalized, as opposed to natural born. If being without parents who were both citizens and being "naturalized" in that sense were a disqualifier, then all of the following would have been disqualified:
James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio.
Obviously, no sane judge would hold that Vattel's treatise, by its method of defining "naturalization," would operate to have rendered all such candidates and office holders ineligible. That's 6 who held office either as President or as Vice President, and 6 more who have been candidates.
If being a natural born citizen required a candidate to be born in the U.S., then both Ted Cruz and John McCain have been ineligible, and possibly Charles Curtis, George Romney, Lowell Weicker, Barry Goldwater. Given the overlap, that's possibly 5 more. So far, that makes a total of 6 who held office and 11 more who were candidates, totaling 17.
Moreover, if Vattel applied to make a child's citizenship that of his father's, then Andrew Jackson, whose father was Irish, would have lost his status as an inhabitant of North Carolina upon permanently quitting and resettling for Tennessee in 1788. In that case, Jackson would have not been a citizen of a State at the time of the adoption of the Constitution in 1789, and would not seem to have been eligible under the grandfather provision. That makes the total possibly 18. I would say, statistically, that these numbers are "significant."
OBSERVATIONS:
ANDREW JACKSON: It does not appear that Andrew renounced allegiance to Ireland. Did anything in the Articles of Confederation or in the Treaty of Paris provide that denizen-subjects of the U.S. who were citizens of other nations, such as Ireland, should thenceforth be considered as citizens of the U.S.?
If not, under what law would Jackson be considered to have forfeited both English and Irish citizenship in order to become an American by siding (at only 13 years old) with the Revolutionaries?
If English law were thrown off and only Vattel applied, then, under Vattel, Jackson would, by virtue of his father's citizenship, have been an Irish citizen and an inhabitant of North Carolina. However, he ceased being an inhabitant when he moved permanently to Tennessee in 1788, BEFORE the Constitution was adopted in 1789.
So, how was Andrew later eligible to become President? I say he was eligible because he was not a citizen under Vattel. Because Vattel never applied for such purpose in the U.S. Rather, Andrew was a citizen at birth of the North Carolina colony because of legal practices inherited through Blackstone. Under Blackstone, "once an Englishman, always an Englishman." Once the U.S. sovereignty replaced the British sovereignty, the American practice, inherited from the British (not from Vattel) was "once an American, always an American." Thus, Andrew, on moving his habitation to Tennessee, did not lose any rights of nationality or citizenship with respect to the U.S. Thus, because of Blackstone, he was and remained a citizen of the U.S. as of 1789, when the Constitution was adopted. Thus, Andrew remained eligible under the grandfather clause in the Constitution.
JAMES BUCHANAN: James Buchanan's father emigrated from Ireland. The Pennsylvania Constitution, adopted September 28, 1776 provided for naturalization of aliens, meaning that Buchanan, Sr. could have been naturalized. But was he?
Well, regarding the names of persons who took the oath of allegiance to the state of Pennsylvania have been published, [an online researcher] has reviewed Westcott, Thompson. Names Of Persons Who Took The Oath Of Allegiance To The State Of Pennsylvania Between The Years 1777 And 1789 : With A History Of The “Test Laws” Of Pennsylvania. Baltimore, MD, USA: Genealogical Pub. Co., 1965. (reprint). Available through Ancestry.com. No Buchanan’s whatever!"
CHARLES CURTIS: But for legislative action/statute [can a statute make persons eligible?] organizing the territory of Kansas, Curtis' birth outside any state of the union would not have constituted a birth in country. Moreover, he had dual citizenship with the Kaw Indian Reservation, based on his Indian mother and her tribe's matrilineal system.
BARRY GOLDWATER: But for legislative action/statute organizing the territory of Arizona, Barry Goldwater's birth outside any state of the union would not have constituted a birth in country.
HUBERT HUMPHREY: Hubert Humphrey was the son of Ragnild Kristine Sannes (1883–1973), a Norwegian immigrant. (Birthers sometimes skate over this by arguing that not both the parents are really required to have been citizens, but only the father. Problem is, that begs the problem of Barack Obama.)
SPIRO AGNEW: Whether Spiro Agnew's father was naturalized before he was born is a subject of uncertain controversy. (I don't think he was.)
CHARLES EVANS HUGHES: Compare the matter of Charles Evans Hughes: It does not appear that Hughes or Cruz (or McCain), to retain their U.S. citizenship, were required to apply at any time after their births to be naturalized to the U.S. (Moreover, nothing shows a CRBA to have been filed by either McCain or Cruz.)
No one thought in any serious way to raise the issue as to Hughes until after he had been very narrowly defeated by Woodrow Wilson. Even after the concern was raised, Hughes later served, without complaint, in the line of succession as Secretary of State from 1921 to 1925. At that time, under the Presidential Succession Act of 1886, Hughes, as Secretary of State, was in line directly after the Vice President. He also served on the Supreme Court.
SEE:
Hollander v. McCain (New Hampshire 2008) ruling: “Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75 (1898), and thus eligible for the presidency.
Ankeny v. Governor of Indiana (Indiana 2008 – Appellate Court) ruling: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
BIRTHERS BAT 00000:
Based on contested cases in various States, including New Jersey and Pennsylvania, it has already been PROVEN that Cruz is eligible. Likewise for John McCain (http://www.sciforums.com/threads/court-rules-john-mccain-a-natural-born-citizen.87147/). Likewise, courts, such as in Florida, have ruled Obama is a natural born citizen.
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REGARDING JOHN MCCAIN: Special pleading by Birthers notwithstanding, McCain being born on a U.S. base (if he was) has zero to do with any intelligent legal analysis! Like Cruz, if McCain was a citizen at birth, it was only because of a statute. It was not because he was born in the U.S. (because he wasn't), nor because he was (possibly) born on a military base at a foreign location.
See http://voices.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html:
"Contrary to some Internet rumors that McCain was born outside the Canal Zone, in Colon, the document records his birth in the Coco Solo "family hospital.""
"Here is what a State Department manual on U.S. citizenship has to say about children born on U.S. military installations: Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities 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 subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."
(And for the CRBA people:) "Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S. Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a (CRBA) form."
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The Foreign Affairs Manual 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 after birth could become President only if born on a Federal base.
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BTW -- Some people evidently doubt McCain was even born in a military hospital:
Posted by: TheGribbler | May 2, 2008 11:46 AM |
McCain was born in Colon, Panama, on the Atlantic Side of Panama. There was no military or US civilian hospital on the Atlantic at that time he was born. This is the reason there are no Canal Zone Health Department records. He was not born in the Canal Zone. His birth record is right in the Colon Hospital, Panama, records along with every one born on the Atlantic Side of Panama who was living in the Canal Zone at that time. His birth location of Colon is no secret in Panama. In fact, those of us from the Canal Zone are amazed about his "military hospital birth" claim which is pure fiction.
See also http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf, at footnote 1: "1Though Hollander makes this allegation in his complaint, in his objection he states, “[s]ince the hospital at the Coco Solo Naval Air Station did not even exist until 1941 . . . , it is reasonable to assume that [McCain] was born in the city of Colón in the Republic of Panama.” Hollander has also provided a copy of McCain’s birth certificate, which lists his place of birth as Colón. The defendants dispute this theory, but it is irrelevant to the present motion in any event."
ROBINSON V. BOWEN: In Robinson v. Bowen, a federal district court implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
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Based on contested cases in various States, including New Jersey and Pennsylvania, it has already been PROVEN that Cruz is eligible. Likewise for John McCain (http://www.sciforums.com/threads/court-rules-john-mccain-a-natural-born-citizen.87147/). Likewise, courts, such as in Florida, have ruled Obama is a natural born citizen. So, your batting average is ... precisely zero. Nada. Zip. Goose eggs. 000.
I no longer t waste my time trying to prove much to birtherbrains. IAE, all the proof needed is in my previous posts. Do your due diligence. And call on me when you win a case.
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany. Between 1789 and 1868, there was no national definition of "citizen." The only definition would have been under statutes of the states or precedents accepted by the States as handed down from adopted foreign authority. If the adopted authority was that of the French instead of the British, then show me a single case where Vattel was applied to require that a child born in the U.S. between 1789 and 1868 of a foreign father who was French, Irish, or German was ever required, upon reaching age of majority, to apply for, or to obtain, a court order to enjoy all the rights of a U.S. citizen. Comprendes? Show me one.
There are legitimate issues to debate. This is not one. And you are at best a useless distraction. Likely a counterproductive one.
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If Cruz had not stepped into something worse in TPA, Birthers would, by their diversionary and brainless bs, have elected him. Just like they elected Obama.
Mere reason and logic cannot refute or fix Birther brain disease. May they find peace.
EDIT: I just left a post comment at Mary Cummins' blog to ask her the following questions (so far, my request is not published and is unanswered):
(1) Aside from Canadian practices, do you have anything to show that Ted's mother was not born in the U.S. or that she ever gave up her U.S. citizenship in any way that the U.S. recognizes?
(2) At the time Cruz was born, for U.S. purposes, was his mother still recognized as an American citizen, and had she lived in the U.S. for the requisite period to be able to make Ted a U.S. citizen at birth, under U.S. law?
(3) At the time Ted wrote his book, A Time for Truth, did he know that any representations in it about his father were mistaken?
(4) Does Ted's passport indicate he is anything other than an American citizen?
(5) Did his mother ever vote in Canada?
So far, to the best of my understanding, the answers are:
(1) Ted's mother was born an American citizen, and she never gave up such citizenship.
(2) She lived in the U.S. enough years to impart U.S. citizenship status on Ted at his birth, under U.S. law.
(3) I have seen nothing to indicate Ted intentionally misrepresented any facts about his father in his book.
(4) The record is that Ted renounced Canadian dual citizenship. Nothing indicates he has anything other than a U.S. passport.
(5) Nothing indicates his mother ever voted in Canada.
So far, Birtherism continues to consist of a cloud of kicked up, dessicated, cow patties, blowing in the wind. Sick.
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Jackson WAS a citizen at the time, but under precedents derived from Blackstone, not Vattel. Under Vattel, he would not have been a citizen because his father never was a citizen. Under the Constitution, he would not have been a citizen because, at the time of adoption, he was not a citizen of any State. He had taken up permanent abode and work in Tennessee. Some say Thomas Paine had taken up his pen on behalf of the Revolution. However, but for the influence of Ambassador Monroe, Paine would have been kept in prison in France and executed.
At http://www.sparknotes.com/biography/jackson/section2.rhtml, I found this: "Jackson began to travel with American troops and participated in the assault on the small British post of Hanging Rock–an attack that the patriots could have won decisively if they had not stopped to drink captured rum from the post. As Jackson was only thirteen, he worked on the staff of Colonel Davie, the patriots' commander, mostly running errands or delivering messages."
So it appears you are correct [Congrats! You got one!] that Jackson sided as a belligerant against the British. Based on the understanding of Treaty negotiations, that woud be understood from the American point of view as making him a citizen from the time of the Declaration, and from the British point of view as a citizen at least from the time of the treaty ending the war.
See http://www.constitution.org/vattel/vattel_01.htm. According to Chapter 1, Section 2, of Vattel's treatise, "[B]y the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state".
Vattel does NOT provide that every person, member, or national of a society or body politic who subjects himself to the authority [or jurisdiction] of the body is a citizen.
From Chaper 18, Section § 210. Colonies.
When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever, therefore, the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.
[NOTE; THE FOLLOWING WAS NOT AVAILABLE TO THE FOUNDERS UNTIL 1797. IT DOES NOT CONSTITUTE A DIRECT TRANSLATION OF THE ORIGINAL FRENCH, BUT A RECONSTRUCTIVIST TRANSLATION, PERHAPS 30 YEARS AFTER VATTEL HAD DIED.]
From Chapter 19, Section § 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.
§ 213. Inhabitants.
The inhabitants [aliens?], as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.
§ 214. Naturalization.
A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens, — for example, that of holding public offices — and where, consequently, he has the power of granting only an imperfect naturalization. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalize a single person, without the concurrence of the nation, represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
[MY NOTE: If Vattel were considered to have been adopted by the Founders for providing the definition for natural born citizens, exclusive of Blackstone, then all children who became citizens only by virtue of being born in the country would be naturalized, as opposed to natural born. If being "naturalized" in that sense were a disqualifier, then all of the following would have been disqualified: James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio. Obviously, no sane judge would hold that Vattel's treatise, by its method of defining "naturalization," would operate to have rendered all such candidates and office holders ineligible.]
§ 215. Children of citizens born in a foreign country.
It is asked whether the children born of citizens in a foreign country are citizens [of either the land in which they were born or the land of their fathers]? 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. [If a father has acquired a right as a perpetual inhabitant, then so also have his children.]
§ 218. Settlement.
"Settlement is a fixed residence in any place, with an intention of
always staying there. A man does not, then, establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus, the envoy of a foreign prince has not his settlement at the court where he resides.
The natural, or original settlement, is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to choose another. The acquired settlement (adscititium) is that where we settle by our own choice.
[MY NOTE: Jackson left North Carolina and established his permanent residence in Tennessee.]
§ 220. Whether a person may quit his country.
".... 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. But we must here draw a distinction between what may in strict justice be done, and what is honourable and conformable to every duty — in a word, between the internal, and the external obligation. Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them; and this is the case of every citizen, with respect to his country.
§ 224. Emigrants.
"Those who quit their country for any lawful reason, with a design to settle elsewhere, and take their families and property with them, are called emigrants."
Before the time of the adoption of the Constitution, Jackson had emigrated to the Tennessee territory, which was not a State. It does not appear that, as of the time the Constitution was adopted, Jackson was a citizen of any State of the Union.
See Article IV of the Articles of Confederation. It provided: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.
NOTICE: Article IV of the Articles of Confederation did not make the inhabitants "citizens." Rather, it (similar to the Northwest Ordinance, which led to terms for later admission of other states, such as Tennessee) made them entitled to all privileges and immunities of free citizens in the several States. Moreover, it did NOT profess to make inhabitants of the territories, such as Tennessee, into citizens of any State or of the United States. Rather, the people who were citizens were such by virtue of common law, as inherited or modified from Britain, or by virtue of applications for naturalization under such statutes as each State or Territory may have had.
So, the Constitution, by referring to persons who were citizens at the time of its adoption, would not have been referring to persons who were only given rights "as if" they were citizens under the Articles of Confederation. Nor would they have been referring to persons who had quitted their citizenship of a State to take up permanent residence elsewhere.
But, might they have been referring to any persons whose status was determined under the Treaty of Paris?
Well, as a result of the War of Independence and the 1783 Treaty of Paris, an American, to elect to retain British citizenship devoid of American citizenship, would have to leave the new nation. Close upon reaching his age of majority, Jackson did leave. So, did Jackson choose to retain British citizenship, choose to retain U.S. citizenship, or choose to acquire Tennessee citizenship, under the statutes of the new Territory?
Unless something other than Vattel applied, it is not clear to me that Andrew would have retained U.S. citizenship as of the time the Constitution was adopted. What is clear is only that he would have been or become a citizen when Tennessee was admitted to the Union. Which was AFTER the Constitution had been adopted.
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BTW, Andrew's father did NOT side with the Revolution, because he was dead before the Declaration of Independence.
SUMMARY: Jackson became a citizen of the Colony of North Carolina upon his birth there, under English law. Nothing in the Articles of Confederation or the Treaty of Paris would appear to have made him a citizen of the U.S. He became a citizen or permanent inhabitant of Tennessee at about age 22, before the adoption of the Constitution. He would have been or become a citizen of the U.S. when Tennessee was admitted to the Union. In each such case, his citizenship would have been determined not by the Vattel Treatise, but by precedents derived through the common law and the local statutes. IAE, it does NOT appear that he would have qualified either under Vattel or under the grandfather clause of the Constitution. Rather, he would have qualified either because, under the common law, he was a (natural born) citizen of the U.S. at birth ("once an Englishman, always an Englishman, or "once an American, always an American" -- regardless of the status of his parents) and/or because the grandfather clause could be interpreted to make eligible the citizens of States admitted (adopted) after the adoption of the original Constitution.
Since the case is moot, it cannot now be decided, short of revivifying Issac Asimov to divine the psychohistory of it.
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REGARDING CRAP: A boatload of Birther crap has been firmly disproved: That children born in the U.S. of foreign fathers were not citizens at birth under adopted common law; that the Founders and Jay had not previously used the term "natural born citizen"; that Washington relied on Section 212 of Vattel from a book he checked out in the library; that subjects were not citizens; that filing a CRBA is a required step to become a citizen if born abroad; that Cruz forfeited his citizenship by not filing a CRBA; that Cruz carries a double passport; that Cruz is not a citizen; that nearly all previous Presidents, Vice Presidents, and candidates were born in the U.S. of parents who were both citizens; that Cruz' mother gave up her American citizenship; that Cruz or his mother registered to vote in Canada; that there is some distinction that makes a difference in comparing the cases of McCain and Cruz; that precedents disqualify Cruz; that dual allegiance disqualifies Cruz; that Cuban citizenship disqualifes Cruz; that British citizenship disqualifies Cruz; that the words of Section 212 of the Vattel Treatise, at the time of the drafting of the Constitution, fairly said: "The natives, or natural-born citizens, are those born in the country, of parents who are citizens"; and on and on ... with miles and miles of nothing but crap.
The only kernal of truth is that Birthers believe that the Big Lie Technique is perfected by the Birther Big Crap Technique.
BOTTOME LINE:
SHOW ME A SINGLE CASE: If Birthers were correct, that Vattel applies, then show me a case where a child born in America, whose foreign father failed to become naturalized, was required on reaching age of majority to apply to be naturalized in order to be recognized as a citizen of the State of his birth and of any State of the U.S. to which he may thereafter have traveled to reside. If Vattel applied, then his notions about the son's citizenship following that of his father necessarly applied. If Vattel cannot be shown even to have applied for that, then his notions about citizenship applied for nothing in the domestic policies of America.
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany. Between 1789 and 1868, there was no national definition of "citizen." The only definition would have been under statutes of the states or precedents accepted by the States as handed down from adopted foreign authority. If the adopted authority was that of the French instead of the British, then show me a single case where Vattel was applied to require that a child born in the U.S. between 1789 and 1868 of a foreign father who was French, Irish, or German was ever required, upon reaching age of majority, to apply for, or to obtain, a court order to enjoy all the rights of a U.S. citizen. Show me one.
It strains credulity to expect the Founders would have adopted Vattel only to apply to a definition of "natural born citizen" without also applying Vattel for a general definition of "citizen." Moreover, in the absence of statutes controlling to the contrary, the basis for citizens made so by birthright could hardly be anything other than "natural." Especially since the Founders themselves did not define "citizen." So if Vattel applied, then where are the records, letters, recitals, or proofs of applications to be naturalized by adults who had been born in America but whose parents had never timely naturalized while they were children?
Obviously, the Founders took most of their cues concerning domestic applications of common law not from the French, but from the British.
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Our laws did not define "citizen" because our definition was adopted from the practical applications being made by the States, which were adopted by reference to British precedents. Apart from various naturalization statutes as adopted by the colonies (not always with British approval), the way Americans determined citizenship from the time of the first colonies to the time the Constitution was adopted was by reference to such precedents and only such precedents. NOT by reference to Vattel.
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship: Colonial Naturalization (Pre-1790): "British immigrants were automatically citizens of the colonies (British Empire). Seven of the original colonies had their own laws for naturalizing foreigners as citizens of the British Empire colony. After the Revolutionary War, the individual states established their own naturalization laws and procedures."
In 1868, the 14th Amendment added in part to the definiton of citizen by providing that certain persons born in the U.S. were citizens.
As to the definition of "natural born," Congress, under its authority to establish a uniform rule of naturalization, in 1790 passed its immigration statute, which gave a sense of what Congress then thought should be the meaning of "natural born." A good number of the persons responsible for passing that statute had been among the Founders.
For the 1790 NATURALIZATION STATUTE, see http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html:
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. 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 [my comment: who were not born citizens] whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed."
BIRTHERS sometimes want to interpret this statute as providing that children born in the U.S. of alien fathers would not become U.S. citizens unless and until their fathers completed the process of being naturalized.
However, the Statute DOES NOT say that. Rather, the immigration act of 1790 pertains to the naturalization of qualifying ALIENS and their alien children. The second to last proviso pertains to the clauses above it, which pertain to aliens -- not to persons born in the U.S. who were citizens at birth under established common law. The proviso does notby its terms pertain to non-alien persons born in the U.S. in order to overrule established common law. Despite sometimes confused claims by Birthers, the provision does NOT say that non-aliens born in the U.S. -- whether or not of alien parents -- are not U.S. citizens.
What the proviso does establish is that otherwise alien children born beyond the limits of the U.S., of U.S. citizens, shall themselves be "considered as" natural born citizens. Thereafter, the 1795 Act, which replaced the 1790 Act, also provided that the (statutory) right of citizenship shall not descend to persons whose fathers have never been resident in the U.S.
However, these acts pertained to the naturalization of ALIENS, after their births -- not to persons recognized by longstanding common law and practices as having become citizens at the same time as their births. These Acts did NOT, in themselves, deny the citizenship of persons who were citizens at birth by virtue of having been born in the U.S. Neither did these statutes require that children born in the U.S. of foreign fathers must ever thereafter be naturalized in order to assert their citizenship -- provided only that they did not act to expatriate themselves or, by any subsequent act or failure, forfeit their claim ofr citizenship.
So, the early immigration statutes did not clearly or unambiguously remove the birthright claim of a person born in the U.S. to citizenship. And that birthright claim had long been the practice under previous law as inherited from the British. Under the common law precedents as inherited from the British, with which the Founders were familiar, persons made citizens at birth by statute WERE "natural born." See the analysis by Michael Ramsey, as previously referenced.
Moreover, Vattel died some 30 years before the 1797 edition, which was not published until 10 years after the Constitution had been adopted. The version Washington checked out of the New York library in 1789 was checked out AFTER the Constitution had been drafted and ratified, and IT DID NOT CONTAIN THE WORDS to which you refer. (The book Washington checked out was returned 221 years later. http://www.reuters.com/article/us-library-washington-idUSTRE64J4EG20100520. )
Vattel was simply not alive when the translation was made to which you want to refer. Nor was that translation available to the Founders. Nor is that translation a faithful one-on-one translation of the original French. Rather, it is a reconstructivist translation that was obviously affected by world events after the original treatise. Those events included the Declaration of Independence, the drafting of the American Constitution, the drafting of the Rights of Man, the French Revolution, and the rise of the Napoleonic Empire.
So, the reconstructivist edition of 1797, which was NOT written by Vattel, constitutes a very big stretch, I would say. No sane judge would ever agree to stretch the original intentions of the Founders and Ratifiers to encompass such a reconstructivist ex post facto imputation of original intent. Only a psychohistorian, like Issac Asimov, could attempt such a psi thing. At best, judges might refrain from guffawing and calling the Birther Reconstructivism a giant load of horse apples.
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NOTE TAKING ISSUE WITH EGGHEADED PHILOSOPHERS OF "NATURAL LAW": Whatever the translation of Vattel, the "law of nations" has been considerably altered over time by a mix of provisions, as previously explained. Indeed, nothing about nature requires the existence of any nation, any definition of nation, any concept of citizen, any concept of a natural born citizen, or any manmade notion of natural law for civilization as opposed to artificial law for civilization. The idea that some unchanging Natural Law (promulgated by Gaia?) somehow provides an unchanging definition of natural citizen is pure bonkers. Sounds like something Hegel or Marx would try to cook up.
Simply put, it is bonkers to presume the determination of who is a citizen by birthright or a natural citizen by birthright has remained unchanged. That is obviously not the case, because nothing precludes a modern nation from providing that not even persons born in country of citizen parents shall fully qualify as citizens unless and until they meet whatever requisites the nation may choose to require. For example, If an unmarried Japanese father and non-Japanese mother have a child in Japan, the child will not acquire citizenship of any kind (not even "natural born citizenship") unless the parents marry before the child reaches the age of 20 and the Japanese father acknowledges paternity. IOW, even though born in Japan and of a Japanese father, such a child would not be a citizen at birth, notwithstanding bonker notions of "common natural law among nations."
Whatever the changing presumptions about "law of nations," the fact is that they change as man, man's interests and technologies, and man's nations and concerts of nations change. This is why the British, and our Founders, were wise to make the definition of a "natural born citizen" subject to modification via statutes, under power delegated to Parliament or Congress.
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You can continue to hide from the facts, but you cannot change them. Jackson's father was dead before the Declaration of Independence. So he could not have been naturalized by the Declaration. Had Vattel applied (which it did not), the citizenship of Andrew's mother could not have mattered. Moreover, Jackson was too young to have "sided" with the Revolution, or to have been deemed a citizen on account of any such siding.
The Constitution 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."
The Constitution was not adopted until 1789. By that time, Andrew had moved to Tennessee.
In practical sense, citizenship at the time may have been determined by precedents borrowed from the British, formal application to a court, or practical residency by free persons. (I agree that it was never determined by Vattel.) I cannot prove a negative except by reference to lack of proof. There is a lack of any documentation that Andrew ever applied to be naturalized to become a citizen of any State.
I agree that Andrew had become a citizen of North Carolina, but that was because of British and American common law -- NOT because of Vattel. Regardless, before the Constitution was adopted, Andrew had permanently moved his residence and place of work to Tennessee. At the time of the adoption of the Constitution, he was a citizen of the territory of Tennessee -- NOT North Carolina. There was no definition of U.S. citizenship at the time, except by reference to state citizenship. You must have missed where I explained this before, by reference to the Articles of Confederation.
Since the States of the U.S. had adopted British precedent for determining citizenship, that precedent is the only source to which the Founders could have been making reference, when they referred to persons who were already citizens. The Founders did NOT say, "Let us go back to the States and require of them that they recognize as citizens only such persons as would have been citizens under Vattel's treatise."
For determining who was a citizen "at the time of the Adoption of this Constitution," the Founders could not have been referring to anything other than the common law in the States, as inherited from the British. Not to Vattel. Since it is clear that the Founders, for determining citizenship, looked to the common law (derived down through Blackstone), there is no reason to suppose they would have looked to Vattel for determining "natural born" citizenship. Especially since British precedents with which they were familiar specifically dealt with issues relating both to citizenship and to being natural born.
At the time of the adoption of the Constitution, Andrew was not a citizen of any State nor a citizen of the U.S. At most, he was, in practical effect, a citizen of Tennessee -- which was not then a State. Likewise, any free men who may thereafter have come from Ireland or Germany to settle directly in Tennessee, before it was admitted as a State to the Union, would not have been considered citizens of the U.S. Thus, the dots in your "logic" are overstretched and simply do not connect.
Regardless, the logic of my position with regard to Charles Evans Hughes stands. As does the logic of my position with regard to this: For determining who was a citizen "at the time of the Adoption of this Constitution," the Founders could not have been referring to anything other than the common law in the States, as inherited from the British. Moreover, among the millions of free immigrants between 1789 and 1868 who did not naturalize but had children in the U.S., there is no evidence that any such children ever found it necessary to apply to be naturalized. That is because they were (natural born) citizens at birth. Had they not been natural born citizens at birth, and had Vattel applied, then the citizenship of their children (and their children, and so on) would have remained that of their fathers -- unless and until they applied to be naturalized. That simply was never the case. Because Vattel did NOT apply.
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To say citizens are the members of a civil society is not to define, but to state a circularity. So who are the members of a civil society? Well, they are who the society says they are. That necessitates that the civil society define who its members are. But the Constitution does not do that. It punts to say the members (citizens) are those who were citizens of the States as of the time of the adoption of the charter for governing the society. So then, look to the Articles of Confederation to define who were its citizens. But it also provides no such definition. Rather, it only refers to free inhabitants and says they have rights "as if" citizens. So then, look to the States and what do you find? Well, you find provisions for applying to be naturalized. But the grounds for being naturalized appear to be much the same as those inherited from Britain.
So you are back to your beginning point. To be a natural born citizen, you must also be a citizen. To decide who is a citizen, you look to provisions inherited from the British. In adopting the British provisions for defining a citizen, why should anyone propose other than also to adopt the British practices for defining a natural born citizen? Especially since the words "natural born citizen" do not even appear in any translation of Vattel until 1797, at a time when Vattel had been dead for nearly 30 years! And even that is a reconstructivist translation that is not true to the original French. Why such a stretch? (Note: Washington checked a previous copy out from a library, AFTER the Constitution had been drafted and ratified!)
I will tell you why. Because anti-Obama people sought an easy way to defeat Obama. They failed, but they constructed such an ungainly Rube Goldberg albatross that they feel they must use it for something. So they devote their lives to it, and use Cruz as the flame to which their moths must attract themselves.
NOTE: More than a decade before John Jay had employed the term in his “hint” to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered “natural-born subjects within the realms of England.”
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The United States existed under the Articles of Confederation shortly after 1776 and before ratification of the new Constitution of 1787, which was not ratified by North Carolina until 1788. During that time, there were persons who were born in the united territory of parents who were in a condition of belligerance (i.e., non-agreement as to status of allegiance). To say that Andrew Jackson agreed, or had capacity to agree, to be belligerant to Britain and allegiant to the U.S., from which he departed before he was 22, is to take an unsupported leap of faith. By his actions, as an adult, in leaving the organized U.S. before the new Constitution was even ratified and in striking out for Tennessee, there is little to support that Jackson chose to become a U.S. citizen or that the U.S. then chose to make him a citizen. The grandfather clause makes eligible all who were citizens of the U.S. as of the time the Constitution was adopted. As of the time the Constitution was adopted, Jackson had chosen to become a Tennessean. As a result of the end of the War and the 1783 Treaty of Paris, an American, to elect to retain British citizenship devoid of American citizenship, would have to leave the new nation. Close upon reaching his age of majority, Jackson did leave.
Depending on point of view and time of recognition, belligerants in the united territory may have been thought of as having become citizens of the new nation. Depending on point of view, the new nation may have existed from the time of the Declaration of independence, from the time of the treaty ending the Revolution, or from the time of the adoption of the new Constitution.
From the U.S. point of view, belligerants on behalf of the new nation would have become citizens as of the time of belligerance. Did Jackson ever qualify as a belligerant on behalf of the new nation?
From the British point of view, the belligerants would have become citizens from the time of treaty ending the Revolution. Even then, the British did not recognize any who were born of parents who had been British as being under any claim of citizenship superior to being British. Once an Englishman, always an Englishman.
To say that there would have been common or uniform understanding of their status of citizenship during the time of belligerance and before the new Constitution was adopted is to grossly blunder.
You can say whatever you like, but you are not entitled to your own facts. Simply put, the known facts do NOT show that Jackson ever renounced either Irish or British status. What the facts do show is that he left the United States before it became a nation under the Constitution of 1787.
So, if Jackson at one time were a British citizen, where is the evidence that he renounced it and elected to become an American citizen as of before 1789? And, if you concede Jackson was a British citizen at birth, under British precedent, then why not concede he was a natural born British subject-citizen at birth, under British precedent? Why recognize British precedent for making him British, but not recognize British precedent for making him natural born? And if you do recognize the adoption of British precedent for making him a natural born citizen of Britain, then what is the need for bringing Vattel into the matter?
Refer to Article IV of the Articles of Confederation. It provided: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted [MY NOTE: Was Andrew, who was soon an orphan, a pauper or vagabond?], shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.
NOTICE: Article IV did not precisely make the inhabitants citizens. Rather, it (similar to the Northwest Ordinance, which led to terms for later admission of other states, such as Tennessee) made them
entitled to all privileges and immunities of free citizens in the several States. So, if Jackson ever became a citizen of the U.S. as of before the time of ratification of the Constitution of 1789, it was NOT because of the Articles of Confederation.
Even if Britain were considered to have accepted an election by Jackson to no longer be a British citizen-subject, where is the evidence that Jackson ever acted to apply for or accept citizenship as an American? Mere habitation as an orphan did not, under the Articles of Confederation, make him a citizen. It only gave him certain rights as if he were a citizen. And Jackson departed the nation before the Constitution was adopted.
So when then did Jackson first become a U.S. citizen? The facts do not clearly show, until Tennessee was accepted into the Union. (Actually, even the admission of Tennessee as a State was effective to admit its free white inhabitants as citizens of the U.S. only because of common practice and interpretation, i.e., common law, the basics of which had been inherited from Britain. Not statute, not law of nations, not formal application. No language in the Act of admission made all the inhabitants citizens. This is because the idea of being a citizen of the U.S. was at the time derivative of being a citizen of Tennessee. Was there any Act or statute in Tennessee, itself, that made its free white inhabitants "citizens" of the territory of Tennessee? That seems doubtful.)
Regardless, that would not grandfather Jackson to make him eligible, unless the grandfather clause were given "retroactive effect going forward to the time of admission of future States."
So if and when Jackson became a citizen of the U.S., it was not because of the Law of Nations, the Articles of Confederation, the Treaty of Paris, the Constitution of 1789, or any formal application. Rather, it was because of practices at the time that led to caselaw interpretations and common law precedents, the basics of which had been inherited through the British.
When Jackson became eligible, it was on a basis other than having been born of an American father or having been a citizen of the U.S. as of 1789. That is, either Jackson had become a natural born citizen of the sovereignty over the land by virtue of having been born in the territory, or else the grandfather clause must have had capacity to apply to future State admissions.
Of course, IF Jackson were a natural born citizen of the united and sovereign territory by virtue of his birth in it, then so also were Washington through John Quincy -- without need of the grandfather clause. If so, among the few (who may have needed the grandfather clause had they run for the Presidency) would have been Hamilton, Von Steuben, Lafayette, and Thomas Paine.
Thomas Paine, "citizen of the world," was freed from a French prison because of the exertions of Ambassador Monroe in claiming him as an American citizen. However, no court, statute, or precedent made him a citizen, even though he lingered for a time in the U.S. until 1787, after the conclusion of the Treaty of Paris. Certainly, Paine (and Hamilton, Von Steuben, and Lafayette) was not a citizen at birth. Hamilton was a British subject who emigrated from the West Indies and remained in the U.S. after the Revolution and the drafting of the Constitution. He may be considered to have been a belligerant who chose to become an American. Nothing indicates that he was ever required to make a formal written application to become a citizen. Thus, Hamilton was considered to have become an American who would have been eligible under the grandfather clause. However, Washington through John Quincy were actually born in the united territory, and their birthright citizenship was transitioned from one sovereign over the territory to another. IAE, even if they may not have been considered as citizens born of the territory, each of them was a citizen whose eligibility was grandfathered.
Regardless, the point is clarified in the case of Charles Evans Hughes. He was born in 1862, before the 14th Amendment. He was obviously a citizen of the U.S.from birth. But what made him a citizen? It was not his father's citizenship. It was not a statute, because no statute had been found necessary to make free persons born in the U.S. into citizens. Hughes had not been naturalized. There being no Act that made him a citizen, he was a citizen before the passage of the 14th Amendment only because of common law. However, if Vattel's idea of natural law had applied, Hughes, until the passage of the 14th Amendment in 1868, would not have been a citizen of the U.S. because his status would have followed that of his non-naturalized father.
The U.S., in practice, recognized the English precedent (Blackstone, not Vattel), whereby Hughes was a citizen of the U.S. sovereignty because he was a free person who was born in its jurisdiction. (The effect of the 14th Amendment was to extend such birthright citizenship to persons of color who had not been born free.) Moreover, among the millions of immigrants who did not naturalize but had children in the U.S., there is no evidence that any such children ever found it necessary to apply to be naturalized. That is because they were (natural born) citizens at birth.
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HAMILTON: Before 1776, all the British Colonies were non-American crown colonies. Like the other Founders, Hamilton was a British subject, even though he emigrated from the West Indies to what was later to become the United States. He remained in the U.S. after the Revolution and the drafting of the Constitution. Like the other Founders, he became a belligerant who chose to become an American. Like Washington and Jackson, nothing indicates he was ever required to make a formal written application to become a citizen of a State or of the United States. Under the grandfather clause for presidential eligibility, as a citizen before the drafting of the Constitution, Hamilton was as eligible an American as Washington and Jackson --- regardless of the place of birth of his parents.
JACKSON: Andrew Jackson's parents were not British, nor were they born in the colonies. His father died before he was born. His parents immigrated. They were Irish; they were not British subjects. Andrew was born in the colonies. So, if Blackstone applied, Andrew was a British subject. But, if Vattel applied, Andrew's status followed that of his Irish father.
Did Andrew "take a side" during the Revolution? He was too young to be a soldier. He was not of the age of majority, and both his parents died before he reached such age. Still, he did serve with Irregulars.
Andrew was born in 1767 and moved to Tennessee in 1788, when he would have been 20 or 21. North Carolina did not ratify the Constitution until 1789. Andrew had migrated to Tennessee before any grandfather provision could have made him eligible, as a citizen of North Carolina. Tennessee was not then a State. So Andrew could not have chosen to become a U.S. citizen before he changed his status by emigrating to Tennessee. (Has anyone shown any application by Jackson at any time to have been naturalized?)
It is not clearly shown that, as of the time the Constitution was adopted, that Andrew was or remained a U.S. citizen. Nothing shows that he had become a U.S. citizen in order for the grandfather provision to have applied.
So, if Blackstone did not apply, and if Andrew did not acquire citizenship status before the Constitution was ratified, how then did he become an eligible citizen under any grandfather provision? Did the Colonies apply Blackstone to make Andrew a natural citizen before the Revolution, and then switch from Blackstone to Vattel after the Revolution? If the Colonies already knew under Blackstone how to make a person a natural citizen, why should anyone suppose they would need to switch to Vattel to do the same thing, without expressly telling anyone?
HUGHES: Regardless, the case of Charles Evans Hughes disproves any application of Vattel to the issues of citizenship and natural born citizenship because it shows, in contradiction to Vattel, that one indeed could become a citizen of the U.S. at birth -- without having naturalized and without having been born of an American father.
EXACT DEFINITION: There is no "exact" (nor encompassing, exhaustive, closed, or clear) definition of "natural born citizen." Vattel only indicates that a person born in the U.S. of an American father would be considered by those nations that ascribed to certain provisions in his treatise to be naturals or indigènes.
NOTE: Vattel as of 1787 does NOT indicate that such a child would be a "natural born citizen." Even ten years later, after a re-constructivist translation, Vattel does NOT indicate that only those children who are born in America of American parents would be considered to be natural born citizens of America. Indeed, Vattel does not even say that a child born in America of a French father would not be considered to be a natural born citizen of France. Certainly, Vattel does NOT say that natural law precludes another nation, such as Britain or the U.S., from providing for a different understanding of natural born citizen. (Were there even "citizens" in France who could be considered to be natural born? Or were there only rulers and subjects? Was Vattel writing a treatise about natural law of nations, or a treatise about imagined laws of imagined nations with imagined citizens?)
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To define natural born citizen, you need a definition of citizen. So, to what did the Founders look to determine who was a citizen? In the absence of legislation, they would have looked to common law. So what did the common law say about who was a citizen? In the case of the British (Blackstone), a child born of a British father, wherever born, would typically be born a citizen of Britain. That is, he was a "natural born citizen." Moreover, a child born in Britain or in a land under the jurisdiction of Britain would likewise be born a citizen of Britain (i.e., a natural born citizen).
If the U.S. inherited common law from the British and merely substituted its sovereignty for that of Britain's, then a (free) child -- whether born in the U.S. or of a U.S. father -- would be born a U.S. citizen. That is, a natural born citizen of the U.S.
However, in the case of the French (Vattel), a child born of a French father and away from France (for example in the U.S.) would by the French be considered as neither a U.S. citizen nor a natural born U.S. citizen. Rather, they would consider him to be a French citizen. That is, from the French (Vattel) point of view, he would NOT be a U.S. citizen.
IOW, a child born in the U.S. of a French father would, if the U.S. applied Vattel, not be a citizen of the U.S. at all. Rather, if the U.S. applied Vattel, such a child would be only a French citizen because his status or citizenship would follow that of his father. Under the Constitution as drafted in 1787, he would be neither a citizen of the U.S. nor a natural born citizen of the U.S.
IOW, if Vattel applied (and no other precedent or law applied to the contrary), then every child born before 1868, in his relation to the U.S., would be either a natural born citizen of the U.S. or he would likely not be any kind of citizen of the U.S. at all.
Under British precedents, it is the plain fact that the definition of a natural born citizen certainly WAS open (not closed) to expansion by legislation.
EVEN FOR VATTEL, there was no uniform definition of natural born (citizen). There was a uniform (partial) definition for the French, and there was a uniform (partial) definition for the British, but those definitions between the two of them were not exhaustive of the class, nor were they the same or uniform. To claim, in 1787, there was some exhaustive, uniform, and consistent international understanding of birthright citizenship among all the nations and personages is to be sadly misinformed.
See the New York Court of Chancery case of Lynch v. Clarke, decided in 1844, long before the passage of the 14th Amendment in 1868. http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"The peculiar nature of the [Lynch] case meant that she must either have been a natural born citizen [of the U.S.] because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
[MY NOTE: Because Vattel does not apply as Birthers say, Julia Lynch, a citizen at birth, was determined to be a natural born citizen of the U.S. -- even though her father was not an American. Similarly, Ted Cruz , a citizen at birth, is a natural born citizen of the U.S. -- even though he was not born in the U.S. Because Ted Cruz was not born in the U.S., for him to be a citizen at all, he must have been (naturally) born a citizen at birth, because of his parentage, or else he was no kind of citizen at all.]
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215 [of Vattel], we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ”whether 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.”
[VATTEL:] ”By the [so called] law of nature [MY NOTE: As understood by Vattel, but not by Blackstone (under Blackstone, the children born in Britain of a foreign father would be considered by Britain to be British, and the nation of their fathers would NOT be considered to have a superior claim], children follow the condition of the father; the place of birth produces no change in this particular.” “ But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason."
We inherited our understanding of natural born citizen from the British idea of a natural born subject. See United States v. Rhodes, 27 Fed. Cas. 785 (1866 (before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act):
'The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26."
"[A]s stated by Supreme Court Justice Noah Haynes Swayne:
"All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution."
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COMMENT: Under Vattel, absent an Act providing for naturalization, the only person who might be an American citizen without being a natural born citizen of America would be a child who was born abroad of an American father.
However, Vattel is unclear or ambiguous regarding whether such a child would also be a natural born citizen (even though born abroad), a mere citizen, a mere inhabitant, or of some inchoate or nebulous category (depending on whether or when his father may ultimately decide to make a permanent abode). In effect, Vattel said a person born in country of an American father would be a native or aborigine. He did NOT say that a child born abroad of an American father would not be a natural born citizen of America (because Vattel did not use such terminology). Vattel did NOT say that a child could be an American citizen at birth because of having an American father without also being a natural born citizen. Vattel did NOT say that a child born in America of a French father would not be a natural born citizen of France. By definition, such a child would not be an aborigine of France, but nothing in Vattel says such a child would not be a natural born citizen of France. (Note: Napoleon himself was not born in France proper, but in Corsica. Insofar as everyone in France except the King or Emperor was a subject, how can anyone presume there was some consistent international understanding under "natural law" with regard to who would be a citizen of any kind, whether natural or otherwise?)
If the father died before the child reached age of majority and the country had no Act for becoming naturalized, then Vattel's "natural law" would have little to say.
The British, however, and the Americans who inherited from them, were more practical in providing precedents and statutes for such eventualities. It is clear that the Americans adopted and modified their ideas concerning a bill of rights, natural citizenship, and natural born citizenship from their experience with the British.
Ted Cruz is a citizen at birth. That is, a natural born citizen under our precedents as inherited and modified from the British. And that is what is required to be President.
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See William Blackstone, Commentaries 1: 354 361–62:
[Based on British STATUTES:] “Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it…all children, born out of the king’s ligeance [i.e on foreign soil], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."
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If you think every nation avails equal dignity to all laws of every other nation, it is you who are the idiot. Ideas always exist in potential. It is in the manifestation and recognition that they often fail. Your notion that the Founders adopted Vattel for defining who would be a citizen in the absence of British precedents or legislation by Congress is the Big Fail.
Moreove, an application shows The Fail, ab initio: Given there was no written U.S. definition of "citizen" in the Constitution, and given Congress did not act to provide one until 1868 (14th Amendment), what was the source for determining who would naturally be citizens, absent affirmative definition by the Sovereign? Well, there were perhaps two sources: British precedent (Blackstone) and Continental law (Vattel).
However, if Vattel applied, then Jackson could not have been a citizen of any kind, whether before or after the Revolution, because his father was neither a citizen of Britain nor of the U.S. IOW, if Jackson was a citizen under the grandfather provision, it was not because of any written definition under U.S. law nor under any definition provided by Vattel (so-called "natural law").
Therefore, it is obvious: Vattel did not apply. On the same reasoning with regard to Charles Evan Hughes, Vattel could not have applied. What then does that leave? Well, it leaves only British common law, as adopted and extended by the U.S.
BTW, can you not remember that the Constitution was drafted in 1787, not 1775? In 1775, the Founders were working on international concerns with regard to the Declaration of Independence. Not the Constitution. Lol. Then, when the Founders did work on the Constitution in 1787, the words you want to quote were nowhere to be found in Vattel. So your argument makes less sense than Joseph Smith operating with a seer stone.
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For the Constitution to have closed the definition of the kind of citizen who could qualify as a natural born citizen and become President, the Founders would first have needed either to define "citizen" or to adopt a source for defining citizen.
I do not find anything in the Constitution to affirm that the Founders adopted or incorporated any part of Vattel for any such purpose. (Or, if you say they did, then what other provisions of Vattel do you say the Founders adopted in such a way that Congress cannot alter them?) The Founders did not write the Constitution as some pristine work of art to be worshipped from afar. They wrote it to provide a framework for the growth of a hardy, industrious, and expanding people. At the time, America was much more like the expanding British (who had their own Bill of Rights) than like the French.
It is obvious the Founders did not close the definition, either of citizen or of natural born citizen. (If you say Vattel defined "natural born citizen," then who or what, apart from British precedents as later modified by U.S. applications and statutes, defined "citizen"?) Instead, like the British, the Founders considered the definition of a natural citizen to be a matter of naturalization -- the uniform ruling of which they delegated to Congress.
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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." Dred Scott did not recognize everyone who was merely an INHABITANT as being made a citizen by either the Declaration or the Constitution.
The U.S. Supreme Court in the dissenting opinion of J. Curtis (which should be read in combination with the dissenting opinion of J. McLean for a better understanding of the issues in the case) in Dred Scott v. Sandford, 60 U. S. 576 (1856):
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. [MY NOTE: This analysis by the dissent is not inconsistent with the notion of Cruz, having acquired citizenship at the time of BIRTH, may qualify as a natural born citizen.] Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. [MY NOTE: This analysis by the dissent does NOT preclude Congress from referring citizenship at birth to more than merely the place of birth.] At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects. [MY NOTE: This analysis is INCONSISTENT with the idea that persons of potentially dual loyalty would be without power or right to prefer either the U.S. or Britain over the other. IAE, this analysis does not make every inhabitant of the U.S. during the Revolution into a citizen of the U.S. IOW, if Vattel applied, this analysis did NOT make Andrew Jackson a citizen -- unless he were made so by the manner of the adoption by the U.S. and/or its States of British precedents. IAE, if this analysis indicates that persons born in the U.S. became on that account citizens of the U.S., without regard to the citizenship of their fathers, then it is DIRECTLY IN CONTRADICTION to Vattel.]
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Regarding Sosa v. Alvarez-Machain, 542 US 692 -- Supreme Court 2004: I would point out an obvious necessity: That international Law is a loose and evolving construct, formed out of a mesh of written treaties and precedents, so that is is not necessarily, reliably, or well suited or applied in the same way in every nation or forum.
When you say the law of nations applies, I agree. It applies in potentiality and as an evolving construct. I do not agree that it applies as "the" law, frozen in time. I do not agree that mere reference to such an evolving construct as "the law of nations" can provide a reliable or closed definition for such a sensitive idea as citizenship. Moreover, as an evolving construct, such law could not be feasible for strictly defining or limiting the idea of a natural born citizen.
Do you mean the law of nations for 1787 for defining such term, the law of nations for 2015 for defining such term, or some loose notion under UN or international law? But why would the Founders employ such a nebulous and evolving idea for the purpose of constricting the power of Congress or the U.S.?
Sosa concerned the Alien Tort Statute. It had to do with jurisdictional authority, not with substantive liability.
See https://en.wikipedia.org/wiki/Sosa_v._Alvarez-Machain:
"Given the shift in American jurisprudence away from natural law, the law of nations (from the U.S. standpoint) now consists of: mutual obligations that nations have traditionally observed in conduct with one another; "arbitrary law of nations," or norms that nations have voluntarily agreed to either explicitly (e.g., via treaties) or implicitly (e.g., via customary practice); and jus cogens."
"On the Alien Tort Statute claim, the Court unanimously ruled that the ATS did not create a separate ground of suit for violations of the law of nations. Instead, it was intended only to give courts jurisdiction over those violations accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms (piracy, ambassadors, and safe conduct). Because Alvarez-Machain's claim did not fall into one of these traditional categories, it was not permitted by the ATS."
MY NOTE: The bottom line was that Sosa declined to permit suit under the Alien Tort Statute because the claim did not pertain to piracy, ambassadors, or safe conduct, i.e., traditional matters of concern under the law of nations. For the U.S. to decide whether to recognize a person as a cititen or a natural born citizen does NOT qualify as a matter for which the U.S. should defer to any other nation. To argue to the contrary would simply be daft!
You're really working hard to scrape the bottom of the barrel by basing your argument on such cases.
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The Constitution "required" for the nation that an eligible citizen have resided in a State. But the Constitution did NOT require that the U.S. could not expand its territory to encompass additional States. Similarly, the Constitution required that a President have been a natural born citizen, but, in empowering Congress to establish a uniform rule of naturalization, it did not require that Congress could not provide that a child born of an American mother would thus be naturally, without further application, a citizen at birth. All babbling to the contrary notwithstanding.
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The U.S. did not agree that the British should be able to impress ANY American citizen who renounced loyalty to Britain -- REGARDLESS of whether Britain wanted by legislation to pretend a superior claim.
There is a difference between legislation that allows one to claim natural born citizenship rights at birth versus legislation that presumes to FORCE one to remain a citizen even after allegiance-in-fact has changed. The U.S. could not force Britain to stop enacting or enforcing chauvenistic laws. But the U.S. could increase precautions to reduce the chance that they would be applied. Once Americans renounced allegiance, the U.S. did NOT feel British impressment was legitimate.
THAT was the reason for the War of 1812. The reason the U.S. would have avoided using some sailors who were of British ancestry would have been less because the U.S. felt British claims were legitimate than because the U.S. felt such claims were illigitimate once allegiance had changed. Especially given the Revolutionary War.
Again, the U.S. cannot unilaterally preclude another nation from enacting laws that conflict with ours. To try to do so would be to seek some kind of non-existent "natural unicorn law" that unicornists believe should apply "naturally" to all nations in all cases. However, the U.S. has never been so silly as to want to be a land enthralled to unicorn theorists. Or to try to force square pegs in round holes. *No doubt, to the end of time, Birthers will still be trying to square the circle in reference to some unicorn idea of "natural law."
There abides a Source of right and wrong. But it is in the Consciousness of the Godhead. NOT in any unchanging pagan idea of "natural law." That there abides right and wrong is unchanging. But how it relates entails a feedback relationship with each situation and each nation. Ever since the story of Prince Arjuna and his guide and charioteer Lord Krishna about one's duty to to fight the Dharma Yudhha between Pandavas and Kauravas, it has often been "right" that nations should fight. To presume "natural law" can lead away from such necessity is juvey. What may tend more to lead away from such necessity is assimilation of faith in guidance from the Godhead. Not pagan faith in non-existent "natural law." Gaia does NOT write laws for all time for mankind.
While our law regarding natural born citizenship was largely inherited from the British, our law regarding a right to change allegiance had changed. THAT was pursuant to the Declaration of Independence and the Revolutionary War.
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*LYNCH V. CLARKE: See New York Court of Chancery case of Lynch v. Clarke. http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particular.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason."
Bottom line: Under British and American usage, status as a natural born citizen was determined by, among other things, common law and statutory law. Not by unicorn law. Even Vattel recognized that, ”The laws have decided this question in several countries, and their regulations must be followed.”
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**FROM WHERE DID THE TERMINOLOGY "NATURAL BORN CITIZEN" ORIGINATE?
Quoting from article and comments at http://www.obamaconspiracy.org/2009/05/de-vattel-revisited/:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
Those words, however, are quoted from a translation of de Vattel that first appeared in 1797, 10 years after the Constitution’s ratification.
Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens.
[MY NOTE: Even for any Founders who spoke or wrote French, this language does NOT translate precisely to "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." Rather, if anything, it translates more closely to, "the natural, or indigenous, are those born in the country, parents [or close relations] who are citizens." It does not necessarily distinguish between an idea of aborigines and an idea of natural born citizens. Nor does it precisely use a terminology of "natural born citizen." Nor does it necessarily specify that a parent in the English sense is required, much less both parents. Some people even say that "parens," in French, encompasses close blood and marriage relatives, not just parents. So the original work does not give a one-on-one translation to say, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." Rather, such translation, in English, did not appear until AFTER the American Revolution and AFTER the Constitution had been drafted. The formulation in the English translation of Vattel may well have been influenced by the American Constitution, but the American Constitution could NOT have been influenced by the formulation because it had not yet been published when the Constitution was drafted!
Again as quoted below, "Prior to 1797, all English translations of The Law of Nations, including the 1787 American Edition all said “natives or indegenes”. It was not until the 1797 edition that the new translation used the words “natives or natural born citizens." Simply put, the 1797 verbiage was never the only way to translate the original.]
[Now, back to quoting.]
For those who don’t speak French, the word “citizen” (Citoyen).
Given that the phrase “natural born citizen” was not in the French, was it in the English translations available to the framers of the US Constitution? The answer is, “no”. The first English translation ... in 1760 follows:
And the first American Edition (1787) issued the year of the Constitutional Convention also does not have “natural born citizen”.
So I ask, how can de Vattel’s “The Law of Nations” define a term that it doesn’t even contain (except in translations [in 1797] a decade after the Constitution was ratified)? If the framers wanted to refer to de Vattel, then they surely would have used his words from the English translation they had, but “natives or indegenes” is not in Article II of the Constitution.
[It was not until 1797 that there was published] this passage ... of which is The Law of Nations:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
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Quote from "Dr. Conspiracy" -- De Vattel defined “Les Naturels ou indigènes”, not “natural born citizens”.
Quote from "Dr. Conspiracy" -- If you think, for example, the phrase
“natural-born citizen” in the Constitution originated with John Jay, do you think he read de Vattel in the French or in the English (if he read it at all)? According to The Founding Fathers and the French Language, by Paul M. Spurlin � 1976 National Federation of Modern Language Teachers Associations, John Jay “understood and spoke French, with great difficulty.”
The courts have already decided (Smith v. Alabama) that the Constitution is written in the language of English common Law:
The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. Smith v. Alabama, 124 U.S. 465.
Quote from "Dr. Conspiracy" -- Why did they say “natural born” instead of “native born”? Probably because they were thinking of British common law and it’s phrase “natural born subject”.
Quote from "Dr. Conspiracy" -- Let anyone show me a colonial or state law that only grants citizenship to the children of citizens! The invitation is open. I’m waiting.
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Quote from "BlackLion" -- William Blackstone, Commentaries 1: 354 361–62
“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it…all children, born out of the king’s ligeance [i.e on foreign soil], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."
Blackstone explicitly grounds natural-born status on location (jus soli), not parentage, except when the child is born abroad. The notion that both parents have to be citizens is false. All children born on American soil are natural-born subjects or citizens.
Quote from "Bob" -- "[I]t is also clear from the majority’s application of English common law that if Wong Kim Ark was a [14th Amendment] citizen, he was also a natural-born citizen, as he wasn’t a naturalized citizen."
Quote from "dunstvangeet" -- [W]hy would they [the Framers] not explicitly define “Natural Born” in the constitution, when they knew that the Blackstone Definition would be more widely known?
Quote from "mrlqban" -- [I]ndigenous in English or indigènes in French are synonym of natives no matter what language you use.
Quote from "Dr. Conspiracy" -- Where did John Jay get the term natural born citizen?
I know of no historical reference that directly tells us the answer. He did not get it from the English translation of The Law of Nations, because the phrase wasn’t there until years later. I’m pretty sure that I know where it came from, though.
The Naturalization Acts of New York from 1770 used the phrase “natural born subject” such as in the following:
BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.
A few years later after the Revolution we see similar language in a naturalization act of Massachusetts (1784): “…thereupon, and thereafter taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
It seems very likely that when the Colonies became States, and subjects became citizens, the form of the naturalization acts changed, replacing “subject” by “citizen”. [TO INTERJECT MY NOTE: In 1770, New York was a Colony, and its statute referrred to natural born subject. In 1784, Massachusetts was a State, and its statute referred to natural born citizen. Before Vattel was translated into the 1797 edition! IOW, the Americans were referring to the terminology "natural born citizen" before such language was published in any edition by Vattel, and before such language was recommended by Jay to the Constitutional Convention of 1787!] It’s certain that the British Colonial language came from British common law. If indeed the States just substituted citizen for subject, then it is pretty certain that they retained the common law meaning. Jay, a lawyer, would have been familiar with the acts’ language. Lacking any other likely candidate, I think this is where Jay got the phrase.
Prior to 1797, all English translations of The Law of Nations, including the 1787 American Edition all said “natives or indegenes”. It was not until the 1797 edition that the new translation used the words “natives or natural born citizens.”
Quote from "Greg" -- By 1803, St. George Tucker was writing that Natural Born Citizen meant the same as Natural Born Subject – born here without regard to parentage. By 1829, William Rawle wrote, “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
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MCCAIN: The Senate, by unanimous resoluton of 4-30-08, said McCain was eligible. In that resolution, the Senate did not state that a person who was otherwise a citizen without needing to be naturalized after birth could become President only if born on a Federal base.
McCain is not known to have produced a CRBA report. Some people evidently doubt McCain was even born in a military hospital:
In Robinson v. Bowen,/i>, a federal court implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
CRBA: CBRA registration is no longer required to maintain birthright citizenship. See ZIVOTOFSKY v. KERRY, 725 F. 3d 197; https://www.law.cornell.edu/supremecourt/text/13-628.
Having shed his Canadian citizenship, Cruz can have no other than an American Passport.
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
CANADA: Canada, by providing for citizenship at birth, does not get to decide who cannot be eligible to become President of the U.S. See https://supreme.justia.com/cases/federal/us/307/325/case.html. In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
DUAL ALLEGIANCE: It's birther folly to claim one cannot be a natural born citizen unless one is free of all claims of allegiance made by or to foreign powers, Here's an example to show why: Around 1812, England was impressing Americans found on the high seas into its naval service, especially if the features of such Americans appeared similar to that of English stock. England claimed these impressed sailors' fathers, or their fathers, had been from England and, "once an Englishman, always an Englishman." Thus, England was claiming dual allegiance owed to it from persons who had been born in the U.S. --- regardless that both their parents had been American citizens. Given that no nation can preclude how another or rogue nation may reason its way to claim allegiance, there can be no guarantee that a rogue nation will not claim allegiance merely because the status of a person was that of being born elsewhere of fully naturalized parents. To posit that an American cannot be eligible to become President in every case where another nation, under its laws, may claim allegiance is logically unsound to the very ideas of citizenship and nation.
LYNCH V. CLARKE: See New York Court of Chancery case of Lynch v. Clarke. http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
PREVIOUS EXAMPLES of foreign born candidates for presidency or vice presidency:
- Edward Telfair (born in Scotland) -- Election of 1789
- James Iredell (born in England) and Samuel Johnston (born in Scotland) -- Election of 1796
- George Romney (born in Mexico)(Was George Romney a dual citizen of Mexico and the U.S.? Was he a citizen of undivided allegiance of the U.S. when Mitt Romney was born? http://www.veteranstoday.com/2012/09/02/mitt-romneys-father-was-a-mexican-citizen-when-mitt-was-born/)
- Barry Goldwater (born in Arizona Territory)(but for legislative action/statute organizing the territory of Arizona, Barry's birth outside any state of the union would not have constituted a birth in country)
- Lowell Weicker (born in Paris)(See http://www.birtherreport.com/2016/03/historical-newly-discovered-evidence-of.html)
- John McCain (born in Panama)(See http://www.nytimes.com/2008/02/28/us/politics/28mccain.html?_r=0)
REGARDING NATURALIZATION AND NATURAL BORN CITIZENS: There is an overlap in the categories of naturalized and natural born citizens. This is because, pursuant to British and American common law, naturalization can refer to persons made citizens by statute at the time of their births. When persons are naturalized not at birth but after birth, upon application and swearing oath of allegiance and renouncing foreign allegiances, that is naturalization in the ordinary sense. When naturalization is at birth and based on statute, that is naturalization under a modern sense. However, that kind of naturalization did NOT preclude persons from being classified as natural born citizens under early British and American common law.
Moreover, if citizenship at birth because of statute is "naturalization," then both McCain and Cruz were "naturalized." Unless naturalization by citizenship at birth can confer status as a natural born citizen, then neither is or was a natural born citizen. Same analysis for Charles Curtis, George Romney, and Lowell Weicker, and maybe even as to Barry Goldwater (but for legislative action/statute organizing the territory of Arizona, Barry's birth outside any state of the union would not have constituted a birth in country).
- Charles Curtis (born in Kansas Territory)(but for legislative action/statute organizing the territory of Kansas, Curtis' birth outside any state of the union would not have constituted a birth in country)
Vice President 1929-33 under Herbert Hoover, Curtis was born in 1860, of a mother who was of the Kaw nation, in the Kansas Territory. When his mother died when he was about 3, Charles lived for some time with her family on the Kaw reservation, and returned to them in later years. Under the Kaw matrilineal system, he inherited directly from her. Eventually, Curtis (and his three children) were allotted about 1,625 acres in total of Kaw land in Oklahoma.
Despite having been born in a territory and having dual citizenship with an Indian Nation, he served as Vice President. See https://en.wikipedia.org/wiki/Charles_Curtis.
SHOW ME A SINGLE CASE: If Birthers were correct, that Vattel applies, then show me a case where a child born in America, whose foreign father failed to become naturalized, was required on reaching age of majority to apply to be naturalized in order to be recognized as a citizen of the State of his birth and of any State of the U.S. to which he may thereafter have traveled to reside. If Vattel applied, then his notions about the son's citizenship following that of his father necessarly applied. If Vattel cannot be shown even to have applied for that, then his notions about citizenship applied for nothing in the domestic policies of America.
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany. Between 1789 and 1868, there was no national definition of "citizen." The only definition would have been under statutes of the states or precedents accepted by the States as handed down from adopted foreign authority. If the adopted authority was that of the French instead of the British, then show me a single case where Vattel was applied to require that a child born in the U.S. between 1789 and 1868 of a foreign father who was French, Irish, or German was ever required, upon reaching age of majority, to apply for, or to obtain, a court order to enjoy all the rights of a U.S. citizen. Show me one.
It strains credulity to expect the Founders would have adopted Vattel only to apply to a definition of "natural born citizen" without also applying Vattel for a general definition of "citizen." Moreover, in the absence of statutes controlling to the contrary, the basis for citizens made so by birthright could hardly be anything other than "natural." Especially since the Founders themselves did not define "citizen." So if Vattel applied, then where are the records, letters, recitals, or proofs of applications to be naturalized by adults who had been born in America but whose parents had never timely naturalized while they were children?
Obviously, the Founders took most of their cues concerning domestic applications of common law not from the French, but from the British.
FLAT EARTH SOCIETY BIRTHERS: Somewhere, the Flat Earth Society ought to be looking for new members among our birthers. Or perhaps a society to void the official acts and candidacies of Andrew Jackson (an Irishman if Vattel applied), James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, George Romney, Lowell Weicker, Bill Richardson, John McCain, Rick Santorum, Bobby Jindal, Marco Rubio, and Ted Cruz.
ANALYSIS REGARDING CHARLES EVANS HUGHES: See http://www.scribd.com/doc/29744612/Breckinridge-Long-A-Natural-Born-Citizen-Within:
Interestingly,
Charles Evans Hughes was the Republican nominee who was narrowly
defeated by Woodrow Wilson. Like Ted Cruz, he was
exceptionally erudite in Constitutional Law. Although he was born in the
U.S. (before the 14th Amendment), neither of his parents ever became
American citizens. They were both British citizen-subjects. According to
British law, he owed a double allegiance. Unlike Cruz, he is not known
to have ever renounced his dual citizenship.
However, even if Charles Evans Hughes were thought, at the time of his birth, to have had an inchoate or unperfected right to American citizenship, that right would have been perfected at such time as he, reaching majority, chose to continue to reside in the U.S. If he had been taken by his father back to England or Wales before reaching the age of majority, and had he stayed there, then, under some interpretations of existing immigration law, he may have lost his unperfected claim to American citizenship. Thus, some may argue he was not a natural born citizen at birth. However, such argument is not consistent with then established American practice and common law. And it ignores the passage of the 14th Amendment in 1868.
IAE, neither Hughes nor Cruz, to retain their U.S. citizenship, were required to apply at any time after their births to be naturalized. Moreover, no one thought to raise the issue as to Hughes until after he had been very narrowly defeated by Woodrow Wilson. Even after the concern was raised, Hughes later served, without complaint, in the line of succession as Secretary of State from 1921 to 1925. At that time, under the Presidential Succession Act of 1886, Hughes, as Secretary of State, was in line directly after the Vice President.
NOTE: The fact that citizenship may be forfeited after birth does not alter the fact that a person had a birthright claim to citizenship. Over time, various Acts and precedents, in response to changing international concerns, have provided for forfeiture of U.S. citizenship by reason of express renouncements, intentional acts, or acts indicative of lapsed loyalty. There have been acts to forfeit citizenship of persons marrying and residing abroad; commiting acts of sedition; or failing to timely establish or perfect residency. Lately, more protection has been afforded to citizens who were born in the U.S. than to citizens who were born abroad or who were natualized after birth or who "perfected" their "inchoate" claim of right of citizenship after birth.
Some bloggers want to argue that a person whose birth right to claim citizenship was inchoate until perfected after birth could not be considered as natural born citizens. Thus, see http://www.thepostemail.com/2016/02/10/we-the-people-should-either-apologize-to-aldo-bellei-or-declare-ted-cruz-not-eligible-to-president/.
However, there is no reason in our history to suppose the Founders/Ratifiers intended to disqualify anyone who had a claim of right to citizenship at birth. There is no reason to suppose our Founders preferred, for domestic issues of citizenship, to adopt the Continental idea of Natural Born Citizen over the English idea. Moreover, as to Ted Cruz: 1) His birthright claim to citizenship has been perfected, without need of any additional application for naturalization; 2) the statute at issue in Bellei, insofar as it authorized forfeiture of citizenship upon failure of a statutory citizen at birth to timely meet pre-majority residency requirement, has been retroactively rescinded; and 3) all residency requirements (such as for his mother) to perfect Ted's citizenship claim have been met or deemed met as of the time of his birth. Regardless, had Bellei not failed by lack of residency to perfect his claim of right to citizenship as of his birth, he also should have become eligible to run for the presidency. This is because he was a citizen at birth, i.e., a natural born citizen by statute -- even though he would not have been a natural born citizen under the 14th Amendment or by reason of birth in the U.S.
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JEFFERSON: A letter of advice by Thomas Jefferson concerning a course of study recommended both Vattel and Blackstone. This is hardly a basis for divination of original intent. See http://www.scribd.com/doc/301153797/Thomas-Jefferson-Recommends-a-Course-of-Law-Study.
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MCCAIN: The Senate, by unanimous resoluton of 4-30-08, said McCain was eligible. In that resolution, the Senate did not state that a person who was otherwise a citizen without needing to be naturalized after birth could become President only if born on a Federal base.
McCain is not known to have produced a CRBA report. Some people evidently doubt McCain was even born in a military hospital:
Posted by: TheGribbler | May 2, 2008 11:46 AM | Report abuse
McCain was born in Colon, Panama, on the Atlantic Side of Panama. There was no military or US civilian hospital on the Atlantic at that time he was born. This is the reason there are no Canal Zone Health Department records. He was not born in the Canal Zone. His birth record is right in the Colon Hospital, Panama, records along with every one born on the Atlantic Side of Panama who was living in the Canal Zone at that time. His birth location of Colon is no secret in Panama. In fact, those of us from the Canal Zone are amazed about his "military hospital birth" claim which is pure fiction.
See also http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/ and http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf, at footnote 1: "1Though Hollander makes this allegation in his complaint, in his objection he states, “[s]ince the hospital at the Coco Solo Naval Air Station did not even exist until 1941 . . . , it is reasonable to assume that [McCain] was born in the city of Colón in the Republic of Panama.” Hollander has also provided a copy of McCain’s birth certificate, which lists his place of birth as Colón. The defendants dispute this theory, but it is irrelevant to the present motion in any event."
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REGARDING MCCAIN: See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
[A] federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth. The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. §1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to citizen parents, was merely the reverse or “converse of the phrase ‘in the United States, and subject to the jurisdiction thereof’” appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of U.S. citizen parents, such as Senator McCain:
Article II states that “No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.
At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73- 250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.
The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
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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 after birth could become President only if born on a Federal base.
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One may consider two ways to become a citizen. One by written application of law (constitutional, statutory, or legislative-regulatory-judicial order or action), the other by non-statutory judicial adoption of precedent. I have not found U.S. statutes to define "citizen" before 1868. That leaves non-statutory bases, such as "natural law," common law, or inherited/adopted law.
I have seen only two possible sources for defining citizenship in a State of the U.S. from just before the time the Constitution was adopted until the 14th Amendment was passed: Either Eglish practice and precedents (as summarized by Blackstone) applied, or Continental practice and precedents (as summarized by Vattel) applied. Those would be the common or "natural" sources.
Without reference to one or the other, there does not appear to have been any other source used by the early Americans for determining who was a citizen. Unless some such "natural source" applied, there was no basis for making anyone a citizen.
Unless Vattel applied, it would not be the source either for determining who was a natural born citizen or for determining who was a citizen at all. If Vattel did not apply for determining ("naturally" or at common law) who was a citizen, then that would leave Blackstone.
If the Founders applied Blackstone to determine who was a citizen, it becomes absurd to suppose they would pass up Blackstone and instead apply Vattel to determine who was a natural born citizen. Especially since both were sources for determining citizenship as well as for who qualified as "natural born." (Have not you seen Birthers claim up and down that the Founders did not apply English common law at all? Which, to any lawyer who has not lost all reason, is borderline insane. Like a person claiming math does not apply to engineering designs.)
Now, if you can posit why the Founders, in the absence of their own written or statutory definitions, would apply Blackstone to determine issues of citizenship, while preferring Vattel in issues of natural born citizenship, then I am "all ears."
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What a load of Grade F faked up and wrong headed "legal analysis." Good gawd. There's no fixing this degree of stupid.
The first rule regarding Birthers is this: Never trust a Birther.
BTW, see http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/. And show me where MCCain ever had a CRBA filed.
Cruz could not have a Canadian passport because he relinquished his dual citizenship to Canada. Therefore he could not travel abroad except on a U.S. passport. See http://www.politifact.com/texas/statements/2016/jan/06/donald-trump/donald-trump-incorrectly-says-ted-cruz-has-had-dou/.
Cruz was a citizen at birth. A CRBA does not make one a citizen. It has to do with verification of citizenship, for which a passport also suffices.
No one says McCain is not a citizen for not having filed a CRBA.
Whatever may have been the practice once upon a time, we now have Miller v. Albright, 523 U. S. 420, 456 (1998) and Zivotofsky v. Kerry, 725 F. 3d 197.
See Miller v. Albright, 523 U. S. 420, 456 (1998), which recognized that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States.)
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
Per dissent by Justice Scalia, Roberts, and Alito, "The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel)."
....
"[P]assports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization."
See https://www.law.cornell.edu/uscode/text/22/2705:
"The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction:
(1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States.
(2) The report, designated as a “Report of Birth Abroad of a Citizen of the United States”, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term “consular officer” includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe."
NOTE: CBRA registration is no longer required to maintain birthright citizenship. See ZIVOTOFSKY v. KERRY, 725 F. 3d 197; https://www.law.cornell.edu/supremecourt/text/13-628.
NOTE: Having shed his Canadian citizenship, Cruz can have no other than an American Passport.
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
Of course, head spinning Birthers are now in full rage mode against Justice Thomas, Thomas Sowell, Mark Levin, National Review, and Lord knows who else. Some of these people are sick puppies.
See http://www.freerepublic.com/focus/chat/3411529/posts?page=102:
[A]n opinion from a Pennsylvania Senior Judge Dan Pellegrini ... gives an absolute smack down to all of these Ted Cruz birther claims. Judge Pellegrini in his 22 page memorandum opinion found that Ted Cruz was a natural born citizen thereby ruling that Cruz’s name can appear on the Republican primary ballot in Pennsylvania on April 26, 2016.
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BTW, Canada, by conferring citizenship, does not get to decide which American citizens are or are not eligible. For goodness sakes, wake up!
If Vattel applied and if dual citizenship were a disqualifier, then Andrew Jackson would have been disqualified on account of his dual citizenship to Ireland, since both his parents were Irish. His father died before he was born and nothing indicates that Andrew or his Mother were ever naturalized or ever became citizens of the U.S. as of the time of the adoption of the Constitution. Unless, that is, that dual citizenship were not a disqualifier and Vattel did NOT apply, so that Andrew became a citizen at birth under English precedents.
See https://supreme.justia.com/cases/federal/us/307/325/case.html. In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
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See LYNCH V. CLARKE: In this light, it is clear that the New York Court of Chancery case of Lynch v. Clarke was properly decided. See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particular.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
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List of Previous foreign born candidates for presidency or vice presidency:
- Edward Telfair (born in Scotland) -- Election of 1789
- James Iredell (born in England) and Samuel Johnston (born in Scotland) -- Election of 1796
- George Romney (born in Mexico)(Was George Romney a dual citizen of Mexico and the U.S.? Was he a citizen of undivided allegiance of the U.S. when Mitt Romney was born? http://www.veteranstoday.com/2012/09/02/mitt-romneys-father-was-a-mexican-citizen-when-mitt-was-born/)
- Barry Goldwater (born in Arizona Territory)(but for legislative action/statute organizing the territory of Arizona, Barry's birth outside any state of the union would not have constituted a birth in country)
- Lowell Weicker (born in Paris)(See http://www.birtherreport.com/2016/03/historical-newly-discovered-evidence-of.html)
- John McCain (born in Panama)(See http://www.nytimes.com/2008/02/28/us/politics/28mccain.html?_r=0)
Birthers say birth in the U.S. is required. Both McCain and Cruz were born outside the U.S. Birthers say mere parentage is not enough unless the person were born in the U.S. But both McCain and Cruz are citizens at birth only because of statutes. Actually, because of versions of the same statutory scheme (that relates to the citizenship of parents).
If citizenship at birth because of statute is "naturalization," then both McCain and Cruz were naturalized. Unless naturalization by citizenship at birth can confer status as a natural born citizen, then neither is or was a natural born citizen. Same analysis for Charles Curtis, George Romney, and Lowell Weicker, and maybe even as to Barry Goldwater (but for legislative action/statute organizing the territory of Arizona, Barry's birth outside any state of the union would not have constituted a birth in country).
- Charles Curtis (born in Kansas Territory)(but for legislative action/statute organizing the territory of Kansas, Curtis' birth outside any state of the union would not have constituted a birth in country)
Vice President 1929-33 under Herbert Hoover, Curtis was born in 1860, of a mother who was of the Kaw nation, in the Kansas Territory. When his mother died when he was about 3, Charles lived for some time with her family on the Kaw reservation, and returned to them in later years. Under the Kaw matrilineal system, he inherited directly from her. Eventually, Curtis (and his three children) were allotted about 1,625 acres in total of Kaw land in Oklahoma.
Despite having been born in a territory and having dual citizenship with an Indian Nation, he served as Vice President. See https://en.wikipedia.org/wiki/Charles_Curtis.
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You're still arguing 2+2 does not = 4. Among the logic challenged, that makes you a king. Again, if Birthers are principled, show me a single case where Vattel was applied as a requirement to confer citizenship on any person born in the U.S. of a foreign father who failed to apply to be naturalized. There were more than five million non-British immigrants before the end of 1860. Show me the case. Until then, all I see you high fiving about is the contagious madness of crowds.
When Dems can't beat the opp, they try to shout them down or kill them. When Trumpers can't beat the opp, they throw out b.s. to try to disqualify them. Not very American of either of them. Trumpers have a good case on the merits. Make that. The anti-American b.s. leaves me cold.
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If Birthers were correct, that Vattel applies, then show me a case where a child born in America, whose foreign father failed to become naturalized, was required on reaching age of majority to apply to be naturalized in order to be recognized as a citizen of the State of his birth and of any State of the U.S. to which he may thereafter have traveled to reside. If Vattel applied, then his notions about the son's citizenship following that of his father necessarly applied. If Vattel cannot be shown even to have applied for that, then his notions about citizenship applied for nothing in the domestic policies of America.
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany. Between 1789 and 1868, there was no national definition of "citizen." The only definition would have been under statutes of the states or precedents accepted by the States as handed down from adopted foreign authority. If the adopted authority was that of the French instead of the British, then show me a single case where Vattel was applied to require that a child born in the U.S. between 1789 and 1868 of a foreign father who was French, Irish, or German was ever required, upon reaching age of majority, to apply for, or to obtain, a court order to enjoy all the rights of a U.S. citizen. Show me one.
It strains credulity to expect the Founders would have adopted Vattel only to apply to a definition of "natural born citizen" without also applying Vattel for a general definition of "citizen." Moreover, in the absence of statutes controlling to the contrary, the basis for citizens made so by birthright could hardly be anything other than "natural." Especially since the Founders themselves did not define "citizen." So if Vattel applied, then where are the records, letters, recitals, or proofs of applications to be naturalized by adults who had been born in America but whose parents had never timely naturalized while they were children?
Obviously, the Founders took most of their cues concerning domestic applications of common law not from the French, but from the British.
See SMITH V. ALABAMA: In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
Once a person learns how to live and breathe horse apples, it becomes easy to believe the web of lies that birthers (rhymes with smurfers) construct to discredit Cruz. If Birthers were not high on horse apples, they would not be spreading nonsense like the following:
That Ted is not a citizen. Or that his mother renounced her U.S. citizenship. See http://www.breitbart.com/big-government/2016/01/08/ted-cruz-mother-birth-certificate/. Or became a Canadian citizen. Or registered to vote in Canada. Or voted in Canada. Or that Ted is still a dual citizen. Or that he has a dual passport. Or that he could not have become a U.S. citizen without filing a CRBA (false canard!).
Or that Bellei, Happersett, or Kim Wong Ark hold what they do not hold. Or that the Founders threw off British common law. Or that the grammatical construction of Vattel's treatise requires that a person, to be a natural born citizen, must have been born in country of parents who were both citizens. (The grammatical construction does NOT clearly require both parents to have been citizens.) Or that children who were born free in the U.S. of foreign parents who failed to apply to be naturalized would themselves never be citizens unless they applied for naturalization upon reaching the age of majority. Or that American precedents, law, or the 1790 Immigration Act and its succeeding versions ever clearly provided for such a thing.
Or that Cruz ever admitted that he was not eligible. Or that Puerto Ricans cannot vote for President. Or that any possibility of dual allegiance is a Constitutional disqualifier for eligibility. Or that the terminology "natural born citizen" was unknown in British common law and to the early American citizens until they adopted the Constitution. Or that the recognized legal practice of the early Americans was not to allow a person made a citizen at birth by statute to qualify as a natural born citizen. Or that naturalization at birth by statute was inconsistent with early American understandings of status for being a natural born citizen.
Or that John Jay, who was not in attendance and unaware of specifric provisions being offered, somehow intended that any child he may ever father abroad, as well as any child fathered abroad by any other American diplomat, should be made ineligible. Or that FDR, Jr., would have been disqualified simply because his parents happened to be in Canada when he was born. (Or George McClellan's son.) Or that Charles Evans Hughes, who was the Republican nominee against Woodrow Wilson, never became a U.S. citizen except upon operation of the 14th Amendment, after he was born.
Really, the house of cards upon which birthers place their unicorn apples is quite astonishing. They have learned to love mucking about in horse apples as much as some Arabs love their daily Camel pe e.
But wait, there's more! Birthers go on to ignore Perkins v. Elg; Ankeny; Lynch; and all the sundry, ridiculous, failed, fined, sanctioned, and harassing suits against Obama. Indeed, they persist, unshaken in their ODS and CDS -- probably because they are funded at the behest of corrupt donors. Somewhere, the Flat Earth Society ought to be looking for new members among our birthers. Or perhaps a society to void the official acts and candidacies of Andrew Jackson (an Irishman if Vattel applied), James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, George Romney, Lowell Weicker, Bill Richardson, John McCain, Rick Santorum, Bobby Jindal, Marco Rubio, and Ted Cruz.
Compare the matter of Charles Evans Hughes: Neither Hughes nor Cruz (nor McCain), to retain their U.S. citizenship, were required to apply at any time after their births to be naturalized to the U.S. Moreover, no one thought in any serious way to raise the issue as to Hughes until after he had been very narrowly defeated by Woodrow Wilson. Even after the concern was raised, Hughes later served, without complaint, in the line of succession as Secretary of State from 1921 to 1925. At that time, under the Presidential Succession Act of 1886, Hughes, as Secretary of State, was in line directly after the Vice President.
In America, the practice has been that a natural born citizen is simply a person whose U.S. citizenship arose at birth from the nature of things.
See e.g., paper by Michael Ramsey (clerked for Scalia) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485:
In Michael Ramsey's words:
"In sum, most American commentators and jurists who discussed citizenship in the late eighteenth and early nineteenth centuries followed the English approach in assuming that as a general rule birth in the United States was sufficient to convey citizenship. That assumption shows that they did not think Vattel’s view had been adopted in the United States, because Vattel directly declared that a person born in a country was not a citizen of that country unless his father was also a citizen of that country. Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties: large numbers of people moved to the United States and then had children; the children were assumed to be U.S. citizens but (absent subsequent naturalization) would not be under Vattel’s rule. Thus, following Vattel would have created a large (and self-sustaining) class of U.S. residents who were not U.S. citizens despite birth in the United States and with no material connections to any other country. There is no evidence that any substantial number of people in the eighteenth and nineteenth centuries thought U.S. law worked this way."
"Swift’s treatise on Connecticut law, published in 1795 ... adds that the children of aliens, “born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.... Americans did not broadly reject the word “subject” and instead used it interchangeably with “citizen.""
"Madison ... In referring to birth citizenship deriving “sometimes from place, and sometimes from parentage” he is describing the divide between English law “jus soli” and civil law “jus sanguinis.” He then says “place is the most certain criterion” and “what applies in the United States.” “Place” is the rule of English law; it is manifestly not Vattel’s rule."
"Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties .."
[I]f the framers wanted to limit presidential eligibility only to persons born within the nation’s territory, it is highly unlikely that they would have used a phrase – “natural born” – that they knew English law defined to include some people born outside the nation’s territory. Had they intended it, they could easily have limited eligibility to those “born in the United States” instead of using a term with more flexible meaning.
What we have with the Birther phenomena is mass hysteria secondary to getting high by overdosing while sniffing horse apples. Evidently, there's pleasure in that if you're persistent.
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I doubt it was a universal practice that the citizenship of a *woman, regardless of her home country, would become that of the country of her husband. Be that as it may, there are numerous possible permutations of marriages, harems, children, step children, bastard children, and unknown fathers.
So your explanation seems more slippery than sound.
As to the applicability of Blackstone and English precedents to citizens, see generally https://en.wikipedia.org/wiki/History_of_British_nationality_law.
MY ANALYSIS:
Under Blackstone, the child of an Englishman, even if born abroad, would himself be an Englishman. So it would be misinformed to suggest that an English father could not pass on allegiance to England by descent. Or that an American father, after America secured its independence, could not pass on allegiance to America by descent.
Moreover, what about the bastard son of an Englishman, born abroad (such as in post-independence America) of a non-English mother? Or the bastard son born abroad (such as in post-independence America) of an unknown father and an English mother? Or suppose a bastard son were born in the U.S. of an unknown father and a mother of French citizenry?
In each such case, under the American practice, derived from Blackstone, the child would be deemed, under jus soli, to have a claim of citizenship of the State in America in which he was born, as birthright.
However, under Vattel, what right of claim of citizenry would such child have, at birth? Well, as of 1789, in the absence of a statute controlling to the contary, apparently none. Obviously, that was NOT the case in America -- because America did NOT adopt, nor even apply, Vattel in the domestic determination of citizenship.
In America, in the absence of a statute controlling to the contary (that is, as a matter of the American adoption of the "natural" [British] law of jus soli), it is obvious that each such child, as birthright, had a claim of right as a citizen of the State of the U.S. in which he was born. Simply put, Vattel's ideas concerning the Law of Nations was not applied in America to the contrary.
Or, if you say Vattel was applied to require the contrary, show me a case. Just show me one. Show me one case where a child born in America, whose foreign father failed to become naturalized, was required on reaching age of majority to apply to be naturalized in order to be recognized as a citizen of the State of his birth and of any State of the U.S. to which he may thereafter have traveled to reside.
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Quoting from https://en.wikipedia.org/wiki/History_of_British_nationality_law:
QUOTING:
A summary of early English common law is provided by Sir William Blackstone, who wrote about the law in 1765-69.[1] Natural-born subjects were originally those born within the dominion of the crown (jus soli). Blackstone describes how various statutes extended the rights of the children of subjects born abroad, until 'all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.'
....
Individuals born in the dominion were citizens regardless of the status of their parents: children born to visitors or foreigners acquired citizenship (see Jus soli). This reflects the rationale of natural-born citizenship: that citizenship was acquired because British-born subjects would have a ‘natural allegiance’ to the crown as a ‘debt of gratitude’ to the crown for protecting them through infancy. Therefore, citizenship by birth was perpetual and could not be, at common law, removed or revoked regardless of residency.
....
[Absent citizenship at birth] Naturalisation required an act of parliament be passed.
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MY COMMENT: America (Oceania) has always projected naval power, now more so than England ever did. England adapted laws for citizenship, naturalization, and denizen status that were appropriate to its status as a projector of naval power. It is obvious that America inherited her common law and her maritime interests in concert with England, much more so than in concert with France.
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*Quotes from https://en.wikipedia.org/wiki/Matrimonial_regime:
A feme sole had the right to own property and make contracts in her own name.
....
See https://en.wikipedia.org/wiki/Matrilineality#India:
[In some communities in India] Lineage was traced through the mother, and the children belonged to the mother's family. All family property was jointly owned. In the event of a partition, the shares of the children were clubbed with that of the mother.
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MY COMMENT: I doubt there is consensus in the Jewish community between Orthodox versus Progressive Jews regarding any "natural law" concerning who is a Jew by descent.
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The issue is about more than application paperwork. The issue is about evidence and proof. Given at least 5 million non-British immigrants, even in the absence of formal applications, there should be recitals, letters, recorded discussions, court orders -- some documentation of some kind -- to substantiate that children of non-British immigrants were naturalized as citizens -- even when the parents were not. That is -- IF Vattel applied. (Obviously, Vattel did NOT.)
So wow! You are saying that to test whether Vattel's notions about how citizenship naturally descended from fathers is a red herring?!
No, I hardly t think so! If Vattel applied, then his notions about the son's citizenship following that of his father necessarly applied. If Vattel did not even apply for that, than his notions about citizenship applied for nothing in the domestic policies of America.
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Some of the birthers are like bots. Evidently, they don't know how to read, understand a problem, or construct a simple syllogism. They do not respond on point when they get caught in a misrepresentation of fact, a basic misunderstanding of law, or a clear fallacy. They just keep repeating the same nonsense. You might call it the "Big Nonsense Technique." A good counter site astutely observes: The first rule of birthers is: Never trust a birther.
If they were not mentally challenged or intellectually dishonest, they would:
Not be claiming Ted is not a citizen. Or that his mother became a Canadian citizen. Or registered to vote in Canada. Or voted in Canada. Or that Ted is still a dual citizen. Or that he has a dual passport. Or that he could not have become a U.S. citizen without filing a CRBA.
Or that Bellei, Happersett, or Kim Wong Ark hold what they do not hold. Or that the Founders threw off British common law. Or that the grammatical construction of Vattel's treatise requires that a person, to be a natural born citizen, must have been born in country of parents who were both citizens. (The grammatical construction does NOT clearly require both parents to have been citizens.) Or that children who were born free in the U.S. of foreign parents who failed to apply to be naturalized would themselves never be citizens unless they applied for naturalization upon reaching the age of majority. Or that American precedents, law, or the 1790 Immigration Act and its succeeding versions ever clearly provided for such a thing.
Or that Cruz ever admitted that he was not eligible. Or that Puerto Ricans cannot vote for President. Or that any possibility of dual allegiance is a Constitutional disqualifier for eligibility. Or that the terminology "natural born citizen" was unknown in British common law and to the early American citizens until they adopted the Constitution. Or that the recognized legal practice of the early Americans was not to allow a person made a citizen at birth by statute to qualify as a natural born citizen. Or that naturalization at birth by statute was inconsistent with early American understandings of status for being a natural born citizen.
Or that John Jay, who was not in attendance and unaware of specifric provisions being offered, somehow intended that any child he may ever father abroad, as well as any child fathered abroad by any other American diplomat, should be made ineligible. Or that FDR, Jr., would have been disqualified simply because his parents happened to be in Canada when he was born. (Or George McClellan's son.) Or that Charles Evans Hughes, who was the Republican nominee against Woodrow Wilson, never became a U.S. citizen except upon operation of the 14th Amendment, after he was born.
Really, the house of cards upon which birthers place their unicorn theories is quite astonishing.
But wait, there's more! Birthers go on to ignore Perkins v. Elg; Ankeny; Lynch; and all the sundry, ridiculous, failed, fined, sanctioned, and harassing suits against Obama. Indeed, they persist, unshaken in their ODS and CDS -- probably because they are funded at the behest of corrupt donors. Somewhere, the Flat Earth Society ought to be looking for new members among our birthers.
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One cannot very well be a natural born citizen unless one is first a citizen. When there is no statutory means for becoming a citizen at or after one's birth, then almost the only way to become a citizen would be to be a citizen at birth by common law (or adopted practice).
If there was no statutory provision in the early States for how to become a citizen at or after birth, then the only route open for becoming a U.S. or State citizen was either by revolution and creation of a new sovereign nation, or by being born a citizen under recognized law other than statutory law.
So, if Vattel did not apply, what precedent made persons legally born in a State of the U.S. into citizens? On the other hand, if Vattel did apply, then where are the records, recitals, or proofs of applications to be naturalized by adults who had been born in America but whose parents had never timely naturalized while they were children?
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Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany.
Until the 14th Amendment was passed, there were two ways to define citizens: By reference to precedents and common law, and by reference to statutes. However, where are the early statutes that
defined citizenship?
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship.
Article IV of the Articles of Confederation provided: "[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." But it did not define who would be actual citizens, nor did it equate mere inhabitants with citizens.
So, to what did the several state look, in order to define their
citizens? What statutes among the States defined citizenship before
the Constitution was adopted? Were there any such statutes passed by any State legislature?
NORTH CAROLINA: The Constitution for the State of North Carolina, in Section 5, provides: "Allegiance to the UnitedStates. Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force."
However, it does not define who is a citizen. To what source, then, did North Carolina look in order to define who was a citizen?
VIRGINIA: The Constitution of Virginia, June 29, 1776, does not contain the word, "citizen." See http://www.nhinet.org/ccs/docs/va-1776.htm.
See http://www.virginiaplaces.org/government/constitution.html: The 1851 constitution had eliminated the requirement of voters to own a certain amount of property. All white males over 21 years of age were eligible to participate in the ratification vote for the new constitution on March 13, 1862, and on a separate proposal to limit future voting in Virginia to taxpayers.
A convention met between February 13-April 11, 1864 and wrote a new Virginia constitution. It granted the right to vote to white men who had lived in Virginia for only one year.
In 1867 during Reconstruction, the US Congress declared Virginia was no longer a state but instead Military District Number One. To re-enter the Union, Virginia was forced to revise its constitution again.
Comment: These constitutions made mention of voters, but it does not appear that any of them defined "citizen."
NEW YORK: The April 20, 1777 Constitution of New York does not define "citizen."
A list of early state constitutions is here: http://www.constitution.org/cons/early_state_cons.htm.
I have not yet come accross any statute by any State, either while under the Articles of Confederation or thereafter, that provided a statutory definition of "citizen."
If there were no statutes among the States that defined who would be a "citizen" of any State, then to what did the States and the Founders look in order to define who was a citizen, either of the U.S. or of any State?
If there was no statute, then they must have looked to some other source that they had adopted. The choices appear to have been Vattel's Law of Nations or the legal precedents of England.
Unless an inhabitant were recognized as a citizen under one or the other of such sources, then there appears to have been no other basis for finding him to be a citizen.
So then, consider Vattel. If the early Americans had adopted Vattel as their source, then a child born in a State, of a foreign father, would not become a citizen of such State unless either he or his father made proper application to be naturalized. Thus, if Vattel applied, there should be considerable documentation in the early records to show that children born in the U.S. of foreign fathers eventually applied for themselves to be naturalized in the event their fathers neglected to do so before they reached the age of majority.
So, if Vattel applied, where are those records? If there are no significant number of such records, such would indicate that the early Americans had NOT adopted Vattel for their understanding of who should be citizens. Rather, it would indicate they had adopted such authority and precedent as made children born legally in the U.S. who had resided there continuously into their age of majority into citizens with claims of right from the times of their births. That would be consistent with their having adopted English precedents and procedures, as opposed to notions under Vattel.
If Birthers are serious, they should search early census records, voter rolls, and legal applications to be naturalized. They should find at least ONE record of a child who was born in a State who found it necessarly upon reaching age of majority to apply for citizenship by way of naturalization because his father had failed to do so.
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship:
Colonial Naturalization (Pre-1790):
British immigrants were automatically citizens of the colonies (British Empire). Seven of the original colonies had their own laws for naturalizing [Note: To naturalize is not necessarily to make one a citizen. Regardless, where are these laws?] foreigners as citizens of the British Empire colony. After the Revolutionary War, the individual states established their own naturalization laws and procedures.
Oath of Allegiance--This type of naturalization during the colonial period was used to renounce all former country loyalties. This gave the immigrant full privileges, including voting and holding public office.
COMMENT: To be naturalized is not necessarily to be a citizen. To have the privileges of a citizen is not necessarily to be a citizen. So, again, where is there any State statute that defines how to become an actual citizen?
See https://familysearch.org/learn/wiki/en/Maryland_Naturalization_and_Citizenship:
MARYLAND: Colonial Naturalization
Few naturalizations were required in the colonial period since most
immigrants came from the British Isles. The provincial legislature and the Governor and Council naturalized some foreigners. The earliest naturalizations were granted by the legislature in the form of laws. They contain little information beyond the name of the person being naturalized and their country of origin. [Q: Did any of these applications for naturalization pertain to persons who had reached the age of majority after having been born in the colony or state, of foreign parents who had failed to naturalize?]
The majority of those naturalized before 1776 came from European countries such as France, Switzerland, and Germany. These early naturalizations contain little information. They may, however, contain the religious affiliation of the applicant since only Protestants were allowed to be naturalized.
The Maryland State Archives has several indexes to colonial naturalizations found in Provincial and General Court, General Assembly, and Governor and Council records of 1634 to 1776. Naturalizations of colonial German immigrants, including lists previously published in the Archives of Maryland are in:
Wyand, Jeffrey A., and Florence L. Wyand, Colonial Maryland Naturalizations. Baltimore, Maryland: Genealogical Publishing Company, 1975. (Family History Library book 975.2 W5w.) This source may include religion, birth date and place, death date and place, or residence.
BEING A CITIZEN AS PREREQUISITE TO VOTE: See http://www.laits.utexas.edu/lawdem/unit01/reading1/history_to_vote.html.
COMMENT: Even though formal citizenship was not necessarily a requirement to vote for free white men in the early American states, other advantages of security often accompanied citizenship, such as: right of travel and return; embassy protection when abroad; more consideration against arbitrary forfeiture of land or forced exile. Moreover, as the nation became denser and more organized, being a citizen came often to be a prerequisite for civic participation, as by voting or holding office.
As more immigrants started coming from other nations, and as Britains started immigrating after the Declaration of Independence, and as being a citizen of a State started to become a prerequisite for being entitled to vote, then there should have been more applications for formal naturalization. If Vattel applied, there should be records of applications for naturalization for children who had reached age of majority before 1868 who had been born in a State and whose father had neglected to become naturalized.
So, if Vattel was thought to have been adopted, where are there any such records? Come on Birthers, can't you provide documentation for just ONE case?
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&&&
The point pertains to the fact that the parents of Charles Evan Hughes did not naturalize. Probably ever. Certainly, the father did not naturalize before Charles Evans Hughes was born in the U.S. Charles was not an anchor baby. That would have nothing to do with anything here at issue. So, since "citizen" was not defined in the Constitution before the passage of the 14th Amendment, the question is: Was Charles Evans Hughes a (natural) citizen? Unless he was a natural citizen, he was (at least until 1868 when the 14th Amendment was passed) no kind of U.S. citizen at all, since he was never naturalized after his birth.
Charles was not an anchor baby. Not a natural born citizen per Vattel. Not a citizen under the 14th Amendment, before 1868. He was not naturalized. Yet, he did not find it necessary at any time after he was born to be naturalized in order to vote or hold office. Indeed, he was the Republican nominee against Woodrow Wilson. And he twice served as Secretary of State, when, at the time, he was next in the line of succession after the Vice President. So, how was Hughes authorized -- unless Vattel did not apply and instead the English understanding of natural born citizens applied?
Again, there were likely many children born in the U.S. between 1789 and 1868 who fit Hughes' situation. If Vattel applied, then they were not citizens, even though born in the U.S. So, for all those who never stopped residing in the U.S., who voted and filled out census forms, why are you and yout Birthers unable to show at least one such person who found it necessary to apply to be naturalized after his birth and upon reaching age of majority? Where are the records to show that any of these persons, who were supposedly not citizens of the U.S. if Vattel appled, ever found it necessary to apply to be naturalized? Stop pretending not to understand the simple issue. Just show me one. The fact that you cannot shows how ridiculous the Birther position is.
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REGARDING THE DUAL ALLEGIANCE OF ANDREW JACKSON:
Many of the enlistees in the revolutionary cause were British citizens. In declaring independence from Britain and fighting to establish a new nation, they were fighting to slough off their old national identity and replace it with a new one. Andrew Jackson, however, was not an enlistee, and his citizenship through both his parents was Irish -- not British. (Ireland did not become part of Great Britain until 1801, and Andrew's father seems to have died shortly before he was born.)
Under legal understandings at the time of Andrew's birth, he was, by virtue of his birth in Carolina, a natural born British subject. But did the law at such time consider him a natural born citizen of Britain, with dual allegiance to Ireland? If the heritage of British law applied, then yes. However, if the law of Vattel and France applied, perhaps no. Unless the law as inherited from Britain applied, could Andrew's denial of allegiance as a subject of Britain have sufficed, upon the settlement of the Revolutionary War, to render him a citizen of the U.S.?
Birthers often want to make distinctions between natural born subjects and natural born citizens. However, if Vattel applied to make Andrew a citizen of Ireland, then how could the independence won for the U.S. have converted him from an Irish citizen and a British subject into a U.S. citizen? After all, Andrew did not renounce allegiance to, Ireland. Did anything in the Treaty of Paris or in the Articles of Confederation provide that denizen-subjects of the U.S. who were citizens of other nations, such as Ireland, should thenceforth be considered as citizens of the U.S.?
When the Declaration of Independence broke all claims of allegiance owed to Britain, was any transfer of Andrew's allegiance to the new nation required? Did any custom or law at that time translate any new or local allegiance of Andrew's into citizenship? Did any statute of Carolina or the territory of Tennessee specify who should be considered as citizens? Did any statute specify that people like Andrew should be (or should be "considered as") citizens? What about anything under English or Continental common law?
Even were Andrew to have enlisted with the Americans, if he were like a foreigner who enlists in the modern American military, he would not thereby have acquired U.S. citizenship. (Andrew did serve as a courier, but he was not old enough to enlist.) If Andrew became an American citizen during the Revolutionary War or at any time before the adoption of the Constitution, it would not seem to have been by virtue of any service he performed or any belligerance he exhibited during the war.
Nor does it appear that the Treaty of Paris that ended the War necessarily make Andrew, if he were a citizen of Ireland, a citizen of the U.S. Rather, if he was a U.S. citizen, it seems necessary that it was because, under the practice at the time he was born, he was recognized to have become a citizen at birth of Great Britain, even though his parents seem never to have naturalized -- either to Carolina or to Britain. If Andrew were a citizen of Britain by virtue of birth in the territory that became the U.S., then he would have become a citizen of the new U.S., as a consequence of the Declaration of Independence. However, if the practice under the new U.S. was instead to follow Vattel, then Andrew would not likely have been recognized as a former citizen of Britain, but would instead have retained his Irish citrizenship.
Since the Revolutionary War was not against Ireland, Andrew would not seem, logically, to have discarded his Irish citizenship in trade for a U.S. citizenship.
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." Dred Scott did not recognize everyone who was merely an INHABITANT as being made a citizen by either the Declaration or the Constitution.
So your explanation seems more slippery than sound.
As to the applicability of Blackstone and English precedents to citizens, see generally https://en.wikipedia.org/wiki/History_of_British_nationality_law.
MY ANALYSIS:
Under Blackstone, the child of an Englishman, even if born abroad, would himself be an Englishman. So it would be misinformed to suggest that an English father could not pass on allegiance to England by descent. Or that an American father, after America secured its independence, could not pass on allegiance to America by descent.
Moreover, what about the bastard son of an Englishman, born abroad (such as in post-independence America) of a non-English mother? Or the bastard son born abroad (such as in post-independence America) of an unknown father and an English mother? Or suppose a bastard son were born in the U.S. of an unknown father and a mother of French citizenry?
In each such case, under the American practice, derived from Blackstone, the child would be deemed, under jus soli, to have a claim of citizenship of the State in America in which he was born, as birthright.
However, under Vattel, what right of claim of citizenry would such child have, at birth? Well, as of 1789, in the absence of a statute controlling to the contary, apparently none. Obviously, that was NOT the case in America -- because America did NOT adopt, nor even apply, Vattel in the domestic determination of citizenship.
In America, in the absence of a statute controlling to the contary (that is, as a matter of the American adoption of the "natural" [British] law of jus soli), it is obvious that each such child, as birthright, had a claim of right as a citizen of the State of the U.S. in which he was born. Simply put, Vattel's ideas concerning the Law of Nations was not applied in America to the contrary.
Or, if you say Vattel was applied to require the contrary, show me a case. Just show me one. Show me one case where a child born in America, whose foreign father failed to become naturalized, was required on reaching age of majority to apply to be naturalized in order to be recognized as a citizen of the State of his birth and of any State of the U.S. to which he may thereafter have traveled to reside.
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Quoting from https://en.wikipedia.org/wiki/History_of_British_nationality_law:
QUOTING:
A summary of early English common law is provided by Sir William Blackstone, who wrote about the law in 1765-69.[1] Natural-born subjects were originally those born within the dominion of the crown (jus soli). Blackstone describes how various statutes extended the rights of the children of subjects born abroad, until 'all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.'
....
Individuals born in the dominion were citizens regardless of the status of their parents: children born to visitors or foreigners acquired citizenship (see Jus soli). This reflects the rationale of natural-born citizenship: that citizenship was acquired because British-born subjects would have a ‘natural allegiance’ to the crown as a ‘debt of gratitude’ to the crown for protecting them through infancy. Therefore, citizenship by birth was perpetual and could not be, at common law, removed or revoked regardless of residency.
....
[Absent citizenship at birth] Naturalisation required an act of parliament be passed.
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MY COMMENT: America (Oceania) has always projected naval power, now more so than England ever did. England adapted laws for citizenship, naturalization, and denizen status that were appropriate to its status as a projector of naval power. It is obvious that America inherited her common law and her maritime interests in concert with England, much more so than in concert with France.
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*Quotes from https://en.wikipedia.org/wiki/Matrimonial_regime:
A feme sole had the right to own property and make contracts in her own name.
....
See https://en.wikipedia.org/wiki/Matrilineality#India:
[In some communities in India] Lineage was traced through the mother, and the children belonged to the mother's family. All family property was jointly owned. In the event of a partition, the shares of the children were clubbed with that of the mother.
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MY COMMENT: I doubt there is consensus in the Jewish community between Orthodox versus Progressive Jews regarding any "natural law" concerning who is a Jew by descent.
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The issue is about more than application paperwork. The issue is about evidence and proof. Given at least 5 million non-British immigrants, even in the absence of formal applications, there should be recitals, letters, recorded discussions, court orders -- some documentation of some kind -- to substantiate that children of non-British immigrants were naturalized as citizens -- even when the parents were not. That is -- IF Vattel applied. (Obviously, Vattel did NOT.)
So wow! You are saying that to test whether Vattel's notions about how citizenship naturally descended from fathers is a red herring?!
No, I hardly t think so! If Vattel applied, then his notions about the son's citizenship following that of his father necessarly applied. If Vattel did not even apply for that, than his notions about citizenship applied for nothing in the domestic policies of America.
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Some of the birthers are like bots. Evidently, they don't know how to read, understand a problem, or construct a simple syllogism. They do not respond on point when they get caught in a misrepresentation of fact, a basic misunderstanding of law, or a clear fallacy. They just keep repeating the same nonsense. You might call it the "Big Nonsense Technique." A good counter site astutely observes: The first rule of birthers is: Never trust a birther.
If they were not mentally challenged or intellectually dishonest, they would:
Not be claiming Ted is not a citizen. Or that his mother became a Canadian citizen. Or registered to vote in Canada. Or voted in Canada. Or that Ted is still a dual citizen. Or that he has a dual passport. Or that he could not have become a U.S. citizen without filing a CRBA.
Or that Bellei, Happersett, or Kim Wong Ark hold what they do not hold. Or that the Founders threw off British common law. Or that the grammatical construction of Vattel's treatise requires that a person, to be a natural born citizen, must have been born in country of parents who were both citizens. (The grammatical construction does NOT clearly require both parents to have been citizens.) Or that children who were born free in the U.S. of foreign parents who failed to apply to be naturalized would themselves never be citizens unless they applied for naturalization upon reaching the age of majority. Or that American precedents, law, or the 1790 Immigration Act and its succeeding versions ever clearly provided for such a thing.
Or that Cruz ever admitted that he was not eligible. Or that Puerto Ricans cannot vote for President. Or that any possibility of dual allegiance is a Constitutional disqualifier for eligibility. Or that the terminology "natural born citizen" was unknown in British common law and to the early American citizens until they adopted the Constitution. Or that the recognized legal practice of the early Americans was not to allow a person made a citizen at birth by statute to qualify as a natural born citizen. Or that naturalization at birth by statute was inconsistent with early American understandings of status for being a natural born citizen.
Or that John Jay, who was not in attendance and unaware of specifric provisions being offered, somehow intended that any child he may ever father abroad, as well as any child fathered abroad by any other American diplomat, should be made ineligible. Or that FDR, Jr., would have been disqualified simply because his parents happened to be in Canada when he was born. (Or George McClellan's son.) Or that Charles Evans Hughes, who was the Republican nominee against Woodrow Wilson, never became a U.S. citizen except upon operation of the 14th Amendment, after he was born.
Really, the house of cards upon which birthers place their unicorn theories is quite astonishing.
But wait, there's more! Birthers go on to ignore Perkins v. Elg; Ankeny; Lynch; and all the sundry, ridiculous, failed, fined, sanctioned, and harassing suits against Obama. Indeed, they persist, unshaken in their ODS and CDS -- probably because they are funded at the behest of corrupt donors. Somewhere, the Flat Earth Society ought to be looking for new members among our birthers.
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One cannot very well be a natural born citizen unless one is first a citizen. When there is no statutory means for becoming a citizen at or after one's birth, then almost the only way to become a citizen would be to be a citizen at birth by common law (or adopted practice).
If there was no statutory provision in the early States for how to become a citizen at or after birth, then the only route open for becoming a U.S. or State citizen was either by revolution and creation of a new sovereign nation, or by being born a citizen under recognized law other than statutory law.
So, if Vattel did not apply, what precedent made persons legally born in a State of the U.S. into citizens? On the other hand, if Vattel did apply, then where are the records, recitals, or proofs of applications to be naturalized by adults who had been born in America but whose parents had never timely naturalized while they were children?
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Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany.
Until the 14th Amendment was passed, there were two ways to define citizens: By reference to precedents and common law, and by reference to statutes. However, where are the early statutes that
defined citizenship?
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship.
Article IV of the Articles of Confederation provided: "[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." But it did not define who would be actual citizens, nor did it equate mere inhabitants with citizens.
So, to what did the several state look, in order to define their
citizens? What statutes among the States defined citizenship before
the Constitution was adopted? Were there any such statutes passed by any State legislature?
NORTH CAROLINA: The Constitution for the State of North Carolina, in Section 5, provides: "Allegiance to the UnitedStates. Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force."
However, it does not define who is a citizen. To what source, then, did North Carolina look in order to define who was a citizen?
VIRGINIA: The Constitution of Virginia, June 29, 1776, does not contain the word, "citizen." See http://www.nhinet.org/ccs/docs/va-1776.htm.
See http://www.virginiaplaces.org/government/constitution.html: The 1851 constitution had eliminated the requirement of voters to own a certain amount of property. All white males over 21 years of age were eligible to participate in the ratification vote for the new constitution on March 13, 1862, and on a separate proposal to limit future voting in Virginia to taxpayers.
A convention met between February 13-April 11, 1864 and wrote a new Virginia constitution. It granted the right to vote to white men who had lived in Virginia for only one year.
In 1867 during Reconstruction, the US Congress declared Virginia was no longer a state but instead Military District Number One. To re-enter the Union, Virginia was forced to revise its constitution again.
Comment: These constitutions made mention of voters, but it does not appear that any of them defined "citizen."
NEW YORK: The April 20, 1777 Constitution of New York does not define "citizen."
A list of early state constitutions is here: http://www.constitution.org/cons/early_state_cons.htm.
I have not yet come accross any statute by any State, either while under the Articles of Confederation or thereafter, that provided a statutory definition of "citizen."
If there were no statutes among the States that defined who would be a "citizen" of any State, then to what did the States and the Founders look in order to define who was a citizen, either of the U.S. or of any State?
If there was no statute, then they must have looked to some other source that they had adopted. The choices appear to have been Vattel's Law of Nations or the legal precedents of England.
Unless an inhabitant were recognized as a citizen under one or the other of such sources, then there appears to have been no other basis for finding him to be a citizen.
So then, consider Vattel. If the early Americans had adopted Vattel as their source, then a child born in a State, of a foreign father, would not become a citizen of such State unless either he or his father made proper application to be naturalized. Thus, if Vattel applied, there should be considerable documentation in the early records to show that children born in the U.S. of foreign fathers eventually applied for themselves to be naturalized in the event their fathers neglected to do so before they reached the age of majority.
So, if Vattel applied, where are those records? If there are no significant number of such records, such would indicate that the early Americans had NOT adopted Vattel for their understanding of who should be citizens. Rather, it would indicate they had adopted such authority and precedent as made children born legally in the U.S. who had resided there continuously into their age of majority into citizens with claims of right from the times of their births. That would be consistent with their having adopted English precedents and procedures, as opposed to notions under Vattel.
If Birthers are serious, they should search early census records, voter rolls, and legal applications to be naturalized. They should find at least ONE record of a child who was born in a State who found it necessarly upon reaching age of majority to apply for citizenship by way of naturalization because his father had failed to do so.
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship:
Colonial Naturalization (Pre-1790):
British immigrants were automatically citizens of the colonies (British Empire). Seven of the original colonies had their own laws for naturalizing [Note: To naturalize is not necessarily to make one a citizen. Regardless, where are these laws?] foreigners as citizens of the British Empire colony. After the Revolutionary War, the individual states established their own naturalization laws and procedures.
Oath of Allegiance--This type of naturalization during the colonial period was used to renounce all former country loyalties. This gave the immigrant full privileges, including voting and holding public office.
COMMENT: To be naturalized is not necessarily to be a citizen. To have the privileges of a citizen is not necessarily to be a citizen. So, again, where is there any State statute that defines how to become an actual citizen?
See https://familysearch.org/learn/wiki/en/Maryland_Naturalization_and_Citizenship:
MARYLAND: Colonial Naturalization
Few naturalizations were required in the colonial period since most
immigrants came from the British Isles. The provincial legislature and the Governor and Council naturalized some foreigners. The earliest naturalizations were granted by the legislature in the form of laws. They contain little information beyond the name of the person being naturalized and their country of origin. [Q: Did any of these applications for naturalization pertain to persons who had reached the age of majority after having been born in the colony or state, of foreign parents who had failed to naturalize?]
The majority of those naturalized before 1776 came from European countries such as France, Switzerland, and Germany. These early naturalizations contain little information. They may, however, contain the religious affiliation of the applicant since only Protestants were allowed to be naturalized.
The Maryland State Archives has several indexes to colonial naturalizations found in Provincial and General Court, General Assembly, and Governor and Council records of 1634 to 1776. Naturalizations of colonial German immigrants, including lists previously published in the Archives of Maryland are in:
Wyand, Jeffrey A., and Florence L. Wyand, Colonial Maryland Naturalizations. Baltimore, Maryland: Genealogical Publishing Company, 1975. (Family History Library book 975.2 W5w.) This source may include religion, birth date and place, death date and place, or residence.
BEING A CITIZEN AS PREREQUISITE TO VOTE: See http://www.laits.utexas.edu/lawdem/unit01/reading1/history_to_vote.html.
COMMENT: Even though formal citizenship was not necessarily a requirement to vote for free white men in the early American states, other advantages of security often accompanied citizenship, such as: right of travel and return; embassy protection when abroad; more consideration against arbitrary forfeiture of land or forced exile. Moreover, as the nation became denser and more organized, being a citizen came often to be a prerequisite for civic participation, as by voting or holding office.
As more immigrants started coming from other nations, and as Britains started immigrating after the Declaration of Independence, and as being a citizen of a State started to become a prerequisite for being entitled to vote, then there should have been more applications for formal naturalization. If Vattel applied, there should be records of applications for naturalization for children who had reached age of majority before 1868 who had been born in a State and whose father had neglected to become naturalized.
So, if Vattel was thought to have been adopted, where are there any such records? Come on Birthers, can't you provide documentation for just ONE case?
*****************
&&&
The point pertains to the fact that the parents of Charles Evan Hughes did not naturalize. Probably ever. Certainly, the father did not naturalize before Charles Evans Hughes was born in the U.S. Charles was not an anchor baby. That would have nothing to do with anything here at issue. So, since "citizen" was not defined in the Constitution before the passage of the 14th Amendment, the question is: Was Charles Evans Hughes a (natural) citizen? Unless he was a natural citizen, he was (at least until 1868 when the 14th Amendment was passed) no kind of U.S. citizen at all, since he was never naturalized after his birth.
Charles was not an anchor baby. Not a natural born citizen per Vattel. Not a citizen under the 14th Amendment, before 1868. He was not naturalized. Yet, he did not find it necessary at any time after he was born to be naturalized in order to vote or hold office. Indeed, he was the Republican nominee against Woodrow Wilson. And he twice served as Secretary of State, when, at the time, he was next in the line of succession after the Vice President. So, how was Hughes authorized -- unless Vattel did not apply and instead the English understanding of natural born citizens applied?
Again, there were likely many children born in the U.S. between 1789 and 1868 who fit Hughes' situation. If Vattel applied, then they were not citizens, even though born in the U.S. So, for all those who never stopped residing in the U.S., who voted and filled out census forms, why are you and yout Birthers unable to show at least one such person who found it necessary to apply to be naturalized after his birth and upon reaching age of majority? Where are the records to show that any of these persons, who were supposedly not citizens of the U.S. if Vattel appled, ever found it necessary to apply to be naturalized? Stop pretending not to understand the simple issue. Just show me one. The fact that you cannot shows how ridiculous the Birther position is.
************************
REGARDING THE DUAL ALLEGIANCE OF ANDREW JACKSON:
Many of the enlistees in the revolutionary cause were British citizens. In declaring independence from Britain and fighting to establish a new nation, they were fighting to slough off their old national identity and replace it with a new one. Andrew Jackson, however, was not an enlistee, and his citizenship through both his parents was Irish -- not British. (Ireland did not become part of Great Britain until 1801, and Andrew's father seems to have died shortly before he was born.)
Under legal understandings at the time of Andrew's birth, he was, by virtue of his birth in Carolina, a natural born British subject. But did the law at such time consider him a natural born citizen of Britain, with dual allegiance to Ireland? If the heritage of British law applied, then yes. However, if the law of Vattel and France applied, perhaps no. Unless the law as inherited from Britain applied, could Andrew's denial of allegiance as a subject of Britain have sufficed, upon the settlement of the Revolutionary War, to render him a citizen of the U.S.?
Birthers often want to make distinctions between natural born subjects and natural born citizens. However, if Vattel applied to make Andrew a citizen of Ireland, then how could the independence won for the U.S. have converted him from an Irish citizen and a British subject into a U.S. citizen? After all, Andrew did not renounce allegiance to, Ireland. Did anything in the Treaty of Paris or in the Articles of Confederation provide that denizen-subjects of the U.S. who were citizens of other nations, such as Ireland, should thenceforth be considered as citizens of the U.S.?
When the Declaration of Independence broke all claims of allegiance owed to Britain, was any transfer of Andrew's allegiance to the new nation required? Did any custom or law at that time translate any new or local allegiance of Andrew's into citizenship? Did any statute of Carolina or the territory of Tennessee specify who should be considered as citizens? Did any statute specify that people like Andrew should be (or should be "considered as") citizens? What about anything under English or Continental common law?
Even were Andrew to have enlisted with the Americans, if he were like a foreigner who enlists in the modern American military, he would not thereby have acquired U.S. citizenship. (Andrew did serve as a courier, but he was not old enough to enlist.) If Andrew became an American citizen during the Revolutionary War or at any time before the adoption of the Constitution, it would not seem to have been by virtue of any service he performed or any belligerance he exhibited during the war.
Nor does it appear that the Treaty of Paris that ended the War necessarily make Andrew, if he were a citizen of Ireland, a citizen of the U.S. Rather, if he was a U.S. citizen, it seems necessary that it was because, under the practice at the time he was born, he was recognized to have become a citizen at birth of Great Britain, even though his parents seem never to have naturalized -- either to Carolina or to Britain. If Andrew were a citizen of Britain by virtue of birth in the territory that became the U.S., then he would have become a citizen of the new U.S., as a consequence of the Declaration of Independence. However, if the practice under the new U.S. was instead to follow Vattel, then Andrew would not likely have been recognized as a former citizen of Britain, but would instead have retained his Irish citrizenship.
Since the Revolutionary War was not against Ireland, Andrew would not seem, logically, to have discarded his Irish citizenship in trade for a U.S. citizenship.
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." Dred Scott did not recognize everyone who was merely an INHABITANT as being made a citizen by either the Declaration or the Constitution.
***********************************************
***********************************************
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany.
Until the 14th Amendment was passed, there were two ways to define citizens: By reference to precedents and common law, and by reference to statutes. However, where are the early statutes that defined citizenship?
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship.
Article IV of the Articles of Confederation provided: "[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." But it did not define who would be actual citizens, nor did it equate mere inhabitants with citizens.
So, to what did the several state look, in order to define their citizens? What statutes among the States defined citizenship before the Constitution was adopted? Were there any such statutes passed by any State legislature?
NORTH CAROLINA: The Constitution for the State of North Carolina, in Section 5, provides: "Allegiance to the UnitedStates. Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force."
However, it does not define who is a citizen. To what source, then, did North Carolina look in order to define who was a citizen?
VIRGINIA: The Constitution of Virginia, June 29, 1776, does not contain the word, "citizen." See http://www.nhinet.org/ccs/docs/va-1776.htm.
See http://www.virginiaplaces.org/government/constitution.html: The 1851 constitution had eliminated the requirement of voters to own a certain amount of property. All white males over 21 years of age were eligible to participate in the ratification vote for the new constitution on March 13, 1862, and on a separate proposal to limit future voting in Virginia to taxpayers.
A convention met between February 13-April 11, 1864 and wrote a
new Virginia constitution. It granted the right to vote to white men who had lived in Virginia for only one year.
In 1867 during Reconstruction, the US Congress declared Virginia was no longer a state but instead Military District Number One. To re-enter the Union, Virginia was forced to revise its constitution again.
Comment: These constitutions made mention of voters, but it does not appear that any of them defined "citizen."
NEW YORK: The April 20, 1777 Constitution of New York does not define "citizen."
A list of early state constitutions is here: http://www.constitution.org/cons/early_state_cons.htm.
I have not yet come accross any statute by any State, either while under the Articles of Confederation or thereafter, that provided a statutory definition of "citizen."
If there were no statutes among the States that defined who would be a "citizen" of any State, then to what did the States and the Founders look in order to define who was a citizen, either of the U.S. or of any State?
If there was no statute, then they must have looked to some other source that they had adopted. The choices appear to have been Vattel's Law of Nations or the legal precedents of England. Unless an inhabitant were recognized as a citizen under one or the other of such sources, then there appears to have been no other basis for finding him to be a citizen.
So then, consider Vattel. If the early Americans had adopted Vattel as their source, then a child born in a State, of a foreign father, would not become a citizen of such State unless either he or his father made proper application to be naturalized. Thus, if Vattel applied, there should be considerable documentation in the early records to show that children born in the U.S. of foreign fathers eventually applied for themselves to be naturalized in the event their fathers neglected to do so before they reached the age of majority.
So, if Vattel applied, where are those records? If there are no significant number of such records, such would indicate that the early Americans had NOT adopted Vattel for their understanding of who should be citizens. Rather, it would indicate they had adopted such authority and precedent as made children born legally in the U.S. who had resided there continuously into their age of majority into citizens with claim of right from the time of their births. That would be consistent with their having adopted English precedents and procedures, as opposed to notions under Vattel.
If Birthers are serious, they should search early census records, voter rolls, and legal applications to be naturalized. They should find at least one record of a child who was born in a State who found it necessarly upon reaching age of majority to apply for citizenship by way of naturalization because his father had failed to do so.
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship:
Colonial Naturalization (Pre-1790):
British immigrants were automatically citizens of the colonies (British Empire). Seven of the original colonies had their own laws for naturalizing foreigners as citizens of the British Empire colony. After the Revolutionary War, the individual states established their own naturalization laws and procedures.
Oath of Allegiance--This type of naturalization during the colonial period was used to renounce all former country loyalties. This gave the immigrant full privileges, including voting and holding public office.
COMMENT: To be naturalized is not necessarily to be a citizen. To have the privileges of a citizen is not necessarily to be a citizen. So, again, where is there any State statute that defines how to become an actual citizen?
See https://familysearch.org/learn/wiki/en/Maryland_Naturalization_and_Citizenship:
MARYLAND: Colonial Naturalization
Few naturalizations were required in the colonial period since most immigrants came from the British Isles. The provincial legislature and the Governor and Council naturalized some foreigners. The earliest naturalizations were granted by the legislature in the form of laws. They contain little information beyond the name of the person being naturalized and their country of origin.
The majority of those naturalized before 1776 came from European countries such as France, Switzerland, and Germany. These early naturalizations contain little information. They may, however, contain the religious affiliation of the applicant since only Protestants were allowed to be naturalized.
The Maryland State Archives has several indexes to colonial naturalizations found in Provincial and General Court, General Assembly, and Governor and Council records of 1634 to 1776. Naturalizations of colonial German immigrants, including lists previously published in the Archives of Maryland are in:
Wyand, Jeffrey A., and Florence L. Wyand, Colonial Maryland Naturalizations. Baltimore, Maryland: Genealogical Publishing Company, 1975. (Family History Library book 975.2 W5w.) This source may include religion, birth date and place, death date and place, or residence.
BEING A CITIZEN AS PREREQUISITE TO VOTE: See http://www.laits.utexas.edu/lawdem/unit01/reading1/history_to_vote.html.
COMMENT: Even though formal citizenship was not necessarily a requirement to vote for free white men in the early American states, other advantages of security often accompanied citizenship, such as: right of travel and return; embassy protection when abroad; more consideration against arbitrary forfeiture of land or forced exile. Moreover, as the nation became denser and more organized, being a citizen came often to be a prerequisite for civic participation, as by voting or holding office.
As more immigrants started coming from other nations, and as Britains started immigrating after the Declaration of Independence, and as being a citizen of a State started to become a prerequisite for being entitled to vote, then there should have been more applications for formal naturalization. There should be records of applications for naturalization for children who had reached age of majority before 1868 who had been born in a State and whose father had neglected to become naturalized.
So, if Vattel was thought to have been adopted, where are there any such records? Come on Birthers, can't you provide documentation for just ONE case?
*****************
You're not making sense. Evidently, you don't understand the question because you don't understand Vattel. Forget about anchor babies. My question concerns foreign parents who are lawfully present and residing in the U.S., whether on passport or work permit or visa. There is NO QUESTION at all that such children that are born after the 1868 passage of the 14th Amendment are lawful citizens of the U.S. at birth. Nor is there any question that the parents of Charles Evans Hughes, who was born before 1868, were lawfully in the U.S.
The point pertains to the fact that the parents did not naturalize. Probably ever. Certainly, the father did not naturalize before Charles Evans Hughes was born in the U.S. Charles was not an anchor baby. That has nothing to do with anything. So, since "citizen" was not defined in the Constitution before the passage of the 14th Amendment, the question is: Was Charles Evans Hughes a (natural) citizen? Unless he was a natural citizen, he was (at least until 1868 when the 14th Amendment was passed) no kind of U.S. citizen at all, since he was never naturalized after his birth.
Charles was not an anchor baby. Not a natural born citizen per Vattel. Not a citizen under the 14th Amendment before 1868. He was not naturalized. Yet, he did not find it necessary at any time after he was born to be naturalized in order to vote or hold office. Indeed, he was the Republican nominee against Woodrow Wilson. And he twice served as Secretary of State, when, at the time, he was next in the line of succession after the Vice President. So, if Vattel applied, how was Hughes authorized to be any kind of citizen at all -- unless Vattel did not apply and instead the English understanding of natural born citizens applied?
Again, there were likely many children born in the U.S. between 1789 and 1868 who fit Hughes' situation. If Vattel applied, then they were not citizens, even though born in the U.S. So, for all those who never stopped residing in the U.S., who voted and filled out census forms, why are you and yout Birthers unable to show at least one such person who found it necessary to apply to be naturalized after his birth and upon reaching age of majority? Where are the records to show that any of these persons, who were supposedly not citizens of the U.S. if Vattel appled, ever found it necessary to apply to be naturalized? Stop pretending not to understand the simple issue. Just show me one. The fact that you cannot shows how ridiculous the Birther position is.
Five million immigrants arrived in America between 1821 and 1860, mostly from Ireland and Germany.
Until the 14th Amendment was passed, there were two ways to define citizens: By reference to precedents and common law, and by reference to statutes. However, where are the early statutes that defined citizenship?
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship.
Article IV of the Articles of Confederation provided: "[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." But it did not define who would be actual citizens, nor did it equate mere inhabitants with citizens.
So, to what did the several state look, in order to define their citizens? What statutes among the States defined citizenship before the Constitution was adopted? Were there any such statutes passed by any State legislature?
NORTH CAROLINA: The Constitution for the State of North Carolina, in Section 5, provides: "Allegiance to the UnitedStates. Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force."
However, it does not define who is a citizen. To what source, then, did North Carolina look in order to define who was a citizen?
VIRGINIA: The Constitution of Virginia, June 29, 1776, does not contain the word, "citizen." See http://www.nhinet.org/ccs/docs/va-1776.htm.
See http://www.virginiaplaces.org/government/constitution.html: The 1851 constitution had eliminated the requirement of voters to own a certain amount of property. All white males over 21 years of age were eligible to participate in the ratification vote for the new constitution on March 13, 1862, and on a separate proposal to limit future voting in Virginia to taxpayers.
A convention met between February 13-April 11, 1864 and wrote a
new Virginia constitution. It granted the right to vote to white men who had lived in Virginia for only one year.
In 1867 during Reconstruction, the US Congress declared Virginia was no longer a state but instead Military District Number One. To re-enter the Union, Virginia was forced to revise its constitution again.
Comment: These constitutions made mention of voters, but it does not appear that any of them defined "citizen."
NEW YORK: The April 20, 1777 Constitution of New York does not define "citizen."
A list of early state constitutions is here: http://www.constitution.org/cons/early_state_cons.htm.
I have not yet come accross any statute by any State, either while under the Articles of Confederation or thereafter, that provided a statutory definition of "citizen."
If there were no statutes among the States that defined who would be a "citizen" of any State, then to what did the States and the Founders look in order to define who was a citizen, either of the U.S. or of any State?
If there was no statute, then they must have looked to some other source that they had adopted. The choices appear to have been Vattel's Law of Nations or the legal precedents of England. Unless an inhabitant were recognized as a citizen under one or the other of such sources, then there appears to have been no other basis for finding him to be a citizen.
So then, consider Vattel. If the early Americans had adopted Vattel as their source, then a child born in a State, of a foreign father, would not become a citizen of such State unless either he or his father made proper application to be naturalized. Thus, if Vattel applied, there should be considerable documentation in the early records to show that children born in the U.S. of foreign fathers eventually applied for themselves to be naturalized in the event their fathers neglected to do so before they reached the age of majority.
So, if Vattel applied, where are those records? If there are no significant number of such records, such would indicate that the early Americans had NOT adopted Vattel for their understanding of who should be citizens. Rather, it would indicate they had adopted such authority and precedent as made children born legally in the U.S. who had resided there continuously into their age of majority into citizens with claim of right from the time of their births. That would be consistent with their having adopted English precedents and procedures, as opposed to notions under Vattel.
If Birthers are serious, they should search early census records, voter rolls, and legal applications to be naturalized. They should find at least one record of a child who was born in a State who found it necessarly upon reaching age of majority to apply for citizenship by way of naturalization because his father had failed to do so.
See e.g., https://familysearch.org/learn/wiki/en/United_States_Naturalization_and_Citizenship:
Colonial Naturalization (Pre-1790):
British immigrants were automatically citizens of the colonies (British Empire). Seven of the original colonies had their own laws for naturalizing foreigners as citizens of the British Empire colony. After the Revolutionary War, the individual states established their own naturalization laws and procedures.
Oath of Allegiance--This type of naturalization during the colonial period was used to renounce all former country loyalties. This gave the immigrant full privileges, including voting and holding public office.
COMMENT: To be naturalized is not necessarily to be a citizen. To have the privileges of a citizen is not necessarily to be a citizen. So, again, where is there any State statute that defines how to become an actual citizen?
See https://familysearch.org/learn/wiki/en/Maryland_Naturalization_and_Citizenship:
MARYLAND: Colonial Naturalization
Few naturalizations were required in the colonial period since most immigrants came from the British Isles. The provincial legislature and the Governor and Council naturalized some foreigners. The earliest naturalizations were granted by the legislature in the form of laws. They contain little information beyond the name of the person being naturalized and their country of origin.
The majority of those naturalized before 1776 came from European countries such as France, Switzerland, and Germany. These early naturalizations contain little information. They may, however, contain the religious affiliation of the applicant since only Protestants were allowed to be naturalized.
The Maryland State Archives has several indexes to colonial naturalizations found in Provincial and General Court, General Assembly, and Governor and Council records of 1634 to 1776. Naturalizations of colonial German immigrants, including lists previously published in the Archives of Maryland are in:
Wyand, Jeffrey A., and Florence L. Wyand, Colonial Maryland Naturalizations. Baltimore, Maryland: Genealogical Publishing Company, 1975. (Family History Library book 975.2 W5w.) This source may include religion, birth date and place, death date and place, or residence.
BEING A CITIZEN AS PREREQUISITE TO VOTE: See http://www.laits.utexas.edu/lawdem/unit01/reading1/history_to_vote.html.
COMMENT: Even though formal citizenship was not necessarily a requirement to vote for free white men in the early American states, other advantages of security often accompanied citizenship, such as: right of travel and return; embassy protection when abroad; more consideration against arbitrary forfeiture of land or forced exile. Moreover, as the nation became denser and more organized, being a citizen came often to be a prerequisite for civic participation, as by voting or holding office.
As more immigrants started coming from other nations, and as Britains started immigrating after the Declaration of Independence, and as being a citizen of a State started to become a prerequisite for being entitled to vote, then there should have been more applications for formal naturalization. There should be records of applications for naturalization for children who had reached age of majority before 1868 who had been born in a State and whose father had neglected to become naturalized.
So, if Vattel was thought to have been adopted, where are there any such records? Come on Birthers, can't you provide documentation for just ONE case?
*****************
You're not making sense. Evidently, you don't understand the question because you don't understand Vattel. Forget about anchor babies. My question concerns foreign parents who are lawfully present and residing in the U.S., whether on passport or work permit or visa. There is NO QUESTION at all that such children that are born after the 1868 passage of the 14th Amendment are lawful citizens of the U.S. at birth. Nor is there any question that the parents of Charles Evans Hughes, who was born before 1868, were lawfully in the U.S.
The point pertains to the fact that the parents did not naturalize. Probably ever. Certainly, the father did not naturalize before Charles Evans Hughes was born in the U.S. Charles was not an anchor baby. That has nothing to do with anything. So, since "citizen" was not defined in the Constitution before the passage of the 14th Amendment, the question is: Was Charles Evans Hughes a (natural) citizen? Unless he was a natural citizen, he was (at least until 1868 when the 14th Amendment was passed) no kind of U.S. citizen at all, since he was never naturalized after his birth.
Charles was not an anchor baby. Not a natural born citizen per Vattel. Not a citizen under the 14th Amendment before 1868. He was not naturalized. Yet, he did not find it necessary at any time after he was born to be naturalized in order to vote or hold office. Indeed, he was the Republican nominee against Woodrow Wilson. And he twice served as Secretary of State, when, at the time, he was next in the line of succession after the Vice President. So, if Vattel applied, how was Hughes authorized to be any kind of citizen at all -- unless Vattel did not apply and instead the English understanding of natural born citizens applied?
Again, there were likely many children born in the U.S. between 1789 and 1868 who fit Hughes' situation. If Vattel applied, then they were not citizens, even though born in the U.S. So, for all those who never stopped residing in the U.S., who voted and filled out census forms, why are you and yout Birthers unable to show at least one such person who found it necessary to apply to be naturalized after his birth and upon reaching age of majority? Where are the records to show that any of these persons, who were supposedly not citizens of the U.S. if Vattel appled, ever found it necessary to apply to be naturalized? Stop pretending not to understand the simple issue. Just show me one. The fact that you cannot shows how ridiculous the Birther position is.
************************
Many of the enlistees in the revolutionary cause were British citizens. In declaring independence from Britain and fighting to establish a new nation, they were fighting to slough off their old national identity and replace it with a new one. Andrew Jackson, however, was not an enlistee, and his citizenship through both his parents was Irish -- not British. (Ireland did not become part of Great Britain until 1801, and Andrew's father seems to have died shortly before he was born.)
Under legal understandings at the time of Andrew's birth, he was, by virtue of his birth in Carolina, a natural born British subject. But did the law at such time consider him a natural born citizen of Britain, with dual allegiance to Ireland? If the heritage of British law applied, then yes. However, if the law of Vattel and France applied, perhaps no. Unless the law as inherited from Britain applied, could Andrew's denial of allegiance as a subject of Britain have sufficed, upon the settlement of the Revolutionary War, to render him a citizen of the U.S.?
Birthers often want to make distinctions between natural born subjects and natural born citizens. However, if Vattel applied to make Andrew a citizen of Ireland, then how could the independence won for the U.S. have converted him from an Irish citizen and a British subject into a U.S. citizen? After all, Andrew was not an enlistee in the Revolutionary War, and he did not fight to obtain independence from, or to deny allegiance to, Ireland. Notice that nothing in the Treaty of Paris or in the Articles of Confederation appears to have expressly provided that denizen-subjects of the U.S. who were citizens of other nations should thenceforth be considered as citizens of the U.S.
When the Declaration of Independence broke all claims of allegiance owed to Britain, was any transfer of Andrew's allegiance to the new nation required? Did any custom or law at that time translate such new allegiance into citizenship? Did any statute of Carolina or the territory of Tennessee specify who should be considered as citizens? Did any statute specify that people like Andrew should be (or should be considered as) citizens? What about anything under English or Continental common law?
Even were Andrew to have enlisted with the Americans, if he were like a foreigner who enlists in the modern American military, he would not thereby have acquired U.S. citizenship. (Andrew did serve as a courier, but he was not old enough to enlist.) If Andrew became an American citizen during the Revolutionary War or at any time before the adoption of the Constitution, it would not seem to have been by virtue of any service he performed or any belligerance he exhibited during the war.
Nor does it appear that the Treaty of Paris that ended the War necessarily make Andrew, if he were a citizen of Ireland, a citizen of the U.S. Rather, if he was a U.S. citizen, it seems necessary that it was because, under the practice at the time he was born, he was recognized to have become a citizen at birth of Great Britain, even though his parents seem never to have naturalized -- either to Carolina or to Britain. If Andrew were a citizen by virtue of birth in the territory that became the U.S., then he would have become a citizen of the new U.S., as a consequence of the Declaration of Independence. However, if the practice under the new U.S. was instead to follow Vattel, then Andrew would not likely have been recognized as a former citizen of Britain, but would instead have retained his Irish citrizenship. Since the Revolutionary War was not against Ireland, Andrew would not logically be held to have discarded his Irish citizenship in trade for a U.S. citizenship.
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." It did not recognize everyone who was merely an INHABITANT as being made a citizen by either the Declaration or the Constitution.
????????
RESEARCH:
What were the naturalization laws for each state, before the Constitution was adopted? For Carolina or Tennessee?
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For whatever academic interest it may hold, I came across some information concerning Andrew Jackson and Charles Evans Hughes. The interesting question is: If Charles Evans Hughes was not a citizen at birth (because, even though he was born in New York, his father was a foreigner who was never naturalized until after Charles became of the age of majority, if even then), THEN what of Andrew Jackson?
If Charles Evans Hughes' foreign parentage made him not a citizen at all until the passage of the 14th Amendment, then was Andrew Jackson ever a citizen at all?
Andrew's parents were not born in the U.S. There is nothing to indicate they were ever naturalized. His father died young. There is no showing that Andrew was ever naturalized. There is nothing to show, as of either the Declaration of Independence or the passage of the Constitution, that Andrew ever became any kind of citizen at all.
So, if Andrew had never become a citizen at all, how could the grandfather clause in the Constitution have rendered him eligible to become President? Must it not be that Andrew DID become a citizen at birth, when he was born in the U.S., and that he never lost such citizenship because his father never again moved his residence outside the U.S.?
If Jackson was qualified as a citizen at birth (even though his father never naturalized), then so was Charles Evans Hughes. Which is appropriate, since Jackson served as President and Charles Evans Hughes, a Republican nominee, served as Secretary of State (which, at the time, was first in line after the Vice President).
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For the nitty gritty:
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 born in Carolina in the colonial time. His father died before the adoption of the Articles of Confederation. If Vattel had applied, then Andrew would have remained a citizen of Ireland.
Article IV of the Articles of Confederation provided: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the united States, or either of them.
NOTICE: Article IV did not precisely make the inhabitants citizens. Rather, it (similar to the Northwest Ordinance, which led to terms for later admission of other states, such as Tennessee) made them entitled to all privileges and immunities of free citizens in the several States.
Is this not the same over technical argument Birthers sometimes deploy to claim the 1790 immigration did not really make all children of American fathers citizens, but only "considered as" citizens? If so, the Articles of Confederation did not make Andrew a citizen. And, again, if his father never naturalized, then Andrew, under Vattel (had it applied) would have remained only a citizen of Ireland.
So, neither of Andrews parents appear to have become citizens of the U.S. as of the time of the ratification in 1789 of the Constitution or at any time before Andrew reached the age of majority.
The Constitution of 1789 had 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, it does not appear that Jackson, if Vattel applied, would have become a citizen. Moreover, he had gone to reside in Tennessee, which was not a state.
So, if Jackson had not become a citizen under the provisions of Vattel, and had not naturalized (Birthers show no record of such), and was not a citizen at the time of the founding, then how did Jackson qualify as any kind of citizen to run for the presidency?
Should it be imagined that he qualified only as a result of a combination of LEGISLATION (statutory citizenship!?), enacted by the Congresses under both the Articles of Confederation and the later adopted Constitution? Did he qualify by 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 Articles of Confederation had not been drafted so that the nation did not even formally 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 did not require or specifically authorize Congress to allow only all White inhabitants of such new states to become citizens. However, when Congress did so legislate, the effect appears to have been 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, with the admission of a new state under such ordinances, was it intended that the free (white) inhabitants thereof would automatically become 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 made a species of "grandfathered citizens," comparable in rights to the original grandfathered citizens? Did their admission constitute an adoption of the Constitution that related back to the grandfather clause of the Constitution in Art. II, Sec. 1, Clause 5, which made eligible to become President "a Citizen of the United States, at the time of the Adoption of this Constitution"? In this way, did Congress, by admitting a new state, have authority to provide grandfather eligibility, anew?
BOTTOM LINE: Unless Andrew Jackson was a citizen at birth because of English law, not because of Vattel, then he remained a citizen of Ireland and was never naturalized to become a citizen of the U.S. Or, if he was naturalized, it was after his birth, so that he was not a natural born citizen. Moreover, he was not a citizen under the Articles of Confederation if the hyper techincal reading used by Birthers for the 1790 immigration statute were to apply.
So, under Birther theory, Andrew was not a citizen as of the time of the Declaration of Independence, nor as of the time of the adoption of the Constitution.
Under Birther theory, the soonest Andrew became a citizen was as of the time of the admission of Tennessee as a state. In that case, he was not a citizen as of the time of the original adoption of the Constitution, but only as of the time of the admission of Tennessee, by the legislative (!) authority of Congress. But, under Birther theory, legislation after birth cannot qualify a person as a natural born citizen.
So, Birthers have quite a chore, to rationalize how Andrew Jackson qualified under their theory, as well as to rationalize how Charles Evans Hughes qualified.
SUGGESTION: The obvious way to understand the qualifications of Andrew Jackson and Charles Evans Hughes (and James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Charles Frémont, George Romney, Lowell Weicker, Bill Richardson, and Rick Santorum) is to recognize that the Founders' understanding of "natural born citizen" was based not under French law but under accustomed usage of English law.
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See e.g., https://en.wikipedia.org/wiki/Citizenship_Clause.
The situation of Charles Evans Hughes stands as a stark exemplar. Although his eligibility was not widely and publicly discussed until after he failed, as the Republican nominee, to become elected to the presidency, he was later made the Secretary of State. As such, at the time, he was immediately in line for the presidency -- even though his situation by then was widely known. Thus, far from being an example for proving the application of Vattel to issues of domestic eligibility, his example was of the stark opposite. That is, the example of Hughes shows that neither Vattel nor any notion of dual allegiance precluded him from qualifying as a citizen at birth.
Note that the 14th Amendment did not exist at the time of Hughes' birth. Therefore, if Hughes qualified as a citizen at birth, it had to be on some other account. If the citizenship doctrine under Vattel had applied to the issue of domestic citizenship, to preclude Hughes from having been a citizen of the U.S. at birth, then he could not have qualified to have been the Republican nominee, nor, thereafter, the Secretary of State. Rather, his citizenship at birth would have been only that of his foreign father.
It is true that Great Britain could have claimed a dual allegiance from Hughes at such times as he may have traveled abroad. (As could have France, had his father been French.) However, that does not signal that the U.S. had adopted Vattel for purposes of domestic determinations of citizenship or eligibility as a natural born citizen. Rather, it only signals that the U.S., in dealing with foreign nations, took into account their sensibilities when those citizens from whom they claimed allegiance happened to travel abroad. Regardless, the dual citizenship status of Hughes was not operative to preclude Hughes from asserting citizenship at birth, nor from serving in the chain of succession immediately after the Vice President.
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Birthers want to believe the early Americans were well familiar with Vattel and had adopted the Continental ideas concerning the status of being a natural born citizen. If that were true, then no person who was born in the U.S. of a foreign father between 1785 and 1868 would have become a citizen without applying to be naturalized unless the father had naturalized before the child had reached his age of majority. In many cases, such children, absent a timely record of naturalization for themselves or their father, would have been ineligible to vote or to hold public office. So, a check of census reports and voter rolls that included names of persons who had been born in the U.S. of foreign fathers should reveal whether any such children born in the U.S. ever found it necessary to apply to be naturalized after their births. So far, crickets. IOW, when it comes to looking for actual documentary evidence in the records of historical practice, Birthers are AWOL.
The best Birthers have done is to point to ambiguous statutes and precedents -- that DO NOT SAY what Birthers claim they say.
For example, see the 1790 NATURALIZATION STATUTE:
See http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html:
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. 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 [my comment: who were not born citizens] whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
BIRTHERS want to interpret this statute as providing that children born in the U.S. of alien fathers would not become U.S. citizens unless and until their fathers completed the process of being naturalized. However, the Statute DOES NOT say that. Rather, the immigration act of 1790 pertains to the naturalization of qualifying ALIENS and their alien children. The second to last proviso pertains to the clauses above it, which pertain to aliens -- not to persons born in the U.S. who were citizens at birth under established common law. The proviso does not by its terms pertain to non-alien persons born in the U.S. in order to overrule established common law. Despite sometimes confused claims by Birthers, the provision does NOT say that non-aliens born in the U.S. -- whether or not of alien parents -- are not U.S. citizens.
What the proviso does establish is that otherwise alien children born beyond the limits of the U.S., of U.S. citizens, shall themselves be "considered as" natural born citizens. Thereafter, the 1795 Act, which replaced the 1790 Act, also provided that the (statutory) right of citizenship shall not descend to persons whose fathers have never been resident in the U.S. However, these acts pertained to the naturalization of ALIENS, after their births -- not to persons recognized by longstanding common law and practices as having become citizens at the same time as their births. These Acts did NOT, in themselves, did deny the citizenship of persons who were citizens at birth by virtue of having been born in the U.S. Neither did these statutes require that children born in the U.S. of foreign fathers must ever thereafter be naturalized in order to assert their citizenship -- provided only that they did not act to expatriate themselves or, by any subsequent act or failure, forfeit their claim ofr citizenship.
So, the early immigration statutes did not clearly or unambiguously remove the birthright claim of a person born in the U.S. to citizenship. And that birthright claim had long been the practice under previous law as inherited from the British.
However, not all nations recognized such a birthright claim. Under the practices of some other nations, as recognized by Vattel, France would have it that the citizenship of the child followed that of the father. Although the U.S. did not specifically adopt Vattel for its internal law, the U.S., in its relations with other nations, would recognize that many of them may assert a claim to the allegiance of a child born in the U.S. based on the citizenship of the father, and that such claim would fall under their jurisdiction for whatever period that such child may visit or reside in such other country.
Thus, the common practice was that the child, if he continued to reside in a foreign country beyond the age of majority, without timely reasserting his claim to U.S. citizenship by re-residing in the U.S., then, by such action, he may be deemed to have relinquished, forfeited, or expatriated his claim to U.S. citizenship. While such minor child was residing abroad, his U.S. citizenship may sometimes have been thought to be unperfected, or "inchoate." See Perkins v. Elg, 307 U. S. 325, 307 U. S. 329 (1939), wherein the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.
Regardless, no one should doubt that all such children born in the U.S. had a natural claim of right to U.S. citizenship at birth, pursuant to long established practice in the pre and post Constitution states. The fact that a child's citizenship may amount to "present citizenship on a condition subsequent" is not inconsistent with its being citizenship at birth, i.e., natural born citizenship, with no requirement of application for post-birth naturalization, but only a timely term of residency. The fact that a statute or treaty, in respect of claims of dual allegiance by nations that do apply Vattel, may subject the birthright citizenship of a child born in the U.S. to a condition subsequent is in no way indicative that the U.S., by custom, common law, or statute, ever chose to adopt the French practice over the English practice.
So, what do we know? We know Birthers have no empirical support in the historical record. We know their "logic" based on interpretation of statutes and precedents is unlawyerly. And, if we look, we find actual precedents that show that early Americans adopted the English view of birthright citizenship -- not the French view.
See Weedin v. Chin Bow, 274 U.S. at 660: Chief Justice Taft, speaking for a unanimous Court, observed "that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . ." He referred to the cited English statutes, and stated, "These statutes applied to the colonies before the War of Independence" [thus, even long before the passage of the 14th Amendment]. We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.
Thus, for determining domestic issues of citizenship, Weedin confirms that the U.S. followed the English rule -- not the French rule.
Next, Birthers like to cite Rogers v. Bellei, 401 U.S. 815 (1971). However, as always, Birthers stretch the holdings of actual case beyond all reasonable recognition.
NOTES REGARDING BELLEI:
Michael Ramsey believes that Bellei’s citizenship rights should not have been abridged on grounds of residency, save for his ability to transmit citizenship to his children. He thinks the Court erred in Rogers v. Bellei. He thinks, given that it was a five to four decision, that even in 1971 it was considered a close question.
Regardless, Bellei does NOT overrule Weedin, nor does it hold that a child born in the U.S. of a foreign father is not a natural born citizen. Nor does it say that Congress cannot make a class of persons born of American parentage into citizens at birth (natural born citizens), even if born abroad.
The Dissenting in Bellei is interesting: The Dissenters observed that, [S]ince he [Bellei] acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, [he] was neither born nor naturalized in the United States. IOW, Bellei was not naturalized post birth. Rather, his citizenship had been at and from birth. The Dissenters also recognized a difference between [statutory] naturalization at birth versus [common] naturalization after birth. They said: [Bellei] was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. Because the Dissent believed Bellei to be naturalized in the broad sense, it [and Michael Ramsey] believed the provisions of the 14th Amendment should have protected him from being unequally stripped of his citizenship by the government. The Dissenters believed that: All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. NOTE, HOWEVER, that NEITHER the Majority nor the Dissent suggested that a person who was such a naturalized citizen at birth would not qualify as a "natural born citizen" eligible to become President. The Dissenters believed that, one can become a citizen of this country by being born in it or by being naturalized into it.
MY COMMENTS:
There is no reason in our history to suppose the Founders/Ratifiers intended to disqualify anyone who had a claim of right to citizenship at birth. There is no reason to suppose our Founders preferred, for domestic issues of citizenship, to adopt the Continental idea of Natural Born Citizen over the English idea.
Moreover, as to Ted Cruz: 1) His birthright claim to citizenship has been perfected, without need of any additional application for naturalization; 2) the statute at issue in Bellei, insofar as it authorized forfeiture of citizenship upon failure of a statutory citizen at birth to timely meet pre-majority residency requirement, has been retroactively rescinded; and 3) all residency requirements (such as for his mother) to perfect Ted's citizenship claim have been met or deemed met as of the time of his birth. Regardless, had Bellei not failed by lack of residency to perfect his claim of right to citizenship as of his birth, he also should have become eligible to run for the presidency. This is because he was a citizen at birth, i.e., a natural born citizen by statute -- even though he would not have been a natural born citizen under the 14th Amendment or by reason of birth in the U.S.
COMPARISON TO CHARLES EVANS HUGHES:
Interestingly, Charles Evans Hughes was the Republican nominee who was narrowly defeated by Woodrow Wilson (probably because of a spoiler campaign by Teddy Roosevelt and rumors about his eligibility). Like Ted Cruz, he was exceptionally erudite in Constitutional Law. Although Hughes was born in the U.S. (before the 14th Amendment), neither of his parents ever became American citizens. They were both British citizen-subjects. According to British law, he owed a double allegiance. Unlike Cruz, he is not known ever to have renounced his dual citizenship.
However, even if Charles Evans Hughes were thought, at the time of his birth, to have had an inchoate or unperfected right to American citizenship, that right would have been perfected at such time as he, reaching majority, chose to continue to reside in the U.S. If he had been taken by his father back to England or Wales before reaching the age of majority, and had he stayed there, then, under some interpretations of existing immigration law, he may have lost his unperfected claim to American citizenship. Thus, some may argue he was not a natural born citizen at birth. However, such argument is not based on any valid syllogistic reasoning, nor is it consistent with then established American practice and common law.
Moreover, the situation of Charles Evans Hughes is not entirely consistent with that of Ted Cruz. I have not seen whether either of Hughes' parents was an American or naturalized as such. Hughes' claim to U.S. citizenship would not, under the statutes and practices of the time, have been perfected until he reached the age of majority. Cruz' American citizenship, because of his American mother's length of residence in the U.S., and because of subsequent and retroactive legislation, was fully perfected as of the time of his birth. Moreover, nations at the time of Hughe were probably more jealous in their treaties over concerns about dual allegiance.
IAE, neither Hughes nor Cruz, to retain their U.S. citizenship, were required to apply at any time after their births to be naturalized to the U.S. Moreover, no one thought in any serious way to raise the issue as to Hughes until after he had been very narrowly defeated by Woodrow Wilson. Even after the concern was raised, Hughes later served, without complaint, in the line of succession as Secretary of State from 1921 to 1925. At that time, under the Presidential Succession Act of 1886, Hughes, as Secretary of State, was in line directly after the Vice President.
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[FREE] BIRTH IN THE U.S. CONFERRED CITIZENSHIP EVEN BEFORE THE 14TH AMENDMENT: See Weedin v. Chin Bow, 274 U.S. at 274 U. S. 660: Chief Justice Taft, speaking for a unanimous Court, observed "that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . ." He referred to the cited English statutes, and stated, "These statutes applied to the colonies before the War of Independence." We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.
VATTEL -- MY COMMENT: This confirms that the American rule follows from English traditions, not from Vattel.
See Rogers v. Bellei, 401 U.S. 815 (1971): [T]he Constitution's lack of definitional specificity [regarding citizenship] may well have been attributable in part to the desire to avoid entanglement in the then-existing controversy between concepts of state and national citizenship and with the difficult question of the status of Negro slaves.
....
The definition [of citizenship in the 14th Amendment] obviously (?) did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
....
No [person who otherwise would be an] alien has the slightest right to naturalization unless all statutory requirements are complied with.
....
Congress may withhold citizenship from persons like plaintiff Bellei [who do not qualify for citizenship under the 14th Amendment, but only under statute] and may prescribe [by statute] a period of residence in the United States as a condition precedent without constitutional question.
....
Congress has an appropriate concern with problems attendant on dual nationality.
....
[C]ircumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship.
....
[A] dual national constitutionally may be required to make an election.
....
In Perkins v. Elg, 307 U. S. 325, 307 U. S. 329 (1939), the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents' foreign naturalization abroad did not lose his United States citizenship "provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.
....
[C]ases do not flatly say that a duty to elect may be constitutionally imposed. They surely indicate, however, that this is possible, and ... the holding was based on the very absence of a statute, and not on any theory of unconstitutionality.
....
The solution to the dual nationality dilemma provided by the Congress by way of required residence surely is not unreasonable.
....
Congress first has imposed a condition precedent in that the citizen parent must have been in the United States or its possessions not less than 10 years, at least five of which are after attaining age 14. It then has imposed, as to the foreign-born child himself, the condition subsequent as to residence here.
....
The same policy is reflected in the required period of residence here for aliens seeking naturalization.
....
Congress has no "power, express or implied, to take away an American citizen's citizenship without his assent.
....
[However] We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment.
....
Our National Legislature indulged the foreign-born child with presumptive citizenship, subject to subsequent satisfaction of a reasonable residence requirement.
....
[MY NOTE: The fact that the citizenship is "present citizenship on a condition subsequent" is not inconsistent with its being citizenship at birth, i.e., natural born citizenship, with no requirement of application for post-birth naturalization, but only a term of residency.]
....
[The Plaintiff] has never lived in this country; although he has visited here five times.
....
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IMMIGRATION STATUTE: NOTE -- The immigration statute pertinent to the time of the Bellei case was as follows:
SEC. 301. (a) The following shall be nationals and citizens of the United States at birth: "
"(1) a person born in the United States, and subject to the jurisdiction thereof;"
"* * * *"
"(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years:
[COMMENT: Ted Cruz' mother alrady met this condition before Ted was born.]
Provided . . ."
"(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years."
[COMMENT: This provision was retroactively rescinded. Regardless, Ted Cruz satisfied it long ago.]
IMMIGRATION STATUTE: NOTE -- The immigration statute pertinent to the time of the Bellei case was as follows:
SEC. 301. (a) The following shall be nationals and citizens of the United States at birth: "
"(1) a person born in the United States, and subject to the jurisdiction thereof;"
"* * * *"
"(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years:
[COMMENT: Ted Cruz' mother alrady met this condition before Ted was born.]
Provided . . ."
"(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years."
[COMMENT: This provision was retroactively rescinded. Regardless, Ted Cruz satisfied it long ago.]
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DISAGREEMENTS:
[NOTE: Michael Ramsey believes that Bellei’s citizenship rights should not have been abridged on grounds of residency, save for his ability to transmit citizenship to his children. He thinks the Court erred in Rogers v. Bellei. He thinks, given that it was a five to four decision, that even in 1971 it was considered a close question.]
....
DISSENT: Note that the Dissent in Bellei observed that, [S]ince he [Bellei] acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, [he] was neither born nor naturalized in the United States. IOW, Bellei was not naturalized post birth. Rather, his citizenship had been at and from birth.
The Dissent also recognized a difference between [statutory] naturalization at birth versus [common] naturalization after birth. It said: [Bellei] was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.
Because the Dissent believed Bellei to be naturalized in the broad sense, it [and Michael Ramsey] believed the provisions of the 14th Amendment should have protected him from being unequally stripped of his citizenship by the government. The Dissent believed that: All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. NOTE, HOWEVER, that NEITHER the Majority nor the Dissent suggested that a person who was a naturalized citizen at birth would not qualify as a "natural born citizen" eligible to become President. The Dissent believed that, one can become a citizen of this country by being born within it or by being naturalized into it.
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See https://angelfishdiary.wordpress.com/2016/01/07/ted-cruzs-citizenship/.
See http://therightscoop.com/heres-the-video-of-trump-saying-in-september-tedcruz-was-perfectly-eligible-to-run-for-president/: Trump admitted Cruz is eligible.
1790 NATURALIZATION STATUTE:
See http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html:
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. 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 [my comment: who were not born citizens] whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
[NOTE: Michael Ramsey believes that Bellei’s citizenship rights should not have been abridged on grounds of residency, save for his ability to transmit citizenship to his children. He thinks the Court erred in Rogers v. Bellei. He thinks, given that it was a five to four decision, that even in 1971 it was considered a close question.]
....
DISSENT: Note that the Dissent in Bellei observed that, [S]ince he [Bellei] acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, [he] was neither born nor naturalized in the United States. IOW, Bellei was not naturalized post birth. Rather, his citizenship had been at and from birth.
The Dissent also recognized a difference between [statutory] naturalization at birth versus [common] naturalization after birth. It said: [Bellei] was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.
Because the Dissent believed Bellei to be naturalized in the broad sense, it [and Michael Ramsey] believed the provisions of the 14th Amendment should have protected him from being unequally stripped of his citizenship by the government. The Dissent believed that: All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. NOTE, HOWEVER, that NEITHER the Majority nor the Dissent suggested that a person who was a naturalized citizen at birth would not qualify as a "natural born citizen" eligible to become President. The Dissent believed that, one can become a citizen of this country by being born within it or by being naturalized into it.
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See https://angelfishdiary.wordpress.com/2016/01/07/ted-cruzs-citizenship/.
See http://therightscoop.com/heres-the-video-of-trump-saying-in-september-tedcruz-was-perfectly-eligible-to-run-for-president/: Trump admitted Cruz is eligible.
1790 NATURALIZATION STATUTE:
See http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html:
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. 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 [my comment: who were not born citizens] whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
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NOTICE: The immigration act of 1790 pertains to the naturalization of qualifying ALIENS and their alien children. The second to last proviso pertains to clauses above, which pertain to aliens -- not to persons born citizens under the established common law. It does not pertain to non-alien persons born in the U.S. Despite sometimes confused claims by Birthers, it does NOT say that non-aliens born in the U.S. -- whether or not of alien parents -- are not U.S. citizens. It DOES provide that otherwise alien children born beyond the limits of the U.S. of U.S. citizens shall themselves be "considered as" natural born citizens. The 1795 act also provided that the (statutory) right of citizenship shall not descend to persons whose fathers have never been resident in the U.S. Because these acts pertained to naturalization of ALIENS, after their births, not to persons recognized by longstanding common law and practices as citizens at the same time as their births, they, in themselves, did NOT deny the citizenship of persons who were citizens at birth by virtue of having been born in the U.S. Neither did these statutes require that children born in the U.S. of foreign fathers must ever be thereafter naturalized in order to assert their citizenship, provided only that they did not act to expatriate themselves or, by any subsequent act or failure, forfeit their claim.
So, the early immigration statutes did not clearly or unambiguously remove the birthright claim of a person born in the U.S. to citizenship. That birthright claim had long been the practice under previous law as inherited from the British. However, not all nations recognized such a birthright claim. Under Vattel, France and others would have it that the citizenship of the child followed that of the father. Although the U.S. did not adopt specifically Vattel for its internal law, the U.S., in its relations with other nations, would recognize that many of them may assert a claim to the allegiance of a child born in the U.S. based on the citizenship of the father, and that such claim would fall under their jurisdiction for whatever period that the child may visit or reside in such other country. Under common practice, the child may, if he continued to reside in such country beyond the age of majority and without timely reasserting his claim to U.S. citizenship by re-residing in the U.S., by such action be deemed to have relinquished, forfeited, or expatriated his claim to U.S. citizenship. Thus, while such child was residing abroad, his U.S. citizenship may sometimes have been thought to be unperfected or inchoate. Regardless, no one should doubt that he had a natural claim of right to U.S. citizenship at birth, pursuant to long established practice in the pre and post Constitution states.
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ANALYSIS REGARDING CHARLES EVANS HUGHES:
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ANALYSIS REGARDING CHARLES EVANS HUGHES:
See http://www.scribd.com/doc/29744612/Breckinridge-Long-A-Natural-Born-Citizen-Within:
Interestingly,
Charles Evans Hughes was the Republican nominee who was narrowly
defeated by Woodrow Wilson, probably because of a spoiler campaign by
Teddy Roosevelt and rumors about his eligibility. Like Ted Cruz, he was
exceptionally erudite in Constitutional Law. Although he was born in the
U.S. (before the 14th Amendment), neither of his parents ever became
American citizens. They were both British citizen-subjects. According to
British law, he owed a double allegiance. Unlike Cruz, he is not known
to have ever renounced his dual citizenship.
However, even if Charles Evans Hughes were thought, at the time of his birth, to have had an inchoate or unperfected right to American citizenship, that right would have been perfected at such time as he, reaching majority, chose to continue to reside in the U.S. If he had been taken by his father back to England or Wales before reaching the age of majority, and had he stayed there, then, under some interpretations of existing immigration law, he may have lost his unperfected claim to American citizenship. Thus, some may argue he was not a natural born citizen at birth. However, such argument is not consistent with then established American practice and common law.
Moreover, the situation of Charles Evans Hughes is not entirely consistent with that of Ted Cruz. Neither of Hughes' parents was an American. Neither was ever naturalized. Hughes' claim to U.S. citizenship was not, under the statutes and practices of the time, perfected until he reached the age of majority. Cruz' U.S. citizenship, because of his mother's length of residence in the U.S., and because of subsequent and retroactive legislation, was perfected as of the time of his birth.
IAE, neither Hughes nor Cruz, to retain their U.S. citizenship, were required to apply at any time after their births to be naturalized. Moreover, no one thought to raise the issue as to Hughes until after he had been very narrowly defeated by Woodrow Wilson (probably because of a spoiler campaign by T. Roosevelt). Even after the concern was raised, Hughes later served, without complaint, in the line of succession as Secretary of State from 1921 to 1925. At that time, under the Presidential Succession Act of 1886, Hughes, as Secretary of State, was in line directly after the Vice President.
NOTE: The fact that citizenship may be forfeited after birth does not alter the fact that a person had a birthright claim to citizenship. Over time, various Acts and precedents, in response to changing international concerns, have provided for forfeiture of U.S. citizenship by reason of express renouncements, intentional acts, or acts indicative of lapsed loyalty. There have been acts to forfeit citizenship of persons marrying and residing abroad; commiting acts of sedition; or failing to timely establish or perfect residency. Lately, more protection has been afforded to citizens who were born in the U.S. than to citizens who were born abroad or who were natualized after birth or who "perfected" their "inchoate" claim of right of citizenship after birth.
Some bloggers want to argue that a person whose birth right to claim citizenship was inchoate until perfected after birth could not be considered as natural born citizens. Thus, see http://www.thepostemail.com/2016/02/10/we-the-people-should-either-apologize-to-aldo-bellei-or-declare-ted-cruz-not-eligible-to-president/.
However, there is no reason in our history to suppose the Founders/Ratifiers intended to disqualify anyone who had a claim of right to citizenship at birth. There is no reason to suppose our Founders preferred, for domestic issues of citizenship, to adopt the Continental idea of Natural Born Citizen over the English idea. Moreover, as to Ted Cruz: 1) His birthright claim to citizenship has been perfected, without need of any additional application for naturalization; 2) the statute at issue in Bellei, insofar as it authorized forfeiture of citizenship upon failure of a statutory citizen at birth to timely meet pre-majority residency requirement, has been retroactively rescinded; and 3) all residency requirements (such as for his mother) to perfect Ted's citizenship claim have been met or deemed met as of the time of his birth. Regardless, had Bellei not failed by lack of residency to perfect his claim of right to citizenship as of his birth, he also should have become eligible to run for the presidency. This is because he was a citizen at birth, i.e., a natural born citizen by statute -- even though he would not have been a natural born citizen under the 14th Amendment or by reason of birth in the U.S.
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PROBLEM: See http://www.scribd.com/doc/29744612/Breckinridge-Long-A-Natural-Born-Citizen-Within:
To what extent may the following information suggest an adoption of Vattel? Is it citing to any Scotus interpretation, that an immigration statute may not have been effective to grant NBC status to children born in America of foreign fathers?
To what extent may the following information suggest an adoption of Vattel? Is it citing to any Scotus interpretation, that an immigration statute may not have been effective to grant NBC status to children born in America of foreign fathers?
I DOUBT the following examples show "problems" with the analysis that Vattel does not apply to American citizenship status for being "natural born." However, concerns about Vattel and treaties may apply when citizens, by their travels, bring internatinal concerns into play.
Thus, policies flux regarding such concerns as treaties flux, as concerns about dual citizenship wax and wane, and as different countries alter how they mix concerns about jus soli and jus sanguinis.
Notice that children -- whether born of U.S. parents in the U.S., born of U.S. parents abroad, born abroad of parents not of the U.S. but who naturalize thereafter to the U.S. -- seem to be subject to having their U.S. citizenship revoked if their parents move to reside abroad, change their allegiance and citizenship, and express or act to renounce their U.S. citizenship -- unless the child timely, before passing age of majority, takes sufficient affirmative action to preserve his U.S. citizenship against forfeiture under then existing statutes or treaties. Thus, whether the child is classified as a "natural born citizen" seems to have little logical or permanent legal relationship to such concerns.
[PROBLEM?]
[PROBLEM?]
A husband and wife, both natives of Prussia, came to the United States. A son was born in the State of Pennsylvania six months before the naturalization of the father. Later the father died and the mother returned to Germany, taking her son with her, and they were residing in Germany at the time of the inquiry. While in Germany, that Government made some claim upon the son for military service, and a ruling was requested from the Secretary of State. Mr. Secretary Blaine wrote as follows: “’The words, ‘if dwelling in the United States,’ whether meaning residence at a particular moment or contemplating a settled abode, apply to Carl Heisinger, who, being now nineteen years of age, has for about eleven years been dwelling in Germany. It is not known that the government of that country has made any claims upon him. But, if the German Government should, under a provision of law similar to that in force in the United States in relation to the foreign-born children of citizens, seek to exact from him the performance of obligations as anatural-born subject, the Department would be bound to consider the provisions of Section 2172 of the Revised Statutes.
”Mr. Blaine’s reference to Section 2172 of the Revised Statutes means that this Government would recognize that child as a citizen of the United States if he lived in the United States, but would not recognize him as a citizen of this country if he lived in Germany. Was that boy “a natural born” citizen of the United States? If he was, then why would not the government of the United States recognize him as a citizen of the United States whether he were in Germany, England or China? The only conclusion [?] is that he was not a “natural born” citizen of the United States; that some other government beside that of the United States had some claim upon his allegiance; that he was not exclusively and by operation of the laws of nature acitizen of the United States. The boy that Mr. Blaine referred to in the above quotation was not only born in this country but born to a male parent who had not only expressed his desire to become an American citizen, but who had proceeded to perfect his naturalization and who actually was naturalized six months subsequent to the birth of the child.
The rulings under the statute hold that the child became a citizen of the United States by virtue of the naturalization of his father, but that his citizenship during his minority, was only inchoate and that if he continued to reside in the United States he would be recognized as a citizen of the United States (not (?) a “natural born” citizen) but that if he went to Germany he would not be, by our Government, considered one of its citizens.
How does this case differ from that of Mr. Hughes except in this: that Mr. Hughes and his parents continued to reside in this country? Their domicile affected his citizenship. Had they taken him back to England, he would not have beenconsidered by the government of the United States as a citizen of the United States.
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"The doctrine of ‘Election’ necessarily implies the existence of a double allegiance. This condition naturally arises where a person is born in one country to a father who is a citizen of another country. By rules of municipal law, which generally prevail, such a person has citizenships by birth—(1) citizenship by virtue of the place of birth (jure soli) and (2) citizenship by right of blood (jure sanguinis) i.e., by virtue of the father’s nationality. Unless this be so, the child on attaining his majority has nothing to elect.” (Moore, International Law Digest, III, 524-525.)
....
It is not disputed that Mr. Hughes is not a citizen of the United States, but if he had the right to elect, he must have had something to choose between. He was native born because he was born in this country, and he is now a native born citizen because he is now a citizen of this country; but, had he been a “natural born” citizen, he would not have had the right to choose between this country and England; he would have had nothing to choose between; he would have owed his sole allegiance to the government of the United States, and there would have been no possible question, whether he found himself in the United States or in any othercountry in the world, that he would be called upon to show allegiance to any Government but that of the United States.
....
MY COMMENT: Policies flux regarding such concerns as treaties flux, as concerns about dual citizenship wax and wane, and as different countries alter how they mix concerns about jus soli and jus sanguinis.
Notice
that children -- whether born of U.S. parents in the U.S., born of U.S.
parents abroad, born abroad of parents not of the U.S. but who
naturalize thereafter to the U.S. -- seem to be subject to having their
U.S. citizenship revoked if their parents move to reside abroad, change
their allegiance and citizenship, and express or act to renounce their
U.S. citizenship -- unless the child timely, before passing age of
majority, takes sufficient affirmative action to preserve his U.S.
citizenship against forfeiture under then existing statutes or
treaties. Thus, whether the child is classified as a "natural born
citizen" seems to have little logical or permanent legal relationship to such concerns.
Thus, to try to distinguish between native born children whose citizenship can be forfeited and natural born children whose citizenship cannot be forfeited seems to make little sense. After all,if Ireland (or any other country) wants to allow its men, by right of descent, to pass on a right to claim citizenship to their children or grandchildren, regardless of where born, how can any single rule guard against such vicissitudes in order to ensure, worldwide, that conflicts in dual allegiance do not arise? Such a goal is a logical or practical non-attainable. Contriving fine distinctions between native born and natural born citizens will not resolve or preclude such conflicts.
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See http://www.scribd.com/doc/29744612/Breckinridge-Long-A-Natural-Born-Citizen-Within: President Arthur, in his Fourth Annual Message, in 1884, said: “Our existing naturalization laws also need revision. * * * Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms* * *.“An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to aforeign power and of minor children of fathers who have declared their intention to become citizens* * *."
See http://caselaw.findlaw.com/us-supreme-court/143/135.html -- See e.g., Boyd v. State of Nebraska (1892), 143 U.S. 135, 137): The statutory provisions leave much to be desired, and the attention of congress has been called to the condition of the laws in reference to election of nationality, and to the desirability of a clear definition of the status of minor children of fathers who had declared their intention to become citizens, but had failed to perfect their naturalization, and of the status gained by those of full age by the declaration of intention.
MY COMMENT: I doubt this old 1892 case, given modern treaties and concerns, carries so much persuasive power regarding the concern at issue. Moreover, I doubt a fixed, permanent solution is either advisable or possible. Rather, unforeseen eventualities and treaties will necessitate sovereign flexibility on key concerns.
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REGARDING COMMON LAW: When you say, "Yes, we most certainly did" (wholesale throw off British law), you show a breathtaking illiteracy about American law. It is questionable whether your bs assertion, if made before a Federal Judge, would go unsanctioned as a rude waste of the court's time. You blithely, heedlessly, and recklessly do a disservice to everyone who may mistake your assertions for being in any way founded. The authorities are numerous and clear. One can hardly ignore them, unless one holds cotton to his ears and goes lalalalalalala.
STATE V. MANUEL -- 4 Dev. & B. 26: The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.'
UNITED STATES V. RHODES -- [A]s stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution.[27]" United States v. Rhodes, 27 Fed. Cas. 785 (1866)(before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act).
SNUG HARBOR -- In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.[44]
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
WONG KIM ARK -- The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898): It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
LYNCH V. CLARKE -- See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was
written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
RAWLE -- In an 1829 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that:
[E]very person born [a citizen] within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and
entitled to all the rights and privileges appertaining to that capacity.
WIKIPEDIA -- at https://en.wikipedia.org/wiki/Law_of_the_United_States, also has this:
At both the federal and state levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[14][15] However,
American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.
MICHAEL RAMSEY -- See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485:
"[T]he Constitution does not define most of its terms and uses phrases obviously drawn from contemporary legal language -- ex post facto, habeas corpus, bill of attainder, and the like – the English legal background with which its drafters were familiar is rich source of meaning."
....
"Under English common law, a natural born subject – consistent with the common legal meaning of “natural” – was one whose subjectship arose from the nature of things."
From article by Michael Ramsey, at The Original Meaning of 'Natural Born' by Michael D. Ramsey :: SSRN:
[T]he core point is that the 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects.
....
Blackstone noted ... all children, born out of the king’s ligeance, whose fathers were natural born subjects, are now natural born subjects themselves, to all intents and purposes, without any exceptions; unless their said fathers were attained, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
....
Blackstone ... uses the phrase “are now natural born citizens,”indicating a change in the definition, not merely an expansion of rights.
....
Under common law, “natural born” meant born within the protection of the monarch (and thus, as a natural matter, owing allegiance to the person who provided protection).
....
[T]he Act of Settlement ... barred persons born outside the dominions from holding office or accepting grants of land. As discussed, however, the Act of Settlement exempted from this bar persons “ such as are born of English Parents.”
CONGRESSIONAL RESEARCH SERVICE -- from 2016 report:
Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term "natural born" in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.
CHARLES GORDON -- who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.”
....
[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.
....
It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.
FIRST CONTINENTAL CONGRESS -- The First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered “natural-born subjects within the realms of England.”
SMITH V. ALABAMA 124 U.S. 465 (1888): Mr. Justice Matthews, delivering the judgment of the court, said: "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
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REGARDING NATURAL LAW:
Early Americans were using the terminology "natural born citizen" and "natural born subject" in legal proceedings even before the Constitution was drafted, and were doing so consistent with legal practice learned from English law.
Yet, Birthers seem to believe there is some inviolable, scientific basis to "natural law of nations" -- as if nations themselves were not wholly artificial constructs of mankind, whose terms and definitions and ideas of membership are equally subject to artificial construction. Or as if some scientifically natural law precludes different nations from interpreting, applying, protecting, and enforcing their own ideas concerning the citizenship status of their inhabitants -- whether at birth or at application after birth.
I doubt many people of English persuasion or ancestry would consider such predilection scientific, natural, or enlightened (although they may consider it "frenchy").
If you want to study the actuality of the historical unfolding of law, a better approach would be to integrate actual history in your approach. Instead of inventing imaginary squirrels, find some records. If early Americans adopted the Vattel approach to "natural born citizen" over the English approach, then children born of free parents in the U.S. in the interval from 1797 to 1868, whose parents were not citizens and who decided never to apply to become citizens, would have been required to apply for naturalization if they wanted to participate in the rights of American citizens (such as the right to vote). So, then, find a record to show that any child so born in America ever found it necessary to apply to be naturalized after his birth (apart from simply establishing that he had been born in the U.S.). Where is your documentary evidence to support your extravagant claims?
See http://caselaw.findlaw.com/us-supreme-court/143/135.html -- See e.g., Boyd v. State of Nebraska (1892), 143 U.S. 135, 137): The statutory provisions leave much to be desired, and the attention of congress has been called to the condition of the laws in reference to election of nationality, and to the desirability of a clear definition of the status of minor children of fathers who had declared their intention to become citizens, but had failed to perfect their naturalization, and of the status gained by those of full age by the declaration of intention.
MY COMMENT: I doubt this old 1892 case, given modern treaties and concerns, carries so much persuasive power regarding the concern at issue. Moreover, I doubt a fixed, permanent solution is either advisable or possible. Rather, unforeseen eventualities and treaties will necessitate sovereign flexibility on key concerns.
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REGARDING COMMON LAW: When you say, "Yes, we most certainly did" (wholesale throw off British law), you show a breathtaking illiteracy about American law. It is questionable whether your bs assertion, if made before a Federal Judge, would go unsanctioned as a rude waste of the court's time. You blithely, heedlessly, and recklessly do a disservice to everyone who may mistake your assertions for being in any way founded. The authorities are numerous and clear. One can hardly ignore them, unless one holds cotton to his ears and goes lalalalalalala.
STATE V. MANUEL -- 4 Dev. & B. 26: The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.'
UNITED STATES V. RHODES -- [A]s stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution.[27]" United States v. Rhodes, 27 Fed. Cas. 785 (1866)(before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act).
SNUG HARBOR -- In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.[44]
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
WONG KIM ARK -- The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898): It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
LYNCH V. CLARKE -- See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was
written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
RAWLE -- In an 1829 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that:
[E]very person born [a citizen] within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and
entitled to all the rights and privileges appertaining to that capacity.
WIKIPEDIA -- at https://en.wikipedia.org/wiki/Law_of_the_United_States, also has this:
At both the federal and state levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[14][15] However,
American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.
MICHAEL RAMSEY -- See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485:
"[T]he Constitution does not define most of its terms and uses phrases obviously drawn from contemporary legal language -- ex post facto, habeas corpus, bill of attainder, and the like – the English legal background with which its drafters were familiar is rich source of meaning."
....
"Under English common law, a natural born subject – consistent with the common legal meaning of “natural” – was one whose subjectship arose from the nature of things."
From article by Michael Ramsey, at The Original Meaning of 'Natural Born' by Michael D. Ramsey :: SSRN:
[T]he core point is that the 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects.
....
Blackstone noted ... all children, born out of the king’s ligeance, whose fathers were natural born subjects, are now natural born subjects themselves, to all intents and purposes, without any exceptions; unless their said fathers were attained, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
....
Blackstone ... uses the phrase “are now natural born citizens,”indicating a change in the definition, not merely an expansion of rights.
....
Under common law, “natural born” meant born within the protection of the monarch (and thus, as a natural matter, owing allegiance to the person who provided protection).
....
[T]he Act of Settlement ... barred persons born outside the dominions from holding office or accepting grants of land. As discussed, however, the Act of Settlement exempted from this bar persons “ such as are born of English Parents.”
CONGRESSIONAL RESEARCH SERVICE -- from 2016 report:
Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term "natural born" in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.
CHARLES GORDON -- who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.”
....
[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.
....
It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.
FIRST CONTINENTAL CONGRESS -- The First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered “natural-born subjects within the realms of England.”
SMITH V. ALABAMA 124 U.S. 465 (1888): Mr. Justice Matthews, delivering the judgment of the court, said: "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
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REGARDING NATURAL LAW:
Early Americans were using the terminology "natural born citizen" and "natural born subject" in legal proceedings even before the Constitution was drafted, and were doing so consistent with legal practice learned from English law.
Yet, Birthers seem to believe there is some inviolable, scientific basis to "natural law of nations" -- as if nations themselves were not wholly artificial constructs of mankind, whose terms and definitions and ideas of membership are equally subject to artificial construction. Or as if some scientifically natural law precludes different nations from interpreting, applying, protecting, and enforcing their own ideas concerning the citizenship status of their inhabitants -- whether at birth or at application after birth.
I doubt many people of English persuasion or ancestry would consider such predilection scientific, natural, or enlightened (although they may consider it "frenchy").
If you want to study the actuality of the historical unfolding of law, a better approach would be to integrate actual history in your approach. Instead of inventing imaginary squirrels, find some records. If early Americans adopted the Vattel approach to "natural born citizen" over the English approach, then children born of free parents in the U.S. in the interval from 1797 to 1868, whose parents were not citizens and who decided never to apply to become citizens, would have been required to apply for naturalization if they wanted to participate in the rights of American citizens (such as the right to vote). So, then, find a record to show that any child so born in America ever found it necessary to apply to be naturalized after his birth (apart from simply establishing that he had been born in the U.S.). Where is your documentary evidence to support your extravagant claims?
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There are two main questions:
1) Does Congress, under its power to establish a uniform rule of naturalization, have power to define what class of persons shall be included as natural born citizens?
2) In defining who shall be citizens at birth, has Congress exercised that power?
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As to the second question, general usage argues that those who, in the natural course of things, become citizens at birth are natural born citizens. Moreover, pending new naturalization law to the contrary, since no law or provision under the new Constitution defined what class would thenceforth be considered as citizens, the ONLY class (after the grandfathered generation) that could then be citizens would be those who were natural born as citizens.
The only source then in customary use for defining such class was what had been received under British law. We had been British colonies -- not French colonies. We did not wholesale throw off British law. Under British law, such natural born citizens would include persons who were born as citizens.
Under the British law that had for years been known to, and adopted by, the early Americans, the persons born in America were natural born citizens. Under the logic of the Constitution, non-free persons were not citizens. The effect was that the citizens, natural born, absent definition to the contrary, included (but were not necessarily restricted to) the children born in the U.S. of free parents -- who were not required under such understanding to be citizens themselves.
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As to the first question, consider the following:
See http://press-pubs.uchicago.edu/founders/tocs/a2_1_5.html and http://press-pubs.uchicago.edu/founders/documents/a2_1_5s2.html:
Regarding the meaning of natural born citizen:
PER VATTEL -- Chapter XIX, Section 212:
[Excerpt regarding Citizens:] 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.
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.
[Excerpt regarding Inhabitants:] The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.
[Excerpt regarding Naturalization:] [T]here are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
MY NOTE: Vattel people will argue, supported by "proof" that is nothing more than assumption, that a person who is naturalized at birth cannot be a citizen by nature and therefore cannot be classified as a natural born citizen. That would be true if one accepted the assumption, i.e., that the Vattel system should apply. However, the "honey badger" British [and Americans] would reply ("honey badger don't give a s"): That's not our view of the law. Our practice is that statutes CAN extend (or limit) the definitions applied by others (such as the French) with regard to who is a natural born citizen. (For example, under the Constitution, children of non-free non-whites could not be considered as citizens. However, children of indentured whites who had become free would be citizens.)
[Excerpt regarding Children Born out of 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.
MY SUMMARY REGARDING CITIZENSHIP OF CHILDREN BORN IN THE U.S. BETWEEN 1787 AND 1868:
If Vattel applied, then a child born in America of a foreign father would not be a citizen. He may become a perpetual inhabitant, who cannot pass on citizenship to posterity.
If English law applied, then a child born in America of a foreign father would be a U.S. citizen. And he could pass on citizenship to posterity.
QUESTION: So, which applied -- Vattel's treatise, or English legal traditions?
I say English law applied.
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RHODES: See United States v. Rhodes, 27 Fed. Cas. 785 (1866 (before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act):
'The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26."
ARTICLES OF CONFEDERATION: "The fourth of the Articles of Confederation declared that the 'free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States." See http://press-pubs.uchicago.edu/founders/documents/a4_2_1s5.html; http://press-pubs.uchicago.edu/cgi-bin/htsearch?method=and&config=founders&sort=score&words=articles+of+confederation&format=builtin-long&restrict=&exclude=.
Under the Articles of Confederation and before the adoption of the
Constitution, being a citizen of the U.S. was contingent on being a citizen of a state.
QUESTIONS -- Before citizenship was more definitely defined under the 14th Amendment:
- IS ANY STATE KNOWN EVER TO HAVE DENIED CITIZENSHIP TO ANY PARTICULAR CHILD BORN OF FREE PARENTS WITHIN ITS TERRITORY? NO.
- IS ANY STATE KNOWN EVER TO HAVE DENIED CITIZENSHIP TO ANY PARTICULAR CHILD BORN OF FREE PARENTS WITHIN ITS TERRITORY, EVEN IF THE FATHER HAD ALLEGIANCE TO A FOREIGN STATE (provided the father was not a foreign diplomat or occupying soldier)? NO.
- SO FAR AS IS KNOWN, DID EVERY STATE CONFER CITIZENSHIP ON ALL CHILDREN BORN WITHIN ITS TERRITORY OF FREE PARENTS? YES.
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THE PRACTICE: Even though the original Constitution did not define "citizen," no one should doubt that children born thereafter in the U.S. of parents who were citizens would themselves be citizens. But who else that was born in the US. would be thought to be natural citizens, without need to apply for subsequent naturalization? In practice, would a child born in America of free, non-naturalized, foreign parents be considered as a natural citizen of the U.S., even when his parents had not renounced foreign allegiance or citizenship? What was the actual practice?
Between 1787 and the enactment of the first immigration statute in 1790, and between 1790 and 1868 (passage of 14th Amendment), to what understanding did the new nation look to decide on citizenship with regard to persons born in the U.S. of free, foreign visitors or of non-American non-naturalized residents who were not citizens?
ENGLISH LAW: Under longstanding law of England, as applied for years by the various states, free persons born in country would be subject-citizens of the country at birth, unless born of fathers from an invading army or of a foreign diplomat.
VATTEL: However, under the above referenced treatise by Vattel concerning the Law of Nations, a newborn would not be a citizen of the country he or she was born in, unless that country happened to be the nation of which the father was a citizen.
So, in practice, to which tradition did new Americans look in determining the citizenship of new borns in country who happened to be fathered by non-naturalized foreigners?
RECORDS: If the practice was to consider such free perons born in the U.S. as natural born citizens, even without formal definition as such in the Constitution or in any statute, then there would be an absence of naturalization records concerning such new borns, if they determined to remain in America. But it such persons were considered not as citizens of America, but only as natural citizens of the lands of their fathers, if they continued to live in America, to vote in (and receive benefits as citizens from) America, then there should be records showing they found it necessary to apply to be naturalized after their births.
If that were the case, where are the records? If there are no such records, if no such children born in America ever found it necessary to apply to be naturalized, that would be indicative that America, in practice, based on longstanding familiarity with English rules concerning natural born citizens, was following the British (Blackstone) rule , and not the Continental (Vattel) rule!
See https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States#Legal_history:
RHODES: "[A]s stated by Supreme Court Justice Noah Haynes Swayne:
"All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution.[27]" United States v. Rhodes, 27 Fed. Cas. 785 (1866)(before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act).
As explained in Rhodes, 'The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26."
BORN CITIZENS: "'‘Citizens’ under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.' 1 Kent, Comm. 292, note. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States."
"[W]hat is naturalization? It is the removal of the disabilities of alienage."
"To make one of domestic birth a citizen is not naturalization...."
AG BATES: From opinion by Attorney General Bates of November 29, 1862: "If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[35]"
NOTE: To overcome limitations against persons who were, or whose parents were, previously not free, the Civil Rights Act of 1866 declared: "...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." Note that this statute did NOT say that free persons previously born in the U.S., regardless of claims of dual citizenship, were NOT citizens of the U.S.
SNUG HARBOR: In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.[44]
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
KENT: See http://www.constitution.org/abus/pres_elig.htm:
In his 1826 Commentaries on American Law, James Kent said:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent.
RAWLE: In an 1829 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that:
[E]very person born [a citizen] within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
DRED SCOTT: The issue was examined by the U.S. Supreme Court in the dissenting opinion of J. Curtis (which should be read in combination with the dissenting opinion of J. McLean for a better understanding of the issues in the case) in Dred Scott v. Sandford, 60 U. S. 576 (1856):
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects.
WONG KIM ARK: The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898):
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
HAPPERSETT: Some mis-cite the opinion in Minor v. Happersett, but it only states, in dictum, that natural birth and U.S. citizen parentage would be sufficient to establish U.S. citizenship at birth, not that U.S. citizenship parentage was necessary for the child to be a U.S. citizen.
MY NOTE: In 1898, based on rule of law of England for the preceding three centuries, and same rule for the U.S., the case of Kim Wong Ark recognized that [free] persons born in the U.S., even of alien parents and even before the 14th Amendment [absent specific and effective law to the contrary] would be natural born U.S. citizens. The fathers of such children, being aliens, would have different citizenship. Yet, the Vattel rule for the child's citizenship to follow that of his father would NOT preclude the child born in the U.S. from qualifying as a natural born citizen at birth. Thus, the practice recognized in the U.S. was NOT the Vattel rule, but the English rule. Thus, applying the English practice, U.S. citizenship would be conferred at birth to a child born in the U.S. And, citizenship for children born abroad, based on jus sanguinis, would be conferred based on such statutory definitions as the chief lawmaking body may have enacted.
No pertinent precedent qualifies the rule to say that children born abroad would be denied natural born status if, because of their parentage, they also owed allegiance to another state.
LYNCH V. CLARKE: In this light, it is clear that the New York Court of Chancery case of Lynch v. Clarke was properly decided. See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
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DEEMED ADJUDGED A NATURAL BORN CITIZEN: A blog at http://www.constitution.org/abus/pres_elig.htm argues as follows:
Sometimes cited is a 1708 English statute that provides the children of all natural-born subjects, born out of the ligeance of Her Majesty [Queen Anne], her heirs and successors whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively ... ¦shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever.
But "deemed, adjudged and taken to be" natural-born subjects does not redefine what is a natural born subject. It only confers the privileges of a natural born subject. It is the meaning of the term that applies to eligibility to office, not a legislative act that grants privileges of such.
The argument has been made that many English statutes "redefined" "natural born", and that establishes precedent that the naturalization powers of Parliament, and therefore Congress, included the power to legislatively redefine "natural born", but none of the English statutes did that, and none of the U.S. naturalization statures have attempted to do that.
MY COMMENT: I simply do not buy that the words "shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever" are insufficient to define such persons as in fact being natural born citizens.
REGARDLESS, SEE THE 1731 STATUTE: "[T]he 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects."
"A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
MY NOTE: These children are not merely considered as being natural born subjects, but are in fact declared to be natural born subjects!
So, to me, the question is: Did the lawmaking body have authority to make such a definition?
In England, it did. Because, in England, it was permitted to define a natural born citizen by a process of enacting statutes of naturalization. Power of enacting statutes of naturalization encompassed power to define classifications of people so that they constituted natural born citizens. Given this heritage, when the Founders entrusted Congress to establish a uniform rule of naturalization, it necessarily entrusted Congress with power to define classifications of people so that they constituted natural born citizens. Given the first immigration statute, it is evident that Congress undertook by defining who is a citizen at birth to equate such status with being a natural born citizen.
It was part of the law of the colonies, received from England, that the body with authority to enact rules for naturalizaton had implicit authority to provide for who should have status as natural born citizens.
By the time the colonies became states, they had adopted much of the law of England. Absent specification to the contrary, the sovereign authority to define who should be a natural born citizen was in the body that had authority to define who should be naturalized. After the Declaration of Independence and the establishment of the Congress, that power was established to be in the U.S. Congress. Especially since Congress was given power to establish a uniform rule of naturalization, with all powers necessary and proper therefor.
QUESTIONS:
Did the English Parliament, by statutes regarding naturalization, have authority to redefine limits for being a natural born citizen? Yes.
When the U.S., after having long adopted English law, broke from Britain, did it wrest and transfer such power to its Congress, to redefine limits for who should be a natural born citizen (citizen at birth)? Arguably, yes.
In their experience with British law, did the American people of the pre-Constitution states understand the enactment of statutes to declare who should be natural born citizens to be part of the authority to enact statutes of naturalization? Yes.
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See http://press-pubs.uchicago.edu/founders/tocs/a2_1_5.html and http://press-pubs.uchicago.edu/founders/documents/a2_1_5s2.html: Regarding the meaning of natural born citizen:
PER VATTEL -- Chapter XIX, Section 212:
[Excerpt regarding Citizens:] 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.
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.
[Excerpt regarding Inhabitants:] The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.
[Excerpt regarding Naturalization:] [T]here are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
[Excerpt regarding Children Born out of 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.
[Excerpt regarding Children Born at Sea:] [T]hose born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation; for, the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.
MY SUMMARY REGARDING CITIZENSHIP OF CHILDREN BORN IN THE U.S. BETWEEN 1787 AND 1868:
If Vattel applied, then a child born in America of a foreign father would not be a citizen. He may become a perpetual inhabitant, who cannot pass on citizenship to posterity.
If English law applied, then a child born in America of a foreign father would be a U.S. citizen. And he could pass on citizenship to posterity.
QUESTION: So, which applied -- Vattel's treatise, or English legal traditions?
I say English law applied.
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RHODES: See United States v. Rhodes, 27 Fed. Cas. 785 (1866)(before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act):
'The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26."
ARTICLES OF CONFEDERATION: "The fourth of the Articles of Confederation declared that the 'free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States." See http://press-pubs.uchicago.edu/founders/documents/a4_2_1s5.html; http://press-pubs.uchicago.edu/cgi-bin/htsearch?method=and&config=founders&sort=score&words=articles+of+confederation&format=builtin-long&restrict=&exclude=.
Under the Articles of Confederation and before the adoption of the Constitution, being a citizen of the U.S. was contingent on being a citizen of a state.
QUESTIONS -- Before citizenship was more definitely defined under the 14th Amendment:
- IS ANY STATE KNOWN EVER TO HAVE DENIED CITIZENSHIP TO ANY PARTICULAR CHILD BORN OF FREE PARENTS WITHIN ITS TERRITORY? NO.
- IS ANY STATE KNOWN EVER TO HAVE DENIED CITIZENSHIP TO ANY PARTICULAR CHILD BORN OF FREE PARENTS WITHIN ITS TERRITORY, EVEN IF THE FATHER HAD ALLEGIANCE TO A FOREIGN STATE (provided the father was not a foreign diplomat or occupying soldier)? NO.
- SO FAR AS IS KNOWN, DID EVERY STATE CONFER CITIZENSHIP ON ALL CHILDREN BORN WITHIN ITS TERRITORY OF FREE PARENTS? YES.
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?????????Judges have reasoned that all ????????????? loyal inhabitants of the pre-Constitution states were automatically made citizens of the new United States as of the time of the Declaration of Independence, and certainly as of the time of the ratification of the Constitution. The practical reasoning would seem to be that persons who in any capacity aided in the assertion of independence therewith became citizen partners in the new republic. But what of all the children born thereafter, including children born of parentaly unions with non-naturalized foreigners? Surely??????????????, judges considered all such children born in the U.S. before the ratification of the Constitution as being natural citizens of the U.S. That being the case, there is no reason to suppose that any judge should consider any child born thereafer in the U.S. (excepting children born or diplomats, foreing occupiers, native Americans, or non-free persons) to be not a citizen.
THE PRACTICE: Even though the original Constitution did not define "citizen," no one should doubt that children born thereafter in the U.S. of parents who were citizens would themselves be citizens. But who else that was born in the US. would be thought to be natural citizens, without need to apply for subsequent naturalization? In practice, would a child born in America of free, non-naturalized, foreign parents be considered as a natural citizen of the U.S., even when his parents had not renounced foreign allegiance or citizenship? What was the actual practice?
Between 1787 and the enactment of the first immigration statute in 1790, and between 1790 and 1868 (passage of 14th Amendment), to what understanding did the new nation look to decide on citizenship with regard to persons born in the U.S. of free, foreign visitors or of non-American non-naturalized residents who were not citizens?
ENGLISH LAW: Under longstanding law of England, as applied for years by the various states, free persons born in country would be subject-citizens of the country at birth, unless born of fathers from an invading army or of a foreign diplomat.
VATTEL: However, under the above referenced treatise by Vattel concerning the Law of Nations, a newborn would not be a citizen of the country he or she was born in, unless that country happened to be the nation of which the father was a citizen.
So, in practice, to which tradition did new Americans look in determining the citizenship of new borns in country who happened to be fathered by non-naturalized foreigners?
RECORDS: If the practice was to consider such free perons born in the U.S. as natural born citizens, even without formal definition as such in the Constitution or in any statute, then there would be an absence of naturalization records concerning such new borns, if they determined to remain in America. But it such persons were considered not as citizens of America, but only as natural citizens of the lands of their fathers, if they continued to live in America, to vote in (and receive benefits as citizens from) America, then there should be records showing they found it necessary to apply to be naturalized after their births.
If that were the case, where are the records? If there are no such records, if no such children born in America ever found it necessary to apply to be naturalized, that would be indicative that America, in practice, based on longstanding familiarity with English rules concerning natural born citizens, was following the British (Blackstone) rule , and not the Continental (Vattel) rule!
NOTE*: The immigration act of 1790 pertains to the naturalization of qualifying ALIENS and their alien children. It does not pertain to non-alien persons born in the U.S. Despite sometimes confused claims by Birthers, it does NOT say that non-aliens born in the U.S. -- whether or not of alien parents -- are not U.S. citizens. It DOES provide that otherwise alien children born beyond the limits of the U.S. of U.S. citizens shall themselves be considered as natural born citizens. The 1795 act provided that the (statutory) right of citizenship shall not descend to persons whose fathers have never been resident in the U.S. Because these acts pertained to naturalization of ALIENS, after their births, not to persons recognized by longstanding common law and practices as citizens at the same time as their births, they did NOT limit the citizenship of persons who were citizens at birth by virtue of having been born in the U.S.
See https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States#Legal_history:
RHODES: "[A]s stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England...since as before the Revolution.[27]" United States v. Rhodes, 27 Fed. Cas. 785 (1866)(before passage of the 14th Amendment in 1868, but after passage of the 1866 Civil Rights Act).
As explained in Rhodes, 'The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26."
ARTICLES OF CONFEDERATION: "The fourth of the Articles of Confederation declared that the 'free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States."
BORN CITIZENS: "'‘Citizens’ under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.' 1 Kent, Comm. 292, note. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States."
"[W]hat is naturalization? It is the removal of the disabilities of alienage."
"To make one of domestic birth a citizen is not naturalization...."
AG BATES: From opinion by Attorney General Bates of November 29, 1862: "If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[35]"
NOTE: To overcome limitations against persons who were, or whose parents were, previously not free, the Civil Rights Act of 1866 declared: "...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." Note that this statute did NOT say that free persons previously born in the U.S., regardless of claims of dual citizenship, were NOT citizens of the U.S.
SNUG HARBOR: In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830) the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.[44]
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
KENT: See http://www.constitution.org/abus/pres_elig.htm:
In his 1826 Commentaries on American Law, James Kent said:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent.
RAWLE: In an 1829 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that:
[E]very person born [a citizen] within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
DRED SCOTT: The issue was examined by the U.S. Supreme Court in the dissenting opinion of J. Curtis (which should be read in combination with the dissenting opinion of J. McLean for a better understanding of the issues in the case) in Dred Scott v. Sandford, 60 U. S. 576 (1856):
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects.
WONG KIM ARK: The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898):
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
HAPPERSETT: Some mis-cite the opinion in Minor v. Happersett, but it only states, in dictum, that natural birth and U.S. citizen parentage would be sufficient to establish U.S. citizenship at birth, not that U.S. citizenship parentage was necessary for the child to be a U.S. citizen.
MY NOTE: In 1898, based on rule of law of England for the preceding three centuries, and same rule for the U.S., the case of Kim Wong Ark recognized that [free] persons born in the U.S., even of alien parents and even before the 14th Amendment [absent specific and effective law to the contrary] would be natural born U.S. citizens. The fathers of such children, being aliens, would have different citizenship. Yet, the Vattel rule for the child's citizenship to follow that of his father would NOT preclude the child born in the U.S. from qualifying as a natural born citizen at birth. Thus, the practice recognized in the U.S. was NOT the Vattel rule, but the English rule. Thus, applying the English practice, U.S. citizenship would be conferred at birth to a child born in the U.S. And, citizenship for children born abroad, based on jus sanguinis, would be conferred based on such statutory definitions as the chief lawmaking body may have enacted.
LYNCH V. CLARKE: In this light, it is clear that the New York Court of Chancery case of Lynch v. Clarke was properly decided. See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held:
"It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ” These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
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DEEMED ADJUDGED A NATURAL BORN CITIZEN: A blog at http://www.constitution.org/abus/pres_elig.htm argues as follows:
Sometimes cited is a 1708 English statute that provides
the children of all natural-born subjects, born out of the ligeance of Her Majesty [Queen Anne], her heirs and successors whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively ... ¦shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever.But "deemed, adjudged and taken to be" natural-born subjects does not redefine what is a natural born subject. It only confers the privileges of a natural born subject. It is the meaning of the term that applies to eligibility to office, not a legislative act that grants privileges of such.
The argument has been made that many English statutes "redefined" "natural born", and that establishes precedent that the naturalization powers of Parliament, and therefore Congress, included the power to legislatively redefine "natural born", but none of the English statutes did that, and none of the U.S. naturalization statures have attempted to do that.
MY COMMENT: I simply do not buy that the words "shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever" are insufficient to define such persons as in fact being natural born citizens.
REGARDLESS, SEE THE 1731 STATUTE: "[T]he 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects."
"A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
MY NOTE: These children are not merely considered as being natural born subjects, but are in fact declared to be natural born subjects!
So, to me, the question is: Did the lawmaking body have authority to make such a definition?
In England, it did. Because, in England, it was permitted to define a natural born citizen by a process of enacting statutes of naturalization. Power of enacting statutes of naturalization encompassed power to define classifications of people so that they constituted natural born citizens. Given this heritage, when the Founders entrusted Congress to establish a uniform rule of naturalization, it necessarily entrusted Congress with power to define classifications of people so that they constituted natural born citizens. Given the first immigration statute, it is evident that Congress undertook by defining who is a citizen at birth to equate such status with being a natural born citizen.
It was part of the law of the colonies, received from England, that the body with authority to enact rules for naturalizaton had implicit authority to provide for who should have status as natural born citizens.
By the time the colonies became states, they had adopted much of the law of England. Absent specification to the contrary, the sovereign authority to define who should be a natural born citizen was in the body that had authority to define who should be naturalized. After the Declaration of Independence and the establishment of the Congress, that power was established to be in the U.S. Congress. Especially since Congress was given power to establish a uniform rule of naturalization, with all powers necessary and proper therefor.
QUESTIONS:
Did the English Parliament, by statutes regarding naturalization, have authority to redefine limits for being a natural born citizen? Yes.
When the U.S., after having long adopted English law, broke from Britain, did it wrest and transfer such power to its Congress, to redefine limits for who should be a natural born citizen (citizen at birth)? Arguably, yes.
In their experience with British law, did the American people of the pre-Constitution states understand the enactment of statutes to declare who should be natural born citizens to be part of the authority to enact statutes of naturalization? Yes.
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REGARDING NON-FREE CHILDREN BORN IN THE U.S., AFTER THE CIVIL RIGHTS ACT:
See https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States#Legal_history:
"[C]oncerning the [formerly non-free] children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion."
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DUAL ALLEGIANCE AND CITIZENSHIP:
There have been times when treaties, statutes, and procedures were such that American citizens would be expatriated if they evidenced by deeds or words that their primary loyalty and allegiance had transferred to another nation. If Congress wanted to, it could enact a provision that would forfeit the citizenship of a person who was born abroad who chose to continue to live abroad without having met such condition of residency as Congress may reasonably require. In years past, pursuant to enactments or treaties, Congress has approved forfeiture of citizenship for various acts, such as for commiting sedition, marrying a foreign man, choosing to establish residency abroad, etc. However, many such provisions would nowadays likely be ruled abrogated or unconstitutional, absent reasonable and clear evidence of intention as an adult to renounce U.S. citizenship. Thus, the acquisition of dual citizenship is no longer thought antithetical to keeping U.S. citizenship -- EVEN IF another country claims a primary right to a person's allegiance.
QUESTION: Was there anything in common law or treaty, as adopted or approved by the U.S., that would have precluded a child -- who had been born in the U.S. of a foreign but free father who had never lived in the U.S. -- from acquiring U.S. citizenship at birth? Between 1787 and 1868, were any free children born in the U.S. of free, foreign fathers EVER denied U.S. citizenship at their birth?
14TH AMENDMENT AND THE SLAUGHTERHOUSE CASES: See Slaughterhouse Cases
Regarding [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."
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons [including persons who formerly would have been non-free] born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
MY NOTE: Subsequent opinions suggest the clause was NOT intended to exclude children born of foreigners, unless such foreigners were either diplomats of occupying military personnel. If so, then "subject to the jurisdiction" would include children born of parents who were legal domiciliaries, legal residents, legal migrant workers, legal students, legal visa holders, legal refugees, legal visitors, and perhaps even ILLEGAL ALIENS.
Yale Law professor Peter Schuck has written: “no court has ever squarely decided the question of the status under the Citizenship Clause of the native-born children of illegal and nonimmigrant aliens.”65
Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 9-42 (Yale Univ. Press 1985) (1985).
REGARDLESS, DO THE SLAUGHTERHOUS CASES SUGGEST THAT CONGRESS, BEFORE THE 14TH AMENDMENT, MAY HAVE THOUGHT THAT CONFLICTING ALLEGIANCE COULD MAKE A CHILD BORN IN THE U.S. NOT A NATURAL BORN CITIZEN AND PERHAPS NOT EVEN A CITIZEN AT ALL?
OR MAY IT REASONABLY BE ARGUED THAT THE 14TH AMENDMENT, although it did not REQUIRE that children of ministers, consuls, and citizens or subjects of foreign States born within the United States be recognized as citizens at birth, it did not PRECLUDE the previous law (or common law) that allowed such persons, in the absence of statutes or treaties to the contrary, to be recognized as (natural born) citizens at birth?
MAY THE 1790 IMMIGRATION STATUTE BE SIMILARLY INTERPRETED?
Read the Naturalization Acts of 1790 and 1795 again. Arguably, those statutes did not make children born in the U.S. of noncitizens into noncitizens. Rather, the effect was that children (already born) of parents who become naturalized shall likewise be considered as naturalized. Children not yet born who became thereafter born in the U.S. would become citizens at birth -- same as always.
The only children who would need to be naturalized after their births would be those who were not citizens at the very time they were born. The statute does NOT say that any children born in the U.S. are not citizens of the U.S.
Again, if children born in the U.S. of foreign parents between the Founding and 1868 were not citizens at birth, then, for those that stayed, whose parents never naturalized, there should be records to show that it was necessary for them at some point to seek naturalization. There should be many examples.
SO, BEFORE THE 14TH AMENDMENT, WERE CHILDREN OF ALIENS, WHO WERE BORN IN THE U.S., CITIZENS OF THE U.S., OR WERE THEY CITIZENS ONLY OF THE COUNTRY OF THEIR FATHERS? Did the rules vary among the states? Did the 1790 statute establish uniformity? Did it require that such children were not citizens unless and until they or their parents became naturalized?
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IDEAS FROM ENGLAND:
1628 -- Petition of Right.
1679 -- Habeas Corpus Act
1689 -- Bill of Rights
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We've all heard of the Big Lie Technique. Birthers are evidently also hard at work perfecting the Big Play Dumb Technique.
I said:
"... (before the 14th Amendment) there should have been large numbers of persons and their progeny who were born in America and remained in America but who never became citizens of America. So, if the Founders adopted the Vattel formula in a way as Birthers claim, where is the evidence of such persons or applications?"
ANALYSIS: Since you quoted me without including the language "before the 14th Amendment," should I take that as an oversight, or should I take it as a deliberate ruse to avoid the issue?
Yes, of course, AFTER the 14th Amendment, persons born in the U.S. are citizens. But persons who were born into the U.S. of foreign fathers and who died before 1868 would not have become citizens without having applied to be naturalized sometime before they died. There should be documentation, if such in fact were necessary. Again, where is it?
Again, in Michael Ramsey's words: "In sum, most American commentators and jurists who discussed citizenship in the late eighteenth and early nineteenth centuries followed the English approach in assuming that as a general rule birth in the United States was sufficient to convey citizenship. That assumption shows that they did not think Vattel’s view had been adopted in the United States, because Vattel directly declared that a person born in a country was not a citizen of that country unless his father was also a citizen of that country. Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties: large numbers of people moved to the United States and then had children; the children were assumed to be U.S. citizens but (absent subsequent naturalization) would not be under Vattel’s rule. Thus, following Vattel would have created a large (and self-sustaining) class of U.S. residents who were not U.S. citizens despite birth in the United States and with no material connections to any other country. There is no evidence that any substantial number of people in the eighteenth and nineteenth centuries thought U.S. law worked this way."
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The AG Opinion you cited was discussed in a Supreme Court case, Elk. v. Wilkins, 112 U.S. 94 (1884). Whatever point you think you are making by referencing that case is probably a stretch too far.
Elk v. Wilkins pertained to a Native American Indian, Elk, who had been born on an Indian reservation. He renounced his tribal allegiance and expected that would automatically make him a citizen of the U.S. by virtue of the 14th Amendment, without any need to apply to be naturalized. Under provisions at the time, the Indian tribes were alien nations. Special provisions were in the Constitution and various treative that regulated commerce with the Indian tribes. Subject to that background, at the time of his birth, Elk owed immediate allegiance to his tribe, and NOT to the U.S. This exclusion of Native Americans from U.S. citizenship was removed by the Indian Citizenship Act of 1924.
Apart from the special situation of Indians between 1868 and 1924, do you have any pertinent case that would hold that a person born after 1868 and in the U.S., not of an invading army or foreign diplomat, would not be a citizen at birth?
Perhaps you can explain how you would trump a 1939 Supreme Court case with an 1884 Supreme Court case that dealt with a special situation, for which a subsequent statute ended the practice?
See Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
Moreover, the very act that ended the preclusion of dual allegiance by Indians provides that Indians who are born citizens certainly CAN have dual allegiance! (As, apparently, can Puerto Ricans.) That is, the statute makes all Native Americans, even those who remain citizens of their tribes, into U.S. citizens.
See the 1924 Indian Citizenship Act (43 U.S. Stats. At Large, Ch. 233, p. 253 (1924)), which reads as follows:
BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, 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."
See https://en.wikipedia.org/wiki/Nationality_Act_of_1940: "Under the 1924 Act, indigenous people did not have to apply for citizenship, nor did they have to give up their tribal citizenship to become a U.S. citizen."
[Note: Charles Curtis, Vice President 1929-33 under Herbert Hoover, was born in 1860, of a mother who was of the Kaw nation, in the Kansas Territory. When his mother died when he was about 3, he lived for some time with her family on the Kaw reservation, and returned to them in later years. Under the Kaw matrilineal system, he inherited directly from her. Eventually, Curtis (and his three children) were allotted about 1,625 acres in total of Kaw land in Oklahoma. Despite having been born in a territory and having dual citizenship with an Indian Nation, he served as Vice President.]
See https://en.wikipedia.org/wiki/Charles_Curtis.
Approved, June 2, 1924. June 2, 1924. [H. R. 6355.] [Public, No. 175.]
Once again, I refer you to the First Rule of Birthers, which is: Never Trust A Birther!
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About Wong Kim Ark and Vattel, you seem quite confused!
I AGREE! that Wong Kim Ark recognizes that persons who are born in the U.S. and subject to its jurisdiction are citizens at birth of the U.S. However, before 1868, before the 14th Amendment, there was no Constitutional definition of citizen. So the definition necessarily came from the common law and the practice of the States before they ratified the Constitution. During that time, the definition of a citizen of the U.S. may be argued to have come from Vattel or from English and American common law. And that is my point! If Vattel applied, rather than the English practice, then the children born during that time of foreign fathers would NOT have been recognized as U.S. citizens at birth..
Now, if you want to say Vattel applied, then you need to say those children were not citizens of the U.S. But it you say they were citizens of the U.S., even before the 14th Amendment, then you are saying that the English and American common law applied -- not Vattel.
Presently, you are saying things that contradict. But if you want to rethink, to say those children were citizens because English and American common law applied, and not Vattel, then we can agree. Otherwise, you are just not making any sense.
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Again, in Michael Ramsey's words: "In sum, most American commentators and jurists who discussed citizenship in the late eighteenth and early nineteenth centuries followed the English approach in assuming that as a general rule birth in the United States was sufficient to convey citizenship. That assumption shows that they did not think Vattel’s view had been adopted in the United States, because Vattel directly declared that a person born in a country was not a citizen of that country unless his father was also a citizen of that country. Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties: large numbers of people moved to the United States and then had children; the children were assumed to be U.S. citizens but (absent subsequent naturalization) would not be under Vattel’s rule. Thus, following Vattel would have created a large (and self-sustaining) class of U.S. residents who were not U.S. citizens despite birth in the United States and with no material connections to any other country. There is no evidence that any substantial number of people in the eighteenth and nineteenth centuries thought U.S. law worked this way."
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This is likely a vain exercise, since it does not appear that Cruz, Rubio, Jindal, or Santorum have a chance. However, it has been interesting. Even though it's to be regreted that Birthers were so willing to deceive Americans in such a tawdry way.
This episode has shown that The First Rule of Birthers is: Never Trust a Birther.
Regarding 630 F.2d 876, FILARTIGA v. Americo Norberto PENA-IRALA, United States Court of Appeals, Second Circuit (June 30, 1980):
The case references the international body of law known as the "law of nations," the evolving existence of which no one doubts. It does NOT reference either Vattel or his treatise on Law of Nations." Moreover, the case is concerned with torture, not citizenship. It says: "... Universal Declaration of Human Rights, General Assembly Resolution 217 (III)(A) (Dec. 10, 1948) ... states, in the plainest of terms, "no one shall be subjected to torture."
[Quoting:]
3The Supreme Court has enumerated the appropriate sources of international law. The law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820); Lopes v. Reederei Richard Schroder, 225 F.Supp. 292, 295 (E.D.Pa.1963). In Smith, a statute proscribing "the crime of piracy (on the high seas) as defined by the law of nations," 3 Stat. 510(a) (1819), was held sufficiently determinate in meaning to afford the basis for a death sentence. The Smith Court discovered among the works of Lord Bacon, Grotius, Bochard and other commentators a genuine consensus that rendered the crime "sufficiently and constitutionally defined." Smith, supra, 18 U.S. (5 Wheat.) at 162, 5 L.Ed. 57.
14 The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900), reaffirmed that 15 where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
....
38 During the eighteenth century, it was taken for granted on both sides of the Atlantic that the law of nations forms a part of the common law. 1 Blackstone, Commentaries 263-64 (1st Ed. 1765-69); 4 id. at 67.
....
39 It is an ancient and a salutary feature of the Anglo-American legal tradition that the Law of Nations is a part of the law of the land to be ascertained and administered, like any other, in the appropriate case. This doctrine was originally conceived and formulated in England in response to the demands of an expanding commerce and under the influence of theories widely accepted in the late sixteenth, the seventeenth and the eighteenth centuries. It was brought to America in the colonial years as part of the legal heritage from England. It was well understood by men of legal learning in America in the eighteenth century when the United Colonies broke away from England to unite effectively, a little later, in the United States of America.
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Regarding the distinction between subject and citizen and its pertinence or lack thereof: Your analysis is as untrustworthy and lacking in erudition as your failure to understand that a general reference to "law of nations" is not a reference to, or an adoption of, the specific treatise of de Vattel, Le droit des gens (The Law of Nations). Again, from the very case you cited: "This doctrine was originally conceived and formulated in England in response to the demands of an expanding commerce". "During the eighteenth century, it was taken for granted on both sides of
the Atlantic that the law of nations forms a part of the
common law. 1 Blackstone, Commentaries 263-64 (1st Ed.
1765-69)."
To posit that the States dumped years of practice under English law to make a wholesale replacement with Continental or new law is absurd, perhaps nearly insane.
Even assuming Wikipedia has it right, as to your difficulty with understanding that the grammatical construction to which you refer does not unambiguously require of a child that both his parents be citizens in order for him to be a citizen or a natural born citizen, I can only assume that you suffer from a foundational deficiency in schooling and basic reasoning skill.
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Regarding your assertions that: "The entire purpose of this requirement was to ensure the President was born without any foreign allegiance, which would be passed down by a foreign parent or birth under foreign jurisdiction. The exact definition of "natural born citizen" is the only way to achieve their goal."
Actually, Jay was not in Congress at the time. He was more likely mainly concerned that Von Steuben not be put in charge of the military of the new nation. Jay would not have wanted to disqualify such of his own children as may be born abroad. You assert that, "The entire purpose of this requirement was to ensure the President was born without any foreign allegiance." But you have no authority for such assertion. It is more likely that the Founders wanted to increase the likelhood that the President would be familiar with, and loyal to, American values. Which they accomplished by requiring a combination: that the candidate have been a citizen at birth, and that he have resided 14 years in the U.S. They probably wanted to ensure that a foreign Prince could not become naturalized after his birth abroad and then run for public office while supported by a foreign fortune.
IAE, the Birther formula does NOT ensure against a foreign Prince who moves to America, establishes residency, marries an American woman, becomes naturalized, and has a child who is born in America. Rather, what the Birthers would do is try to disqualify loyal patriots born of citizen soldiers serving on military bases abroad.
The clincher is this, which I repeat, and which no Birther has dared to address: If Vattel was adopted, then for all the Sally's, Mary's, and Bobby's born in the U.S. of American mothers who married foreign fathers who declined to change their allegiance, none of them would have become Americans without having been naturalized. Nor would Bobby have been able to father an American citizen without himself having first become naturalized. In that case, there should be a wealth of applications for naturalization by persons born in America who decided to remain in America even though their fathers chose otherwise. Or (before the 14th Amendment) there should have been large numbers of persons and their progeny who were born in America and remained in America but who never became citizens of America. So, if the Founders adopted the Vattel formula in a way as Birthers claim, where is the evidence of such persons or applications? There should be a large number of them. So, where is the evidence?
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You quoted Wikipedia. Wikipedia, at https://en.wikipedia.org/wiki/Law_of_the_United_States, also has this:
At both the federal and state levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[14][15] However, American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.
COMMENT: Diverged. Over time. Which is how common law develops. NOT thrown off.
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The English practice was that the meaning of natural born citizen was amenable of limited redefinition by statute. Before the Constitution was drafted, legal practice in the States was largely based on British law, where not specifically ruled to the contrary. Indeed, before the Revolution, early Americans were governed under British law, with which they became familiar. Nothing shows that, after the Declaration of Independence, they made either a wholesale revocation of all preceding legal practice or a wholesale adoption of Continental practice.
Nothing shows that the states, in using the terminology "natural born citizen" intended to adopt Continental practice. To assume that they did leads to absurd results. The birtherbrains who say otherwise don't have sense enough even to apply their own cherry picked canons of construction.
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Our systems of so-called logic are ever challenged when they must reach up to an ultimate source of bafflegab. There, we at last draw nigh to a source of vexation to civilization: the notion that nature, under its "natural law," has natural citizens. This bafflegab is a "gift" from philosophers of natural law. The English, being a pragmatic, empire building, commercial lot, set aside much of the idiocy of philosophers of natural law (as also have numerous nations that prefer resorting to jus sanguinis as a guard against culture rotting caused by anchor babies). They pierced the idiocy and went straight to a pragmatic solution: That whatever may be thought to be the class of "natural born citizens," it may by statutes be made more prescriptive to the pragmatic needs of a thriving and expanding culture and civilization.
The English were smart enough to see that nothing in good sense precludes the idea that the class of persons made citizens under manmade philosophies of natural law need be considered mutually exclusive from the class of persons made citizens under manmade statutes -- especially when such statutes tie citizenship to blood and to time of birth.
It is no fault of the English that the French were simply not smart enough to pierce bs and bafflegab. Early Americans, being descendents of the British, not the French, inherited much of Anglo pragmatism. Birtherbrains, not so much.
IAE, I do not consider myself a citizen of natural-clockwork-paganism. Rather, in ultimate sense, I consider myself a citizen of a spiritual domain established by the Reconciler. In human freedom and dignity, the natural expression of that domain is flowering in America. To me, "birthergab citizenship" seems, ultimately, to try to answer only to semi-religious pagan bafflegab. And much of it seems to be in the service of a donor class that is bent on dividing and de-conserving America and sacrificing her to a lowest common denominator of pagan-Marxist Continental philosophy.
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Our systems of so-called logic are ever challenged when they must reach up to an ultimate source of bafflegab. There, we at last draw nigh to a source of vexation to civilization: the notion that nature, under its "natural law," has natural citizens. This bafflegab is a "gift" from philosophers of natural law. The English, being a pragmatic, empire building, commercial lot, set aside much of the idiocy of philosophers of natural law (as also have numerous nations that prefer resorting to jus sanguinis as a guard against culture rotting caused by anchor babies). They pierced the idiocy and went straight to a pragmatic solution: That whatever may be thought to be the class of "natural born citizens," it may by statutes be made more prescriptive to the pragmatic needs of a thriving and expanding culture and civilization.
The English were smart enough to see that nothing in good sense precludes the idea that the class of persons made citizens under manmade philosophies of natural law need be considered mutually exclusive from the class of persons made citizens under manmade statutes -- especially when such statutes tie citizenship to blood and to time of birth.
It is no fault of the English that the French were simply not smart enough to pierce bs and bafflegab. Early Americans, being descendents of the British, not the French, inherited much of Anglo pragmatism. Birtherbrains, not so much.
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I have to laugh. There was a time when I would make a more serious response. However, given all the crud Birthers have thrown around in juvenile and joyous abandon, I don't see much point in that.
I only wish Birthers would apply canons of construction to their own nonsense! Instead, they call names, invent bs, lie, confabulate, and show not the least understanding of logic or history. If they have any idea concerning the difference between dicta and case holdings, it tends to be hard to discern. They have cherry picked from among birther "philosophers" and then pretended they are "principled." They begin with outrageous horse apples, and then pile more upon them, ever higher and deeper.
Some of their gargantuan and smelly stuff: That we did not rely considerably on law inherited from the British. That Vattel's work was more influential than Blackstone's during the drafting of the Constitution. That the French version in 1787 that was available to the Founders talked explicitly about natural born citizens. (Except they don't know whether the Founders were working from a French or an English edition. And if they were workng from an English edition, they don't have the language that is actually in issue, or they haven't analyzed it. And if they were working from the French edition, they play stupid games with the grammar, conflating usages of plurals in ambiguous contexts as if they were perfectly explicit -- all the while ignoring that even Vattel recognized that the law that would apply to any country in particular would be the law that it had actually adopted.)
Birthers often make stupid distinctions between subjects and citizens -- even when subjects tend to be citizens, and even though there was likely no French citizen, save the King, who was not a subject. Their "distinctions" between a natural born citizen, a born citizen, and a naturalized citizen assume relationships to answers, while only begging questions -- for which they show no intellectual inclination to check the actual history.
After failing to check the history, Birthers then make generalized complaints about the methods used by highly regarded attorneys and researchers, who actually have checked the history and exposed the Birther nonsense and lies. Then, Birthers pretend to be scholarly by consulting ridiculous birther blogs and sites.
Many have outright lied. They have claimed Cruz and/or his parents registered to vote in Canada, or voted in Canada. They have stupidly claimed that Ted could not "become an American citizen" without a CRBA being filed. They have cherry picked from old statements by this or that Representative, that are at odds with much more recent Supreme Court pronouncements.
Birthers say stupid stuff (like Puerto Ricans could not vote for President -- which they certainly can, merely by establishing residency in a State). Birthers construct fairie notions made of horse apples, and then they assert the burden of proof is to disprove their nonsense. Like an infant making poopy and then claiming the parent has the burden to prove it isn't gold.
Birthers make assumptions about why the word "natural" was added in the Constitution, which make no sense in terms of logic and which are unsupported by anything more than reasoning in a circle or to a desired conclusion.
Birthers often claim Cruz remains a citizen of Canada, or of Britain. Or Cuba. That Cruz has a dual passport. [A lie by Trump, rated false by Politifact -- http://www.politifact.com/texas/statements/2016/jan/06/donald-trump/donald-trump-incorrectly-says-ted-cruz-has-had-dou/] . Some still claim Cruz is not a U.S. citizen.
[http://www.cnn.com/2014/06/11/politics/ted-cruz-canada-citizenship/index.html] Regarding Cuban citizenship, see http://www.helplinelaw.com/law/cuba/constitution/constitution03.php. Hint: Ted Cruz does not qualify for Cuban citizenship.
Birthers make stupid and wrong assertions about what was held in Bellei, in Happensett, and in Wonk Kim Ark. They ignore Perkins v. Elg; Ankeny; Lynch; and the various suits against Obama. They persist in filing numerous ridiculous and harassing lawsuits -- probably at the behest of corrupt donors.
Some have stupidly asserted: That the terminology "natural born citizen" was not commonly known and used among the pre-Constitution States; that there is some distinction between citizens and subjects that makes a difference in determining whether a person is a natural born citizen; that the concept of a natural born citizen precludes a person who acquires dual citizenship; that the pre-Constitution States did not routinely resort to common law as derived originally from the British; that, during the drafting of the Constitution, the Founders are shown to have more frequently consulted Vattel's treatise on the law of nations than British common law; that it can be shown that the Founders, by empowering Congress to establish a uniform rule of naturalization, intended to remove from Congress the power to expand upon who should be a citizen at birth within the meaning of being a natural born citizen; that a person who is a citizen at birth pursuant to statute cannot be considered eligible as a natural born citizen (even though that is almost exactly what was done by the British for many years); that it can be shown that the Founders would have considered a child of John Adams or John Jay to have been ineligible if born abroad after 1787; that Congress advised FDR Jr. that he was ineligible because his parents happened to be in Canada when he was born; that old schoolbooks taught that being a natural born citizen required birth in the U.S. from parents who were both citizens; that Ted Cruz "admitted" he is not a natural born citizen; that it can be shown that nothing in British or U.S. common law could have ever supported treatment of a person born abroad as a natural born citizen; that the holding in the Bellei case is to the effect that Cruz is not a natural born citizen; that a "true" natural born Citizen could never have his citizenship forcibly removed for a residency or marriage trifle.
Considering how Birthers have fertilized their notions by stringing horse apple assumptions on top of horse apple assumptions, you need to turn your "Constitutional scholarship" on your own garden. Until then, If your method, as you have applied it, is that of a Constitutional scholar, then I'm the King of Pangaea.
As to Laurence Tribe: He seems to be little more principled than a shill of convenience for whomever may be an opponent of Conservatives. Principled my foot!
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Apparently, the latest gloss on Birther "theory" is that the early Americans, when the Founders of the Constitution used the words "natural born citizen," so disdained British law that they adopted Continental law. (Even though there is no evidence that the Founders or Ratifiers entertained any such a sudden change of course. And even though, for every quote by someone who may himself have disdained British common law, there seem to be quotes by American jurists pointing out that such common law indeed was adopted.)
Vattel Birthers would have to assert that children born in the U.S. of fathers who were only visiting (or on short business and with no intenton of establishing residency) did not acquire U.S. citizenship at all, much less natural born status. Similarly, if such children preferred to remain citizens of the lands of their fathers, instead of becoming naturalized, then their children also would not acquire U.S. citizenship. Communities of near helots would arise. Yet, what in our history suggests any such a thing? Where is the evidence to support such a Birtheresque result? Bueller? Bueller?
You act as if Scotus were guided by well known and commonly accepted rules of construction. As if a computer, properly programmed, would spit out the Birther interpretaton as the "correct" one. However, as I look at some of the rulings joined by various Justices on Scotus, I find it quaint, even laughable, that you think most of them are guided more by common principles of construction than by desired result.
IAE, as I survey the Birther BS that has been confabulated by all the Birtherbrains, one thing screams out: What a load of nonsense!
The republic is being plundered by corrupt and treasonous establishmentarians. But Birthers, on "bs for principles," want to focus on distracting and fooling the people into believing that a person who is a citizen at birth cannot be eligible for the Presidency.
"No!" they holler, "We can't have that!" -- even if it means we must continue to elect regimes or persons that serve, or long have served, corrupt establishmentarians. And on what good reasoning? Why, based on little more than horse apples piled on top of horse apples, that's what.
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REGARDING INSULTS: That's right. You insult people and then whine when a mirror is held up. Dish it, but can't take it? Need a "safe room"? The only reason I bother to discourse to birtherbrains is in respect of the occassional reader who might be salvageable by reading an analysis that is not twisted to the mind cage. BTW, I' so glad you know we have a Constitution. Your mommy would be proud!
REGARDING SUPREME COURT WORDS: Look, do you have the faintest idea about understanding either basic logic or interpretation of case law? No responsible or intelligent lawyer interprets cases the way you would distort them. To say that A is part of a class of B is not to say that B consists only of the class of A. Is that hard for you?
YOUR DELIBERATE MISREPRESENTATION AND OBFUSCATION: Look -- you disingenously mischaracterize what people say and then call it an argument. I did not say that Vattel did not write Law of Nations. Everyone knows that. I said Blackstone also wrote about the law of nations, and most of our legal traditions came from Britain, not France.
YOUR OBTUSENESS ON PRECEDENT: I also cited the Supreme Court case on the issue of dual citizenship not being a disqualifier. See https://supreme.justia.com/cas....
In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
And your "reply" is what some Congressman wrote? Are you daft or just mentally weak?
YOUR BEGGING THE QUESTION REGARDING NATURAL BORN AND NATURALIZATION: Tell me, what under the Sun does not come from Nature? All artificial law is first a derivative of or with Nature. All laws, even artificial laws and laws of nations, are in some sense derivative of Nature. In a sense, every citizen is made a citizen because of artificial law that is derivative of nature. Now, you can imagine fairies and Pagan Earth giving birth to "natural citizens" without an entailment with manmade contrivances, but I decline to dance with such follies. IAE, it does not matter!
You go on and on about how a person made a citizen at birth pursuant to statute can, for some purposes, be considered as having been "naturalized." As if that were some big thing. But you remain clueless to the real question.
The real question is, Did the Founders apprehend that natural born citizens can be made such by naturalizing statutes? To answer that, you need to get off your jerk train and check the history. Michael Ramsey has done stellar research to show the history and links, not that birtherbots would ever want to check his work or the actual history.
See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485:
"[T]he Constitution does not define most of its terms and uses phrases obviously drawn from contemporary legal language -- ex post facto, habeas corpus, bill of attainder, and the like – the English legal background with which its drafters were familiar is rich source of meaning."
....
"Under English common law, a natural born subject – consistent with the common legal meaning of “natural” – was one whose subjectship arose from the nature of things."
....
"A bedrock principle of eighteenth-century English law was that Parliament could alter, extend and re-define the common law by statute. Despite the common law background of the phrase “natural born,” parliament had a long experience of statutory intervention."
....
"[I]n 1708, Parliament provided: [T]he Children of all natural born Subjects born out of the Ligeance of her Majesty Her Heires and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever."
....
"[T]he 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects."
"A]ll children born out of the ligenace of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said recited clause in the said act...and of this present act be adjudged and taken to be, and all such children are hereby declared to be natural-born subjects of the crown of Great Britain to all intents, constructions and purposes whatsoever."
MY NOTE: These children are not merely considered as being natural born subjects, but are in fact declared to be natural born subjects!
....
"Blackstone described the two categories of statutes in different terms. As discussed, he said that those who gained subjectship from birth abroad to English “are” natural born citizens. He mentioned those who gained subjectship from post-birth events (living in the colonies, serving on whaleships or in the American regiment) in a separate paragraph somewhat later in his discussion, and said only that they were “naturalized” as a result of their actions."
....
"Swift’s treatise on Connecticut law, published in 1795 ... adds that the children of aliens, “born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.... Americans did not broadly reject the word “subject” and instead used it interchangeably with “citizen.""
....
"Madison ... In referring to birth citizenship deriving “sometimes from place, and sometimes from parentage” he is describing the divide between English law “jus soli” and civil law “jus sanguinis.” He then says “place is the most certain criterion” and “what applies in the United States.” “Place” is the rule of English law; it is manifestly not Vattel’s rule."
....
"... most American commentators and jurists who discussed citizenship in the late eighteenth and early nineteenth centuries followed the English approach in assuming that as a general rule birth in the United States was sufficient to convey citizenship. That assumption shows that they did not think Vattel’s view had been adopted in the United States, because Vattel directly declared that a person born in a country was not a citizen of that country unless his father was also a citizen of that country. Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties ....
....
[F]ollowing Vattel would have created a large (and self-sustaining) class of U.S. residents who were not U.S. citizens despite birth in the United States and with no material connections to any other country. There is no evidence that any substantial number of people in the eighteenth and nineteenth centuries thought U.S. law worked this way.
.... the post-ratification period Americans tended to adopt the English approach to subjectship/citizenship, not Vattel’s approach. In any event, it outweighs evidence to the contrary, which apart from speculation is essentially non-existent."
....
"[T]he late-eighteenth-century definition of “natural born” was a combination of common law and statutory law – and anyone even mildly familiar with English law would have understood it this way
....
[I]f the framers wanted to limit presidential eligibility only to persons born within the nation’s territory, it is highly unlikely that they would have used a phrase – “natural born” – that they knew English law defined to include some people born outside the nation’s territory. Had they intended it, they could easily have limited eligibility to those “born in the United States” instead of using a term with more flexible meaning.
....
The lesson of developments in eighteenth-century English statutory law in this area was that “natural born” was not a fixed concept, but rather was amenable to parliamentary modification, at least at the margins."
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"Well before 1787-88, therefore, the English understanding of “natural born” had lost its traditional connection with natural law and natural allegiance; it was a status parliament could convey based on the circumstances of birth.
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As a result, it is extremely important that under the U.S. Constitution Congress has “Power ...To establish an uniform Rule of Naturalization.”
....
Crucially, all of the eighteenth-century statutes that declared a class of persons to be “natural born” subjects were called acts of naturalization. As a result, there is no doubt that parliament’s power of naturalization included the power to declare categories of natural born subjects beyond the traditional common law. Somewhat confusingly, in terms of modern usage, these persons were both “natural born” and “naturalized."
....
"Applied to the U.S. Constitution, the implication of the English law terminology is clear. Congress’ power of “naturalization,” like parliament’s power, includes both the power to establish rules for naturalizing foreign citizens on an individualized basis and the power to declare categories of persons citizens by the circumstances of their birth.
....
This interpretation ... explains the 1790 Naturalization Act, which declared that children born abroad of U.S. citizen parents were “natural born” citizens.
....
Congress did not seem to be adopting any existing definition, but rather creating its own definition. In this sense, it was acting entirely consistently with Blackstone’s description of “natural born ”as open to statutory definition.
....
[T]he drafters ... deliberately picked a phrase that they knew (from English practice) had some flexibility for statutory definition, but would still protect against the particular threats they were trying to avoid.
....
[I]nterpreters who have looked for a meaning of “natural born” in the eligibility clause alone have been looking in the wrong place.
....
[I]t is doubtful that Congress could convey natural born status on persons with no connections to the United States at birth.
....
[I]t is doubtful that Congress could convey natural born status on a particular individual without similarly making all similarly situated persons equally eligible.
....
Recognizing these limits on Congress’ naturalization power would prevent the intrigues that concerned the framers, while leaving Congress substantial definitional flexibility.
....
[T]hough Congress has broad power to define who is natural born under its naturalization power, English practice and the purposes of the eligibility clause suggest that Congress can only exercise that power with respect to categories of persons with some material connection to the United States at birth."
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REGARDING WINSTON CHURCHILL AND QUEEN NOOR: If you seriously want to raise issues regarding Churchill and Noor, then you seriously need to relate their circumstances to the immigration and naturalization statutes then in effect. Did any statute then in effect confer status to them as citizen at birth? Did any such statute impose a condition precedent or subsequent, that they failed to meet? Had either of them established a 14 year residency in the U.S. as of the time of reaching 35? Did either of them or their parents near or before the times of their births expressly renounce U.S. citizenship?
When you do your homework, come back and we can discuss whether either of them, had they returned to reside in the U.S. and been prepared to take the oath of office, might have been eligible to become President. Until then, you just sound desperate. Indeed, on your desperate reasoning, what about Donald Trump, who could anytime he wanted apparently claim citizenship of both Ireland and Scotland?
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I think Michael Ramsey's article, which I added to my previous summary, is best on the subject. Moreover, his scholarship is stellar. I excised the key points. However, I commend you to his article. He clerked for Justice Scalia and I am confident he knows how to interpret case law. IAE, the issue is one that cannot be resolved except at highest level. And I doubt anyone is entirely sure whether that would be Scotus (political thicket) or Congress. Regardless, there have been precedents at lower court levels, which are referenced in the CRS articles. I agree that the CRS articles seem too willing to "push a string." However, again, I commend you to the cited article by Ramsey. I have gone through this in quite considerable detail. I am satisfied that the Birther theories are frivolous. However, I agree with Ramsey, that proving that takes a bit of time.
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No Puerto Rican could run for President until he moved to a State and met a residency requirement. But once a Puerto Rican establishes residency in a State, he can vote from such State. Puerto Ricans also participate in primaries and are granted delegates.
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Do you know whether Franklin had a French edition or an English translation of 1760? If an English translation, what did it say, in English? Does anyone know, or is everyone speculating about some French phrases (that may be irrelevant)?
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- Doesn't "parens" in French encompass more family (close blood and marriage relatives) than just parents?
- The English had an idea of natural born subject-citizens that would include children of English citizens born abroad, which the English called "natural born subject-citizens." So, what would be the French translation for that kind of "natural born citizen"?
- Wasn't 1775 more like 12 years before the Constitution was drafted, in 1787?
- What does consulting an edition in 1785 have to do with drafting a Constitution in 1787?
- If Sally, Mary, and Bobby are born of mothers who are citizens and fathers that are not, then, as a group, don't Sally, Mary and Bobby still constitute children of parents who are citizens?
Read Michael Ramsey's work on the subject. It's surely far more scholarly and respectable than anything you've read.
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What matters is American law. Canadian law, not so much. It would be pretty weird if we let other nations start deciding for us who can and cannot be eligible, just because they want to impose some classification of their own.
Has the law changed on dual citizenship since Perkins v. Elg, 307 U.S. 325 (1939)? See https://supreme.justia.com/cas.... In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
See also United States v. Carlos Jesus Marguet Pillado, in which the United States Court of Appeals for the Ninth Circuit recognized that (in its first opinion), "It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress."
The same court later (in its second opinion), discussed whether one may be a “natural born” citizen of the United States in two ways: either by being born in the United States, or by being born abroad of at least one citizen parent who has met the residency requirement.
The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child’s mother or father, has never been determinative of “natural born” or other citizenship status in any case in American jurisprudence.
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There were a series of English statutes. Acts of Naturalization within the pre-Constitution states suggest early Americans knew of such.
Birthers have sometimes claimed the words "natural born citizen" were not in use in the territorial U.S. until the Constitution was drafted. I cannot improve on Ramsey's work. The "best" I can do is to indicate a couple of personal ideas:
First, I think the addition of the word "natural" was for the purpose of enlarging the class of eligible candidates beyond the class of those born in the U.S.
Second, perhaps because of my personal philosophy regarding "natural law," I think the word "naturalize" has usages within usages, like wheels within wheels. In that respect, I don't think there is any such a thing as a natural born citizen who is not at some level "naturalized."
You drew my attention to an ambiguity concerning the applications of the law making Puerto Ricans citizens and the law making Puerto Rico part of the U.S. for geographical purposes. So, I may agree on that count to be less stridently sure whether Puerto Ricans can be eligible. For now, I punt to Justice's Breyer's point that "I don't see why not" (provided such a candidate were 35 and perhaps (?) provided he had established the 14 years residency within the main body of the U.S.).
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No one -- not the Founders, not Scotus, and not Congress -- has ever said that a person made a citizen at birth by statute of Congress is not a natural born citizen. All the arguments to the contrary have been based on nothing more than a lot of zany and unsupported speculation. A string strung of horse apples after horse apples after horse apples, that crumbles when exposed to the least rays of sunlight.
Show me anything in the history of the pre-Constitution states that suggests they were not familiar with the term "natural born citizen" under their own understanding and application of common law, or that suggests that ANY person who was a citizen at birth would be considered as other than a natural born citizen. Inferentially, the very reason the word "natural" was added was to comport with existing practice for recognizing persons OTHER THAN those born in country as also being natural born citizens, when born of citizens abroad. If the only citizens who were "natural born" were those born in country, the the word "natural" would have been surplusage, and the description should have been limited to "persons born in country."
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I am retired and do not have a ready law library at home. However, the Internet provides an array of alternative resources.
NOTE: I think the following cite is somewhat unclear and poorly reasoned (?) (He thinks "Maskell got it wrong."]. IAE, see http://www.constitution.org/abus/pres_elig.htm:
[Quote;}
Sometimes miscited is Emmerich de Vattel, in his work Les Droit des Gens (Law of Nations), taking out of context the words from Book I:
§ 212. ... The natives, or natural-born citizens, are those born in the country, of parents who are citizens.
But this is not a precise translation from the French, which has no exact equivalent to "natural born", and the French word word "parens" can mean close family, not necessarily biological parents. He was writing of a modified form of the rule of jus sanguinis that was municipal law (not the law of nations), and only for some countries on the European Continent. A little further down, he explains:
§ 214. ... there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
However, "naturalizes" is also not an exact translation, which in Anglo-American law has come to mean a statutory or administrative process, but which for Vattel meant "makes one a citizen", which could include natural circumstances.
....
[J]us sanguinis prevailed in many Eastern and Central European countries at the time Vattel wrote, and spread to other countries on the European continent. It displaced jus soli in Britain in 1983 and in France in 1993, mainly in response to immigration of persons of different ethnicity
....
[CONCERN -- HOWEVER, I DO NOT FOLLOW THE "LOGIC" OF THE WRITER, OF THE QUOTE BELOW, WHEN HE SAYS THE FOLLOWING:
[N]atural born citizens of Puerto Rico are not natural born citizens of the United States, eligible to be president, while it remains a protectorate or dependency.
[MY COMMENT: I see no reason to think jus soli status as a natural born citizen is not extended to a person who is born on an island that is organized and made a part of the U.S. (for geographical purposes) by statute -- even if it is considered to be not an incorporated territory. That is, it is unincorporated, but it is also organized and, by statute, made a part of the U.S.]
[A PORTION OF THE ARTICLE WITH WHICH I AGREE -- QUOTE:]
Much of the current debate over whether Sen. Ted Cruz is eligible is based on a rejection of the premise that the two terms are mutually exclusive. This debate has devolved into a dispute between those who maintain the premise that "natural born" and "naturalized" are not exclusive, that a naturalization statute that makes one a "citizen at birth" also makes one a "natural born" citizen. A debate without agreement on the logical premises can never be resolved.
[MY COMMENT: Chalk me up as one who does not accept as logical or sensible a philosophy that there is any such a thing as a person who is a citizen by natural birth, outside of law. Rather, at some point, law is always requisite -- whether it be subconciously agreed to as a moral code, whether it be written in a Constitution, or a Statute, or an interpretaton of a statute, or a longstanding custom reduced to recognition by written precedent. Indeed, without there first being law, there is no recognition of a country even to be a citizen of. Because that is my stance, I don't see much point for straining to make a difference (that does not make a meaningful distinction) between the English "Constitution" and the American, or between citizens under a (diminished) monarchy who are (quaintly) considered as subjects (citizen-subjects) versus plain citizens who owe allegiance to their republic. I recognize that some philosophers, probably including some among the Founders, are fond to create airy systems in recognition of fairies, but I do not think logic or pragmatism can sustain such systems or reasoning.]
IAE, I accord more to the analysis made in the article cited by Michael Ramsey, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712485:
[Quotes:]
The drafting and ratifying history is unhelpful, as the clause was rarely discussed, and only in general terms. Similarly, post ratification discussions are inconclusive, or appear to point in different directions. On the basis of the text and the most frequently consulted founding era sources, the phrase appears to refer to a “natural” relationship to the nation that was incompletely articulated, or perhaps incompletely understood.
....
This article argues, however, that meaning can be found in pre-constitutional sources, chiefly in the idea of “natural born subjects” in English law. In brief, traditional English common law reflected an idea of “natural” birth within the allegiance of the king, based only on birth within the king’s territory (with minor exceptions). These people were called “natural born subjects.”
Since the late seventeenth century, however, parliament had extended “natural born subject” status to certain persons born abroad to English parents. Crucially, parliament did not merely give these persons the rights of natural born subjects; it declared them to be natural born subjects. As a result, by the late eighteenth century, in English law the phrase “natural born” – contrary to its traditional meaning – had come to include those given subject status at birth by statute.
....
[T]his understanding of “natural born” is the one most likely recognized by the Constitution’s framers.
....
That leaves the question of the meaning of natural born Citizen. ”According to a comprehensive study by the Congressional Research Service, the phrase means any person who is a U.S. citizen by birth, including those whose citizenship is granted by statute.
....
(Jay was thinking only of the office of Commander in Chief; because the Philadelphia proceedings were secret, he did not know that the Convention had decided to create a President who was also Commander in Chief).
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The effect of the 1795 Act seems thoroughly ambiguous: was the key phrase “natural born” dropped inadvertently, dropped because Congress thought it was surplusage, or dropped because Congress had decided (for constitutional reasons or otherwise) that foreign born children of U.S. parents should not bedeclared natural born? Nothing in the congressional debates indicates a satisfactory answer.
....
To begin, the phrase “natural born subject” had an established meaning in English law, and might reasonably be seen as a predecessor to the Constitution’s phrase “natural born Citizen.” Because the Constitution does not define most of its terms and uses phrases obviously drawn from contemporary legal language -- ex post facto, habeas corpus, bill of attainder, and the like – the English legal background with which its drafters were familiar is rich source of meaning, often more useful and relevant than dictionaries, which defined terms often without reference to their legal contexts.
....
The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.
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Under English common law, a natural born subject – consistent with the common legal meaning of “natural” – was one whose subjectship arose from the nature of things. As Blackstone explained: The first and most obvious division of the people is into aliens and natural born subjects. Natural born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.
....
[A] person, though born within the realm may yet be an alien, if he is born in circumstances that he cannot be held from the moment of his birth to owe allegiance to the king. Such, for instance, are the children of persons who, by the comity of nations ... are looking upon as being exterritorial, e.g., a foreign sovereign or his ambassador or accredited minister; such also are the children of alien enemies, who, as members of an invading army, may have succeeded in occupying part of the King’s territory, for these cannot be considered to be even temporary subjects of the King, for where no protection can be claimed, no allegiance can be due. Allegiance is the tie, or ligament, which binds the subject to the king, in return for that protection with the king affords the subject.
....
A bedrock principle of eighteenth-century English law was that Parliament could alter, extend and re-define the common law by statute. Despite the common law background of the phrase “natural born,” parliament had a long experience of statutory intervention.
....
[I]n 1708, Parliament provided: [T]he Children of all natural born Subjects born out of the Ligeance of her Majesty Her Heires and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever.
....
The 1708 statute, although to some extent a logical successor to the seventeenth century legislation, revolutionized the rules of subjectship in several respects. First, it was open-ended temporally, applying indefinitely into the future. Second, it no longer rested on unique historical circumstances, nor could it be justified by a legal fiction of direct service to the king when the king was abroad. The statute was thus a full-blown re-definition of the common law, not merely a one-time adjustment.
....
[T]he core point is that the 1731 statute continued the practice of declaring a class to be not merely subjects but natural born subjects.
....
Blackstone noted ... all children, born out of the king’s ligeance, whose fathers were natural born subjects, are now natural born subjects themselves, to all intents and purposes, without any exceptions; unless their said fathers were attained, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
....
Blackstone ... uses the phrase “are now natural born citizens,”indicating a change in the definition, not merely an expansion of rights.
....
Under common law, “natural born” meant born within the protection of the monarch (and thus, as a natural matter, owing allegiance to the person who provided protection).
....
[T]he Act of Settlement ... barred persons born outside the dominions from holding office or accepting grants of land. As discussed, however, the Act of Settlement exempted from this bar persons “ such as are born of English Parents.”
....
Thus the statutes relating to post-birth activities did not make their beneficiaries full natural born subjects, regardless of what they appeared to say. Instead, Parliament appeared to recognize a key distinction, rooted in the Act of Settlement, between those born abroad to English parents (who could be given the full status of natural born subject) and those born abroad without familial connections to England (who could not).
....
Blackstone described the two categories of statutes in different terms. As discussed, he said that those who gained subjectship from birth abroad to English “are” natural born citizens. He mentioned those who gained subjectship from post-birth events (living in the colonies, serving on whaleships or in the American regiment) in a separate paragraph somewhat later in his discussion, and said only that they were “naturalized” as a result of their actions.
....
But even if we assume that the American framers had English statutory law in mind, it remains somewhat ambiguous what they would have concluded from it. Would they think that “natural born” meant what it meant in English law in 1787-88 (birth within sovereign territory or birth abroad to a citizen father or grandfather)? Or would they have taken it more broadly to mean that “natural born” could, at least to a significant extent, be defined by statute?
....
Swift’s treatise on Connecticut law, published in 1795 ... adds that the children of aliens, “born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.... Americans did not broadly reject the word “subject” and instead used it interchangeably with “citizen.”
....
Madison ... In referring to birth citizenship deriving “sometimes from place, and sometimes from parentage” he is describing the divide between English law “jus soli” and civil law “jus sanguinis.” He then says “place is the most certain criterion” and “what applies in the United States.” “Place” is the rule of English law; it is manifestly not Vattel’s rule,
....
... most American commentators and jurists who discussed citizenship in the late eighteenth and early nineteenth centuries followed the English approach in assuming that as a general rule birth in the United States was sufficient to convey citizenship. That assumption shows that they did not think Vattel’s view had been adopted in the United States, because Vattel directly declared that a person born in a country was not a citizen of that country unless his father was also a citizen of that country. Particularly in the context of a country with high immigration, as the United States was at the time, it would be impossible to follow Vattel’s view without substantial difficulties ....
....
[F]ollowing Vattel would have created a large (and self-sustaining) class of U.S. residents who were not U.S. citizens despite birth in the United States and with no material connections to any other country. There is no evidence that any substantial number of people in the eighteenth and nineteenth centuries thought U.S. law worked this way.
....
the post-ratification period Americans tended to adopt the English approach to subjectship/citizenship, not Vattel’s approach. In any event, it outweighs evidence to the contrary, which apart from speculation is essentially non-existent.
....
[T]he late-eighteenth-century definition of “natural born” was a combination of common law and statutory law – and anyone even mildly familiar with English law would have understood it this way
....
[I]f the framers wanted to limit presidential eligibility only to persons born within the nation’s territory, it is highly unlikely that they would have used a phrase – “natural born” – that they knew English law defined to include some people born outside the nation’s territory. Had they intended it, they could easily have limited eligibility to those “born in the United States” instead of using a term with more flexible meaning.
....
The lesson of developments in eighteenth-century English statutory law in this area was that “natural born” was not a fixed concept, but rather was amenable to parliamentary modification, at least at the margins.
....
Well before 1787-88, therefore, the English understanding of “natural born” had lost its traditional connection with natural law and natural allegiance; it was a status parliament could convey based on the circumstances of birth.
....
As a result, it is extremely important that under the U.S. Constitution Congress has “Power ...To establish an uniform Rule of Naturalization.”
....
Crucially, all of the eighteenth-century statutes that declared a class of persons to be “natural born” subjects were called acts of naturalization. As a result, there is no doubt that parliament’s power of naturalization included the power to declare categories of natural born subjects beyond the traditional common law. Somewhat confusingly, in terms of modern usage, these persons were both “natural born” and “naturalized.
....
Applied to the U.S. Constitution, the implication of the English law terminology is clear. Congress’ power of “naturalization,” like parliament’s power, includes both the power to establish rules for naturalizing foreign citizens on an individualized basis and the power to declare categories of persons citizens by the circumstances of their birth.
....
This interpretation ... explains the 1790 Naturalization Act, which declared that children born abroad of U.S. citizen parents were “natural born” citizens.
....
Congress did not seem to be adopting any existing definition, but rather creating its own definition. In this sense, it was acting entirely consistently with Blackstone’s description of “natural born ”as open to statutory definition.
....
[T]he drafters ... deliberately picked a phrase that they knew (from English practice) had some flexibility for statutory definition, but would still protect against the particular threats they were trying to avoid.
....
[I]nterpreters who have looked for a meaning of “natural born” in the eligibility clause alone have been looking in the wrong place.
....
[I]t is doubtful that Congress could convey natural born status on persons with no connections to the United States at birth.
....
[I]t is doubtful that Congress could convey natural born status on a particular individual without similarly making all similarly situated persons equally eligible.
....
Recognizing these limits on Congress’ naturalization power would prevent the intrigues that concerned the framers, while leaving Congress substantial definitional flexibility.
....
[T]hough Congress has broad power to define who is natural born under its naturalization power, English practice and the purposes of the eligibility clause suggest that Congress can only exercise that power with respect to categories of persons with some material connection to the United States at birth.
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NOTE: Here is a cite that gives some examples of "Puerto Rico" (PR) problems: http://www.puertorico-herald.org/issues/2003/vol7n38/Poll0738-en.html.
For some interesting speculation by Justice Breyer, see http://www.cbsnews.com/news/can-a-puerto-rican-be-president-justice-breyer-speculates/:
[Quote;]
Could an American born in Puerto Rico serve as president of the United States? One Supreme Court justice today said he doesn't see why not.
"I know many possible people from Puerto Rico who could perhaps who could be elected" president, Supreme Court Justice Stephen Breyer said today, when asked about the possibility during a hearing of a subpanel of the House Appropriations Committee.
Breyer and Justice Anthony Kennedy made a rare visit to Capitol Hill today to testify before the Financial Services and General Government Appropriations Subcommittee about their annual budget. The question of whether a Puerto Rican could serve as president came at the opening of the hearing from Rep. Jose Serrano, D-N.Y., the top Democrat on the subcommittee. Serrano, who represents part of the Bronx in New York, was born in Puerto Rico himself.
Kennedy declined to speculate on the question, but Breyer shared his thoughts, stressing that they didn't represent any kind of official court opinion.
"Lawyers always ask two questions: first, why?" Breyer said. "Isn't Puerto Rico an important part of this country? Answer: yes."
The justice continued, "Second question: why not? When I ask why not, I don't hear any answer."
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FWIW, see https://en.wikipedia.org/wiki/Natural-born-citizen_clause:
[Quote:]
In 2000, the Congressional Research Service (CRS), in one of its reports, wrote that most constitutional scholars interpret the natural born citizen clause to include citizens born outside the United States to parents who are U.S. citizens. This same CRS report also asserts that citizens born in the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands, are legally defined as "natural born" citizens and are, therefore, also eligible to be elected President.[73]
This opinion was reaffirmed in a 2009 CRS report, which stated:
Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase "natural-born subject" in England and in the Colonies in the 1700s, the clause's apparent intent, the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term "natural born citizen" to include a person born abroad to parents who are United States citizens), as well as subsequent Supreme Court dicta, it appears that the most logical inferences would indicate that the phrase "natural born Citizen" would mean a person who is entitled to U.S. citizenship "at birth" or "by birth".[74]
This interpretation of natural born being the equivalent of citizen at birth (not naturalized) was again in a 2011 CRS report and a 2016 CRS report. The 2011 report stated:
The weight of legal and historical authority indicates that the term "natural born" citizen would mean a person who is entitled to U.S. citizenship "by birth" or "at birth," either by being born "in" the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship "at birth." Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an "alien" required to go through the legal process of "naturalization" to become a U.S. citizen.[3]
The 2016 report similarly stated:
Although the eligibility of U.S. born citizens has been settled law for more than a century, there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term "natural born" in England and in the American colonies in the 1700s included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent). Legal scholars in the field of citizenship have asserted that this common understanding and legal meaning in England and in the American colonies was incorporated into the usage and intent of the term in the U.S. Constitution to include those who are citizens at birth.[59]
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NOTE REGARDING STATUS FOR BEING "ORGANIZED":
FWIW, see https://en.wikipedia.org/wiki/Territories_of_the_United_States:
[Quote;]
By Act of Congress, the term ‘United States’, when used in a geographical sense [?Is this a way of suggesting it is NOT a part of the U.S. in a political sense?], means “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States”.[8] Since political union with the Northern Mariana Islands in 1986, they too are treated as a part of the U.S.[8]
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The five inhabited U.S. territories have local voting rights, protections under U.S. courts, pay some U.S. taxes, and have limited representation in the U.S. House of Representatives. They popularly elect “Members of Congress”, who like the delegate from DC, “possess the same powers as other members of the House, except that they may not vote when the House is meeting as the House of Representatives.” They participate in debate, are assigned offices, money for staff, and appoint constituents from their territories to the Army, Navy, Air Force, Coast Guard, and Merchant Marine academies. .[13] They can vote in committee on all legislation presented to the House of Representatives, they are included in their party count for each committee, and they are equal to senators on conference committees. Depending on the congress, they may also vote on the floor in the House Committee of the Whole.[14]
....
Incorporated territories are considered an integral part of the United States, as opposed to being merely possessions.
....
[T]he Court in these [insular] cases also established the doctrine of territorial incorporation, under which the Constitution applies fully only in incorporated territories such as Alaska and Hawaii, and applies only partially in the new unincorporated territories of Puerto Rico, Guam and the Philippines.
....
[Puerto Rico -- Unincorporated Organized Territory] Unincorporated territory since 1898, a commonwealth since 1952. In November 2008, a U.S. District Court judge ruled that a sequence of Congressional actions have had the cumulative effect of changing Puerto Rico's status from "unincorporated" to "incorporated."[32] However, the issue has not finished making its way through the court system;[33] and the U.S. government still refers to Puerto Rico as unincorporated.[34]
....
[MY COMMENT: It appears Puerto Rico is "organized" at least to the extent as indicated above. And it appears Congressional enactment recognizes Puerto Rico as "part of the U.S."
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In that Congress can establish a rule that recognizes or organizes a territory as being part of the sovereign U.S. for 14th Amendment purposes, it is obvious that Congress, by statute, can establish a rule for extending birthright citizenship to persons thereafter born in such a territory. Such persons would be considered natural born citizens. That is, they would be citizens from birth, without needing to undertake naturalization procedures, i.e., procedures after their birth.
Because Congress has power by statute to extend birthright citizenship to persons born in a territory recognized and organized for such purpose, there is little reason to suppose Congress should lack power, by statute, to extend birthright citizenship to certain classes of citizens born, in venues abroad, of parents who are U.S. citizens -- without making such venues into part of the U.S.
In either case, Congress would be extending birthright citizenship (i.e., natural born status) by statute.
This is consistent with Congress' enumerated power to establish a uniform rule of naturalization and with Congress' power to make all laws which shall be necessary and proper for carrying into executon such power.
In the broadest usage of "naturalization," Congress has power, by statute, to make citizens at birth. In the more narrow usage of "naturalization," persons are more commonly considered to be naturalized when they are brought into a country and made citizens at some time after they were born.
In the common usage, a person who is a citizen at birth is not naturalized. However, in the broadest usage, under the enumenrated powers delegated to Congress, Congress has power, by statute, "to naturalize" such classes of persons as may thereafter be born under its provisions.
For making citizens at birth, Congress has always been recognized as having naturalization power under the broad sense. For persons who are citizens at birth, the common usage, however, has not considered such persons as being naturalized unless they are brought into the country at some time, after their birth, for the purpose of making them citizens.
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The only reason some think the issue not moot is because of quixoticism. The best explanation for the birther phenomena of crowd madness probably consists in two parts: First, competing establishmentarian donors hire attorneys and troublemakers and dupe ignoranti to hound candidates they do not like. Second, attorneys like the free advertising that comes with notoriety and birther blogs. Or they could just be psychologically deranged, like members of Westboro Baptist Church.
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You're reaching for a limb that isn't there. Why, it's hard to see. The NBC formula as Birthers would have it hurts more than helps America. Aside from that, McCain, notwithstanding not having been born in the U.S., was found eligible, and, under the reasoning of that case, would have been found eligible even had only one of his parents been a citizen of the U.S. So McCain explodes birther b.s. in two respects: that birth in the U.S. is required, and that it is required that both parents have been U.S. citizens. McCain was found to be eligible per statutory status, NOT per birther theory. Birthers tend to be quixotic, desperate, lonely, overreaching, pathetic, intellectually dishonest, and a menace to the republic. They are tools of establishmentarian donors and troublemakers. If this is your best, no wonder birther attorneys have not won a case and are now being fined for filing frivolous claims, being ordered to show cause, and being almost summarily poured out of court. Yes, America knows you can be nuisances. As can the Westboro Baptist Church. Pathetic.
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REGARDING MCCAIN: See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
[A] federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth. The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. §1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to citizen parents, was merely the reverse or “converse of the phrase ‘in the United States, and subject to the jurisdiction thereof’” appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of U.S. citizen parents, such as Senator McCain:
Article II states that “No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.
At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73- 250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.
The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
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Whatever may be thought to be the genesis of "natural law" and "natural born citizen," many nations have moved towards jus sanguinis. See https://en.wikipedia.org/wiki/Jus_sanguinis. For examples, Ireland, Israel, Italy, Lithuania, Malta, Phillipines, Poland, Rwanda, Serbia, Tunisia,
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MY COMMENT: The idea of rendering the administrations of James Buchanan, Chester Arthur, and Barack Obama void ab initio would be absurd. No court would enter that political thicket. More likely, it would say the issue of eligibility is for Congress, which is not particularly suited to making such a determination. So, in practical effect, the issue is largely left with the electorate, subject to frivolous and nuisance litigation funded by establishmentarian donors.
EXAMPLES of vexatious, harrassing, and abusive litigation:
See https://en.wikipedia.org/wiki/Barack_Obama_presidential_eligibility_litigation:
Begay v. Obama: Arnold Begay, a federal prisoner who pleaded guilty (in 2002) to aggravated sexual abuse of a child, filed a lawsuit claiming Obama was not a natural-born citizen and sought a court order demanding Obama to produce a sample of his DNA.
House v. Obama: On August 10, 2012, Todd House, a doctor and presidential write-in candidate, filed a lawsuit alleging Obama was born in Kenya and not a natural-born citizen.[180] In dismissing the suit, the court ruled that Congress, and not it, was empowered under the U.S. Constitution to determine the president's eligibility.
Liberty Legal Foundation v. National Democratic Party: This lawsuit was dismissed July 11, 2012, for "lack of jurisdiction." A defense motion for sanctions against plaintiff's attorney, Irion, was denied. However, an almost-identical lawsuit with the same parties was then filed in Tennessee, and dismissed for lack of standing on June 21, 2012. On August 24, the district court sanctioned the plaintiff's attorney, Irion, for filing a lawsuit that he "knew or reasonably should have known that the claims in this case had no basis in law."
New York: Christopher Earl Strunk sued the New York State Board of Elections and others to prevent President Obama from appearing on the 2012 presidential ballot.... Judge Arthur Schack said of the case: "If the complaint in this action was a movie script, it would be entitled 'The Manchurian Candidate Meets The Da Vinci Code.'" Strunk was fined over $177,000 in costs and penalties.
Kansas: On September 10, 2012, Joe Montgomery filed a challenge to Obama being on the ballot, claiming that Obama's birth certificate was "doctored" and that he was not a natural-born citizen because he lacked two U.S. citizen parents.... Taitz's request to speak was denied. After the meeting was over, Taitz and an Obama supporter argued, and eventually both were escorted out of the building by a police officer.
Illinois: On September 13, 2012, a state board rejected three challenges to Obama's placement on the November ballot, finding the challenges were raising arguments that had been previously rejected and based on "an incorrect legal interpretation of what constitutes a 'natural born citizen.'"
New Hampshire: In November 2011, Taitz... filed a complaint with the state's Ballot Law Commission challenging Obama's eligibility to compete in the primary election.... [T]he Commission unanimously voted to keep Obama on the ballot.... D.J. Bettencourt, House Majority Leader of the New Hampshire House of Representatives, wrote to Taitz and called her actions "unbecoming of any legitimate political dialogue, nevermind one as ridiculous as the continued obsession over President Obama's birth place." Bettencourt added, "I have spoken to the Representatives who were present and expressed to them my strong desire that they immediately disassociate themselves from you and this folly.
Georgia: Several Georgian citizens... filed challenges with the Georgia Secretary of State, Brian Kemp, regarding Obama's inclusion on the March primary ballot.... Neither Obama nor his attorney appeared at the January 26 hearing. This normally would result in a default order, but the challengers requested Malihi to allow them to go ahead with the hearing and rule on "the merits of their arguments and evidence". Taitz called eight witnesses (including herself), and presented seven exhibits in support of her claims that Obama was not a natural-born citizen... Taitz asked Malihi to find Obama in contempt for failing to appear.... On February 3, Malihi recommended that Obama remain on the ballot. Concerning Taitz's case Malihi wrote: "The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support plaintiffs’ allegations". The Drudge Retort described the hearing as, "Empty Table 1, Orly Taitz 0"
Taitz v. Astrue: In February 2011, Taitz filed, in propria persona, a Freedom of Information Act suit against the Social Security Administration, alleging the agency improperly refused to disclose to her information about Obama's social security number.... On August 30, 2011, the court granted summary judgment in favor of the government, writing "As her numerous filings with the Court demonstrate, plaintiff will stop at nothing to get to the bottom of this alleged conspiracy. Unfortunately for plaintiff, today is not her lucky day."
Taitz v. Obama: On January 27, 2010, Taitz, in propria persona, filed a petition for writ of quo warranto. On April 14, 2010, U.S. District Court Chief Judge Royce C. Lamberth dismissed the petition; and, alluding to the novel Don Quixote, he wrote, "The Court is not willing to go tilting at windmills with her."
Rhodes v. Macdonald: In September 2009, Taitz filed Rhodes v. MacDonald ... Taitz argued... Obama was illegally serving as President. On September 16, federal judge Clay D. Land (the same judge who heard Cook v. Good) rejected the motion and denounced it as frivolous.... Taitz ... made several other intemperate statements, including claims that Land was aiding and abetting purported aspirations of "dictatorship" by Obama. Land rejected the motion as frivolous and ordered her to show cause why she should not be fined $10,000 for abuse of judicial process.... A few hours later, a letter bearing Rhodes's signature arrived, stating that Taitz filed the motion without her knowledge or consent, asking Land to remove Taitz as her attorney of record in the case, and stating that it was her "plan to file a complaint with the California State Bar due to [Taitz's] reprehensible and unprofessional actions." On September 26, 2009, Taitz filed a motion with the court seeking to withdraw as counsel for Rhodes, so she could divulge in court "privileged attorney-client communications" since the dismissed Rhodes case "is now a quasi-criminal prosecution of the undersigned attorney, for the purpose of punishment."
Hollister v. Soetoro: On March 5, 2009, a lawsuit filed by Philip Berg on behalf of Gregory S. Hollister, a retired Air Force colonel, against Barack Obama ... . The suit was dismissed in the United States District Court for the District of Columbia. The presiding judge, James Robertson, said the case was a waste of the court's time, calling Berg and another lawyer "agents provocateurs" and their local counsel, John Hemenway, "a foot soldier in their crusade." He ordered Hemenway to show cause why he should not pay the legal fees for Obama's attorney as a penalty for filing a complaint "for an improper purpose such as to harass". The district court ultimately reprimanded Hemenway for his actions, and the United States Court of Appeals for the District of Columbia Circuit upheld the dismissal of the case and Hemenway's reprimand.
On October 13, 2009, Judge Clay Land ordered "Counsel Orly Taitz ... to pay $20,000 to the United States, through the Middle District of Georgia Clerk's Office, within thirty days of the date of this Order as a sanction for her misconduct in violation of Rule 11 of the Federal Rules of Civil Procedure." Land's decision stated:
The Court finds that counsel's conduct was willful and not merely negligent. It demonstrates bad faith on her part. As an attorney, she is deemed to have known better. She owed a duty to follow the rules and to respect the Court. Counsel's pattern of conduct conclusively establishes that she did not mistakenly violate a provision of law. She knowingly violated Rule 11. Her response to the Court's show cause order is breathtaking in its arrogance and borders on delusional.
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Your "open & honest debate" is not honest. It is calculated and contrived to vex, harass, and abuse, all the while pretendng to be innocent. See all the cites provided in my earlier comment. Despicable!
As to McCain, you FAIL, bigtime! You people just make stuff up and spread horse apple after horse apple. I don't like people lying to me! McCain's being born on (or near?) a military base is irrelevant. See http://voices.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html:
"Contrary to some Internet rumors that McCain was born outside the Canal Zone, in Colon, the document records his birth in the Coco Solo "family hospital.""
"Here is what a State Department manual on U.S. citizenship has to say about children born on U.S. military installations: Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities 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 subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."
(And for the CRBA people:) "Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S. Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a form."
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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 after birth could become President only if born on a Federal base.
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BTW -- Some people evidently doubt McCain was even born in a military hospital:
Posted by: TheGribbler | May 2, 2008 11:46 AM | Report abuse
McCain was born in Colon, Panama, on the Atlantic Side of Panama. There was no military or US civilian hospital on the Atlantic at that time he was born. This is the reason there are no Canal Zone Health Department records. He was not born in the Canal Zone. His birth record is right in the Colon Hospital, Panama, records along with every one born on the Atlantic Side of Panama who was living in the Canal Zone at that time. His birth location of Colon is no secret in Panama. In fact, those of us from the Canal Zone are amazed about his "military hospital birth" claim which is pure fiction.
See also http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf, at footnote 1: "1Though Hollander makes this allegation in his complaint, in his objection he states, “[s]ince the hospital at the Coco Solo Naval Air Station did not even exist until 1941 . . . , it is reasonable to assume that [McCain] was born in the city of Colón in the Republic of Panama.” Hollander has also provided a copy of McCain’s birth certificate, which lists his place of birth as Colón. The defendants dispute this theory, but it is irrelevant to the present motion in any event."
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I don't follow. I assume by "she" that you mean Julia Lynch and not Rubio. :).
IAE, Lynch [http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf] was decided after the 1795 Act. Moreover, the 1795 Act did not purport to preempt the entirety of common law upon which Lynch was based. Lynch was not brought into the U.S. to be naturalized. She was born a citizen in the U.S. I don't read the 1795 Act as revoking the common law of jus soli for persons born in the jurisdiction -- regardless of permanent residence, domicile, or citizenship of their fathers (excepting diplomats and invading-occupying military personnel.
Under the 14th Amendment, Rubio is a citizen. Under statute, he is a citizen at birth. Under the common law, a person a citizen at birth was a natural born citizen. Were she born today, Julia Lynch would be a citizen under the 14th Amendment. Her father's residential status would not deprive her of that. Being a citizen at birth, I see no basis under common law for saying she would not be a natural born citizen.
Per United States v. Carlos Jesus Marguet Pillado, the United States Court of Appeals for the Ninth Circuit recognized that (in its first opinion), "It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress."
The same court later (in its second opinion), discussed whether one may be a “natural born” citizen of the United States in two ways: either by being born in the United States, or by being born abroad of at least one citizen parent who has met the residency requirement.
Regardless, these do not appear to be the "only case(s)." See
https://en.wikipedia.or/wiki/Barack_Obama_presidential_eligibility_litigation:
In Ankeny v. Governor of the State of Indiana, The appellate decision addressed the question of whether Obama's eligibility was affected by his father's lack of U.S. citizenship, saying that "[b]ased upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are 'natural born Citizens' for Article II, Section 1 purposes, regardless of the citizenship of their parents." On April 1, 2010, the Supreme Court of Indiana rejected, without comment, a request to consider the case.
In Allen v. Arizona Democratic Party, it was alleged that Obama was not a natural-born citizen because his father "was a resident of Kenya and thus a British citizen". Allen argued that the U.S. Supreme Court's ruling in Minor v. Happersett required a natural-born citizen to be born in the U.S. of two U.S. citizen parents; however, the judge dismissed the suit on March 7, 2012, ruling that "President Obama is a natural born citizen under the Constitution" and that "[c]ontrary to Plaintiff's assertion, Minor v. Happersett ... does not hold otherwise.
Tisdale v. Obama: -- Charles Tisdale v. Barack Obama, Ron Paul, Mitt Romney (D.C. Cir. 15 June 2012).
On January 17, 2012, Charles Tisdale of Virginia brought a civil action before the US District Court for the Eastern District of Virginia. In the suit, Tisdale alleged that Barack Obama, Mitt Romney and Ron Paul each had a non-citizen parent, and therefore should be barred from the November 6, 2012, presidential ballot in Virginia. An amicus brief was filed in support of the Plaintiff by attorney Mario Apuzzo. District Judge John A. Gibney, Jr., dismissed the suit with prejudice because the Plaintiff "does not to state a claim upon which relief may be granted." Judge Gibney explained: "It is well settled that those born in the United States are considered natural born citizens."[176] The dismissal was affirmed without comment by the US Court of Appeals for the Fourth Circuit on June 5, 2012
Bottom line: Given the abject failures of quixotic birther litigation, I think the best explanation for this phenomena of crowd madness consists in two parts: First, competing establishmentarian donors hire attorneys and troublemakers and dupe ignoranti to hound candidates they do not like. Second, attorneys like the free advertising that comes with notoriety and birther blogs. Or they could just be psychologically deranged, like members of Westboro Baptist Church.
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Rubio (unfortunately) is a natural born citizen. See the New York Court of Chancery case Lynch v. Clarke (and Lynch) (Bernard Lynch v. John Clarke and Julia Lynch) from 1844, before the 14th Amendment. For analysis of Lynch, see http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held:
"It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ” These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
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Per analysis in http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"So, what we may gather from all of these sources I have quoted is that the phrase “natural born citizen” in Article II, Section 1 of the United States Constitution has historically been interpreted from the earliest days of the republic, by the Founding Fathers and early legal authorities, as meaning someone who is born in this country, regardless of the status of their parents. This is derived, as Lynch v. Clarke has shown, from English common law, which is the basis of our national Constitution, our national institutions, and the Constitutions and institutions of each state except for Louisiana, which derives its basis from French law, particularly the Napoleonic Code. Furthermore, de Vattel leaves the precise definition of what makes a citizen up to the individual nations, and in our case, it is how I have said above."
"One of the major things that you can note about the people asserting that Obama (or Rubio, Jindal, etc.) is not a natural born citizen based on de Vattel’s definition is the curious absence of Lynch v. Clarke in their arguments. They also omit entirely any references to common law, which as Lynch v. Clarke has demonstrated (and it is not alone, but I will address other examples later) is vitally important to understanding the meaning of the clause."
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As I understand it, Franklin's letter thanking the person who sent him copies of Vattel's treatise was written in English, in 1775 -- before the Declaraton of Independence, not at the time of the drafting of the Constitution more than 10 years later.
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Sometime ago, I came across this on the internet:
From Chapter XIX, 212 (page 248 of 592):
Title in French: "Des citoyens et naturels"
To English: "Citizens and natural"
French text (about citizens): "Les citoyens sont les membres de la
societe civile : lies a cette societe par certains devoirs et soumis a
son autorite, ils participent avec egalite a ses avantages."
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To English: "The citizens are the members of the civil society: linked
to this society by certain duties and subject to its authority, they
participate with equality has its advantages."
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French text (about "natural" born citizens): "Les naturels, ou
indigenes, sont ceux qui sont nes dans le pays, de parens citoyens"
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To English, gives this: "the natural, or indigenous, are those born in the country, parents who are citizens"
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MY COMMENT: This appears to be a matter of grammatical agreement. The "natural or indigenous" is here used in a plural sense. By way of grammatical agreement, "parents" also is plural. With consistency, one may say that the naturals are children of parents who are citizens.
That does not necessarily mean that each child has parents, both of whom were citizens. If some of the children have a parent who is a citizen, and some have parents who were both citizens, it would still be said that the children have parents who are citizens. And this is EVEN IF the Founders had the French version.
But I suspect they had an English translation, and I suspect the English translation did not then contain the formulazation, "natural born citizen."
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Sure thing, P.T. Barnum. Tell it to James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, George Romney, Lowell Weicker, Bill Richardson, and Rick Santorum.
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Well, that seems, for all the more reason, to nail down the legal status of Rubio's parents' domicile. If anything, it enhances Marco's claim to having been a citizen at birth.
Per United States v. Carlos Jesus Marguet Pillado, the United States Court of Appeals for the Ninth Circuit recognized that (in its first opinion), "It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress."
The same court later (in its second opinion), discussed whether one may be a “natural born” citizen of the United States in two ways: either by being born in the United States, or by being born abroad of at least one citizen parent who has met the residency requirement.
The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child’s mother or father, has never been determinative of “natural born” or other citizenship status in any case in American jurisprudence.
See https://supreme.justia.com/cases/federal/us/307/325/case.html. In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
....
Courts have also specifically considered and found to be “without merit” and devoid of “any legal authority”the argument that “natural born” citizenship in the United States requires that one must at the time of birth have parents who are both United States citizens themselves.
Other Presidents and Vice Presidents, who, at the time of their birth, did not have parents whe were both citizens include: James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama. Other candidates include John Fremont, Charles Evans Hughes, Bill Richardson, John McCain, Bobbj Jindal, Marco Rubio, Rick Santorum, Ted Cruz.
[SIDENOTE: If natural born status requires birth "in country," then would anyone who may have been born to the Cherokee Nation during its trail-of-tears forced relocation to various locations en route to the Oklahoma Territory not have had natural born status to its tribal nation? IOW, what about tribal nations that have or had no fixed country in terms of land locus? Were they incapable of having status as natural born citizens?]
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Apart from limitations under natural law as recognized among nations, and apart from subsequent amendatory limitations, no one doubts that Congress, as the legislative expression of American sovereignty, has been and is endowed with necessary and proper power to establish a uniform rule for who shall be citizens at birth, as well as for naturalizing persons who apply to become citizens.
Naturalization, in its most common usage, pertains to processes in country. No one can be naturalized to the U.S. without first having come into the U.S. A child who has been made a citizen at the moment he was born abroad is not then and there come into the U.S. In that usage of "naturalization," he was born a citizen, not naturalized a citizen. That is, he was a natural born citizen. During his life, he was never not a citizen, and he was not a person who needed to come into the country to be naturalized (even if Congress were to impose a condition subsequent to require him at some point to establish residency sufficient to preclude his expatriation by way of forfeiture of citizenship).
Accordingly, Curtis, George Romney, Barry Goldwater, Lowell Weicker, John McCain, and Ted Cruz were and are, all of them, natural born citizens.
If attracting a gathering of absolutely committed fools is worthwhile, A.T. is doing a great service. The comments on this article alone would make for a great sociological study on the attractive madness of crowds. Just amazing. Moths to the flame. Lol.
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The similarities are nearly identical in the terms by which lawyers reason. Your distinctions have nothing to do with the various legal tests being argued.
Birthers say birth in the U.S. is required. Both McCain and Cruz were born outside the U.S. Birthers say mere parentage is not enough unless the person were born in the U.S. Both McCain and Cruz are citizens at birth only because of statutes. Actually, because of versions of the same statutory scheme, that relates to the citizenship of parents. If citizenship at birth because of statute is "naturalization," then both were naturalized. Unless naturalization by citizenship at birth can confer status as a natural born citizen, then neither is or was a natural born citizen. Same analysis for Charles Curtis, George Romney, and Lowell Weicker, and maybe even as to Barry Goldwater.
If you're going to shoot apples from the hip, you need to get more informed. Being "on business" has nothing to do with any issue under discussion.
This is why so many of the opinions "of others" at A.T. carry no weight. No weight at all. If you want your opinion to carry weight, you have to get better informed.
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Bush has folded. His supporters and donors will likely go to Rubio. Carson's supporters would likely go to Cruz, but Carson intends to plod on. By depriving Cruz, he is helping Trump.
Cruz' only path seems to consist in an unlikely series of fortuities: Cruz learns how to smile better; Cruz burns off the NBC tar; Donald gets exposed and people read the expose; Carson gets out; Cruz convinces some of Kasich' people.
If events don't come together for Cruz and he gets out, his support would likely go to Trump. That would likely make more than 50%. Ironically, the quicker Rubio gathers establishmentarians against Cruz to force Cruz out, the quicker Trump takes over the glide path. Ironically, if establishmentarians wanted anyone but Trump, their only chance would be with Cruz. Problem is, the establishment probably prefers Trump to Cruz.
The consequence seems to be this: Glide path for Trump, unless he says something really stupid. But I think that is quite unlikely, because he is not nearly as stupid as some of the pinkie waggers have thought.
The main question may soon become this: Who is or should be Trump's likely choice of running mate? I'm thinking Rubio. He's "hispanic." Speaks Spanish. May deliver Florida. Can likely defeat the Dem's candidate's running mate in a debate. Is more morally flexible to do as the head of the ticket says to do.
The downside is this: Even if Trump keeps his word and does some of the things he says he will do, there is substantial danger of a repeat of the Reagan-Bush phenomena. That is, good conservative progress for 4 to 8 years followed by a quick relapse into rinodicy. But that's what it's looking like: Trump/Rubio. We may well just have to live with it. At least it will bury the nonsense about requiring two parents who were both citizens at the time of the candidate's birth.
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Whatever may have been the practice once upon a time, we now have Miller v. Albright, 523 U. S. 420, 456 (1998) and Zivotofsky v. Kerry, 725 F. 3d 197.
See Miller v. Albright, 523 U. S. 420, 456 (1998), which recognized that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States.)
Per concurrence by Justice Thomas (well known Constitutional anarchist, doncha know? Sarc/Lol), in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
Per dissent by Justice Scalia, Roberts, and Alito (well known Constitutional anarchists, doncha know? Sarc/Lol), "The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel)."
....
"[P]assports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization."
See https://www.law.cornell.edu/uscode/text/22/2705:
"The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction:
(1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States.
(2) The report, designated as a “Report of Birth Abroad of a Citizen of the United States”, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term “consular officer” includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe."
NOTE: CBRA registration is no longer required to maintain birthright citizenship. See ZIVOTOFSKY v. KERRY, 725 F. 3d 197; https://www.law.cornell.edu/supremecourt/text/13-628.
NOTE: Having shed his Canadian citizenship, Cruz can have no other than an America Passport.
See http://cases.justia.com/federal/appellate-courts/ca9/10-50041/10-50041-2011-08-12.pdf?ts=1411063981: In United States v. Carlos Jesus Marguet Pillado, the United States Court of Appeals for the Ninth Circuit has recognized that (in its first opinion), "It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress."
The same court later (in its second opinion), discussed whether one may be a “natural born” citizen of the United States in two ways: either by being born in the United States, or by being born abroad of at least one citizen parent who has met the residency requirement:
Pillado involved a criminal case in which the defendant had requested an instruction to the jury that: "A person born outside the United States is also a natural-born citizen of the United States if, before the person’s birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen."
....
MY COMMENT: Because the attorneys had agreed that the requested instruction was not incorrect on the law, and because it was pertinent to defendant theory of defense, the court held it was erroneous to deny the instruction.
....
"No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements."
....
"Because Marguet-Pillado’s proposed instruction was supported by the law, the district court was required to give that instruction to the jury so long as it had “some foundation in the evidence.”
*********
Birthers, whether connivers for cronies or dupes of crony propaganda, never tire of cruding up the road with horse apples.
Famous horse apples: No one likes Cruz. Cruz voted in Canada. Cruz is still a citizen of Canada. Cruz is a citizen of Britain. Cruz is a citizen of Cuba. [NOTE: If this reasoning is valid, then Trump also is a dual citizen -- or Ireland as well as Scotland.] A dual citizen is ineligible. Cruz has or has had a Canadian passport. [A lie by Trump, rated false by Politifact -- http://www.politifact.com/texas/statements/2016/jan/06/donald-trump/donald-trump-incorrectly-says-ted-cruz-has-had-dou/] Cruz is not a U.S. citizen. [http://www.cnn.com/2014/06/11/politics/ted-cruz-canada-citizenship/index.html]
Regarding Cuban citizenship, see http://www.helplinelaw.com/law/cuba/constitution/constitution03.php. Ted Cruz does not qualify.
Ridiculous, frivolous, vexatious, Club Kool-Aid spiced with horse apples. Yum.
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If the United States Naturalization Law of March 26, 1790 was intended to be declaratory of those persons who were natural born citizens who were not born in the U.S., then what was the effect in that it excluded American Indians, indentured servants, slaves, free blacks, and Asians from being national citizens or natural born citizens.
So, if it was declaratory of who was NOT intended to qualify as a natural born citizen, then , since the 14th Amendment does not explicitly use the word "natural," on what basis can such categories of persons be today considered as being natural born citizens? Must the "privileges and immunities" clause and/or the "equal protection" clause convert ALL citizens who are born in the U.S. to the status of natural born citizens? Or, was it always the case that anyone who was born in the U.S. as a birthright citizen should be a natural born citizen?
???????
If a natural born citizen has always been nothing more than a person born in the U.S. of parents who were both citizens, then persons born of parents who were black citizens and plantation owners must always have been eligible to become President. On the other hand, if nothing in the 14th Amendment, per se, made persons born citizens in the U.S. into natural born citizens, then it may be said with equal force that nothing in the 14th Amendment, per se, or any similar law, made black or non-white persons born citizens in the U.S. into natural born citizens. (Indeed, unde Dred Scott????????????, blacks could never be citizens, regardless of whether freed or not. That is, that even “descendants of such slaves, when they shall be emancipated, or who had been born of parents who had become free before their birth” were “not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides.) One or the other of such propositions must fail. If the first fails, then the scheme of ??????????????? the original Constitution fails of insuperable contradictions. If the second fails, then non-whites must remain non-natural born citizens, even today.
Insofar as being born in the U.S. is sufficient in itself in most cases to confer status as a natural born citizen, the ONLY reason for an inquiry into the status of one's parents in connection with a determination of eligibility to become President would be if parental status for persons born outside the U.S. could confer natural born status to a child and thus make him eligible. Indeed, the ONLY reason for confining eligibility to natural born citizens, as opposed to persons born in the U.S. as citizens, would be to confer eligibility to certain persons born of American citizens outside the U.S.
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See https://en.wikipedia.org/wiki/Natural-born-citizen_clause:
The famed jurist William Blackstone wrote in 1765 that inhabitants born within England may be natural-born subjects: "Natural-born subjects are such as are born within the dominions of the crown of England...."[12][16] Blackstone added that offspring who are not inhabitants may also be natural born subjects:[16][17]
But by several more modern statutes ... all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
A leading authority in England prior to Blackstone was Edward Coke, who wrote about this subject in Calvin's Case.[18] According to Coke: "[I]f any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions."
Lynch v. Clarke[29] of 1844, indicated that citizens born "within the dominions and allegiance of the United States" are citizens regardless of parental citizenship. This case dealt with a New York law (similar to laws of other states at that time) that only a U.S. citizen could inherit real estate. The plaintiff, Julia Lynch, had been born in New York while her parents, both British, were briefly visiting the U.S., and shortly thereafter all three left for Britain and never returned to the U.S. The New York Chancery Court determined that, under common law and prevailing statutes, she was a U.S. citizen by birth and nothing had deprived her of that citizenship, notwithstanding that both her parents were not U.S. citizens or that British law might also claim her through her parents' nationality. In the course of the decision, the court cited the Constitutional provision and said:
Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.[30]
And further:
Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question.[31]
United States v. Wong Kim Ark (1898),[34] which similarly held a child born in the United States of two Chinese parents was a "natural born" U.S. citizen.[35]
in 1939, the U.S. Supreme Court stated in its decision in Perkins v. Elg, that a person born in America and raised in another country was natural born citizen and specifically stated they that they could "become President of the United States".[36] The case, Perkins v. Elg,
Some federal cases argued for a narrow reading of the Fourteenth Amendment, according to which U.S. citizens were necessarily either born or naturalized in the United States, and any citizen who was not born in the United States must have been naturalized by operation of law, even if such naturalization was “automatic” at birth. In this view, such a person should not be considered a natural born citizen, but rather a “naturalized” citizen who is not eligible for the Presidency.[38]
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See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
Many of the terms used in the U.S. Constitution were not specifically defined in that document (such as “natural born” citizen, the privilege of the writ of “habeas corpus,” and the prohibitions against “bills of attainder” and “ex post facto” laws, for example), and thus referral to the English common law, “well known” to the framers and applicable in the American colonies, must be made for a definitional reference for such terms. The Supreme Court has explained with reference to the constitutional prohibition on “ex post facto” laws, for example, that the meaning of such term, not defined in the Constitution, requires some explanation, and that “the necessary explanation is derived from English common law well known to the Framers”
....
[T]the British common law was what the framers “were born and brought up in,” that the framers “thought and spoke in its vocabulary,” and was thus what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in the Constitution “confident that they could be shortly and easily understood.
....
The premiere treatise on British law at the time of the drafting of the Constitution, which was well known and well used in the colonies, was Blackstone’ Commentaries on the Laws of England (1765). Blackstone explained that “[t]he first and most obvious division of the people is into aliens and natural born subjects,” and that the “natural” allegiance due of “natural born” subjects, as opposed to merely “local” allegiance of aliens and sojourners, “is such as is due from all men born within the king’s dominions immediately upon their birth.”
....
The opinion in Lynch v. Clarke found that one of the litigants, Julia Lynch, who was born in New York to alien parents who were merely on a “temporary sojourn” in this country, was a natural born U.S. citizen who had the legal capacity to inherit. Sandford concluded that all persons born in the United States, even of alien parents who were only here temporarily, had “natural born” citizenship status under English common law, carried forward in the laws in all of the original thirteen states after independence, and then under the laws and constitutional provisions of the United States:
My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent home.... It is indisputable that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States ... By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents....
At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation.... I need not dwell more at large upon this unquestionable proposition.... As the common law prevailed in all the colonies, and was the basis of their laws and jurisprudence, it follows that all persons born in the colonies while in the ligeance of the King of England, became subjects of the Crown of England; unless it be made to appear that the rule of the common law was incompatible with the situation with the colonists, or unsuited to their circumstances; or that it was altered by legislation. Instead of abridging the rule, all colonial legislation which has come under my observation, proceeded on the assumption that it was the settled law of the land.
....
It may then be safely assumed, that at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native.
....
Being born within the geographic boundaries of the United States, however, unlike the meaning under British common law, does not necessarily include being born in the unincorporated “territories,” possessions, or protectorates of the United States, unless such citizenship “at birth” is otherwise provided by statute.
A U.S. Court of Appeals, relying on the “Insular cases,” found that birth in an unincorporated territory or possession of the United States, such as the Philippines, did not grant Fourteenth Amendment or common law citizenship as being born “in” the geographic area of the “United States,” even though under the British common law one may have been a natural born “subject” of the crown when born within the far flung dominions ruled by the British Empire.
....
Charles Gordon, who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.”
....
[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued ... that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.
....
It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.
....
It is of course, always a somewhat speculative exercise to attempt to discern the “common understanding” of a group of individuals who may be geographically, professionally, and politically diverse, particularly during a period many years removed from the current time. The fact that no discussion appears in the notes of the Federal Convention of 1787 on the presidential eligibility clause, and the fact that the actual debates and discussions in the Convention were held in secret with no official journal of the debates being kept (other than for recording votes) highlight the problems in such speculation. That being said, however, one might argue that there existed what might be called a “common” or “general understanding,” or at least common “usage” of the term “natural born,” as it related to those who were considered “natural born” subjects of England in the American colonies at the time of independence, and “natural born” citizens at the time of the adoption of the Constitution. The “state of the law” in colonial America concerning who was a “natural born” subject of England under English laws, both common law as well as statutory laws, was certainly known to the framers since, as noted by the Supreme Court, “These statutes applied to the colonies before the War of Independence.”
....
More than a decade before John Jay had employed the term in his “hint” to General Washington at the Convention of 1787, the First Continental Congress of the American colonies, meeting in Philadelphia beginning in September of 1774, adopted a resolution asserting that the common law of England was fully applicable to the colonies in America, as were such statutory laws of England as would be relevant to their circumstances, and expressly included in the resolution an assertion of the rights of their ancestors to be considered “natural-born subjects within the realms of England.”
....
[T]he “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.
....
One of the more noted political and constitutional scholars on the American presidency, Edward S. Corwin, has explained that “natural born” citizens eligible to be President clearly include all of those born “on the soil” of the United States and subject to its jurisdiction, under the common law principles of jus soli applicable in the United States, but also would appear to include those born abroad of U.S. citizens under the principle of
jus sanguinis, as adopted by Congress by statute. Corwin noted that Congress has the authority as the legislative body of a sovereign nation “to determine who shall and shall not be admitted to the body politic.
....
[A]s the legislative body of a nation sovereign at international law, Congress is entitled to determine who shall and who shall not be admitted to the body politic. Should, then, the American people ever choose for President a person born abroad of American parents, it is highly improbable that any other constitutional agency would venture to challenge their decision.
....
[T]the influence of the work of Vattel on the framers in employing the term “natural born” in relation to domestic citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the Federal Convention of 1787 to Vattel (in reference to several works of different authors to support an argument for equal voting representation of the states in the proposed Congress), there is no other reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787, and specifically there is no reference or discussion of the work at all in relation to citizenship at the Convention, in the Federalist Papers, or in any of the state ratifying conventions.
....
The treatise in question by Emmerich de Vattel was a work concerning the “law of nations,” which we would now classify generally as “international law.” However, the concept of citizenship within a particular country is one governed not by international law or law of nations, but rather is governed by municipal law, that is, the internal law of each country.
....
The two general categories of “citizens” are: (1) those who are “natural born” citizens, that is, those who are citizens “by birth” or “at birth,” including all native born citizens, and (2) those who were born “aliens” and must be “naturalized” to be citizens.
[MY NOTE: I agree that a court should thus rule, but I don't find that any court has, of yet, beyond dicta, explicitly so ruled. Courts have said that the two categories of citizens are those who are natural born and those who are naturalized. So I think the argument is reasonable, that a clearer enunciation is that the two categories are those who are citizens at birth and those who were born “aliens” who must later be “naturalized” to be citizens. However, any explicit language to that effect seems to have been in dicta, such as by ??? Scalia, below.]
[T]he Supreme Court had upheld Congress’s authority, under an earlier immigration law, to expatriate by statute an entire class of possible “native”/natural born citizens (women) who had married foreign men.
See Mackenzie v. Hare, 239 U.S. 299 (1915). Marriage of an American woman with a foreigner is tantamount to voluntary expatriation, and Congress may, without exceeding its powers, make it so, as it has in fact done, by the Act of March 2, 1907. [A] change of citizenship cannot be arbitrarily imposed -- that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. It is as voluntary and distinctive as expatriation, and its consequence must be considered as elected.
....
[T]he precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is
not considered to have been “naturalized.” Justice Breyer, for example, dissenting on other grounds in
Miller v. Albright, explained that “this kind of citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to “involve... ‘naturalization,’” citing current federal law at 8 U.S.C. Section 1101(a)(23). The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person
AFTER birth.”
[MY NOTE: The dissent says: Title 8 U.S.C. § 1421(d), which states that “[a] person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise,” has no effect on the operation of the INA’s general severability clause in this case. Section 1421(d) governs only NATURALIZATION, which the STATUTE DEFINES as “the conferring of nationality of a state upon a person AFTER BIRTH,” §1101(a)(23), whereas §§1401(g) and 1409 deal with the transmission of citizenship at birth, see §1401 (“The following shall be nationals and citizens of the United States at birth . . .”). Further, unlike the INA’s general severability clause, §1421(d) does not specifically address the scenario where a particular provision is held invalid. Indeed, the INS does not even rely on §1421(d) in its brief.
Regardless, the more important question is not what a particular statute or section of a statute defines as "naturalization." The question is: Does the enumerated power of Congress, or some inherent power of sovereignty of a legislative body for a nation, empower it, by statutory enactment, to extend the definition or application of status as a natural born person to persons born of citizen parents outside of country?]
....
Justice THOMAS, in a recent opinion concurring in part and dissenting in part, similarly noted: “It [Congress] has determined that children born abroad to U.S. parents, subject to some exceptions, are natural born citizens who do not need to go through the naturalization process. 8 U.S.C. § 1401(c)(d),(g).” It could, therefore, be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth”—even by statute—should not be considered to be “naturalized.”
....
SEE e.g., http://www.supremecourt.gov/opinions/14pdf/13-628_l5gm.pdf:
"Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003... poses no such problem insofar as it regulates consular reports of birth abroad. Unlike passports, these reports were developed to effectuate the naturalization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturalization and Necessary and Proper Clauses.
....
At the founding, the word “naturalization” meant “[t]he act of investing aliens with the privileges of native subjects.” 2 S. Johnson, A Dictionary of the English Language 1293 (4th ed. 1773).
....
The “means” chosen by Congress “will be deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the exercise of an enumerated power, and ‘proper’ if they are not otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’ with its ‘letter and spirit.
....
The 1960’s brought additional regulations of consular reports of birth abroad, 31 Fed. Reg. 13538 (1966), which continue in a substantially similar form to this day. See 22 CFR §§50.5, 50.7 (2014). As currently issued, the consular report of birth abroad includes the applicant’s name, sex, place of birth, date of birth, and parents. It has had the “same force and effect as proof of United States citizenship as [a] certificat[e] of naturalization” since 1982. §117, 96 Stat. 279. Thus, although registration is no longer required to maintain birthright citizenship, the consular report of birth abroad remains the primary means by which children born abroad may obtain official acknowledgement of their citizenship. See 22 CFR §51.43. Once acknowledged as U. S. citizens, they need not pursue the naturalization process to obtain the rights and privileges of citizenship in this country.
....
[MY NOTE: Thus, Ted Cruz was NOT required to file a CRBA in order to retain his U.S. citizenship.]
....
JUSTICE SCALIA would locate Congress’ power to enact the passport directive of §214(d) in Congress’ power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization.
....
See https://www.law.cornell.edu/supremecourt/text/13-628#writing-13-628_DISSENT_7:
PER JUSTICE SCALIA:
[P]assports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization,” 22 U. S. C. §2705.
....
Although the consular report of birth abroad shares some features with a passport, it is historically associated
with naturalization, not foreign affairs. In order to establish a “uniform Rule of Naturalization,” Congress must be able to identify the categories of persons who are eligible for naturalization, along with the rules for that process. Congress thus has always regulated the “acquisition of citizenship by being born abroad of American parents . . .in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization.
....
SCALIA: The consular report of birth abroad [CRBA] is well suited to carrying into execution the power conferred on Congress in the Naturalization Clause. The report [CRBA] developed in response to Congress’ requirement that children born abroad to U. S. citizens register with the consulate or lose their citizenship. And it continues to certify the acquisition of U. S. citizenship at birth by a person born abroad to a U. S. citizen. See 22 U. S. C. §2705(2).
....
The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel).
....
[P]assports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization.
....
See also Miller v. Albright, 523 U. S. 420, 456 (1998) (SCALIA, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States.) It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. §§ 1401(c), (d), (g).
....
[MY NOTE: Did the power given to Congress to establish a uniform rule of naturalization, necessarily incident thereto, implicate a power to expound or expand upon who should be recognized as being a citizen at birth, i.e., a natural born citizen, and therefore not in need of being naturalized? Or, did the concept of natural born citizen, as historically developed, implicate authority in the chief legislative body, as the representative of sovereignty, to delineate the concept? Regardless, a few things appear to be unquestioned: That Congress has authority to expand upon who shall be recoginzed as a citizen AT BIRTH. And that the more common meaning of naturalization pertains to processes for becoming a citizen AFTER birth.]
....
See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
....
A federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth.
....
See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
[A] federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth. The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. §1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to citizen parents, was merely the reverse or “converse of the phrase ‘in the United States, and subject to the jurisdiction thereof’” appearing in the citizenship provision of the Fourteenth Amendment, and that such phrase thus would include all those born abroad of U.S. citizen parents, such as Senator McCain:
Article II states that “No Person except a natural born Citizen, or a Citizen at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens by reason of birth (or naturalization proceedings, for that matter). Id. at 829-30, 91 S.Ct. 1060.
At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73- 250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ....] Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.
The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
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A federal district court in Georgia fined plaintiff’s counsel $20,000 for a “Rule 11” violation, that is, for filing “FRIVOLOUS” motions and for “using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.
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[T]he Supreme Court has clearly ruled that a citizen at birth, such as one born “in” the United States, does not forfeit his or her citizenship at birth status because of removal as a minor to a foreign country, even a country in which one or both parents are or become citizens and nationals. Rather, citizenship may only be forfeited by a citizen of the United States by an affirmative action of renunciation by one having the capacity to do so (that is, as an adult):
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If allowing the recognition of citizenship under the law of foreign nations were determinative of natural born citizenship in the United States—as now argued by some advocates—then the operation of foreign law would, in effect, impact and be determinative of who is eligible to be President of the United States, a result wholly at odds with U.S. national sovereignty, that is, the “inherent right of every independent nation” to determine what classes of persons are to be its citizens.
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The fact that a foreign country might recognize or allow a claim of dual citizenship or nationality of a child born in the United States because of the nationality or heritage of the child’s mother or father, has never been determinative of “natural born” or other citizenship status in any case in American jurisprudence. The Court in Perkins v. Elg explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,” who returns to the United States would qualify to be President.
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Courts have also specifically considered and found to be “without merit” and devoid of “any legal authority” the argument that “natural born” citizenship in the United States requires that one must at the time of birth have parents who are both United States citizens themselves.
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The weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicate that the term “natural born citizen” would most likely include, as well as those native born citizens born in the U.S., those born abroad to U.S. citizen parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.....
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[T]he general legal lexicon and its common usage, appear to have converged on a seeming consensus that “natural born” means having a particular attribute or nature “at birth,” as opposed to subsequently obtaining such attribute.
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See now 8 U.S.C. §1401(a) - (h). Under current law, at 8 U.S.C. §1401(g), a person born abroad to one U.S. citizen- parent would be a citizen at birth if that parent had resided in the United States for at least five years, two of which were after the time the parent was 14 years of age.
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SEE https://lawreviewdrake.files.wordpress.com/2015/06/irvol58-2_han.pdf:
McCain’s nomination alone seems to confirm at least “that ‘natural born’ citizens can include those extended citizenship at birth by statute in addition to those enjoying it under the Fourteenth Amendment.
[D]uring the campaign legal scholars carried on an earnest debate over McCain’s eligibility. In March of 2008, former Solicitor General Theodore Olson and Harvard Professor Laurence Tribe produced a joint memorandum outlining three arguments in favor of McCain’s eligibility: (1) McCain was a “natural born” citizen by virtue of his parentage, as British statutes in force at the time of the Founding would have made children of British subjects born abroad “natural born subjects”; (2) the Panama Canal Zone was sovereign United States territory at the time of McCain’s birth; and (3) the original intent of the Framers was not to “exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States.”
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“[T]he obvious connection between ‘natural’ in [A]rticle II and ‘naturalization’ in [A]rticle I supports the conclusion that the terms are not diametrically opposed; rather, naturalization can create natural citizens.”
Similarly, the 1790 Act, passed by a Congress that included many delegates to the Constitutional Convention can be seen as evidence supporting this view:
The first Congress not only exercised its naturalization power to make citizens of children born abroad of United States citizens, but it designated these citizens as “natural born.” Thus, a Congress nearly contemporaneous with the adoption of the clause believed it had the power to define “natural born citizen” under its naturalization powers.
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The naturalized born approach resolves the problem of indeterminacy by attaching the meaning of “natural born” to Congress’s power to legislate on naturalization, so that whoever is a citizen by statute at the time of his or her birth is a natural born citizen.
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Before the ratification of the Fourteenth Amendment, Congress had plenary power to define citizenship, including who would be considered natural born citizens. Under this approach there was no constitutional minimum prior to the Fourteenth Amendment, and one might say without too much exaggeration that the definition of a citizen of the United States was whatever Congress said it was.
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Whatever power of naturalization Congress has, the Constitution must contemplate a residue of birthright citizenship a “constitutional minimum” that Congress cannot cut into through its naturalization power. And it is the Natural Born Citizen Clause that creates this “constitutional minimum.”
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[A]bove the constitutional minimum, Congress can grant natural born status by statute -- that is, whoever is a citizen under statutory law in force at the time of one’s birth is a natural born citizen.
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[O]ne can readily see that the constitutional minimum likely includes, on top of jus soli, jus sanguinis for the first generation born abroad.
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[A]t a minimum, the Natural Born Citizen Clause contemplates jus sanguinis for the first generation born
abroad, not that members of the second generation born abroad necessarily are not natural born citizens; indeed, such persons would be natural born citizens ifa statute so provided.
....
Bellei’s citizenship rights should not have been abridged on grounds of residency, save for his ability to transmit citizenship to his children. Thus, the Court erred in Rogers. That it was a five to four decision, however, suggests that even in 1971, the Justices considered this a close question.
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Montana v. Kennedy, which Chin also points to as problematic for jus sanguinis citizenship, ultimately dealt with the Equal Protection Clause rather than birthright citizenship. The petitioner in that case was born
abroad to an American mother and Italian father, and the statutes in force at the time of his birth did not allow American mothers to transmit citizenship by blood. Properly rectified through modern Equal Protection Clause jurisprudence, any jus sanguinis citizenship contained in the Natural Born Citizen Clause would be applied without gender discrimination, and Montana would disappear.
....
[U]nder this approach, Senator McCain is a natural born citizen and eligible for the presidency.
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Collection of comments regarding status of being a natural born citizen:
I'm sorry but you cannot prove an assumption with an assumption.
The Founders allowed persons who became naturalized after birth to become citizens of states and to represent them.
The Founders did not allow persons who became naturalized after birth to represent the republic as a whole, as President. Nor did they require that the President be a citizen of any state, so long as he was a citizen of the U.S.
If Birthers would think more and assume less, much blogging would be unnecessary.
Some people study law and learn how to think. Some people study law and learn how to spread nonsense.
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Re: "No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States or hereafter be born a citizen of the United States." -- so called "Hamilton Proposal"
Had Hamilton's proposal been applied, what would have been the test to determine a person born a citizen? If being born a citizen did not entail a process of naturalization, then its determination could not be entrusted to Congress. In that case, to what rules should the determination be entrusted? To the non-uniform and varying rules of the states? That would be absurd.
So it was necessary to do two things: Make clear that that the determination of citizenship at birth entails naturalization, and empower Congress to establish a uniform rule of naturalization -- both for citizens naturalized at birth and for citizens naturalized at application after birth.
The way the Founders accomplished those two things was to provide, first, that candidates for President (after the grandfathered generation) must be natural born citizens, and, second, to empower Congress to establish a uniform rule of naturalization. The states already had experience under suits for naturalization for declaring persons to have all the rights equivalent to a natural born citizen. IOW, their legal processes already recognized that issues of natural born citizenship entailed an aspect of naturalization.
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A child born in the U.S. is naturalized by the 14th Amendment. A child born abroad of American citizens is naturalized by statutory authority. Both are naturalized. Being naturalized at birth does not disqualify a person. Being naturalized after birth does disqualify a person. Some naturalized citizens (naturalized after birth) are disqualified. Some naturalized citizens (naturalized at birth) are not disqualified.
Nothing in Bellei hold to the contrary. Bellei says nothing about whether a child in Cruz' situation would be eligible. But the procedures that were historically applied in the law pertinent to the pre-Constitution colonies does say something. The early Americans were well familiar with litigation concerning the concept of natural born citizen. They were accessible to Blackstone.
See http://www.libertylawsite.org/2013/05/10/is-ted-cruz-a-natural-born-citizen/:
"Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
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There had been discussions among European nobility looking to achieve office in the U.S. The easy way to do that would be to marry an American woman and then naturalize. This would be naturalization after birth. The Founders were concerned against such European intrigues by poential office seekers, intriguing to be naturalized after birth. Save from the existing generation of citizens, they did not want any person who was naturalized after birth to be eligible. However, there is no reason to suppose they wanted to disqualify their own progeny, if or when born abroad of American citizens. The way to achieve that was to allow children born of American citizens, not just at home but also abroad, to be eligible. The way to express that idea was to allow all children born citizens at birth to be eligible The shorthand terminology for that is natural born children. Not children born citizens in the U.S. Because there were 13 states whose procedures needed to be made uniform, the power to define who should be naturalized as a citizen at birth, i.e., a natural born citizen, was delegated to Congress.
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Adding the word "natural" to "born citizen" did not make the requirement more stringent. It made the requirement less stringent. It made all persons who were citizens at birth eligible, not just the persons who were citizens at birth by virtue of being born in the U.S.
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The Constitutional Law delegated to Congress the power to establish a uniform rule of naturalization. A person may be naturalized at birth or after birth. A child who is a citizen at birth is thus naturalized at birth. A child who is a citizen only after application is a child naturalized after birth.
The question is this: Is a child who is naturalized to be a citizen at birth a natural born citizen, regardless of whether born at home or abroad? Under the established practice at the time the Constitution was drafted and adopted, the answer is, yes.
Had the Founders wanted only persons born in the U.S. to be eligible, they would have just required that a candidate be born in the U.S. When they added the word "natural," they required something less of a citizen at birth. That is, they made all citizens at birth eligible, whether born at home or abroad.
Their concern was to prevent a foreign Prince from marrying an American female, naturalizing after birth, and then financing a run for the presidency. Their concern was NOT to preclude U.S. diplomats and soldiers who may serve abroad from having children who could be eligible. The only citizens precluded are those who were not citizens at birth, but who naturalized after birth.
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Notwithstanding Birther interpretations, the following DID get the position (of Prez or Veep): James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew.
So far as it goes, I grade your comment "not quite wrong."
However, see, for example, http://www.gab.wi.gov/election...
Getting on the Ballot -- President of the United States
The names of candidates for President and Vice President are placed on the General Election ballot in Wisconsin by one of the following methods:
Political organizations that have attained ballot status are currently the Republican, Democratic, and Constitution parties. The names of candidates for President and Vice President for these parties are placed on the General Election ballot when their names are certified to the Government Accountability Board by the state or national party chairperson.
Political organizations that have not attained ballot status may file a Petition for Ballot Status with the Government Accountability Board.
NOTE: The Federal Election Commission is authorized by law to administer and seek compliance with the campaign finance provisions of federal law for candidates to federal office, and to administer and seek compliance with the provisions for public financing of the nomination and election of candidates for President, but has no duties or responsibilities with respect to judging or vetting qualifications or eligibility of candidates to federal office. 2 U.S.C. Section 437c.
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Yup. Children born of American parents in ghettos of muslims, blacks, grievance mongering commie minorities, birther fantasists, and basement denizens who are brain warped by poison ivy schools can be counted on to be naturally allegiant to the American Ideal. Much more so than the child born of an American soldier serving abroad. Yup yup yup. Nuts!
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That kind of argument could be used with as much or more force against Trump. The MSM will do all it can to hype Trump's negatives. Those negartives may well reduce Republican turnout and increase Dem turnout. I don't think this will happen, but it is the sort of speculation that is on a par with the speculation in which you are engaging. Frankly, if the candidates and electorate had better sense, we should be looking to a Trump/Cruz ticket. However, the driving forces have gone purely nuts.
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If the Founders had confined eligibility to just a born citizen, before Congress had established a uniform rule for naturalizing children born abroad, then the children born of Americans abroad could not have been eligible. It was by making uniform the eligibility for natural born citizens, to be defined by Congress as at birth citizens, that the Founders extended eligibility to children who were born as citizens abroad. This would include children who would be born of foreign stationed diplomats and soldiers.
It is not that being natural born requires something more than being born in the U.S. It is that being natural born requires something less! That is, one can be born outside the U.S. and still be natural born if one's parent is a citizen and if Congress makes such allowance uniform (which Congress has).
It was by limiting eligibility to persons who were citizens at birth that opportunity for intrigue by foreign princes, such as by marrying American women and then naturalizing, was reduced. The Founders wanted to eliminate contenders who relied on being naturalized after birth. But there is no reason to suppose they would have intended to disqualify children such as persons like John Jay might have had, if they had served abroad after 1787.
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NOTE: Sadly, there seem to be more than a few careless horse apples on all sides of the eligibility controversy.
The Harvard Law Review has discussed the children of John Jay as if any had been born abroad in circumstances under which they would have been rendered ineligible by the birther interpretation of natural born citizen. (Susan, Maria, and Ann were born abroad in 1780, 1782, and 1783). However, all were born before 1787 and would have been eligible under the grandfather clause. So this seems a careless point, unless the intention is to argue that John Jay did not know about the grandfather clause being considered. See http://harvardlawreview.org/20....
http://www.freerepublic.com/fo..., in argument no. 8, discusses Minor v. Happersett as if it explicitly had held Congress could define natural born citizen -- which it did not. Careless. (Even though I believe it is fairly to be inferred and argued, based on historical facts and process, that the chief legislative body does function to provide a uniform definition for who should be considered natural born.)
Re: Logical System for Categories of Naturalize (as in, to establish a uniform rule of naturalization):
A person who is, per the Constitution, born a citizen, is thus naturalized a citizen by Constitutional law.
A person who is, per legislative enactment, born a citizen, is thus naturalized a citizen by statutory law.
Naturalization may include persons who are naturalized, but, even so, not citizens.
Naturalization may include persons who are naturalized as citizens at birth, and persons who are naturalized via applications made after birth.
A person who is at birth a naturalized citizen is a natural born citizen.
A person who is after birth made a citizen is a naturalized citizen, but not a citizen who was naturalized at birth, thus not a natural born citizen.
Because the Constitution delegates to Congress power to establish a uniform rule of naturalization, Congress has power to define who shall be natural born citizens at birth -- even when born abroad.
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20,000 Yemenis live in the U.S. Not vice versa. See https://en.wikipedia.org/wiki/.... According to http://www.bloombergview.com/a..., as of April 2015, "the State Department now believes there are between 4,000 and 5,000 remaining" (in Yemen).
Cruz wants an enactment that would preclude Americans who wage jihad abroad from returning to the U.S. http://counterjihadreport.com/.... (“Provided the requirements of due process are observed, if a U.S. Citizen undertakes these acts with the intent of supplanting his U.S. Citizenship with loyalty to a terrorist organization, that person can be deemed to have forfeited their right to be a United States citizen and return to the United States,” according to a readout of Cruz’s new bill.)
This seems to belie or at least modify another horse apple birthers often spout: That the citizenship of a natural born citizen can never be forcibly forfeited. It appears, in fact, that the republic likely can forfeit a NBC citizenship (or a right to return) if the citizen, by his waging of jihad, voluntarily manifests what Congress could deem to be a permanent and voluntary relinquishment of his loyalty.
Applicable immigration laws already cut off citizenship upon failure of a parent or his child born abroad to have timely perfected citizenship by residency.
NOTE:
Regarding the claim sometimes made that a citizen born in the U.S. cannot forcibly be deprivedD of his citizenship, see also Perkins v. Elg 307 U.S. 325 (1939)(which, in dicta, implies that a person who has communicated by his actions an intention to expatriate himself may be forcibly held to such election):
"The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States."
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"On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866."
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"[T]he mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles."
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" It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties."
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" Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority."
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"[T]here is no basis for invoking the doctrine of expatriation where native citizen who is removed to his parents' country of origin during minority returns here on his majority and elects to remain and to maintain his American citizenship. Instead of being inconsistent with the right of expatriation, the principle which permits that election conserves and applies it.
The question, then, is whether this well recognized right of election has been destroyed by treaty or statute."
....
"[O]n the facts of the present case, the treaty does not purport to deny to the United States the right to treat respondent as a citizen of the United States, and it necessarily follows that, in the absence of such a denial, the treaty cannot be set up as a ground for refusing to accord to respondent the rights of citizenship in accordance with our Constitution and laws by virtue of her birth in the United States."
....
"[T]he doctrine of dual allegiance ceases, in American contemplation, to be fully applicable after the child has reached adult years. Thereafter, two States may in fact claim him as a national. Those claims are not, however, regarded as of equal merit, because one of the States may then justly assert that his relationship to itself as a national is, by reason of circumstances that have arisen, inconsistent with, and reasonably superior to, any claim of allegiance asserted by any other State. Ordinarily the State in which the individual retains his residence after attaining his majority has the superior claim. The statutory law of the United States affords some guidance, but not all that could be desired, because it fails to announce the circumstances when the child who resides abroad within the territory of a State reasonably claiming his allegiance forfeits completely the right to perfect his inchoate right to retain American citizenship."
....
NOTE: In dicta, the case recites an opinion by the Attorney General regarding 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 twenty-one, and in due time, if the people elect, he can become President of the United States."
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If the fact is that the child has an American parent, then the fact is that the child is entitled to citizenship. To say he needs paperwork is a point of no relevance. Even a child born in the U.S. of parents who were both citizens needs paperwork. And is subject to potential lawsuits by troublemakers who seek to contest whether he is a citizen. A sheriff may sue a challenger and claim the challenger's citizenship paperwork is fraudulent and, by swearing out a prima facie case, put the challenger to the proof. But if the fact is that the challenger qualifies as a citizen, then the fact is the fact. The idea that a child born abroad may need additional paperwork is just one more horse apple, piled on top of many more. I guess the game of horse apples and dragons is popular.
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You may want to look at what lawyers for the pre-Constitution states were actually doing instead of just making assumptions. If you look to the actual practice and to Blackstone, you will see that there was nothing unusual about referring to a child born abroad who was a citizen at birth as being a natural born citizen.
Courts do not reason based on flighty assumptions. They reason from text and, in cases of ambiguity, refer to well known rules of construction. They do not reason from assumptions that amount to little more than speculative horse apple after horse apple. This is why the batting average for birther suits is precisely zero. If you will refer to the article by Michael Ramsey that I have already cited several times, you may begin to understand.
You cannot call yourself a Conservative if you reason based on horse apples and flights of assumptions. If the Founders had intended a different usage than what they well knew from Blackstone, then they would have said so. They would have said that no person shall be eligible to become President unless born in the U.S. of parents who were at the time both citizens. But they did not. Instead, they simply used a term that was then in vogue. It was a term used in the states and known to Blackstone. They hardly needed to go to Vattel. And for that term, under Blackstone and well known common law, a child born abroad who was a citizen at birth would be considered as a natural born citizen. If you don't like that terminology, it is probably because we live in a different age. But you can take it up with a seance seer if that would help.
If you notice, Franklin had a copy of Vattel's treatise at the time the Declaration of Independence was being drafted. That was when the colonies, planning to join under the Articles of Confederation, would have been concerned about their place among the nations. More than 10 years later, In 1787, during the drafting of the Constitution, little mention, if any, is made to Vattel. The concern then was how to set up a republic that would function with internal checks and balances.
Really, you should have more self esteem than to devote so much energy to supporting Team Horse Apple while every one of its hitters bats precisely zero.
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A child who is born a citizen is not turned from a non-citizen into a citizen. Rather, he was a citizen from the moment he was born.
There are two types of naturalization. One naturalizes a person after his birth. The other naturalizes a person at his birth.
There are two types of citizens at birth (i.e., natural born citizens): One is born a citizen within the U.S. The other is born a citizen outside the U.S. Both types are natural born citizens at birth.
The Founders were familiar with the idea of persons who are naturalized as citizens at birth as being natural born citizens.
Under the Constitution, the Founders delegated to Congress the power to establish a uniform rule of naturalization (for naturalizing persons who were natural born citizens at birth, and for naturalizing persons for whom application for citizenship was made after their birth).
Because there were 13 states, it was necessary to delegate to Congress such power to establish a uniform rule for naturalization.
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It's almost unbelievable how headstrong birthers continue to play stupid even after being cited to chapter and verse! I cannot chew your food for you.
Here is the thing: You cannot prove a mutually exclusive dichotomy between every naturalized citizen and every natural born citizen simply by assuming a dichotomy. You cannot pull yourself up merely by tugging at bootstraps. Nor can you walk on air.
You are assuming that because modern usage tends more often to consider birth citizens as being separate from naturalized citizens that the Founders thought in the same way. But a simple check of history shows that is not the case. The Founders did NOT look upon persons who were born abroad yet citizens at birth by statute or naturalization as necessarily not being natural born citizens. I have cited to a well known professor who clerked for Justice Scalia, an originalist if ever there was one. His name is Michael Ramsey. He explains it quite well to anyone whose head is not seized up in birtherism. I have cited it about as many times as Rubio has told us that Obama knows exactly what he is doing. And yet birthers comprehend it not. So, once again, here it is:
See http://www.libertylawsite.org/... Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
In case you did not yet get it, let me, in Rubio fashion, say it again: So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born.
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Do I need to say it again?
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Show me where you find anything in the Constitution that says that a natural born citizen is (and can only be) a person who was born a citizen whose citizenship cannot be forfeited.
Amendment XIV, Section 1, says: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
I see precedent that a person who is born a citizen under the "second clause" ("or naturalized") of the 14th Amendment can be stripped of his citizenship for violating a condition subsequent that Congress has reasonably imposed pursuant to statute. But I do not see where that makes such a person who was thus made a citizen at birth not a natural born citizen.
It is only by baking a cake built out of little more than horse apple after horse apple that Birthers arrive at their logic-contorting conclusions. Do you not tire of chewing and regurgitating horse apples?
A partial list of Birther horse apples:
that the terminology "natural born citizen" was not commonly known and used among the pre-Constitution States;
that there is some distinction between citizens and subjects that makes a difference in determining whether a person is a natural born citizen;
that the concept of a natural born citizen precludes a person who acquires dual citizenship;
that the pre-Constitution States did not routinely resort to common law as derived originally from the British;
that, during the drafting of the Constitution, the Founders are shown to have more frequently consulted Vattel's treatise on the law of nations than British common law;
that it can be shown that the Founders, by empowering Congress to establish a uniform rule of naturalization, intended to remove from Congress the power to expand upon who should be a citizen at birth within the meaning of being a natural born citizen;
that a person who is a citizen at birth pursuant to statute cannot be considered eligible as a natural born citizen;
that it can be shown that the Founders would have considered a child of John Adams or John Jay to have been ineligible if born abroad after 1787;
that Congress advised FDR Jr. that he was ineligible because his parents happened to be in Canada when he was born;
that it can be shown that nothing in British or U.S. common law could have ever supported treatment of a person born abroad as a natural born citizen;
that the case of Bellei holds that he was not a natural born citizen.
Now you add a cherry on top of your cake of horse apples, that: A "true" natural born Citizen could never have his citizenship forcibly removed for a mere residency trifle. Congratulations. Feast on!
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BELLEI DID NOT HOLD THAT BELLEI WAS NOT A NATURAL BORN CITIZEN! STOP THE HORSEAPPLING!
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NBC people would have less about them of fragrant, steaming horse apples if they would stop trying to air walk so much that is flagrant horsepucky. See https://supreme.justia.com/cas....
Bellei was not a case about presidential eligibility. It was a case about expatriation for failure to have complied with a residence requirement (subsequently repealed). Bellei notes that: "A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
"[N]aturalization, when used in its constitutional sense, is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization."
Bellei recognizes that a person can be made a citizen at birth even if born abroad. It also says: "The Fourteenth Amendment of the Constitution ... . contemplates two sources of citizenship, and two only: birth and naturalization."
Nowhere does Bellei say that an American child born abroad, such as to a family of soldiers or diplomats, would on that account be constitutionally precluded from being such a statutory citizen at birth as could qualify to become President. Nowhere does Bellei say that a person who is born a citizen by virtue of an Act of Congress is not a natural born citizen who is eligible to become President. Nowhere does Bellei say that the Constitution changed the rule for the pre-Constitution states (as well as for the mother country) that was longstanding even before the adoption of the Constitution --- that requisites for determining status to be considered as a natural born citizen would be subject to enactments of the chief legislative body. Nowhere does Bellei say that Congress, in the exercise of its delegated power to establish a uniform rule of naturalization, is without power to determine who among citizens born abroad shall be natural born citizens at birth.
The horse apples being carted about by NBC people keep getting gasier and gasier.
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Trump is a natural born citizen, but he might also be a (dormant) dual citizen.
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Given the danger of flipping the electorate into third world liberty illiteracy, I side on this issue, on policy, with the nations that, in regard to alien parents, restrict birthright citizenship to children who have parents who are legal residents. I might have felt differently if we had not lost control over our borders for such a long time, and if new citizens were assimilating, and if we had not promoted multi culti to such a point that cultural assimilation in respect of the American Ideal has become nearly impossible. I want the USA to remain the USA and not to become just one more balkanized nation.
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Re: "There is NO LOGICAL step for you to claim illegal aliens need an act of congress to be subject to the jurisdiction. They are subject to the jurisdiction by being within the jurisdiction and NOT being part of the exempted classes. Those exemptions are specific: Ambassadors, enemy occupiers, personnel of friendly foreign public ships, and Indians who still belong to sovereign nations in the U.S."
Good arguments support this position, but sound policy does not. I think a number of countries are drifting away from pure birthright citizenship. For example, my sister, although born in Japan, was probably never considered a citizen of Japan. This is because there are numerous problems with birthright citizenship when it is accorded to migrant laboring parents and citizenship shoppers from China. This is especially so, given the various welfare and monetary benefits are accorded all birthright citizens.
Part of the rationale for affording such citizenship is probably to avoid the development of a permanent class of helot workers (akin to sub-citizens or slaves?) who can obtain legal status but never the full rights of citizens.
Problem is, the donor/NWO class uses birthright citizenship for migrants and shoppers to undermine nations and promote cheap labor in order to syndicate the world among a class of international cronies.
If the U.S. is to remain an independent nation within a world that is largely mad, it needs either to robustly defend its borders or to put a stop to birthright citizenship for illegal invaders, citizenship shoppers, migrant workers, and visa students and workers.
To accomplish this, it may be necessary to pass an Amendment. Meantime, research should be done to ascertain whether a cogent argument can be made to deny anchor baby citizenship based on existing laws and precedents. You may be correct that the issue is already settled. However, the issue is important enough that I need to see it fully vetted (even though your arguments seem formidable!).
Had the drafters of either the original Constitution or the 14th Amendment foreseen how anchor babies would abuse our republic, I suspect they would have taken more care with the subject. They would perhaps have excluded more classes from birthright citizenship than "Ambassadors, enemy occupiers, personnel of friendly foreign public ships, and Indians who still belong to sovereign nations in the U.S." They would perhaps have deemed illegal invaders and persons who overstayed or abused visas for the purpose of dropping anchor babies to be akin to "enemy invaders."
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The issue that must be addressed is whether the Founders intended Congress to be empowered by statute to make persons citizens at birth (without needing to apply and be subject to denial), when such persons had not been citizens under non-statutory common law.
The Constitution empowers Congress to establish a uniform rule of naturalization. Did empowering Congress with authority to enact rules of naturalization empower Congress to enact rules for establishing who would be a citizen at birth? If so, would Congress, in exercising such power to determine a citizen at birth, be exercising a power beyond that of naturalization? IOW, is a person who is made a citizen at birth (natural born citizen) pursuant to statute a citizen by naturalization or is he a citizen by some delegation of sovereign power that is more than a power to naturalize?
If enacting a provision to determine a citizen at birth is pursuant to a power to naturalize, then Congress would not have exceeded its delegated power.
If enacting a provision to determine a citizen at birth is pursuant to sovereign power that is deemed delegated by inherent necessity, then Congress would not have exceeded its power.
In either case, whether a person made a citizen at birth is so deemed, whether based on delegated or inherent power, he is a natural born citizen consistent with the understanding and practice at the time leading up to the adoption of the Constitution.
In that case, it would make little difference whether a scheme of classification would call the case of Ted Cruz one that entails the exercise of a power of naturalization or the exercise of a power of sovereignty. IOW, whether Ted Cruz is a naturalized citizen or a non-naturalized citizen, he is still a natural born citizen.
I suspect confusion in classification accounts in part for why so many people seem to be talking past one another. If the term "natural born citizen" is not well defined, so also is the term "naturalized" not well defined. The consequence is akin to trying to divide zero by zero, or ambiguity by ambiguity. To get through that, it helps to look to the history. What were the pre-Constitution states doing in their own applications of law? Whatever they were doing, they were much more respectful of the tradition of common law as inherited from Britain than they were of any treatise written by Vattel.
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Scotus may eventually clarify the legal classification terminology. Regardless, under either scenario, Cruz is eligible by the clear weight of better reasoned authority. Birthers tend to rely on many strange ideas that simply are not supported in history, fact, common sense, or law. Rather, they have laboriously constructed a long train of horse apples that simply do not bear up to examination. They confabulated this train in some desperate reaction to Obama. However, horse apples do not a silver bullet make.
Either being a citizen of right at birth is not naturalization, or, to take Michael Ramsey's interpretation, a person who is a citizen at birth is nonetheless a natural born citizen because the category of natural born citizen overlaps with the category of naturalized citizen in the case of persons made citizens at birth by statute. That overlap is consistent with the practice in the pre-Constitution states.
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Why is it "hard right" to want to conserve liberty, restore respect for the 10th Amendment, blow away the Federal boots on the faces of the States, enforce the borders, keep our military defenses strong, protect the First and Second Amendments, and appreciate the assimilative power of higher faith? To me, that does not seem "hard right." It just seems right. As in, not wrong.
Without a restoration of faith and a mandate for conserving liberty, the American Ideal is kaput. With a restoration of faith and a mandate for conserving liberty, there is no reason to suppose an articulate Conserver of Liberty could not inspire ordinary Americans to overcome the evil prop-edu-ganda that is funded and flooded by gang bangers throughout all our institutions.
Why should any independent minded American want as President a person who means to reach across the aisle to make deals that will put Fed vig-takers into ever more and more of the affairs of our daily lives? Eff the Feds. Just fire them. Pour roundup on the DC antpile of worthless, corrupt, pimps of divisive antagonism.
Yeah, I can see why so many billionaire pimps of divisive antagonism loathe Cruz. If he's so sold out to them, why do they hate him so? And why does the class of doper, looter, nose-ring, pants on ground, commie thieving, crony conniving, Muslim loving, goat loving, Che loving, gender bending, Jew hating, critical studying, dip-doodlers hate him so?
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Any children who were born abroad after the adoption of the Constitution would not be grandfathered.
So the main idea under discussion pertains to the absurdity of believing that John Jay (or any other Founder or Personage prone to serving or visiting overseas at various times, as visitors, ambassadors, or for negotiating treaties) would have intended to make inelligible any of their children who may come to be born after 1776 or 1787 or whatever the year their home states became bellicose or ratified the Constitution.
For example, it is absurd to believe Jay would have intended that FDR Jr would have been ineligible simply because of being born abroad. (Or Charles Curtis, George Romney, Barry Goldwater, Lowell Weicker, or John McCain.)
However, you are correct that reference to children of John Jay, himself, does not make the point without clarification. This is because I do not find that Jay actually had any children born overseas. He did have a male child, William Jay, born 6/16/1789, AFTER New York ratified the Constitution. However, William was not born abroad.
For more on this, see http://www.theatlantic.com/pol...
"In 1787, the United States seemed to be falling apart, and many worried that it might end up with an imported European monarch. In 1786, Nathaniel Gorham, later a Philadelphia delegate, had apparently written to Prince Henry of Prussia inquiring whether he’d enjoy being America’s head of state. Newspapers during the Convention speculated that the delegates were offering the Crown to Frederick, Bishop of Osnaburgh, younger brother of George III (and later Duke of York). That wasn’t true, but some worried that the danger of foreign princes might not abate even after ratification of a new Constitution. Someone might propose Henry or Frederick as the new president. The newly naturalized president might make his son vice president. Since many delegates expected presidents to be reelected every four years until they died in office, the result would be a de facto monarchy.
That fear probably inspired the “natural born citizen” clause. I can’t find any evidence that the Framers wanted to discriminate against the children of Americans anywhere. The first naturalization statute, passed in 1790, said that “children of citizens of the United States, that may be born beyond sea, or out of limits of the United States, shall be considered as citizens of the United States.” (Citizenship did not extend to such children if their fathers had never lived in the U.S.)
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The Supreme Court, interpreting Congress’ use of its power over citizenship, has noted that there are “two sources of citizenship, and two only: birth and naturalization.” Congress extended citizenship to people like Cruz at birth.”
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Bottom Line: The Founders were probably less jealous against children born abroad of American parents than of children born of foreign princes for whom attempts could be made to naturalize such children in the U.S.
To me, that raises more of a concern against anchor babies born of illegals than against babies who are citizens at birth, even if born abroad. Precedents preclude both status as citizen and status as natural born citizen for children of foreign diplomats or invading armies. IMO, those precedents need to be extended to apply against children born of all illegal invaders and temporary visa holders.
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The words "natural born citizen" appear in writings in Massachusetts in 1785. See some of the Massachusetts Naturalization Acts, as discussed below. Between 1785 and 1791 the MA legislature passed Acts that used both the term natural born citizen and the term natural born subject. John Adams used the terms “citizen of the Commonwealth” and “subject of the Commonwealth” in his draft of the 1780 Massachusetts constitution. The Delaware legislature passed legislation in 1788 that used the term natural born subject. President Washington sent a letter to Roman Catholic clergy in 1790 in which he thanked them for being good “subjects of the government United States.”
So, the term natural born citizen had been in use in states, both before and after work was begun to draft the new Constitution.
However, that term, as such, did not appear in the edition of Vattel that would have been available to the Founders in 1787.
Franklin's letter thanking the person who sent him copies of Vattel's treatise was written in English, in 1775 -- before the Declaraton of Independence, not at the time of the drafting of the Constitution more than 10 years later.
Review the Massachusetts Naturalization Acts.
Massachusetts Naturalization Acts
[Before drafting began on the new Constitution]
February, 1785,
“AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
http://tinyurl.com/b9q2blr
February, 1786, “AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
http://tinyurl.com/a9ceb8b
July, 1786, “AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens.”
http://tinyurl.com/bh9jdqc
March, 1787, “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
[After drafting began on the new Constitution]
http://tinyurl.com/b6yzhd9
May, 1787, “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that Edward Wyer and Others, “shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/apcrvfj
October, 1787, “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
http://tinyurl.com/axpogxw
November, 1787, “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others, “shall be deemed, adjudged and taken to be free citizens of this Commonwealth,& entitled to all the privileges, liberties, and immunities of natural born subjects.”
http://tinyurl.com/acjx5r2
June, 1788, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”
http://tinyurl.com/acroa8g
November, 1788, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”
http://tinyurl.com/a4hsc8s
February, 1789, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”
http://tinyurl.com/b5jcnfm
June, 1789, “AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/ax6434g
March, 1790, “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/bfbpqg3
March, 1791, “AN ACT FOR NATURALIZING JOHN WHITE & OTHERS” in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”
http://tinyurl.com/b2uoexq
It may be noted that the Founders in Massachusetts apparently used the terminology natural born citizen and natural born subject more or less interchangeably.:
“The children of aliens born in this state are considered as natural born subjects and have the same rights with the rest of the citizens.” -- Zephaniah Swift, A System of the Laws of the State of Connecticut: In Six Book, (1795)
Of course we always could ask one of the Framers where to look for definitions for the terms in the Constitution.
“… where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
Alexander Hamilton, 1795.
IOW, we were colonies of Britain -- not France.
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An excellent source for you to begin doing more of your own research is here: http://www.obamaconspiracy.org....
I personally do not say the Supreme Court has resolved the issue outside of dicta. However, Scotus has written considerable and "strong dicta" around it. Minor v. Happersett 88 U.S. 162 (1874) does not resolve the issue. Minor says a person born in the U.S. of parents who were both citizens would be a natural born citizen. Minor says that a person born in the U.S. of a parent who was a citizen might be a natural born citizen. Another case says a person born in the U.S. of parents who are legally domiciled and not of foreign embassies or armies would be a citizen.
Minor does NOT say that a person born outside the U.S. of parents who were both Americans would not be a natural born citizen. Nor does Minor say that a person born outside the U.S. of a mother who was an American under circumstances such that the person born would have a claim of right of citizenship at birth, without fear of being refused entry or citizenship, would not be eligible to become President.
Since Minor, lower courts have considered the issue, often in dicta. Examples include:
Purpua v. Obama – “The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.”
Voeltz v. Obama – “In addition, to the extent that the complaint alleges that President Obama is not a “natural born citizen” even though born in the United States, the Court is in agreement with other courts that have considered this issue, namely, that persons born within the borders of the United States are “natural born citizens” for Article II, Section 1 purpose, regardless of the citizenship of their parents. [Citations to Wong, Hollander, Ankeny].”
Allen v. Obama – ““Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co. , 39 Ariz. 45, 54, 3 P.2d 983, 986(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise”.
Fair v. Obama – “The issue of the definition of “natural born citizen” is thus firmly resolved by the United States Supreme Court in a prior opinion [US v Wong], and as this court sees it, that holding is binding on the ultimate issue in this case.”
Tisdale v. Obama – “It is well settled that those born in the United States are considered natural born citizens.”
If dicta were good argument, then Rubio, Jindal, Arthur, Agnew, and Humphrey would all be on solid ground to claim to have been "natural born citizens" simply by virtue of having been born in the U.S. and subject to the jurisdiction. For dicta, see elsewhere cited Wong, Hollander, Ankeny.
See Recent court rulings on presidential eligibility - Obama Conspiracy Theories.
Hollander v. McCain (New Hampshire 2008) ruling: “Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75 (1898), and thus eligible for the presidency,
Ankeny v. Governor of Indiana (Indiana 2008 – Appellate Court) ruling: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
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In the broad sense, every citizen must be naturalized (nation-alized) to become a citizen. Some are naturalized at birth, without need of application or fear of rejection. Others must apply and may not necessarily be accepted. Again, the categories of natural born citizen and naturalized citizen overlap. They are not mutually exclusive.
IAE. my reasoning, which I arrived at from reading pertinent cases and history even before I read the sources I have cited, is in sync with Michael Ramsey -- who clerked for Justice Scalia. Last I checked, Scalia's a pretty smart conservative originalist. Probably not in the habit of hiring Effing idiots.
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Yet, an unholy alliance of Trump supporters, Birthers, and coy Prog Profs seeks to discredit Cruz in ways that will incline to grease a path for Rubio. In effect, this alliance will sacrifice a man (born to an American mother who has lived all his life after age 4 in the U.S.) to a man who is fast becoming the darling for the Chamber of Commerce and NWO that seeks to erase the republic.
Note: The effect of the brief in the Birther list I just provided, obtained from Mario Apuzzo's website, argues that Rubio is an NBC. It seems Birthers need to get their opinions straight.
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This list is meant as a service to all the A.T. Birthers who cannot get enough of Plantation Locoweed and Horse Apple Monty.
I am providing this service because Birther sites do not seem to just pop up so readily anymore. Maybe their Google rating is going down with their increasing number of failed suits and activities?
IAE, ENJOY:
See https://cdrkerchner.wordpress.com/2016/02/10/stop-the-constitutionally-ineligible-ted-cruz-and-marco-rubio/.
See http://www.obamaconspiracy.org.... ("To get on the list, a birther has to run a blog, write an article, file a lawsuit or do something else notable. Applying that same criteria to anti-birthers, I think I would be hard pressed to come up with 30 (commenting on a web doesn’t count). That is, birther activists outnumber anti-birther activists more than 10 to 1. Birthers attempted mass rallies and other initiatives, none of which had much success. Anti-birthers organized going out to eat together, and were wildly successful.")
(MY PERSONAL NOTE: I suspect there are also likely ten times as many conspiracy mongering sites as anti-conspiracy mongering sites.)
One of the more rabid sites is here: http://natural-borncitizens.co....
Another site is at http://www.naturalborncitizen.....
Another is http://birthers.org/
This site appears to discuss ideas that have been developed many times before, but it reaches opinions that Ted Cruz is not eligible.
Even it, however, recognizes, per Dicey’s Conflicts of Law “(1896) it is stated: (pp. 173), that: “Natural born subject” means a British subject who has become a British subject at the moment of birth.
Quoting further:
"In the case of Lynch v. Clarke, 1 Sandf. 583, N.Y.), the Vice Chancellor stated that he entertained no doubt “that every person born within the dominion and allegiance of the United States, whatever the situation of his parents, was a natural born citizen.” He added that “this was the general understanding of the legal profession, and the universal impression of the public mind."
Articles appeared "in the Albany, New York Bar Journal (66 Albany Law Journal 99) in 1904, both of which concluded that a foreign born child of American parentage came within the tern natural born and was eligible to become President."
"This first article did, however, apparently serve to encourage the author of the article in the Cornell Law Quarterly which was apparently inspired by a desire to accomplish a desired result, namely, to urge eligibility for the Presidency on behalf of Mr. Franklin Delano Roosevelt, Jr. who was born at the family summer home at Campobello, New Brunswick, Canada. His article attached great importance to the naturalization acts of the English Parliament which had “deemed” the children of English parentage born abroad to be natural born.
NOTE: The site sponsors an article relating to the eligibility of George Romney, who was born in Mexico and later fathered Mitt Romney. [It does not appear to address the candidacies of Charles Curtis (Kansas Territory, Indian Mother, tribal affiliation), Lowell Weicker (France), Barry Goldwater (Arizona Territory), or John McCain (Panama).]
The article opines:
"Mr. Romney was born an alien and was naturalized automatically by Act of Congress. The U.S. Naturalization Law as it existed at the birth of Mr. Romney did not even purport to “deem” him to be a natural born citizen as did the British. It merely declared him to be a citizen. He is, therefore, not a native born citizen, but is a naturalized citizen. He is, therefore not a “natural born citizen” according to the English common law, nor an American natural born citizen under the Constitution of the United States."
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Here's another site that cats1cowboy was courteous enough to provide: http://www.obamabirthbook.com/....
Also: http://www.art2superpac.com/is...
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Attorneys who may be found online and whose names are frequently associated with Birther arguments include Orly Taitz, Leo Donofrio, Phillip J. Berg, and Mario Apuzzo.
See also https://rcradioblog.wordpress.....
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Review the cases cited in the Birther sites. They're good at cherry picking dicta. But if you read all the dicta (because there is no case holding), and then add the research done by Prof. Jacobson, the Congressional Research Service, and Prof. Michael Ramsey, your questions may be answered. Are Sarah Palin or Diana West experts in Constitutional Law or legal interpretation? Hmm. Btw, where's that cite?
NOTE: See http://www.outsidethebeltway.c.... Cruz’ mother had lived in the United States for at least 14 years after her 14th birthday. Under the law then in effect, that was all that was necessary to confer citizenship at birth upon the child of an American citizen who happened to be born in a foreign country, such as Canada. The NBC argument against Cruz is half baked. Continued resort to it by Trump supporters just makes them look half baked. And desperate. I have contributed money to Trump. My advice to his supporters would be: You're hurting him. You're not helping.
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Rubio, if his parents were not illegal residents, is eligible as a NBC. This means the idea of a citizen-parent requirement to be NBC is GONE. If no citizen parent is required when a person is born in country, then the only logical reason for the "natural born" language is to avail an alternative way to be eligible as an NBC, to wit, by being born a citizen of right pursuant to statute.
Re Cruz saying he was ineligible: Do you have a cite? I want to see it. Did Cruz say a person born in the U.S. of parents who were both citizens would be eligible? If so, he is correct. Such a person would be eligible. Did Cruz say no one else could be eligible? Did he vow never to consider further? I'm not seeing your logic here. Especially in the absence of context or cite. Frankly, you sound desperate. Why?
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Your logic simply does not connect. I believe you are an engineer, correct, with training in math? I'm surprised at your difficulty with basic rules of logic. But what do I know. I was just commissioned from Fort Belvoir 1968 as an Army Engineer. (My much longer experience has been as a trial and appellate attorney.)
Again: The encompassing category is citizen. Within that category are two categories that overlap: Naturalized citizen at birth and naturalized citizen at application. The categories of natural born citizen and naturalized citizen are simply NOT mutually exclusive. If you don't like that analysis, take it up with Prof. Michael Ramsey.
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Per interpretation of the 14A, a person who is born in the U.S of parents who are legally resident and subject to the jurisdiction IS eligible as a NBC to become President, REGARDLESS of the citizenship status of his parents.
A logical REASON the founders inserted the word "natural" was to allow a person to be born an eligible citizen WITHOUT having been born in country.
Precedents in Britain and in pre-Constitution states show persons who were NATURALIZED as natural born citizens. Birther "logic" simply does not connect and does not compute.
The concern for discouraging intrigues by foreign princes has been adequately met, both by the 1790 Act and it's successors.
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The nation derives its nationhood through Constitutional law. The man derives his citizenship through statutory law, as authorized by the Constitution. The Constitution empowered Congress to establish a uniform rule of nationalization. But for statutory legislation, there would be considerable confusion among the states regarding which scheme should be adopted for testing who is a citizen at all, much less a "natural born citizen." We came together as a nation by joining what had long been British colonies -- not French colonies.
The category of being a natural born citizen at birth is simply not mutually exclusive from the category of being a naturalized citizen. Regarding recognized means for giving legal weight to ascertaining the intent of the drafters and ratifiers, I'm reasonably confident, based on reading the comments and wading through the numerous horse apples, that I have read and understood considerably more on this subject than most of the NBC commenters. IAE, if Michael Ramsey and Ted Cruz are too stuupid to get your point, then I am in good company.
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Yes. We must, we must.
https://youtu.be/JN99jshaQbY
BTW, Donald Trump is clearly a NBC. But, under Birther reasoning, he is also a dual citizen (regardless of never having consummated it). See http://www.libertarianrepublic...
"Donald Trump is another situation. Although nobody has thought to look into the matter, Donald Trump is a natural born citizen of the U.S. and the U.K. because his mother, Mary Anne MacLeod, was born in Scotland; i.e., was an citizen of the U.K. To be sure, the Donald's mother became a naturalized U.S. citizen prior to his birth (she naturalized in 1942, and he was born in 1946). But, the U.K. is very liberal with regard to dual-citizenship. They're cool with one of theirs taking the U.S. oath of citizenship, even with its renouncing of foreign allegiances and still being one of theirs. Therefore, the Donald upon his birth was a natural born dual-citizen of the U.S., and by lineage through his mother, the U.K. Furthermore, since the Donald has renewed his relation with the U.K. through his fabulous golf course and country club in his maternal ancestral homeland, he has passed his long-dormant U.K. citizenship to each of his children. The only person in the Donald's household who is a U.S. citizen only is Melania."
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Michael Ramsey is an originalist who has also opined in the Harvard Law Review (see http://originalismblog.typepad.... He clerked for Justice Scalia (http://www.sandiego.edu/law/fa....
He thinks Cruz is eligible -- even from an originalist standpoint.
See http://www.libertylawsite.org/...
But hey, I guess, according to NBC people, he must be stuuupid. Lol.
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Nature does not have citizens. Nature has predators and prey. The very concept of citizen requires resort to artificial notions of manmade law. A nation exists only to the extent it is nation-alized.
Early Americans used the term "natural born citizen" before the Constitution was adopted to make the United States a nation. The terms "natural born citizen" and "naturalized citizen" are simply not mutually exclusive.
What are mutually exclusive are persons who are, by national law, given claim of right to citizenship at birth and persons who are by law required to apply to become citizens. Ted Cruz had a right to come to the U.S. No one in the U.S. had a right to exclude him or to deny him citizenship. Apart from exercising his right, he was under no obligation to make special application to become a citizen. Thus, he was a citizen of right at birth. Not a citizen at application, subject to refusal. Nor was he required to take an oath of allegiance to remain a resident in the U.S.
Political partisanship is understandable. Spreading horse apples as if they were facts is less so. Simply put: There abides no necessarily mutually exclusive line of division between natural born citizens and naturalized citizens. Rather, some naturalized citizens are natural born citizens, i.e., persons who are made citizens at birth by law.
Not even the twitty Prog Prof of curved constitutional space would agree with those who argue that it is a fact that there was and is a clear line by which to mark off and exclude all natural born citizens from all naturalized citizens. Rather, he would have to agree that the issue is one of debate, not fact, upon which many very smart legal Profs disagree.
However, the trend and weight of authority is clear. Indeed, even if you asked the Prof of Curved Constitutional Space whether he truly believes Cruz is disqualified, I much suspect he would either confess that Cruz is qualified or else dodge or decline to answer.
NBC people are melting ... melting.
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Last I saw, Tribe said there is a question about Cruz' eligibility, the resolution of which may depend on whether one approaches the question as a textualist, originalist, or living constitutionalist. If you have a cite to show Tribe thinks Cruz is ineligible, please provide it. I think you are another Johnny Horse Apple spreader.
See http://www.nationallawjournal....
"Tribe argues that originalist interpreters would conclude that only those persons born on U.S. soil count as natural-born citizens."
However, Tribe, as is common among Progs and anti-Cruzers, is spreading horse apples.
"The originalist argument is not so clear-cut. Originalist scholars are debating among themselves whether Cruz is eligible to serve as president."
Moreover, Tribe, who is NOT an originalist, does NOT think Cruz is ineligible. Rather, he fudges and says Cruz would be ineligible under an originalist interpretation. On that, however, originalists, including Cruz, disagree. Moreover, the weight of reasoned authority is to the effect that Cruz is eligible.
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BTW, Michael Ramsey is an originalist who has also opined in the Harvard Law Review (see http://originalismblog.typepad.... He clerked for Justice Scalia (http://www.sandiego.edu/law/fa....
He thinks Cruz is eligible -- even from an originalist standpoint.
See http://www.libertylawsite.org/...
Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
MY NOTE: Confusion remains because of poorly considered dicta. See the briefing by the Congressional Research Service:
"The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person after birth,”and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could NOT be considered to be “naturalized."
However, compare the 1971 case of Bellei (which was an expatriation case, not an immigration case), and maybe in the Foreign Affairs Manual.
In Bellei (see https://supreme.justia.com/cas..., the DISSENT said:
"The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.
Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
NOTE: Consistent with Ramsey's reasoning, Bellei does NOT hold that a person who is naturalized as a citizen at birth, via statute, cannot be a natural born citizen for the purpose of being eligible to become President.
NOTE: In Cruz' case, his mother had already met the required term of residency for her son to be a citizen at the time of his birth. Moreover, the provision that was used to expatriate Bellei has been rescinded. In Bellei's case, his father was an Italian who never had resided in America.
BOTTOM LINE: Depending on time (pre-Constitution or post-Constitution), place (England, Colonies, or Early States), and purpose of usage, the term "naturalized citizen" has probably at various times been thought to refer to: (1) persons who were not born in country, and at other times to refer to (2) persons who were born in country of foreign visiting parents who thus needed to be naturalized. Also probable is that the term "natural born citizen" has been used to refer to: (1) persons who were not born in country, provided they were born of a citizen father, (2) persons born of citizen parents, or (3) persons born of a citizen mother and non-citizen father who had resided in country.
IOW, the idea that the terms (natural born citizen v. naturalized citizen) are clear, exhaustive, and mutually exclusive is NOT well supported in evidence, history, or legal analysis.
Mainly, arguments to the contrary rely on shouting while spitting out a long train comprised of little more than horse apple after horse apple. IOW, Horse Apple Monty, played among political partisans.
SIDENOTE: Mere dicta in Bellei cannot compel a ruling that Rubio, even if his parents had been illegally residing in the U.S., must be considered a citizen, much less a natural born citizen.
THE REAL QUESTION is: Did Congress, under law as understood by the Founders/Ratifiers and as ORIGINALLY provided in the Constitution, aside from the 14A, have authority by statute to provide for conditions that would make Cruz such a "full citizen at birth" as to qualify him to status as a "natural born citizen" for the purpose of making him eligible to become President?
I think the answer is, Yes.
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See the English Case of 1830 of Young v. Peck, 21 Wendell's Reports 389 (referenced by U.S. Justice Story), which apparently would show that a person born in Britain, whose father established citizenship in the U.S., could also claim such citizenship (naturally), even though not born in the U.S. If Justice Story found such case persuasive, he may reasonably have inferred, if given the case, that, had her father been born in the U.S., and had the father traveled to Scotland to visit, and had his daughter at that time been born in Scotland, she would, as of such time, have qualified as a "natural citizen" of the U.S.,"at birth." That is, a natural born citizen.
IAE, a number of old cases from Massachusetts from 1785 to 1791 strike a hammer blow against the "horse apples" of those who say the words "natural born citizen" had not previously been used in American jurispridence.
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Soon you will see that the way of all flesh and candidates is bologna. But Cruz is not far from the mark in one respect: We need to reassimilate a common respect for an inviting Reconciler. Who is NOT the monstrous meme of Islam.
What most threatens America is the disassimilation of higher values that has been brought on with the pagan cries for diversity and pleasure above everything else.
I don't care whether the Source of assimilating republican values is "God" or some unknowable aspect of nature. What I care about is that we stop replacing it with brain-blowing paganism.
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I don't have that much faith in Cruz. I just have less faith in everyone else. My faith is in the Reconciler. And if we unite in that, we may hold Cruz to a straighter path. If not, we can at least remain strong in our own relationships with the Reconciler. Mostly, faith is best put in the Reconciler. As for flesh: Trust, but verify.
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So now we have a three way contest. One candidate (Cruz) might be an actual conserver of liberty. Another (Trump) is a narcissist who is good at channeling rage in order to make deals. The third (Rubio) is adept at presenting whatever his funders happen to want in whatever language a fluxing majority of new voters happens to find pleasing.
Our Founders thought the American electorate, by grace of God, had acquired the decency and liberty-literacy to support a representative republic. They knew most electorates were unsuitable to keeping a republic. Lincoln saw that it remains unproven whether we in fact are suited to government of, by, and for the people. Now, we are once again gathered together in that great existential test. Leading up to the Civil War, I doubt many Americans foresaw what a great existential test lay before them. Once again, in only a few months, our times will put us to try the souls of Americans.
We cannot survive the cataclysm that is pounding at our door merely by retreating to old forms. The threats confronting us are too dire for that. We cannot survive by listening to falsely clothed establishmentarians bent on burying the American Idea to replace it with a NWO of eloi ruled by elitist morlochs.
In main, the facts pounding at our door are three: First, a happy-faced boy (Rubio), practiced in arts of deceit, dances before us while singing soothing songs of accomodation of elitist strategems. He works for Chamber of Commerce interests that want to legalize the easily bribed votes of masses of newly flooding liberty-illiterates. Second, a practiced deal maker (Trump) rages before us, promising to make us prosperous and great again, if only we will empower him with our trust. Imagine if Washington had speechified about how we would make us great if only we gave him the power to pen law, "so let it be written; so let it be done." Third, a man (Cruz), raised by two math heads, who for principles keeps his own counsel but is rigorously versed in the Constitution and probably history, woos us with promises to tell the truth.
The problem with Cruz may be akin to the problem with Lincoln. Cruz may listen to others, but he prizes most his own counsel. He dabbles out such truths and promises as he calculates we are capable or ready of understanding. We don't really know what course he would chart to get us through the coming storms of a milleneum. In effect, he is asking a largely faithless nation to take a leap of faith to higher purposefulness. But then, so also are Rubio and Trump asking us to take leaps of faith. Rubio asks us to believe his funders want to serve America more than pragmatic globalism. Trump asks us to believe he wants to serve America more than pragmatic deal making.
Given the storm at our door, the idea that we should choose Trump over Cruz merely because some artists of three-horse-apple-monty gin up a Game of Vattel is the resounding echo of the devil's laugh.
Bottom line: If Dupes of Vattel were to get their President, we would get Trump. Who may well appoint 4 Scotus justices in the vein of his sister. Who would demolish the First and Second Amendments. Which would change America forever.
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Re: "As far as anyone can tell, Trump doesn't really have a set of core beliefs."
Well, that's an important concern for vetting every one of the candidates. Do any of the candidates want to represent Americans who hew to the American Ideal? Or are they all mere opportunistic wills of the wisp?
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The business model for A.T. is necessarily much the same as for the MSM: Feed controversy and then milk it. Alternate between blowing hot and cold and spitting out luke warm. This is not new, but the extent of it is. The extent of it is because we don't produce so much. So we kavitch over a reducing pie. Well, the pie is reducing for most of us, even if not so much for the uber wealthy.
By filling our hours with political insults and morally criminal strife, we are hindered from stopping the lifting of ladders, the leveling of masses, and the destruction of nations. There's no vast right or left wing conspiracy. Rather, there's worldwide, sinister, subhumanizing, syndicating, predation.
Muslims rationalize this condition of humanity as the justice of "Allah" -- which is nothing more than a monstrous meme invention. Cronies rationalize this as the justice of wise guys taking their vig from the little people (for their own good -- or, if they know what's good for them).
Cynics rule because hardly anyone in any good will seeks intellectually honest, true faith. Most of our scholars have given up on honest seeking of true faith. They have replaced the still quiet voice with the sturm and drang of gang identification and loyalties. What if such is the case for every one of the presidential candidates? As well as for most of their followers? What if most of humanity has been trained to break almost all decent faith with the Reconciler as well as with one another?
As long as we keep our heads glued to the political farce, how can we responsibly hope to interpret what is really going on, or to smash the kabuki theater that perpetuates moral insanity? This seems to be heading to a cataclysm. If we do not assimilate moral sense enough to avoid the cataclysm, as the smoke and dust clear, we may well return to the days of fearful tribalism.
How can any sane people fail to see the urgency of reducing the nuclear capabilites of NoKo and Iran? Or the stopping of Islamic infestation of the West? Or the stopping of the flooding of the USA with third world liberty-illiterates? Or the preserving of the First and Second Amendments against the onslaughts of elitist progressives? Or the stopping of the elitist drive to agglomerate central, federal, subhumanizing rule over every domestic interest of the states and their inhabitants?
Those who seek to become predatory kings seek first to divide us and then to rule us. The Chamber of Commerce, Fast Track Free Trade Agreements, and Sharia and Globalization are memes by which "elitist" predators seek to destroy the USA and then to dhimmi, milk, and subhumanize all the little people. Problem is, nearly all the GOP candidates seem to be faithless shills for themselves or for monied elitists. Can the American Ideal survive 4 more years of any of the elitist backed candidates? Or is it already long dead?
I've been trying to finish watching a documentary on Netflix about Heinrich Himmler, called The Decent One. I cannot take it in a single viewing session. I have to space it out over several days. But I consider it a duty to watch it. Scientism, Naziism, Communism, Islamism, Cronyism, NWOism. Sometimes, it's hard to keep the faith of looking for the morally and intellectually honest man. This must be especially so for those who survey humanity without the slightest trace of receptivity to any higher faith. Why else would Europeans and American "Progressives" invite moral criminals to come to rape and pillage them?
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When such a claim is made, a cite is called for. FDR Jr. was married 5 times and helped JFK. Do you have a cite by which to support that FDR Jr. ever gave serious consideration to running for President, or to support that Congress or any Congress person considered, looked into, or gave any advice concerning the eligibility of FDR Jr.? Unless you have a cite, this would fall into the category of just one more among a long list of desperate horse apples that get pushed out as a result of grazing too long upon locoweed on the birther farm.
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I have been taking a kind of leave of absence to try to see where the craziness is going. Between Trump and Cruz, I remain undecided. There are some very serious problems I have with both of them.
American Conservers of Liberty want the border defended, immigration stopped, Muslims stopped, and central gov fascist interference with the states stopped. We don't need "deal makers" intruding into local affairs. (It is infuriating to me that I have to file a form with the IRS feds to prove my health insurance status.)
The GOP candidates sussed out what Conservers of Liberty want. So, they mostly began saying the same stuff on the affirmatives. Then, to distinguish themselves, they tended to go to negatives -- in some very nasty, hypocritical, often lying ways.
BTW -- the "dual citizen" arguers are a special case of funny. I wonder if they have considered this, from http://www.libertarianrepublic...
"Donald Trump is another situation. Although nobody has thought to look into the matter, Donald Trump is a natural born citizen of the U.S. and the U.K. because his mother, Mary Anne MacLeod, was born in Scotland; i.e., was an citizen of the U.K. To be sure, the Donald's mother became a naturalized U.S. citizen prior to his birth (she naturalized in 1942, and he was born in 1946). But, the U.K. is very liberal with regard to dual-citizenship. They're cool with one of theirs taking the U.S. oath of citizenship, even with its renouncing of foreign allegiances and still being one of theirs. Therefore, the Donald upon his birth was a natural born dual-citizen of the U.S., and by lineage through his mother, the U.K. Furthermore, since the Donald has renewed his relation with the U.K. through his fabulous golf course and country club in his maternal ancestral homeland, he has passed his long-dormant U.K. citizenship to each of his children. The only person in the Donald's household who is a U.S. citizen only is Melania."
The "principled originalists" are another special laugh case. Their attorneys tend to be either intellectualoid liberal morons (Larry
Tribe) or license-suspended confabulators.
To answer whether a principled originalist would deem Cruz eligible, one should Do The Research to ascertain whether, at the time the Founders and the pre-Constitution States were drafting the Constitution, they understood "natural born citizen" to be terminology of art for referring to such citizens as the chief legislative body deemed fit to be classified as citizens at birth. (The Vattel argument is a lot of horse apples! Attractive to suckers for Three Card Monty.)
If that was their understanding, then the delegated power to Congress to establish a uniform rule of naturalization makes sense. Before the Constitution, before the First Congress, there was not uniformity of understanding among the early patriots for establishing who should be a "natural born citizen." So, it was for Congress to establish a uniform and unifying rule. If so, that is entirely consistent with an originalist position! But I can see why Larry-the-Curved-Constitutionalist and all his dupes would want to pour out horse apples to hurt a conservative candidate.
Trump has recruited a shill for leftist idiocy (Larry Tribe -- he who co-wrote with Obama an "Einsteinian" theory of Constitituional Relativity, i.e., "The Curvature of Constitutional Space" -- lol! See https://pjmedia.com/blog/obama....
America needs a miracle. Human liberty cannot survive if we fail to defend the border, stop immigration, stop importing and empowering Muslims, and stop central gov fascist interference with the states. A Trump/Cruz ticket could have seen to that. But thanks to infiltration by shills for the Chamber of Commerce, a nasty war of irrational emotion has broken out between so-called supporters of Trump vs. Cruz.
At this point, excepting Trump and Cruz, it seems all other candidates are irretrievably compromised. Even Trump and Cruz may be seriously compromised, but perhaps not irretrievably.
Trump in charge of making up to four Scotus appointments gives me an intolerable case of hives. Cruz seems calculated and contrived, but it is hard to say what he is contrived towards. It's as if he sees everyone else as an intellectual inferior who needs to be misled for his own good. That is not a good omen for human liberty. A politician has to have that skill, but it just seems so calculating in Cruz. I am uneasy about his globalist intentions and affiliations.
Rubio makes the best emotional bonds, but, based on his history, I absolutely do not trust him. Honestly, I can't gauge whether any of those three can restore the USA as a free republic -- or even wants to do so.
Presently, I'm tending towards Cruz. However, the "principled orignalists" who follow after Larry-The-Curved-Constitutionalist-Tribe are doing their utmost to destroy Cruz to deliver us to Trump. Trump -- who would like to appoint four Scotus Justices, like his liberal sister. Crowd Madness!
I'm going to take a walk, then a bath. Then read some good books. Maybe someday good sense will return to more of the commenters. Some of them were sensible before now. Maybe they will get over their political madness sometime over the next year.
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Lies you say! I would like Trump a lot more if his b u t t were not propelled by liars who gas off him.
Lying crap Trumpers air walk on:
- Looking to France instead of to Britain for common law.
- Making distinctions between citizens and citizen-subjects that do not make a difference.
- Glossing over the fact that the copy of Vattel's work that Franklin referenced was more than 10 years before the Constitution was adopted.
- Having not the least idea nor the intellectual curiosity to ascertain what was the version of Vattel that Franklin had, whether it was in English or French, or whether the words "natural born citizen" even appeared in it.
- Playing fast and loose with the grammatical construction of phrases in Vattel.
- Claiming the words natural born citizen had not been previously applied in the states.
- Claiming the words natural born citizen had not been previously applied by Britain or the states to persons who were not born of parents who were both citizens.
- Distinguishing McCain because he was born on a military base.
- Then, on finding out that does not matter, relying on a Senate resolution.
- Then finally admitting the resolution does not matter, but looking, desperately, for some other distinction.
- Then smearing Cruz by claiming he voted in Canada.
- Or that his momma expatriated him by getting married.
- Or that hs momma had previously married a different Canadian.
- Pretending minority dicta is sound precedent.
On and on and on -- sheer crap as far as they eye can see. Any lawyer who argued so dishonestly in court, time after time, should be held in contempt or brought up on ethics charges.
The whole NBC charade is built almost entirely on little more than lies. No wonder Obama won! And now, these so-called "conservatives" are redeploying this nonsense, yet again to burn the republic. I would love to have some of these people on a witness stand and watch them squirm explainiing all the crap they expurgate.
I would like Trump a lot more but for all the lying Oz Monkeys he sends forth.
When herd brains can't make a case without a multitude of lies, you know your republic is in deep trouble. It's a national pastime to castigate lawyers. That can be jolly fun. But the herd brains a few bad lawyers lead over the cliff -- not so much.
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The next dried up cow patty the birthers who are high on Trump gas will trump up will be a claim that Cruz' mother married another Canadian before she married Rafael. Problem is, that is another falsehood on top of all the others. See http://www.sunherald.com/news/....
Alan Wilson is a Fort Worth native who lives in London.
"Wilson confirmed one fact critical to Cruz’s presidential campaign, that Cruz’s mother never became a British subject while she was working in London. Despite his many years in Britain, Wilson said he too never became a citizen of the United Kingdom."
"Wilson was born at Fort Worth’s St. Joseph’s Infirmary, a now defunct hospital, in 1928"
"Wilson went to the city’s R. L. Paschal High School but the family moved to Dallas and he spent his senior year at Highland Park High School where he graduated in 1945."
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My previous postings are easily available. Anyone can verify. All they need to do is take the small step of taking a peek off the birther plantation. Or read Mike Ramsey, Prof. Jacobson, or the Congressional Research Service. But noooo. Birthers have too much fun in the Birhter funhouse echo chamber. No wonder the republic is being led astray and sold down the River Styx. Evidently, the citizenry has already been flipped into liberty illiteracy. I'm stocked and fine. Just keep breathing that birther air. And tell me when a sane court buys any of it.
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Fact: Bellei was warned and ignored the warning. Fact: Temporarily living abroad does not establish intention to forfeit citizenship. Fact: Cruz was a citizen at birth. Fact: Congress was empowered to bring the various practices of the states together for the purpose of establishing a uniform rule of nationalization. Fact: Naturalization deals with establishing rules for nationals, citizens at application, and citizens at birth. Fact: In 1787, both Britain and the various states had processes for naturalizing people as natural born citizens. Fact: Birthers have used many, many, many cow patties to misrepresent facts and try to walk on stinky air.
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ou can't call other people names and then take umbrage when they return fire. You can't air walk and claim to be reasonable. You can't build a house on *fabrications and then pretend it is stable. You need to grow up. And grow a brain.
*Looking to France instead of to Britain for common law. Making distinctions between citizens and citizen-subjects that do not make a difference. Distinguishing McCain because he was born on a military base. Then, on finding out that does not matter, relying on a Senate resolution. Then finally admitting the resolution does not matter, but looking, desperately, for some other distinction. Then smearing Cruz by claiming he voted in Canada. Or that his momma expatriated him by getting married. Pretending minority dicta is sound precedent. On and on and on -- sheer crap as far as they eye can see.
After awhile, you (plural) begin to look like a tribe of mud faces. And people who are desperately afraid of having Donald vetted by Conservatives. Is that a tactic being taught at Trump School?
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Bellei voluntarily, after warning, failed to meet a condition subsequent of establishing residency. There are no conditions subsequent to be met by Cruz. Moreover, the condition subsequent under which Bellei voluntarily expatriated himself has been rescinded. Cruz' citizenship is established and cannot be removed by any bill of attainder, unless he were to take steps to expatriate himself. As anyone can. As a person born a citizen, whose citizenship cannot voluntarily lapse, Cruz is a natural born citizen. He is NBC under the provisions of the common law at the time of adoption, the Statute of 1790, and the applicable statutes of today. Nothing in the Constitution renders him ineligible. Why does Trump fear being vetted by a Conservative?
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There is nothing to connect your logic except airwalking assumption. Sorry, but the words and history simply do not connect to support what you are saying. Anyone can expatriate themselves. Cruz has not, and his citizenship, which was conferred at birth, is as safe and undivided as yours.
If what you say were legitimate, you would not see so much desperate and false airwalking, to wit: Cruz voted Canadian; his mother forfeited his citizenship; he remains a subject of Britain; and on and on and on. Most of the NBC people simply want to disqualify Cruz so no one will remain to vet Trump's comservative bona fides. That's all.
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The establishment doesn't like Trump's plan to get between them and their goal of completing the conversion of America to a cheap labor banana republic. They know Trump has them marked as the enemy. The know Trump has "come to chew bubble gum and kick ass and he's fresh out of bubblegum."
What I don't like about Trump is the NBC crap and calling Cruz a nasty guy. That gives me concerns. Concerns about the kind of Scotus appointees Trump will tap. Concerns about what kind of big gov deals he will be making. Problem is, unless the Reconciler has hidden cards, it's hard to see a way forward for Cruz.
No matter what, America is in deep peril, brought to us by the most despicable of pinkie waggers.
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Given a contest between Rubio and Trump, the choice is clear: Trump. We need to defend the borders and not waste resources on some NWO. Then we need to reduce the central gov. I don't know if Trump will do all he says, but I do know that Rubio will not enforce the border without first contributing to America's flip of the voting demographic. Rubio's tough guy act in foreign affairs is shallow. Given his embrace of the establishment, his embrace of a COS to reforrm it is highly suspect. Just say no to Rubio.
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No valid purpose would be met by disqualifying someone in Cruz' situation. The unanimous Senate said so in its resolution regarding McCain.
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That was the meaning at the time the Constitution was adopted. Britain used statutes to modify who should be considered natural born citizen subjects. Classes of people were naturalized by parliamentary enactments to be natural born citizens. As British colonies, we adopted similar procedures. As enactments for making people citizens at birth became less common than enactments for making people citizens at application, the language usages began to change.
Language does change over time. That does not change the fact that at the time the Constitution was adopted the Founders expected the Congress, by legislation, to bring the practice of the various states into uniformity -- both for defining citizens at birth (natural born citizens) and citizens at application ("naturalized" citizens).
The veil of confusion lifts as you review the actual usages back in the day. I have given the cites. Check them out. How else could the 13 states be pulled into a UNIFORM practice for recognizing who should be a natural born citizen of the new United States?
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Is there something in there that shows the U.S. to be a satrap of Canada, to show American statutes concerning citizenship to be inferior to Canadian statutes, to show Cruz' Mom ever expressly documented a renunciation, to show that any professor of the law of conflicts would interpret marrying a Canadian foreigner to be an act of self expatriation, to show that U.S. Law would recognize authority in the mother to so bind the child, or to show that Cruz' Mom has forfeited any rights or SS benefits as a U.S. Citizen?
Some time ago, there were American statutes that expatriated women who married foreigners and established residencies abroad. I am not aware of any of those being in effect when Cruz was born. Are you? This looks like the kind of grand dramatic gesture one might expect from a typical birther airwalk. Might make a fun game for kids who want a new variation on let's pretend Dungeons and Dragons.
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On the contrary. You need a review of basic rules of categorization. Nature encompasses all that we can measure. What is human is merely part of what is animal. What is contrived by man is merely part of what is contrived by nature. What is born of mankind (naturally born) is merely part of what is born of nature (naturalized). Only by assuming what you want to prove (that what is naturally born is dichotomous from what is naturalized) can you maintain your position. You're just air walking on an assumption, which has much more to do with bluster than with reason.
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See http://www.libertylawsite.org/...
Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
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[A commenter, Margaret Hemenway, noted: "Vattelists commonly fail to mention that Vattel himself (did they read his book?) points out that the English do things differently- the very birth on the soil “naturalizes” the individual- this is our “jus soli” birthright (from English common law traditions which were carried into the colonies). They seldom refer to Presidential candidate Charles Hughes, e.g. whose father was an English immigrant and who ran against Wilson. Under the relevant immigration statute disqualifying Obama as “natural born,” Cruz appears to qualify. The Immigration and Nationality Act of 1952 means that Obama, [IF?] born in Kenya to a Kenyan (as prominent Kenyans have declared, including his own step-grandmother) was born a British subject.
Cruz’s mother, unlike the young Stanley Ann Dunham, appears to have met the requisite age/residency requirements to convey her citizenship to her son– he [Ted Cruz] thus emerged from the womb a US citizen and therefore a “natural born” US citizen. He did not require the process of naturalization that involves paperwork and process to make one become a US citizen. "]
See http://originalismblog.typepad... possibilitiesmichael-ramsey.html:
"[A]s Blackstone further describes, the rights of natural born subjects were extended by statute early on (under Edward III) to those born abroad of two English parents. Then, in the early eighteenth century, parliament made birth subjects of children born abroad with an English father. According to Blackstone, as a result these children “are now natural-born subjects themselves, to all intents and purposes, without exception.”
Ramsey discusses 3 possibilities:
1) The “natural” in “natural born” citizen/subject still meant in the
eighteenth century (as it had much earlier) a citizen/subject by the law of nature (i.e., at common law, meaning people born within the sovereign’s territory).
2) "[N]atural born” in 1788-89 America meant what it then meant in England: born in the territory, or born abroad to an English father. That explains the 1790 Act.
3) [E]ighteenth-century English practice established the rule that parliament could expand the category of “natural born” by statute.
"I [Mike Ramsey] find version #3 above the most plausible." I think the CRS report is ... under-inclusive." "[Blackstone] says, it was a policy decision '[t]o encourage also foreign commerce.' "
"Thus eighteenth-century English practice stands... for the proposition that parliament could define by statute who was “natural born,” by saying who was a citizen at birth. And so, again, Ted Cruz wins."
BTW -- Mike Ramsey is an Originalist.
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I just don't believe Cruz' mother renounced her citizenship. Maybe the Canadians would take her marriage to constitute a renouncement, but I doubt American law would accord. And it is American law that is at issue to resolve the conflict, if any. As far as I know, American law has in practice resolved it by continuing to recognize her as a citizen.
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Ted Cruz was naturalized, but as a natural born citizen. Which was not uncommon under practices here and abroad, before the adoption of the Constitution.
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But the Constitution can confer, and has conferred, enumerated power to the Congress, by legislating, to establish a uniform rule of naturalization, and to make all laws necessary and proper to carry that into execution.
Similarly, the 14th Amendment, at Section 1, provides: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" And Section 5 provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
So the clearer way to phrase the issue is to inquire: Does the power to establish a statutory rule for who shall be a "citizen at birth" equate to a power to establish, expand, or constrict who shall be eligible to serve as President, as a "natural born citizen"? The answer to this question may be ascertained first by looking to the words in the Constitution itself, then, if there be uncertainty that may thus be resolved, to look to the practice at the time.
The practice at the time just before the Constitution was adopted was for each state to look to its own law, often guided by British Common Law and British authorities, and far less so by French authorities. The original colonies were British, not French.
The grasp to look to Vattel is a reach that is contrived to a desired result: To disqualify Obama. That effort failed, and it has now become a caricature. A home for die hards, bent on following Wile E Coyote on his never ending air walks. It's the "principle" whereby the condemned man insists that his hangman, who has brought an inadequate rope, must use a new one so he can be properly hung.
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Were one to do a count of all the contrivances by which to justify Birther theories, I suspect he could produce a greater count than the number of so-called Christian heresies. See https://en.wikipedia.org/wiki/.... Meanwhile, the republic itself is burning, rather than the heretics.
Examples of Possible Heresies and Schools of Birtherism:
Must both parents be citizens, or only the father? Must the child be born in the state, or country, or territory, or "subject to the jurisdiction"? What if the Mother was not naturalized? Or retained dual citizenship? Or the father? Can status as NBC be surrendered an later reacquired? Suppose my NBC sister marries a Canadian and acquires dual citizenship. Then she divorces, moves back to the U.S. and renounces her Canadian citizenship. Since she never renounced her American citizenship, is she still eligible? Did she lose eligibility while residing in Canada?
What is the effect of the equal protection clause of the 14th Amendment on limiting the authority of the father or extending the authority of the mother? What if the father moved? Or the mother married abroad? Or the mother married a notorious foreign communist (or James Carville -- lol)? Or the father took a position in a foreign government, received a title, or an emolument, or performed as a mercenary? Or led a UN Force?
What if the child is orphaned and is adopted to a foreign household? What if the opposing candidate claims the child is a bastard and demands a blood test? What if the blood test shows non-conclusive, but likely non-paternity? What if the naturalization process for a parent was not properly recorded or documented?
What if the state of origin, under its laws, claims undying allegiance, and asserts an indefeasible dual hold against the child? What if the embryo for a child were a combined result of dna contributions from citizens of several nations? What if a child were to submit to brain wave monitoring by a medical service set up in a foreign nation? What if the entire British peerage sinks on the Queen's boat and some non-descript NBC American is the most direc living heir to the throne -- does he have a choice to decline the honor and retain his eligibility?
What if Congress asserts power to dilute citizenship status based on conditions subsequent, such as conviction for felony, acts at odds with continued loyalty, or publication of anti-American and Sharia sentiments? What if the ground of disqualification is not found until after the new President has taken the oath of office?Maybe we need to set up a Birther Commission to give us rulings on such issues by employing Seer Stones to look into the intentions of the Founders. Maybe one of its members should be Otto, the Google A.I.
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The better argument is that Cruz is eligible. Unless Ted's Mom took some action, and had authority to take action to bind Ted, that expressly renounced Ted's claim to citizenship at birth, then I don't believe Canadian Bacon trumps American home cooking.
I think there's a case that indicates that a parent cannot unreasonably terminate a child's claim to citizenship, provided the child timely asserts it by establishing residency before reaching a cutoff age. I am led to understand that Ted's status was ensured as of the time of his birth, by virtue of his mother's previously having met residency requirements.
However, at this point, frankly, I feel rather as Rhett Butler did. If the Progs choke on it, if the Cronies wet themselves on it, or if the country splits on it, I'm good regardless.
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My brother and his daughters. They are dual citizens of the U.S. and Canada. My brother was born in the U.S. His daughers were born in Canada. Apart from obtaining an affidavit to show he met residency requirements in the U.S., I don't recall there being much difficulty in registering his daughters as American citizens. His wife and and their mother was born in Switzerland, and (I believe, but would need to confirm) that she is a dual citizen of Switzerland and Canada.
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Thomas Jefferson was in France when the Bastille was stormed and helped LaFayette draft the Declaration of the Rights of Man.
Andrew Jackson's parents were Irish.
James Buchanan's father emigrated from Ireland. The Pennsylvania Constitution, adopted September 28, 1776 provided for naturalization of aliens, meaning that Buchanan, Sr. could have been naturalized. But was he?
See http://www.obamaconspiracy.org...
"Regarding the names of persons who took the oath of allegiance to the state of Pennsylvania have been published. I reviewed Westcott, Thompson. Names Of Persons Who Took The Oath Of Allegiance To The State Of Pennsylvania Between The Years 1777 And 1789 : With A History Of The “Test Laws” Of Pennsylvania. Baltimore, MD, USA: Genealogical Pub. Co., 1965. (reprint). Available through Ancestry.com. No Buchanan’s whatever!"
Whether Spiro Agnew's father was naturalized before he was born is a subject of uncertain controversy.
Chester Arthur's Irish father was not naturalized at the time he was born.
It does not appear that Marco Rubio's parents were naturalized when he was born.
******In these times, I should think that the divided loyalty from business dealings with foreign nations and corporations and the receiving of their campaign contributions and laundered foundation contributions are more indicative of unreliable loyalty than the place where a baby drew his first breath.
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The party in issue in the case of Bellei was born in 1939. Cruz was born in 1970. Bellei entailed a failure to meet residency requirements. Cruz did not fail. Moreover, the provision that applied in Bellei is no longer law. A condition subsequent was imposed by which citizenship in Bellei was forfeited. No such condition applies to Cruz.
See http://www.redstate.com/2016/0...
"Unlike Bellei, he (Ted Cruz] has been a resident of this country ever since, thus meeting the requirements in place when he was born. All of this is irrelevant now, though, as Congress removed the portion of the law Bellei challenged in 1978."
"This current Quixotic crusade they are undertaking, facts be damned, is nothing but an attempt by rabid Trump supporters to disqualify one of “their guy’s” rivals from the race, because they evidently understand that Cruz is a real threat to Trump winning the nomination. This is classic banana republic totalitarianism, and we are better than that."
See also http://harvardlawreview.org/20...
"The proviso in the Naturalization Act of 1790 underscores that while the concept of “natural born Citizen” has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed. The pre-Revolution British statutes sometimes focused on paternity such that only children of citizen fathers were granted citizenship at birth. The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point. But Congress eliminated that differential treatment of citizen mothers and fathers before any of the potential candidates in the current presidential election were born. Thus, in the relevant time period, and subject to certain residency requirements, children born abroad of a citizen parent were citizens from the moment of birth, and thus are “natural born Citizens.”
"As recounted by Justice Joseph Story in his famous Commentaries on the Constitution, the purpose of the natural born Citizen clause was thus to “cut[] off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interpose[] a barrier against those corrupt interferences of foreign governments in executive elections.”
The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace. Indeed, John Jay’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility."
"Indeed, because his father had also been resident in the United States, Senator Cruz would have been a “natural born Citizen” even under the Naturalization Act of 1790."
"The U.S. Senate unanimously agreed that Senator McCain was eligible for the presidency, resolving that any interpretation of the natural born citizenship clause as limited to those born within the United States was “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘natural born Citizen.’
So, if the purpose and intent of the NBC clause was found by the unanimous Senate to be inconsistent with disqualifying McCain, what has changed in the case of Cruz -- other than that Cruz does not reach as much across the aisle?
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See http://www.westernfreepress.co...
"The term NBC comes to us from English Common Law. This fact is confirmed and supported by judicial precedent. And at the time of the founders, the legal definition of NBC was more sophisticated and complex. It included children born on English soil, as well as children born on foreign soil, whose fathers were English subjects. This was in fact the standard for establishing citizenship at birth for most of the world at the time. The only distinction between then and now is that women are now considered legally equal to men, so that citizenship status may flow from either parent, not just the father. That is unless you want to try to make the argument citizenship status should ONLY flow from the father to the child, and the mother’s status doesn’t count. Good luck making that argument."
Re: Shanks vs. DuPont -- "The only precedent concerning citizenship established by this case is that one cannot gain or lose [U.S.] citizenship through marriage, even if that marriage is to an alien of a belligerent nation."
Re: The Supreme Court decision Minor vs. Happersett establishes a legal precedent defining the meaning of NCB
"Answer – No, it does not. There is no such language in the opinion.... I find the fact eligibility challengers ever refer to this case to be really ironic. Minor was a suffrage-era case in which a woman, Virginia Minor, argued that being a citizen by birth, she could not be denied the right to vote. The Supreme Court agreed that she was a citizen by birth (obviously), but that did not give her any such right—indeed, that the Constitution did not guarantee anyone such a right. The irony is the precedents this decision does establish actually defeat many of their own arguments. These include the Court’s finding that Congress could define the meaning of NBC, and that there were only two types of citizen, NBC and naturalized."
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Correct. His only basis for claiming NBC status was statutory -- not Constitutional, per se.
But then, he was better at reaching across aisles and making deals. So his Pelosian pals got a unanimous "resolution" for him that was legally worthless. Now, the peckerwood pretends his qualification was superior to Cruz'. McCain and McConnell are a couple of ship rats.
See: pixelpatriot said...John Sidney McCain III was born on August 29, 1936 in Colon Hospital, Colon Panama, according to the Panama Canal Health Department not in the Panama Canal Zone, which is authenticated by Donald Lynn Lamb representing the Panama Railroad Company with authority over the Hospital in Colon; and according to the Hay-Banau-Varilla Treaty of November 18, 1903 that has 26 articles in which the two pertinent to the status of the city of Colon under that Treaty refer to the Convention for the Construction of a Ship Canal says that the Colon Panama, the birth city cited on McCain’s 1936 long form birth certificate where he was witnessed being born, and where his parents resided, Colon, Republic de Panama, is not part of the Canal Zone, quote: ARTICLE I The United States guarantees and will maintain the independence of the Republic of Panama. ARTICLE II The Republic of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific ocean to a distance of three marine miles from mean low water mark WITH THE PROVISO THAT THE CITIES OF PANAMA AND COLON and the harbors adjacent to said cities, WHICH ARE INCLUDED WITHIN THE BOUNDARIES OF THE ZONE ABOVE DESCRIBED, SHALL NOT BE INCLUDED WITHIN THIS GRANT …” and therefore, McCain is not a natural-born Citizen as he was not born on U.S. Territory or the USA and is not eligible for the Presidency with the U.S. Constitution Article II Section One Clause 5.
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A mistaken misnamed listing on a potential voter role does not a vote or voter registration make. If Cruz' Mom actually had voted, no doubt a salivating journalist would have the documentation by now. All they've got is bupkis.
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Why didn't Trump demand that the birth certificate be submitted to his forensic experts? Honestly, I can't confidently say where Obama was born. I looked into the age and residency of his mother and his age before they moved to Indonesia. But I did not find anything solid. Even so, those would more likely be pertinent to the issue of statutory classification as citizen at birth.
If you're saying a candidate should be required to put his birth and residency documents up for forensic examination in order to be eligible, I would agree. Maybe a COS could incorporate that with the Liberty Amendments? I firmly believe there is a lot of very corrupt crap that goes on at some big gangsta sit downs.
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There are things I like about both Trump and Cruz and things I dislike about both of them. I'm continuing to watch. I have narrowed down to those two. I have no need to tell either one that he's fired, just yet. I want to decide based on good info. I just don't put NBC crap in that category. So far, the NBC arguments are, at best, amusing. At worst, they are disinformation from enemy moles or useful idiots for the NWO.
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Trump is not Hitler. More like The Music Man, telling us how much trouble we have and what great music he will provide. In the end, the Music Man found true love and became a good sort of soul. Maybe there's hope with Trump. But what does he love? What does he believe in? We shall see.
There is, however, a big difference. The Music Man invented trouble. We, on the other hand, have real trouble. The establishment hides much of it, and Trump is the one who is brave and brassy enough to pull off the curtains. In some respects, Trump is the promoter who exposes the promoter. And, he is brassy enough to often tell the truth and grin his way through it. Who else can do that? We will need to pay attention to the people he pleases by way of necessity versus the people he pleases because he likes them.
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The fact that Rinos and Dinos are against Trump may be less a sign that Trump is good for America than that America, without a revolt, is toast. No mere Prez election is going to salvage this republic.
Evil is getting ever more deeply entrenched in the ways it lives among us, as much in our churches as anywhere else. The more the people vote for their own flavor of "free stuff," the more they sell humanity down the river Styx. The more our churches look to gov to run "charity," the more the wind we put to the sail of the devil.
Dar al Islam inhabits some of the lowest rungs of hell. We can't save
ourselves by taking it on board. We need first to save our nation, and while doing so, free it. External defense, internal freedom. Cast off evil. Restore faith, family, fidelity. We need better ideals than
"make the best deal."
Failing that, our world will continue to self-select to be populated by certifiable dogg brrains, trained to seek the Alpha and to barrk in unison with the perceived Alpha. A lot of cuum laaude dog brains, trained to bark in synchronicity. We will continue to be fed dog food and to be led by conducters of dogg rapp, who pretend it is music. Feminists, metrosexualists, dogamists, and critical bark theorists.
(Misspellings are to try to thwart the dungeon master.)
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Evil is getting ever more deeply entrenched in the ways it lives among us, as much in our churches as anywhere else. The more the people vote for their own flavor of "free stuff," the more they sell humanity down the river Styx. The more our churches look to gov to run "charity," the more the wind we put to the sail of the devil.
Dar al Islam inhabits some of the lowest rungs of hell. We can't save ourselves by taking it on board. We need first to save our nation, and while doing so, free it. External defense, internal freedom. Cast off evil. Restore faith, family, fidelity. We need better ideals than "make the best deal."
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The world has somehow self-selected to be populated by certifiable dog brains, trained to seek the Alpha and to bark in unison with the perceived Alpha. A lot of cum laude dog brains, trained to bark in synchronicity. We are fed dog food and led by conducters of dog rap who pretend it is music. Feminists, metrosexualists, dogamists, and critical bark theorists. I "respect" them equally.
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If Trump loses my support, it will be because he started attacking from the Left. I like his people skills. He needs to use them to inspire people to the better angels of their nature. Not to appeal to their crassness. Restore the American Ideal. We can take it from there. We don't need a head deal maker in all things, to go behind closed doors and sell us for the best price, and then come out telling us how much he loves us.
Here's the deal: Get the godforsaken central octapusarratus off our backs! And for goodness sakes have the good sense to learn from what Cruz has to offer, instead of flinging crap. It's not like Trump has that much of a clue about what the American Founders were all about.
(Birthers -- take a side door and go bang your heads in a soundproof room. You're killing us.)
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The Chinese-Saudi-American laundry service is not a blind enterprise. It is a corrupt enterprise. There is more evil behind this enterprise than blindness. Most of our Pols just participate in a Ringling Brothers Professional Wrestling Circus. Those who understand get rich riding the whirligig. Does Trump want to reform this big wheel of deals, or just get in on it?
MacBeth -- By the pricking of my thumbs / Something wicked this way comes.
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If you have principles, you need to argue principles. Do you or do you not say that a person, to be President, must be born in the U.S. and have parents who were both citizens? If that's your principle, then you need to explain 5 previous office holders who were either Veep or Prez, and you need to explain 10 other candidates.
You are right that Cruz, if elected, would be the first Prez who was born outside the U.S and who had only one parent who was a citizen. The closest comparison would probably be Charles Curtis, the Veep under Hoover, who was born in the Kansas Territory of an Indian mother and whose loyalty may have been tribally conflicted.
Similarly, Rubio would be the first who was born of parents, neither of whom were citizens. However, substantial dicta seems to make eligible a person born in the U.S. of parents who, although not citizens, were legally "subject to the jurisdiction."
I don't see how NBC people can hope to disqualify people, like Rubio, who are born citizens under the 14th Amendment -- even though the 14A says nothing about "natural born" or "eligible." To me, this argues that to be a citizen at birth is to be a natural born citizen. And that is consistent with Mike Ramsey's analysis concerning why Cruz is eligible.
Btw, turn on Megyn Kelly. Conservatives are revolting against Trump. We are being used. The establishment is getting Trump to take out Cruz, and then they will wait for Trump to implode. This is nuts. We may end up with Biden. The Gods must be crazy.
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John McCain was a citizen at birth because his parents were citizens. A retroactive statute made persons born of American parents in the Canal Zone citizens at birth. I am not sure if the Immigration statute in effect at the time also made him a citizen at birth. The Canal Zone was under U.S power, but not under U.S. Sovereignty. So McCain was a citizen at birth because of statute. Not because of any NBC theory or the 14th Amendment.
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Does anyone care what Canada allows? Andrew Jackson's parents were Irish. If his father never abjured Irish citizenship or took a Carolina naturalization oath (unlikely since Andy was born soon after their arrival), were Andy's loyalties conflicted? It's unclear whether Spiro Agnew's father had naturalized before Spiro was born. Chester Arthur's father had not naturalized. Were Spiro or Chester disqualified for conflicted loyalties? Does Canada distinguish between citizens at birth and natural born citizens?
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McCain was eligible because he was eligible by statute, because he was, by statute, made a citizen at birth. That's the same reason Cruz is eligible. There are plenty of easily available sources. Congressional Research Service. Mike Ramsey. Professor Jacobson. You just need to read more than the looney-tunes-catch-a-ride-on-the-comet birther sites. But hey, there are millions of people who like kool aid. It's just not to my taste. Do some very basic research. It's not that hard.
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What if George Washington had lived in England until he was 16? The Framers considered various measures. They have provided for oaths and residency requisites. At various times they have enacted provisions for expatriation. They have also relied on the electors to have some sense.
If Cruz had been born in Russia, we would wonder why he was there. Absent a good explanation, voters would probably not trust his values. It would also be more likely that his mother would not have met residency requirements so that Cruz would not have been fully entitled to claim citizenship at birth.
If there is a problem, I think it is this: Congress should be empowered to expatriate every class of citizen on certain conditions subsequent, such as voting in a foreign election, swearing allegiance to a foreign power, or accepting governmental office in a foreign nation.
The "weight of dicta" (lol) is that a person who is born in the U.S. of parents, neither of whom were citizens, is eligible so long as his parents were not foreign diplomats or of an illegal invading force. For this reason, various children born of Cuban "refugees" (such as Rubio) are considered eligible. Given their eligibility, why do you want to deny the child born of American troops stationed in Europe?
If you mean to make Rubio and Clinton eligible while disqualifying McCain, Cruz, and foreign born children of our troops, I think your cure is worse than the disease.
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Acts of ratification were required to adopt the Constitution. The Constitution empowers Congress to establish a uniform rule of naturalization. Both Britain and the states had previously, by enactments and judicial processes, applied naturalization procedures to determine natural born citizens. In Britain, persons so naturalized to be natural born citizens were often specially eligible for higher offices. You're burning more calories avoiding reading the cite I gave than it would take to read the cite. Is that "smart"?
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There are a lot of clubs like this. I think Palin had some similar ceremony. Romney and Mormons conceive that someday they will be as gods. Then there are the NWO people and the Bohemian Grove people. Not to mention all the different degrees of Masons. Then the gangsta groups. The jihadi martyrs. And all the nerds who see every Marvel comic book movie.
I don't come across many people who espouse as I do. I do not think at all like such people. But because I am unusual, no one would likely be elected by openly espousing my philosophy. People feel more comfortable when among others who share their special brands or eccentricities.
I think we (our temporal attachments, bonds, and identities) are all just fluxing and imperfect perspectives of one reconciling consciousness that functions in a trinitarian fashion, fluxing among consciousness, substance, and information. I don't think previous accumulations of information are lost. I suspect they remain available in potentiality for future and parrallel navigations among perspectives that are temporally commissioned among the trinitarian godhead. IOW, I don't think any person is commisioned to retain a single perspective as a "king" or a "bambi" throughout all possible time.
But it's ok by me. They can call themselves bambis if they want to. It does seem to help coordinate action, often for the better. Unless it picks my pocket or threatens my well being, it's not a bother to me. And, unlike my way of conceptualizing, it seems to inspire people to more coordinated action.
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A natural born citizen is a person who was made a citizen at birth. Representatives and Senators need to be citizens of a state. The President need not be a citizen of a state, but he does need to be, at birth, a citizen of the United States. And he needs to be a person not required to apply for his citizenship to any naturalization board, other than, if challenged, to show that he was a citizen at birth.
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All mankind's artificial constructs are derivatives with nature. Naturalization overlaps with natural-ization. The key, under the historical unfolding of our legal heritage, relates to whether one is nationalized and naturalized at birth versus at application. Until you read the cite, off the brain constriction of the reservation, you will never understand. I can give you the cite. I can't make you read it or understand it.
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It does bother me, but only a little, that Palin, Trump, and Cruz all seem to feel a need to align with fundievangelists. The human nature of the electorate is what it is. Pols have to appeal to find a path to a majority among all kinds of voters. Everyone who quiets his cognitive dissonance does so in the repose of some kind of leap of faith. For my money, I prefer a restoration in higher spiritual faith over a central agglomeration of DC power.
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There is nothing in the experience of American or English law that says that one who is naturalized cannot be natural born. You're simply repeating a fundamental error of categorization.
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Per Wong Kim Ark, "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
"In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status."
The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a "subject of the king" is now "a citizen of the State."
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Last I saw, Tribe said there is a question about Cruz' eligibility, the resolution of which may depend on whether one approaches the question as a textualist, originalist, or living constitutionalist. If you have a cite to show Tribe thinks Cruz is ineligible, please provide it. I think you are another Johnny Horse Apple spreader.
See http://www.nationallawjournal....
"Tribe argues that originalist interpreters would conclude that only those persons born on U.S. soil count as natural-born citizens."
However, Tribe, as is common among Progs and anti-Cruzers, is spreading horse apples.
"The originalist argument is not so clear-cut. Originalist scholars are debating among themselves whether Cruz is eligible to serve as president."
Moreover, Tribe, who is NOT an originalist, does NOT think Cruz is ineligible. Rather, he fudges and says Cruz would be ineligible under an originalist interpretation. On that, however, originalists, including Cruz, disagree. Moreover, the weight of reasoned authority is to the effect that Cruz is eligible.
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BTW, Michael Ramsey is an originalist who has also opined in the Harvard Law Review (see http://originalismblog.typepad.... He clerked for Justice Scalia (http://www.sandiego.edu/law/fa....
He thinks Cruz is eligible -- even from an originalist standpoint.
See http://www.libertylawsite.org/...
Quoting from the Originalism Blog of Mike Ramsey:
"[A] natural born citizen and a naturalized citizen are not mutually exclusive." He writes:
"The discussion is sometimes framed as a dichotomy between natural born (meaning a citizen at birth) and naturalized (meaning one who became a citizen later). That may be modern usage, but it’s not the eighteenth century meaning. Blackstone used “naturalized” to mean “made a citizen by statute,” whether at birth or otherwise. For example, he referred to the statute making subjects of some children born abroad as an act “for naturalizing the children of English parents born abroad.” That use carried over into the U.S. in the 1790 Act, which is called an act of naturalization (passed under Congress’ power to provide a uniform rule of naturalization), and continued at least at far forward as the Fourteenth Amendment – which says there are two ways to be a citizen: born in the U.S. or naturalized. So the question isn’t whether Ted Cruz is naturalized. He is – from birth, by statute. The question is whether someone naturalized at birth by statute is a natural born citizen.
Blackstone thought children naturalized at birth “are” natural born subjects, whereas people naturalized later had most but not all the rights of the natural born (including those naturalized at birth by statute). And notably, the principal rights those naturalized later did not have (but those naturalized at birth did have) were eligibility to certain high office."
MY NOTE: Confusion remains because of poorly considered dicta. See the briefing by the Congressional Research Service:
"The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically defines “naturalization” as the “conferring of nationality of a state upon a person after birth,”and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could NOT be considered to be “naturalized."
However, compare the 1971 case of Bellei (which was an expatriation case, not an immigration case), and maybe in the Foreign Affairs Manual.
In Bellei (see https://supreme.justia.com/cas..., the DISSENT said:
"The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.
Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
NOTE: Consistent with Ramsey's reasoning, Bellei does NOT hold that a person who is naturalized as a citizen at birth, via statute, cannot be a natural born citizen for the purpose of being eligible to become President.
NOTE: In Cruz' case, his mother had already met the required term of residency for her son to be a citizen at the time of his birth. Moreover, the provision that was used to expatriate Bellei has been rescinded. In Bellei's case, his father was an Italian who never had resided in America.
BOTTOM LINE: Depending on time (pre-Constitution or post-Constitution), place (England, Colonies, or Early States), and purpose of usage, the term "naturalized citizen" has probably at various times been thought to refer to: (1) persons who were not born in country, and at other times to refer to (2) persons who were born in country of foreign visiting parents who thus needed to be naturalized. Also probable is that the term "natural born citizen" has been used to refer to: (1) persons who were not born in country, provided they were born of a citizen father, (2) persons born of citizen parents, or (3) persons born of a citizen mother and non-citizen father who had resided in country.
IOW, the idea that the terms (natural born citizen v. naturalized citizen) are clear, exhaustive, and mutually exclusive is NOT well supported in evidence, history, or legal analysis.
Mainly, arguments to the contrary rely on shouting while spitting out a long train comprised of little more than horse apple after horse apple. IOW, Horse Apple Monty, played among political partisans.
SIDENOTE: Mere dicta in Bellei cannot compel a ruling that Rubio, even if his parents had been illegally residing in the U.S., must be considered a citizen, much less a natural born citizen.
THE REAL QUESTION is: Did Congress, under law as understood by the Founders/Ratifiers and as ORIGINALLY provided in the Constitution, aside from the 14A, have authority by statute to provide for conditions that would make Cruz such a "full citizen at birth" as to qualify him to status as a "natural born citizen" for the purpose of making him eligible to become President?
I think the answer is, Yes.
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See the English Case of 1830 of Young v. Peck, 21 Wendell's Reports 389 (referenced by U.S. Justice Story), which apparently would show that a person born in Britain, whose father established citizenship in the U.S., could also claim such citizenship (naturally), even though not born in the U.S. If Justice Story found such case persuasive, he may reasonably have inferred, if given the case, that, had her father been born in the U.S., and had the father traveled to Scotland to visit, and had his daughter at that time been born in Scotland, she would, as of such time, have qualified as a "natural citizen" of the U.S.,"at birth." That is, a natural born citizen.
IAE, a number of old cases from Massachusetts from 1785 to 1791 strike a hammer blow against the "horse apples" of those who say the words "natural born citizen" had not previously been used in American jurispridence.
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Your argumentation, powers of logic, and legal acumen need much work. Bringing Idi Amin into the issue is beyond bizarre. Most importantly, however, Minor v. Happersett is simply not apposite to your position. The Birther Club apparently selects for people who have time on their hands, great love for blowhards, and little power of reasoning. Most are probably Cubbie Fans. How else to explain their batting average? Notwithstanding multitudinous suits, they have scored ZERO hits.
No one with the least understanding of law would mistake Minor v. Happersett as authority for LIMITING the definition of a natural born citizen to a person born in the U.S. of parents who were both citizens.
In Minor v. Happersett, a woman who was born in the U.S. of parents who were both citizens contended that because she herself was a citizen that she had a right to vote. The Court agreed that she was a citizen, but that she did not have a right to vote. That was the holding. The Court found it unnecessary and declined to rule on anything more than that.
Minor does NOT say that a person born outside the U.S. of parents who were both Americans would not be a natural born citizen. Nor does Minor say that a person born outside the U.S. of a mother who was an American under circumstances such that the person born would have a claim of right of citizenship at birth, without fear of being refused entry or citizenship, would not be eligible to become President.
Minor v. Happersett did recite some interesting dicta, but even in dicta it did not say what you imagine. It said:
"[T]he words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense, it is understood as conveying the idea of membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership."
"Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens."
"Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization."
"The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens."
"Under the power to adopt a uniform system of naturalization, Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. These provisions thus enacted have in substance been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were or should be at the time of their birth citizens of the United States were declared to be citizens also."
"[W]omen have always been considered as citizens the same as men...."
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Bottom Line: it is absurd to believe John Jay would have intended that FDR Jr should have been ineligible simply because of being born abroad. (Or Charles Curtis, George Romney, Barry Goldwater, Lowell Weicker, or John McCain. No doubt, if Cruz is elected, even years after his service, the Birther Club will still be holding Birther Court.
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PROBLEMS? See http://tesibria.typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html.
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One may consider two ways to become a citizen. One by written application of law (constitutional, statutory, or legislative-regulatory-judicial order or action), the other by non-statutory judicial adoption of precedent. I have not found U.S. statutes to define "citizen" before 1868. That leaves non-statutory bases, such as "natural law," common law, or inherited/adopted law.
I have seen only two possible sources for defining citizenship in a State of the U.S. from just before the time the Constitution was adopted until the 14th Amendment was passed: Either Eglish practice and precedents (as summarized by Blackstone) applied, or Continental practice and precedents (as summarized by Vattel) applied. Those would be the common or "natural" sources.
Without reference to one or the other, there does not appear to have been any other source used by the early Americans for determining who was a citizen. Unless some such "natural source" applied, there was no basis for making anyone a citizen.
Unless Vattel applied, it would not be the source either for determining who was a natural born citizen or for determining who was a citizen at all. If Vattel did not apply for determining ("naturally" or at common law) who was a citizen, then that would leave Blackstone.
If the Founders applied Blackstone to determine who was a citizen, it becomes absurd to suppose they would pass up Blackstone and instead apply Vattel to determine who was a natural born citizen. Especially since both were sources for determining citizenship as well as for who qualified as "natural born." (Have not you seen Birthers claim up and down that the Founders did not apply English common law at all? Which, to any lawyer who has not lost all reason, is borderline insane. Like a person claiming math does not apply to engineering designs.)
Now, if you can posit why the Founders, in the absence of their own written or statutory definitions, would apply Blackstone to determine issues of citizenship, while preferring Vattel in issues of natural born citizenship, then I am "all ears."
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The first rule regarding Birthers is this: Never trust a Birther.
BTW, see http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/. And show me where MCCain ever had a CRBA filed.
Cruz could not have a Canadian passport because he relinquished his dual citizenship to Canada. Therefore he could not travel abroad except on a U.S. passport. See http://www.politifact.com/texas/statements/2016/jan/06/donald-trump/donald-trump-incorrectly-says-ted-cruz-has-had-dou/.
Cruz was a citizen at birth. A CRBA does not make one a citizen. It has to do with verification of citizenship, for which a passport also suffices.
No one says McCain is not a citizen for not having filed a CRBA.
Whatever may have been the practice once upon a time, we now have Miller v. Albright, 523 U. S. 420, 456 (1998) and Zivotofsky v. Kerry, 725 F. 3d 197.
See Miller v. Albright, 523 U. S. 420, 456 (1998), which recognized that “Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States.)
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
Per dissent by Justice Scalia, Roberts, and Alito, "The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel)."
....
"[P]assports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization."
See https://www.law.cornell.edu/uscode/text/22/2705:
"The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction:
(1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States.
(2) The report, designated as a “Report of Birth Abroad of a Citizen of the United States”, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term “consular officer” includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe."
NOTE: CBRA registration is no longer required to maintain birthright citizenship. See ZIVOTOFSKY v. KERRY, 725 F. 3d 197; https://www.law.cornell.edu/supremecourt/text/13-628.
NOTE: Having shed his Canadian citizenship, Cruz can have no other than an American Passport.
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
Of course, head spinning Birthers are now in full rage mode against Justice Thomas, Thomas Sowell, Mark Levin, National Review, and Lord knows who else. Some of these people are sick puppies.
See http://www.freerepublic.com/focus/chat/3411529/posts?page=102:
[A]n opinion from a Pennsylvania Senior Judge Dan Pellegrini ... gives an absolute smack down to all of these Ted Cruz birther claims. Judge Pellegrini in his 22 page memorandum opinion found that Ted Cruz was a natural born citizen thereby ruling that Cruz’s name can appear on the Republican primary ballot in Pennsylvania on April 26, 2016.
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BTW, Canada, by conferring citizenship, does not get to decide which American citizens are or are not eligible. For goodness sakes, wake up!
If Vattel applied and if dual citizenship were a disqualifier, then Andrew Jackson would have been disqualified on account of his dual citizenship to Ireland, since both his parents were Irish. His father died before he was born and nothing indicates that Andrew or his Mother were ever naturalized or ever became citizens of the U.S. as of the time of the adoption of the Constitution. Unless, that is, that dual citizenship were not a disqualifier and Vattel did NOT apply, so that Andrew became a citizen at birth under English precedents.
See https://supreme.justia.com/cases/federal/us/307/325/case.html. In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
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See LYNCH V. CLARKE: In this light, it is clear that the New York Court of Chancery case of Lynch v. Clarke was properly decided. See http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
"[W]as Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized."
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?"
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]here is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
"The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen."
"To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212 [of Vattel], which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether 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.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ”These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41."
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Previous foreign born candidates for presidency or vice presidency:
Edward Telfair -- Election of 1789
James Iredell and Samuel Johnston -- Election of 1796
Charles Curtis
George Romney
Barry Goldwater
Lowell Weicker
John McCain
Birthers say birth in the U.S. is required. Both McCain and Cruz were born outside the U.S. Birthers say mere parentage is not enough unless the person were born in the U.S. But both McCain and Cruz are citizens at birth only because of statutes. Actually, because of versions of the same statutory scheme (that relates to the citizenship of parents).
If citizenship at birth because of statute is "naturalization," then both McCain and Cruz were naturalized. Unless naturalization by citizenship at birth can confer status as a natural born citizen, then neither is or was a natural born citizen. Same analysis for Charles Curtis, George Romney, Barry Goldwater, Lowell Weicker, and maybe even as to Barry Goldwater (but for legislative action/statute organizing the territory of Arizona, Barry's birth outside any state of the union would not have constituted a birth in country).
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You are simply wrong about the concept of citizenship. It existed in pre-1789 Britain as well as in the U.S. Records in Massachusetts show applications to be naturalized before and after 1789 that referred both to "natural born citizen" and "natural born subject" -- interchangeably.*
See also https://en.wikipedia.org/wiki/History_of_British_nationality_law and https://en.wikipedia.org/wiki/British_subject. The term "subject" is often used in place of "citizen" when the head (or figurehead) of a government is a monarch instead of an elected official. Regardless, the rights of a subject and a citizen tend to be comparable. For example, the British had a Bill of Rights, from which some of the ideas as expressed in the American Constitution were borrowed. Whether a nation is headed by a monarch or an elected official, it will tend to distinguish between denizens who have certain rights at birth versus denizens who acquire such rights upon application.
Note that France also had a monarch. So for Vattel-ists to argue that France could have an idea of natural born citizens but that Britain (and the American colonies) could not have a similar idea based on their own law is a ludicrous stretch that only a committed Birther would try to argue with a straight face.
The natural born subjects of Britain were its natural born citizens. Their rights under their Bill of Rights (see https://en.wikipedia.org/wiki/Bill_of_Rights_1689: right of petition, to bear arms; to free speech; ) were often similar to the rights of Americans under their Bill of Rights. Probably more similar than the rights of Frenchmen. Citizens among the States under the Articles of Confederation made frequent and interchangeable reference to natural born citizens and natural born subjects.
Your "distinction" is purely silly.
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*[Before drafting began on the new Constitution]
February, 1785,“AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
http://tinyurl.com/b9q2blr
February, 1786, “AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
http://tinyurl.com/a9ceb8b
July, 1786,“AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens.”
http://tinyurl.com/bh9jdqc
March, 1787, “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
[After drafting began on the new Constitution]
http://tinyurl.com/b6yzhd9
May, 1787, “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that Edward Wyer and Others, “shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/apcrvfj
October, 1787, “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
http://tinyurl.com/axpogxw
November, 1787, “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others, “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, & entitled to all the privileges, liberties, and immunities of natural born subjects.”
http://tinyurl.com/acjx5r2
June, 1788, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”
http://tinyurl.com/acroa8g
November, 1788, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”
http://tinyurl.com/a4hsc8s
February, 1789, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”
http://tinyurl.com/b5jcnfm
June, 1789, “AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/ax6434g
March, 1790, “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”
http://tinyurl.com/bfbpqg3
March,1791, “AN ACT FOR NATURALIZING JOHN WHITE & OTHERS” in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”
http://tinyurl.com/b2uoexq
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NOTE: The NBC requirement only ensured that von Steuben could not become commandant of the military. It did NOT ENSURE against dual allegiance. It did not preclude an American man from marrying a foreign princess, getting her naturalized, and then having sons thereafter born in the U.S.
Donald Trump's father was of Irish ancestry and his mother of Scottish ancestry. Andrew Jackson's parents were Irish and it does not appear that Andrew ever forsook his Irish citizenship by descent. James Buchanan's father emigrated from Ireland, with no showing he was ever naturalized. Chester Arthur's Irish father was not naturalized at the time he was born
List of Previous foreign born candidates for presidency or vice presidency:
- Edward Telfair (born in Scotland) -- Election of 1789
- James Iredell (born in England) and Samuel Johnston (born in Scotland) -- Election of 1796
- Charles Curtis (born of Indian mother; dual allegiance to tribe)
- George Romney (born in Mexico)
- Lowell Weicker (born in Paris)
- John McCain (born in Panama)
It is simply absurd to suppose a child who is born in the U.S. of a French father who becomes naturalized in America a day before his son is born is more likely to be uncompromised in his allegiance than a child who is born in the U.S. of a French father who becomes naturalized in America a day after his son is born. To imagine that such a test helps ensure the health of the republic by ensuring allegiance is ludicrous.
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It's birther folly to claim one cannot be a natural born citizen unless one is free of all claims of allegiance made by or to foreign powers, Here's an example to show why: Around 1812, England was impressing Americans found on the high seas into its naval service, especially if the features of such Americans appeared similar to that of English stock. England claimed these impressed sailors' fathers, or their fathers, had been from England and, "once an Englishman, always an Englishman." Thus, England was claiming dual allegiance owed to it from persons who had been born in the U.S. --- regardless that both their parents had been American citizens. Given that no nation can preclude how another or rogue nation may reason its way to claim allegiance, there can be no guarantee that a rogue nation will not claim allegiance merely because the status of a person was that of being born elsewhere of fully naturalized parents. To posit that an American cannot be eligible to become President in every case where another nation, under its laws, may claim allegiance is logically unsound to the very ideas of citizenship and nation.
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Some nations do not recognize any right to renounce their citizenship. Thus, some make claims to allegiance, potentially in perpetuity.
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See https://en.wikipedia.org/wiki/Multiple_citizenship:
"There is no international convention which determines the nationality or citizen status of a person, which is defined exclusively by national laws, which vary and can be inconsistent with each other.
....
Most countries that permit dual citizenship still may not recognize the other citizenship of its nationals within its own territory, for example in relation to entry into the country, national service, duty to vote, etc
....
Many states did not recognize the right of their citizens to renounce their citizenship without permission, with the feudal theory of perpetual allegiance to the sovereign still common.
....
In the aftermath of the 1867 Fenian Rising, Irish-Americans who had gone to Ireland to participate in the uprising and were caught were charged with treason, as the British authorities considered them to be British subjects. This outraged many Irish-Americans, to which the British responded by pointing out that, just like British law, American law also recognized perpetual allegiance.
....
[T]he theory of perpetual allegiance largely fell out of favor with governments during the late 19th century. [My comment: This was long after the Framers wrote the clause regarding natural born citizens.]
....
At the 1930 League of Nations Codification Conference, an attempt was made to codify nationality rules into a universal worldwide treaty, the 1930 Hague Convention, whose chief aims would be to completely abolish both statelessness and dual citizenship. It proposed laws that would have reduced both, but in the end was ratified by only twenty nations.
....
The number of states allowing multiple citizenship further increased after a treaty in Europe requiring signatories to limit dual citizenship lapsed in the 1990s, and countries with high emigration rates began permitting it to maintain links with their respective diasporas.
....
Today, the citizenship laws of most countries are based on jus sanguinis. In many cases, this basis for citizenship also extends to children born outside the country, and sometimes even when the parent has lost citizenship.
....
British citizens naturalized in the United States remain British citizens in the eyes of the British government even after they renounce British allegiance to the satisfaction of United States authorities.
....
Irish nationality law applies to "the island of Ireland", which extends citizenship to Northern Ireland, which is part of the United Kingdom. Therefore, anyone born in Northern Ireland who meets the requirements for being an Irish citizen through birth on the "island of Ireland" (or a child born outside Ireland but with a qualifying parent) can exercise rights accorded only to Irish citizens, including that of traveling under an Irish passport.
....
[A] child born in the United States to Norwegian parents automatically has dual citizenship with the United States and Norway although Norway usually restricts or forbids dual citizenship.
....
Despite wide acceptance of dual citizenship, industrialized countries now try to protect themselves from birth tourism and uncontrollable immigration waves, so only Canada and the United States still grant unconditional birthright citizenship (even for children of illegal immigrants).
....
[Presently] In Australia, France, Germany, Ireland, New Zealand, South Africa, and the UK, a child born there is regarded as a citizen only if at least one parent is either a citizen or a legal permanent resident who has lived there for several years.
....
The United States is a "civic" nation and not an "ethnic" nation. American citizenship is not based on belonging to a particular ethnicity, but on political loyalty to American democracy and values. Regimes based on ethnicity, which support the doctrine of perpetual allegiance as one is always a member of the ethnic nation, are not concerned with assimilating non-ethnics since they can never become true citizens. In contrast, the essence of a civic nation makes it imperative that immigrants assimilate into the greater whole as there is not an "ethnic" cohesiveness uniting the populace.
..
[in the U.S.] possession or use of a foreign passport is a condition disqualifying one from security clearance and "is not mitigated by reasons of personal convenience, safety, requirements of foreign law, or the identity of the foreign country" as is explicitly clarified in a Department of Defense policy memorandum which defines a guideline requiring that "any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official permission for its use from the appropriate agency of the United States Government".
....
Stéphane Dion, former head of the Liberal Party of Canada and the previous leader of the official opposition, holds dual citizenship with France as a result of his mother's nationality; Dion nonetheless indicated a willingness to renounce French citizenship if a significant number of Canadians viewed it negatively.
******************
Today, Britain is still a Constitutional Monarchy, as it was in 1776. If being a monarchy precluded the subjects of Britain of 1776 from being citizens, then the Britain of today would not have citizens. But it does! Indeed, Citizenship is a compulsory subject of the National Curriculum in state schools in England! Moreover, the France of 1776 had subjects who were citizens. The French Revolution was not until 1789, after the Constitution had been drafted in 1787. See https://en.wikipedia.org/wiki/French_nationality_law. French nationality and citizenship were concepts that existed even before the French Revolution.
Being a natural born subject of Britain with rights to vote, to participate civically, and with rights protected under a bill of rights, as Britain had, is not so fundamentally different from being a natural born citizen of America under its bill of rights. Indeed, much of the reason for the revolution had to do with colonists' complaints that they were not treated equally with the British of the homeland. See https://en.wikipedia.org/wiki/Parliament_of_England: After the restoration of the monarchy under Charles II, and the subsequent Glorious Revolution of 1688, the supremacy of Parliament was a settled principle and all future English and later British sovereigns were restricted to the role of constitutional monarchs with limited executive authority.
It's birther folly to claim one cannot be a natural born citizen unless one is free of all claims of allegiance made by or to foreign powers, Here's an example to show why: Around 1812, England was impressing Americans found on the high seas into its naval service, especially if the features of such Americans appeared similar to that of English stock. England claimed these impressed sailors' fathers, or their fathers, had been from England and, "once an Englishman, always an Englishman." Thus, England was claiming dual allegiance owed to it from persons who had been born in the U.S. --- regardless that both their parents had been American citizens. Given that no nation can preclude how another or rogue nation may reason its way to claim allegiance, there can be no guarantee that a rogue nation will not claim allegiance merely because the status of a person was that of being born elsewhere of fully naturalized parents. To posit that an American cannot be eligible to become President in every case where another nation, under its laws, may claim allegiance is logically unsound to the very ideas of citizenship and nation.
***********************************
Some nations do not recognize any right to renounce their citizenship. Thus, some make claims to allegiance, potentially in perpetuity.
************************************
See https://en.wikipedia.org/wiki/Multiple_citizenship:
"There is no international convention which determines the nationality or citizen status of a person, which is defined exclusively by national laws, which vary and can be inconsistent with each other.
....
Most countries that permit dual citizenship still may not recognize the other citizenship of its nationals within its own territory, for example in relation to entry into the country, national service, duty to vote, etc
....
Many states did not recognize the right of their citizens to renounce their citizenship without permission, with the feudal theory of perpetual allegiance to the sovereign still common.
....
In the aftermath of the 1867 Fenian Rising, Irish-Americans who had gone to Ireland to participate in the uprising and were caught were charged with treason, as the British authorities considered them to be British subjects. This outraged many Irish-Americans, to which the British responded by pointing out that, just like British law, American law also recognized perpetual allegiance.
....
[T]he theory of perpetual allegiance largely fell out of favor with governments during the late 19th century. [My comment: This was long after the Framers wrote the clause regarding natural born citizens.]
....
At the 1930 League of Nations Codification Conference, an attempt was made to codify nationality rules into a universal worldwide treaty, the 1930 Hague Convention, whose chief aims would be to completely abolish both statelessness and dual citizenship. It proposed laws that would have reduced both, but in the end was ratified by only twenty nations.
....
The number of states allowing multiple citizenship further increased after a treaty in Europe requiring signatories to limit dual citizenship lapsed in the 1990s, and countries with high emigration rates began permitting it to maintain links with their respective diasporas.
....
Today, the citizenship laws of most countries are based on jus sanguinis. In many cases, this basis for citizenship also extends to children born outside the country, and sometimes even when the parent has lost citizenship.
....
British citizens naturalized in the United States remain British citizens in the eyes of the British government even after they renounce British allegiance to the satisfaction of United States authorities.
....
Irish nationality law applies to "the island of Ireland", which extends citizenship to Northern Ireland, which is part of the United Kingdom. Therefore, anyone born in Northern Ireland who meets the requirements for being an Irish citizen through birth on the "island of Ireland" (or a child born outside Ireland but with a qualifying parent) can exercise rights accorded only to Irish citizens, including that of traveling under an Irish passport.
....
[A] child born in the United States to Norwegian parents automatically has dual citizenship with the United States and Norway although Norway usually restricts or forbids dual citizenship.
....
Despite wide acceptance of dual citizenship, industrialized countries now try to protect themselves from birth tourism and uncontrollable immigration waves, so only Canada and the United States still grant unconditional birthright citizenship (even for children of illegal immigrants).
....
[Presently] In Australia, France, Germany, Ireland, New Zealand, South Africa, and the UK, a child born there is regarded as a citizen only if at least one parent is either a citizen or a legal permanent resident who has lived there for several years.
....
The United States is a "civic" nation and not an "ethnic" nation. American citizenship is not based on belonging to a particular ethnicity, but on political loyalty to American democracy and values. Regimes based on ethnicity, which support the doctrine of perpetual allegiance as one is always a member of the ethnic nation, are not concerned with assimilating non-ethnics since they can never become true citizens. In contrast, the essence of a civic nation makes it imperative that immigrants assimilate into the greater whole as there is not an "ethnic" cohesiveness uniting the populace.
..
[in the U.S.] possession or use of a foreign passport is a condition disqualifying one from security clearance and "is not mitigated by reasons of personal convenience, safety, requirements of foreign law, or the identity of the foreign country" as is explicitly clarified in a Department of Defense policy memorandum which defines a guideline requiring that "any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official permission for its use from the appropriate agency of the United States Government".
....
Stéphane Dion, former head of the Liberal Party of Canada and the previous leader of the official opposition, holds dual citizenship with France as a result of his mother's nationality; Dion nonetheless indicated a willingness to renounce French citizenship if a significant number of Canadians viewed it negatively.
******************
See https://en.wikipedia.org/wiki/Nationality_law_in_the_American_Colonies:
English common law, under principles of jus sanguinis, viewed English persons and their children in the colonies as full subjects of the king.
The strongest legal bonds between England and the American colonies lay in the colonial charters, many of which professed alien residents in the colonies would eventually become “Our Loving subjects and live under Our Allegiance.
The first general naturalization law, providing a simple administrative process for obtaining naturalization appeared when Parliament passed Foreign Protestants Naturalization Act 1708.
The Plantation Act 1740 supplanted the private naturalization process in which aliens in the colonies had to travel to London to appeal for subjectship on a costly, case-by-case basis.
[T]he colonies administered the 1740 Act with varying degrees of faithfulness.
[M]any colonies issued their own naturalization policies to rival those of Parliament, until that practice was prohibited in 1773.
Under the 1701 Act of Settlement, Britain barred naturalized subjects from entering high political office.
[T]he colonies persisted in drafting local laws to fulfill their growing demand for new immigrants until those powers were completely proscribed in 1773.
South Carolina attracted alien applicants through naturalization laws that granted them the rights of natural-born Englishmen while prohibiting the collection of monies for debts contracted prior to the applicant coming to the colony.
Pennsylvania in 1742 provided its own general law for naturalization that gave full rights to aliens who had resided in the colony for less than the seven years required in the 1740 Parliamentary Act.[42] Parliament later invalidated Pennsylvania's general naturalization law, after which the state, motivated by similar expansionary aims as New York, turned to extensive use of private acts to accomplish its naturalizations.[43] Further, New York and Pennsylvania both exempted persons with conscientious scruples against oaths, which included Quakers, from the requirement to swear allegiance during naturalization.
The American colonists were generally in favor of foreign immigrants, as their contributions to the welfare of the colonies were clear and highly valued.
Following the American Revolution, under the Articles of Confederation each colony could independently pass its own naturalization laws, yet each state’s authority to naturalize alien residents conferred the same rights of citizenship within the colonies under the principle of comity.[48] As a result, the new American states produced naturalization laws of varying procedures and requirements. Common among them, however, were certain assumptions, including affirming allegiance to an authority and a mandatory period of physical residence prior to obtaining the right of citizenship.[49]
Ultimately, the United States Constitution, which did not address naturalization head on but intended to right the general lack of legal uniformity seen under the Articles of Confederation,[50] empowered Congress to establish a “uniform rule of naturalization” within Article I, section 8, clause 4, permitting the development of United States nationality law at the federal level.
See https://en.wikipedia.org/wiki/Plantation_Act_1740:
Despite being a British law, the Plantation Act "was the model upon which the first U.S. naturalization act, with respect to time, oath of allegiance, process of swearing before a judge, and the like, was clearly based."
See https://en.wikipedia.org/wiki/Citizenship:
Citizenship is the status of a person recognized under the custom or law as being a member of a country.
Nationality is often used as a synonym for citizenship in English.
In the Roman Empire, citizenship expanded from small-scale communities to the entire empire. Romans realized that granting citizenship to people from all over the empire legitimized Roman rule over conquered areas. Roman citizenship was no longer a status of political agency; it had been reduced to a judicial safeguard and the expression of rule and law.
A citizen came to be understood as a person "free to act by law, free to ask and expect the law's protection, a citizen of such and such a legal community, of such and such a legal standing in that community".[17] Citizenship meant having rights to have possessions, immunities, expectations, which were "available in many kinds and degrees, available or unavailable to many kinds of person for many kinds of reason".[17] And the law, itself, was a kind of bond uniting people.[18] Roman citizenship was more impersonal, universal, multiform, having different degrees and applications.
[P]olitical upheavals and reforms, beginning most prominently with the French Revolution, abolished privileges and created an egalitarian concept of citizenship.
During the Renaissance, people transitioned from being subjects of a king or queen to being citizens of a city and later to a nation.[19]:p.161 Each city had its own law, courts, and independent administration.[20] And being a citizen often meant being subject to the city's law in addition to having power in some instances to help choose officials.
Citizenship became an idealized, almost abstract, concept,[9] and did not signify a submissive relation with a lord or count, but rather indicated the bond between a person and the state in the rather abstract sense of having rights and duties.
Modern citizenship is much more passive; action is delegated to others; citizenship is often a constraint on acting, not an impetus to act.[8] Nevertheless, citizens are usually aware of their obligations to authorities, and are aware that these bonds often limit what they can do.
Citizenship status, under social contract theory, carries with it both rights and duties. In this sense, citizenship was described as "a bundle of rights -- primarily, political participation in the life of the community, the right to vote, and the right to receive certain protection from the community, as well as obligations."
The relation of citizenship has never been fixed or static, but constantly changes within each society. While citizenship has varied considerably throughout history, and within societies over time, there are some common elements but they vary considerably as well. As a bond, citizenship extends beyond basic kinship ties to unite people of different genetic backgrounds. It usually signifies membership in a political body. It is often based on, or was a result of, some form of military service or expectation of future service. It usually involves some form of political participation, but this can vary from token acts to active service in government. Citizenship is a status in society. It is an ideal state as well. It generally describes a person with legal rights within a given political order. It almost always has an element of exclusion, meaning that some people are not citizens, and that this distinction can sometimes be very important, or not important, depending on a particular society. Citizenship as a concept is generally hard to isolate intellectually and compare with related political notions, since it relates to many other aspects of society such as the family, military service, the individual, freedom, religion, ideas of right and wrong, ethnicity, and patterns for how a person should behave in society.[19] When there are many different groups within a nation, citizenship may be the only real bond which unites everybody as equals without discrimination—it is a "broad bond" linking "a person with the state" and gives people a universal identity as a legal member of a specific nation.
Citizenship is a compulsory subject of the National Curriculum in state schools in England.
*************************************
FROM WHERE DID THE TERMINOLOGY "NATURAL BORN CITIZEN" ORIGINATE?
Quoting from article and comments at http://www.obamaconspiracy.org/2009/05/de-vattel-revisited/:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
Those words, however, are quoted from a translation of de Vattel that
first appeared in 1797, 10 years after the Constitution’s ratification.
Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens.
For those who don’t speak French, the word “citizen” (Citoyen).
Given that the phrase “natural born citizen” was not in the French, was it in the English translations available to the framers of the US Constitution? The answer is, “no”. The first English translation ... in 1760 follows:
And the first American Edition (1787) issued the year of the Constitutional Convention also does not have “natural born citizen”.
So I ask, how can de Vattel’s “The Law of Nations” define a term that it doesn’t even contain (except in translations [in 1797] a decade after the Constitution was ratified)? If the framers wanted to refer to de Vattel, then they surely would have used his words from the English translation they had, but “natives or indegenes” is not in Article II of the Constitution.
[It was not until 1797 that there was published] this passage ... of which is The Law of Nations:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
************
Quote from "Dr. Conspiracy" -- De Vattel defined “Les Naturels ou indigènes”, not “natural born citizens”.
Quote from "Dr. Conspiracy" -- If you think, for example, the phrase “natural-born citizen” in the Constitution originated with John Jay, do you think he read de Vattel in the French or in the English (if he read it at all)? According to The Founding Fathers and the French Language, by Paul M. Spurlin � 1976 National Federation of Modern Language Teachers Associations, John Jay “understood and spoke French, with great difficulty.”
The courts have already decided (Smith v. Alabama) that the Constitution is written in the language of English common Law:
The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. Smith v. Alabama, 124 U.S. 465.
Quote from "Dr. Conspiracy" -- Why did they say “natural born” instead of “native born”? Probably because they were thinking of British common law and it’s phrase “natural born subject”.
Quote from "Dr. Conspiracy" -- Let anyone show me a colonial or state law that only grants citizenship to the children of citizens! The invitation is open. I’m waiting.
******
Quote from "BlackLion" -- William Blackstone, Commentaries 1: 354 361–62
“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it…all children, born out of the king’s ligeance [i.e on foreign soil], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."
Blackstone explicitly grounds natural-born status on location (jus soli), not parentage, except when the child is born abroad. The notion that both parents have to be citizens is false. All children born on American soil are natural-born subjects or citizens.
Quote from "Bob" -- "[I]t is also clear from the majority’s application of English common law that if Wong Kim Ark was a [14th Amendment] citizen, he was also a natural-born citizen, as he wasn’t a naturalized citizen."
Quote from "dunstvangeet" -- [W]hy would they [the Framers] not explicitly define “Natural Born” in the constitution, when they knew that the Blackstone Definition would be more widely known?
Quote from "Dr. Conspiracy" -- US V. Wong is the most cited case by courts in related immigration cases (including PERKINS V. ELG, 307 US 325, MORRISON V. CALIFORNIA, 291 US 82, ZARTARIAN V. BILLINGS, 204 US 170, CHIN BAK KAN V. UNITED STATES, 186 US 193, UNITED STATES V. SING TUCK OR DO, 194 US 161, JPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LTD. 536 U.S. 88, WEEDIN V. CHIN BOW, 274 US 657, ROGERS V. BELLEI, 401 US 815, TRUAX V. RAICH, 239 US 33, KWOCK JAN FAT V. WHITE, 253 US 454, AFROYIM V. RUSK, 387 US 253, HENNESSY V. RICHARDSON DRUG CO., 189 US 25, THE SAO VICENTE, 260 US 151, MONTANA V. KENNEDY, 366 US 308, TILLMAN V. WHEATON-HAVEN RECREATION ASSN., INC., 410 US 431, SOUTH CAROLINA V. UNITED STATES, 199 US 437, MICHIGAN V. MICHIGAN TRUST CO., 286 US 334, PEREZ V. BROWNELL, 356 US 44, MACKENZIE V. HARE, 239 US 299, etc. just to mention some of the Supreme Court cases, not to mention those from the lower courts).
Quote from "mrlqban" -- [I]ndigenous in English or indigènes in French are synonym of natives no matter what language you use.
Quote from "Dr. Conspiracy" -- Where did John Jay get the term natural born citizen?
I know of no historical reference that directly tells us the answer. He did not get it from the English translation of The Law of Nations, because the phrase wasn’t there until years later. I’m pretty sure that I know where it came from, though.
The Naturalization Acts of New York from 1770 used the phrase “natural born subject” such as in the following:
BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.
A few years later after the Revolution we see similar language in a naturalization act of Massachusetts (1784): “…thereupon, and thereafter taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.” It seems very likely that when the Colonies became States, and subjects became citizens, the form of the naturalization acts changed, replacing “subject” by “citizen”. It’s certain that the British Colonial language came from British common law. If indeed the States just substituted citizen for subject, then it is pretty certain that they retained the common law meaning. Jay, a lawyer, would have been familiar with the acts’ language. Lacking any other likely candidate, I think this is where Jay got the phrase.
Quote from "Dr. Conspiracy" -- It is not that Americans didn’t have English translations of The Law of Nations; they did. The point is that those translations didn’t say “natural born citizen.”
Prior to 1797, all English translations of The Law of Nations, including the 1787 American Edition all said “natives or indegenes”. It was not until the 1797 edition that the new translation used the words “natives or natural born citizens.”
Quote from "G" -- No evidence exists that Vattel had anything to do with citizenship issues.
It has repeatedly been noted that Vattel was referenced in terms of international commerce by the Founders. There is no dispute or controversy on that. Nor is that relevant to the issues of citizenship.
Quote from "Greg" -- The Founders didn’t once say to themselves, “maybe we should use ‘indigenes,’ like Vattel did, if that’s what we mean?”
They didn’t once say, “Maybe if we use the same phrase, it will cause confusion?”
They didn’t once write down, “We mean ‘natural born citizen’ to be completely different from ‘natural born subject.’ We know it might cause confusion, but we really like that Vattel guy, and we’re sure that if he was translated right, he would have written it this way.”
Quote from "Greg" -- By 1803, St. George Tucker was writing that Natural Born Citizen meant the same as Natural Born Subject – born here without regard to parentage. By 1829, William Rawle wrote, “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
Quote from "Rickey" -- “Debate on the Constitution,” Library of America, two volumes, 2389 pages.
Number of references to Blackstone: 22
Number of references to Vattel: ZERO
Number of references to the common law: 30
Number of references to natural law: ZERO
On p. 353 Roger Mason states that the common law was “adopted by the respective acts forming the constitutions of the several states.”
On p. 356, the Virginia Independent Chronicle opines that if the Constitution were to be ratified “The people have every security of enjoying the benefits of the common law.”
P. 364, from The Norfolk and Portsmouth Journal: “So far as the people are now entitled to the benefit of the common law, they certaily will have a right to enjoy it under the new constitution…The principles of the common law, as they now apply, must surely always hereafter apply.”
Alexander Hamilton, discussing the role of the Supreme Court (p. 491); “The appellate jurisdiction of the supreme court will extend to causes determinable in different modes, some in the course of the COMMON LAW, and others in the course of the CIVIL LAW.” (CAPS in the original)
Quote from "Dr. Conspiracy" -- [Re:] A legitimate child, wherever born, is a member of the nation of which its father at the time of birth was a member.” Field’s International Code, page 132; Morse page 17.
Context is really important and I think the little citation you left us is so badly out of context as to constitute fraud if intended to say that Field supports the nObama notion of two citizen parental requirement, because Field footnoted that section, saying: This is the law in most European States [citation deleted] but not in England or in the United States.
http://books.google.com/books?id=cFLiAAAAMAAJ
and
And it has been held in the United States that the national character of the parent is of no importance even in the case of a child born within the territory to a parent who is not and has not taken any step towards becoming naturalized there and who removes the child while an infant. [Citing Lynch v Clarke]
Field also cites Ludlam v Ludlam that has a different view, and notes his view on the limitations on the application of Lynch v Clarke (limitations that future federal courts would not recognize).
This is why this web site exists, to prevent fraud.
*********************
SEE ALSO DEBUNKING OBAMA CONSPIRACY THEORIES --
http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-debunkers-guide-to-obama-conspiracy-theories/
NOTE: On October 5, 1789, George Washington, after having become President on April 30, 1789, more than 2 years after the Constitution had been completed on September 17, 1787, more than 15 months after Virginia had ratified it on June 26, 1788, George Washington checked out "The Law of Nations" by Emer de Vattel from the New York Society Library. It was returned 221 years later. http://www.reuters.com/article/us-library-washington-idUSTRE64J4EG20100520.
Notwithstanding claims by Birthers, since Washington did not check the book out until considerably after the Constitution had been drafted, there is nothing to indicate he would have referred to it at the time the terminology "natural born citizen" was specified as a prerequisite to be eligible to become President. Moreover, the terminology "natural born citizen" was not in that edition.
**********************
My preference is to be polite and respectful. Nowadays, I feel like McClintock.
https://youtu.be/o3343LUHNb4
Birthers are like the Pilgrim who caused a lot of trouble. Their tomfoolery caused more than 300M Americans to get stuck with debates that had very little to do with anything substantive. I can deal with that. But, if they keep coming back with their BS, they're going to have to own it. Birthers have not exactly been above "rudeness." And their rude tomfoolery put a lot of people's teeth on edge. I loathe dishonesty and chicanery in a person. It's hard to tolerate.
https://youtu.be/CJZyRXN9ufE
**************************
I doubt you are interested or informed enough to read or be able to understand the following. Maybe you can consult among Birthers?
***********************
REGARDING JOHN MCCAIN: Special pleading by Birthers notwithstanding, McCain being born on a U.S. base (if he was) has zero to do with any intelligent legal analysis! Like Cruz, if McCain was a citizen at birth, it was only because of a statute. It was not because he was born in the U.S. (because he wasn't), nor because he was (possibly) born on a military base at a foreign location.
See http://voices.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html:
"Contrary to some Internet rumors that McCain was born outside the Canal Zone, in Colon, the document records his birth in the Coco Solo "family hospital.""
"Here is what a State Department manual on U.S. citizenship has to say about children born on U.S. military installations: Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities 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 subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."
[DID YOU GET THAT? I ASK BECAUSE THIS IS THE UMPTEENTH TIME I HAVE TRIED TO GET THROUGH BIRTHER SKULLS. HELLO HELLO? I DO SO TIRE OF REPEATING SIMPLE STUFF! A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth." IOW, McCain acquired citizenship at birth because of a statute. NOT because of being born within U.S. jurisdiction.]
(And for the CRBA people:) "Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S.
Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a (CRBA) form."
*************
The Foreign Affairs Manual 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 after birth could become President only if born on a Federal base.
**************
BTW -- Some people evidently doubt McCain was even born in a military hospital:
Posted by: TheGribbler | May 2, 2008 11:46 AM |
McCain was born in Colon, Panama, on the Atlantic Side of Panama. There was no military or US civilian hospital on the Atlantic at that time he was born. This is the reason there are no Canal Zone Health Department records. He was not born in the Canal Zone. His birth record is right in the Colon Hospital, Panama, records along with every one born on the Atlantic Side of Panama who was living in the Canal Zone at that time. His birth location of Colon is no secret in Panama. In fact, those of us from the Canal Zone are amazed about his "military hospital birth" claim which is pure fiction.
See also http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf, at footnote 1: "1Though Hollander makes this allegation in his complaint, in his objection he states, “[s]ince the hospital at the Coco Solo Naval Air Station did not even exist until 1941 . . . , it is reasonable to assume that [McCain] was born in the city of Colón in the Republic of Panama.” Hollander has also provided a copy of McCain’s birth certificate, which lists his place of birth as Colón. The defendants dispute this theory, but it is irrelevant to the present motion in any event."
ROBINSON V. BOWEN: In Robinson v. Bowen, a federal district court implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
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REGARDING CRBA:
CBRA registration is no longer required to maintain birthright citizenship. See ZIVOTOFSKY v. KERRY, 725 F. 3d 197;
https://www.law.cornell.edu/supremecourt/text/13-628.
Having shed his Canadian citizenship, Cruz can have no other than an American Passport.
Per concurrence by Justice Thomas, in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
CANADA: Canada, by providing for citizenship at birth, does not get to decide who cannot be eligible to become President of the U.S. See https://supreme.justia.com/cases/federal/us/307/325/case.html. In Perkins v. Elg, 307 U.S. 325 (1939), the Supreme Court explained that dual nationality of a child does not affect the native born status of a child born in the United States, and cited with approval an opinion of the Attorney General finding that a “native born American citizen,” even one with “dual citizenship,”who returns to the United States would qualify to be President.
DUAL ALLEGIANCE: It's birther folly to claim one cannot be a natural born citizen unless one is free of all claims of allegiance made by or to foreign powers, Here's an example to show why: Around 1812, England was impressing Americans found on the high seas into its naval service, especially if the features of such Americans appeared similar to that of English stock. England claimed these impressed sailors' fathers, or their fathers, had been from England and, "once an Englishman, always an Englishman." Thus, England was claiming dual allegiance owed to it from persons who had been born in the U.S. --- regardless that both their parents had been American citizens. Given that no nation can preclude how another or rogue nation may reason its way to claim allegiance, there can be no guarantee that a rogue nation will not claim allegiance merely because the status of a person was that of being born elsewhere of fully naturalized parents. To posit that an American cannot be eligible to become President in every case where another nation, under its laws, may claim allegiance is logically unsound to the very ideas of citizenship and nation.
REGARDING THE SOURCE OF OUR COMMON LAW:
LYNCH V. CLARKE: See New York Court of Chancery case of Lynch v. Clarke. http://www.redstate.com/ironchapman/2012/05/21/on-this-natural-born-citizen-issue-part-i-from-alexander-hamilton-to-lynch-v-clarke/:
The court held: "It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States."
"[T]he common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state."
"[T]he United States Constitution and our national institutions were formed on the basis of the common law."
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You really don't have a clue, do you?
FACTS:
It is a fact that the words "natural born citizen" were not in any edition of Vattel until a revised translation of 1797. It is a fact that those words were in a 1784 Statute of Massachusetts. It is a fact that most of the U.S.'s early common law was inherited through the British. No respectable lawyer would argue otherwise. It is a fact that Birthers have no ratio decedendi to support their elaborate deceptions. It is a fact that Blackstone wrote both about "natural born" and about "law of nations." It is a fact that precedents have specifically found McCain, Obama, and Cruz to qualify as natural born citizens. It is a fact that Apuzzo sites and Birther groupies play fast and loose with shell games. Now, I don't know it to be a fact that Birthers heads are upside down, but I do have strong suspicions.
It is also a fact that you have so far been entirely unable to refute any of my points.
BIRTHER FAUX FACTS:
It is a fact that Birthers have spread far and wide numerous unsupported and false lies, rumors, dishonest deceptions, outright tomfoolery, and sanctionable misstatements of law. (Just ask me, because I can list them.) Now, outside Court, you can spread all the horse apples you want. But try that with a Federal Judge. It can get you sanctioned.
TEST FOR BIRTHERS:
Q: From what source came the statute of 1700, which said: "BE IT THEREFORE ENACTED by his Honor ... and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects ... enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within ...."
Was the statute from France, England, Denmark, New York, or Maine?
Q: From what source came the statute of 1784, which said: "[T]hereupon, and thereafter taken to be citizens of this ... , and entitled to all the liberties, rights and privileges of natural born citizens.”
Was the statute from France, England, Denmark, Massachusetts, or Kentucky?
Q: From what source came the following legal language: [T]he children of citizens of ... that may be born beyond Sea, or out of the limits of ..., shall be considered as natural born Citizens.
Was that legal language from the French, the Swiss, the British, the Confederate Constitution of the U.S., or the United States?
Q: Which of the following persons did not qualify as natural born citizens of the U.S.: Andrew Jackson, James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John McCain, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio, Ted Cruz, George Romney, Lowell Weicker, Barry Goldwater.
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SHOW ME YOUR CASE:
If early Americans had considered Vattel to have been their main or only source for defining a natural citizen, then children born of foreign parents who continued to reside in the U.S. who had not previously been naturalized would have needed to apply for such status at some point after reaching age of majority.
So, show me a single case where Vattel was applied to require that a child born in the U.S. between 1789 and 1868 of a foreign father who was, say, French, Irish, or German, was ever required, upon reaching age of majority, to apply for, or to obtain, a court order to enjoy all the rights of a U.S. citizen. Show me one.
Five million immigrants arrived in America between 1821 and 1860, mostlyfrom Ireland and Germany. Between 1789 and 1868, there was no national definition of "citizen." The only definition would have been under statutes of the states or precedents accepted by the States as handed down from adopted foreign authority. If the adopted authority was that of the French instead of the British, then show me a single case where Vattel was applied. Show me one.
While you're at it, show me McCain's CRBA.
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SPECIAL KIND OF CRAZY:
Consider Chester Arthur and Barack Obama. And James Buchanan -- as well as 3 Vice Presidents! Charles Curtis, Hubert Humphrey, and Spiro Agnew. That makes 6 -- who actually held office and whose parents were not both citizens at the time of birth.
If Vattel were considered to have been adopted by the Founders for providing the definition for natural born citizens, exclusive of Blackstone, then all children who became citizens only by virtue of being born in the country would be naturalized, as opposed to natural born. If being without parents who were both citizens and being "naturalized" in that sense were a disqualifier, then all of the following would have been disqualified:
James Buchanan, Chester Arthur, Charles Curtis, Hubert Humphrey, Spiro Agnew, Barack Obama, John Fremont, Charles Evans Hughes, Bill Richardson, Rick Santorum, Bobby Jindal, Marco Rubio.
Obviously, no sane judge would hold that Vattel's treatise, by its method of defining "naturalization," would operate to have rendered all such candidates and office holders ineligible. That's 6 who held office either as President or as Vice President, and 6 more who have been candidates.
If being a natural born citizen required a candidate to be born in the U.S., then both Ted Cruz and John McCain have been ineligible, and possibly Charles Curtis, George Romney, Lowell Weicker, Barry Goldwater. Given the overlap, that's possibly 5 more. So far, that makes a total of 6 who held office and 11 more who were candidates, totaling 17.
Birtherism: Thatsa some kinda special crazy! OWN IT!
OF CITIZENS AND SUBJECTS:
BTW, when the Confederate States seceded, they did not look to some exotic foreign common law for their new system. Mainly, they just extracted what they wanted straight from the U.S. Constitution. Much as the Founders did when they drafted the Constitution and provided for various ideas such as: Bill of Rights, bill of attainder, ex post facto, double jeopardy, habeas corpus, and on and on. Btw, those were English concepts.
Between 1785 and 1797, France was still a monarchy. IOW, it had subjects. If subjects are not citizens, well, there you go....
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I am well familiar with Apuzzo's sites. To say I am unimpressed would be the understatement of the year. The problem with Birthers is that they are impressed by duplicity and BS. Somehow, Apuzzo and his groupies have obtained funding and influence to clog the internet with complete crap.
But go ahead, tell me what thing of significance you think Apuzzo has said that is reliable or true. Break it down. Be specific. Then I will specifically show you how and why they are full of it. Provided, that is, you show some semblance of having functional neurons to rub together.
Go ahead. I've done the research and can show the shell games. I've read the Birther BS. Take your best shot to try to show something those sites say that is more convincing than absolute BS. To play, all I require is that you have some basic appreciation of reason. Hint: "Proof by assumption" or repetitive lying does not constitute either proof or reason.
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Sometimes it takes a Kraken to fight a Kraken. We know the other Krakens are evil. There's a good possibility Trump is not like that. Like he said, he's Batman. He's probably what Gotham needs.
https://youtu.be/gAgRms7xixQ
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Thanks to the peanut gallery.
The point is that Trump is essentially a second generation American. Not that far from the old country. And he is marinated in NY.
Don't you think the Founders would have rendered persons associated with the Blue States ineligible, had they foreseen what all these great NBC's are up to?
Come to think of it, I "believe" that's what they intended. Epiphany! Hey, people, Blue Staters are ineligible. This is because they have demonstrated "dual loyalty" to globalism. It's right there in the Constitution, where it requires that candidates be citizens. Obviously, that means citizens without dual loyaltes.
Obviously, that means Blue Staters are ineligible. At least, I "believe" that is the law. Therefore, by my "principles," it must be so!
I suspect writings and dicta could be found to support my position. Maybe a movement should spread this amazing insight to all the nursing home residents?
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Good grief. Look beyond the shell game and to the facts. Nothing in that article refutes anything I have said. It does NOT show the language Birthers think the Founders relied on to have existed before French revisionism in 1797. Are you incapable of understanding or addressing the issue? Hello. Got anything between the ears?
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You are factually wrong on this, as has been explained so many times. Neither John McCain nor anyone else is a U.S. citizen because of being born on a foreign base. McCain was not a citizen at birth because of any Vattelian notion of NBC. He was a citizen at birth because of a statute. Like Cruz. NO ONE with any understanding of law disputes this.
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The point is: The Framers could not have been referring in 1787 to language that was not published until 10 years later. And that later translation was not even by Vattel!
The reasonable conclusion is that the Framers' source for the NBC language was the English Statute of 1731, the NY statute of 1700, and the Massachusetts statute of 1784. We were British colonies! No respectable person with any skill for reading law would conclude that the Framers were referring to French language that was not even published until 10 years later! To argue otherwise reeks of desperation. Why do it?
John Jay was an accomplished NY lawyer. His concern, likely to ensure against military command under Von Steuben, would be accomplished by requiring that such person be of American parentage. Which Cruz is. To think Jay would have intended to disqualify any children he might ever have, who might later be born abroad, is silly. Moreover, was his "permit me to suggest" note even addressed to the presidency? Did he even know the military command was to be under a President?
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More lies, BS, and stupid "reasoning." It just never stops with Birthers. A person who is born a citizen is not required to file a CRBA to be naturalized. Filing the CRBA has to do with evidence of the fact of being a citizen of birth. Not to do with a prerequisite to the fact of being a citizen at birth.
Where is John McCain's CRBA? There isn't one. It was not required.
Scotus has decided this. Why do birthers perpetuate such nonsense? That a parent files a CRBA as an evidentiary convenience does not mean that the child otherwise would not have been a citizen at birth. On this, LePage is a moron. Good grief!
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Most of the people working to destroy America are home grown, corporatist, faithless, pos. Your prattling about the "true" meaning of NBC based only on revisionist facts that turn out not to be facts at all borders on being obscenely disrespectful of American values.
I agree with this: Our electorate has been so badly maleducated (including birthers) that someone else may well have knocked Cruz off with stupid reasoning. So Trump's defense is, "If I didn't do it, someone else would have." I get that.
I also get that Trump has a better chance of defeating the Witch-Hag-Hillary. Trump may be the Kraken, but, hopefully, he is our Kraken. Sometimes, the Rules of the Marquis of Queensbury simply will not work.
So Trump has my vote and my support. But birthers need to stop with the bs!
Hopefully, by 2020, among all but the most obtuse, this birther bs will have been put to rest by the Courts. We need to preserve the eligibility of our best.
There are so few real Americans remaining, as opposed to Globalists. What ensures a tie between our best and the American Ideal is having been raised by a good American parent. Place of birth is simply not much of a determinant! It would seem better if we could render ineligible those people who have resided too long in Blue States. But most would agree we should instead trust in God and the eventual revivial of common sense among Americans to sort out the best candidates.
Cruz' mother is an American. I have seen nothing to indicate any disloyalty in her. Cruz lived nearly all his life in America. He has strong ties with Texas. In my book, that makes him much more likely to be a defender of American values than any birther who was born, raised, and marinated in a Blue State.
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Being born on a military installation has nothing to do with the legal analysis. This has been explained ad nauseum. If you cannot follow basic syllogisms, I cannot help you. Enjoy your world.
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I'm sorry, but your beliefs do not trump law. If ever your beliefs about what the law should be become then and there confused with what the law is, then God help us all. Maybe we should be ruled by the Oracle at Delphi?
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Well, you are just wrong about that. The UNCONTESTED EVIDENCE is that Obama's mother was an American citizen, as was Cruz' mother. That is all the evidence the statute requires!
The rest of the case depends on arguments of law. Those arguments of law concern the meaning intended by the Founders in their usage of the terminology "natural born citizen." Those arguments depend not on "evidence" but on legislative and constitutional history -- of which the judges have access and can take judicial notice. To claim NBC diehards have not had a full opportunity to present their "evidence" is simply silly. That legislative history has been argued, briefed, and presented -- AD NAUSEUM!
PENNSYLVANIA: the Commonwealth Court of Pennsylvania has decided the question on its merits, in a decision authored by Senior Judge Pellegrini, filed on March 10, 2016. Elliot v. Cruz, No. 77 M.D. 2016 (Commonwealth Court, March 10, 2016). Judge Pellegrini determined that Senator Cruz was eligible to appear on Pennsylvania’s Republican primary ballot, finding that he met the criteria of “natural born Citizen.” On March 31, 2016, the Pennsylvania Supreme Court affirmed the Commonwealth Court’s decision, without discussing the merits of the issue. Elliot v. Cruz, J-56-2016.
NEW JERSEY: See http://media.philly.com/documents/Judge's+ruling+Ted+Cruz+to+remain+on+NJ+ballot.pdf:
"[T]he factual basis upon which this decision is rendered must be clear. As discussed with counsel at hearing, it is undisputed that Senator Cruz was born in Calgary, Canada, the child of a mother who was an American citizen and a father who was not a citizen of the United States...."
"The meaning of “natural born Citizen” must then be determined with reference to its meaning under the English, or as it is also referred to British, common law. As the Supreme Court has noted, words and phrases used, but not defined, within the Constitution, should “be read in light of British common law,” since the U.S. Constitution is “framed in the language of the English common law.”
"[T]he more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a “natural born Citizen” within the contemplation of the Constitution. As such I CONCLUDE that Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President.
Carmel v. Texas, 529 U.S. 513, 521, 120 S.Ct.1620, 1627, 146 L.Ed.2d 577, 588 (2000)(meaning of an undefined term in the Constitution “necessarily requires some explanation,” and “the necessary explanation is derived from English common law well known to the Framers.)"
Allen v. Arizona: In Allen v. Arizona Democratic Party, it was alleged that Obama was not a natural-born citizen because his father "was a resident of Kenya and thus a British citizen". Allen argued that the U.S. Supreme Court's ruling in Minor v. Happersett required a natural-born citizen to be born in the U.S. of two U.S. citizen parents; however, the judge dismissed the suit on March 7, 2012, ruling that "President Obama is a natural born citizen under the Constitution" and that "[c]ontrary to Plaintiff's assertion, Minor v. Happersett ... does not hold otherwise.
Tisdale v. Obama: -- Charles Tisdale v. Barack Obama, Ron Paul, Mitt Romney (D.C. Cir. 15 June 2012).
On January 17, 2012, Charles Tisdale of Virginia brought a civil action before the US District Court for the Eastern District of Virginia. In the suit, Tisdale alleged that Barack Obama, Mitt Romney and Ron Paul each had a non-citizen parent, and therefore should be barred from the November 6, 2012, presidential ballot in Virginia. An amicus brief was filed in support of the Plaintiff by attorney Mario Apuzzo. District Judge John A. Gibney, Jr., dismissed the suit with prejudice because the Plaintiff "does not to state a claim upon which relief may be granted." Judge Gibney explained: "It is well settled that those born in the United States are considered natural born citizens."[176] The dismissal was affirmed without comment by the US Court of Appeals for the Fourth Circuit on June 5, 2012
In Robinson v. Bowen, a federal district court implicitly adopted a meaning of the term “natural born” citizen in the presidential eligibility clause which would include not only the narrowest “common law” meaning (jus soli, being born geographically in the United States without reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
Illinois: On September 13, 2012, a state board rejected three challenges to Obama's placement on the November ballot, finding the challenges were raising arguments that had been previously rejected and based on "an incorrect legal interpretation of what constitutes a 'natural born citizen.'"
Georgia: Several Georgian citizens... filed challenges with the Georgia Secretary of State, Brian Kemp, regarding Obama's inclusion on the March primary ballot.... Neither Obama nor his attorney appeared at the January 26 hearing. This normally would result in a default order, but the challengers requested Malihi to allow them to go ahead with the hearing and rule on "the merits of their arguments and evidence". Taitz called eight witnesses (including herself), and presented seven exhibits in support of her claims that Obama was not a natural-born citizen... Taitz asked Malihi to find Obama in contempt for failing to appear.... On February 3, Malihi recommended that Obama remain on the ballot. Concerning Taitz's case Malihi wrote: "The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support plaintiffs’ allegations". The Drudge Retort described the hearing as, "Empty Table 1, Orly Taitz 0"
Hollister v. Soetoro: On March 5, 2009, a lawsuit filed by Philip Berg on behalf of Gregory S. Hollister, a retired Air Force colonel, against Barack Obama ... . The suit was dismissed in the United States District Court for the District of Columbia. The presiding judge, James Robertson, said the case was a waste of the court's time, calling Berg and another lawyer "agents provocateurs" and their local counsel, John Hemenway, "a foot soldier in their crusade." He ordered Hemenway to showcause why he should not pay the legal fees for Obama's attorney as a penalty for filing a complaint "for an improper purpose such as to harass". The district court ultimately reprimanded Hemenway for his actions, and the United States Court of Appeals for the District of Columbia Circuit upheld the dismissal of the case and Hemenway's reprimand.
On October 13, 2009, Judge Clay Land ordered "Counsel Orly Taitz ... to pay $20,000 to the United States, through the Middle District of Georgia Clerk's Office, within thirty days of the date of this Order as a sanction for her misconduct in violation of Rule 11 of the Federal Rules of Civil Procedure." Land's decision stated:
The Court finds that counsel's conduct was willful and not merely negligent. It demonstrates bad faith on her part. As an attorney, she is deemed to have known better. She owed a duty to follow the rules and to respect the Court. Counsel's pattern of conduct conclusively establishes that she did not mistakenly violate a provision of law. She knowingly violated Rule 11. Her response to the Court's show cause order is breathtaking in its arrogance and borders on delusional.
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There is always paperwork, even for persons born in the U.S. The question is this: Is the paperwork in the nature of a registration that, on proof, cannot be denied, or is it in the nature of an application, that requires an oath of allegiance and/or discretionary denial?
You may notice that I usually talk about "citizenship of right at birth." I may slip occassionally. But I recognize that the right can be forfeited. At the time Cruz was born, his mother had already met her residency requirement. It is not clear that Obama's mother had met hers.
If Cruz had not moved to the U.S. before becoming an adult, he might have forfeited his claim of right. When a child's parents are of varying citizenship, some countries consider the child's claim of right to citizenship to be inchoate. Even so, where the child timely establishes residency, no case is known to deny him/her citizenship, natural born status, or to require him/her to apply after birth to become a citizen.
Filling out information on documents to claim a right is not what I would call an "application to become a citizen." Rather, I would liken it to a registration of citizenship. When parents provide or fill out birth certificate information, we don't consider them to be applying for their children to become citizens. Same with filling out a CRBA.
Naturalization is a word that is sometimes applied in a general sense and sometimes in a specific sense. In a general sense, anyone who is made a citizen of right at birth because of legislation, who would not be a citizen but for such legislation, is naturalized. So, as Michael Ramsey says, Ted Cruz IS a naturalized citizen. Even so, because he was a citizen of right at birth, he is a natural born citizen.
Per the case holdings on merits that I cited to Questioning, to be generally naturalized in that way does not preclude one from being a natural born citizen. Rather, a natural born citizen includes one who, in the nature of things, is born a citizen of right, as by legislation.
In a more common and specific sense, naturalization often describes the process for becoming a citizen upon application.
Even the word "application" can be ambiguous. There are applications that can be denied, and there are applications that, upon proof of eligibility, cannot be denied. A bastard child who is born abroad of an unwed American serviceman has a RIGHT, if timely pursued, to be recognized as a citizen.
Exercising such right requires action, as by actually establishing residence in the U.S., or by timely exercising the claim before it is voluntarily forfeited by continuing to live abroad. This is provided at least one parent resided a requisite time within the U.S. before the child was born. So, even a child who does not want to move to the U.S. but only to establish U.S. citizenship may be provided with means so to register (apply). See generally http://greencardlawyers.com/citizenship/FAQchildbornabroad.html.
Depending on Congressonal Acts then in effect, a foreign born child may not have a right to at birth citizenship if no parent resided a requisite time in the U.S. And the right to claim the citizenship may be forfeited by declining to establish U.S. residency or take alternative action.
So I much doubt that a child born abroad of an unwed serviceman would be denied a birthright claim to citizenship, unless the child forfeits the right, as by failing timely to move to the U.S. I don't equate a child REGISTERING his birthright claim of citizenship to an APPLICATION to become naturalized after birth. Rather, the cases you are aware of surely entailed a late registration or a parent who had not himself met residency requirments to be able to transmit citizenship. Provided the child's claim had not been forfeited, his/her "application" would be more in the nature of a registration (with proof of facts pertinent to the registration).
If there were a pertinent distinction between Obama and Cruz, it would have to do with whether Obama's mother met residency requirement to be entitled to transmit a claim of birthright citizenship. Even then, to be decisive, proof would be necessary that Obama was born outside the U.S.
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Once our electorate is flipped, the NWO will rule and none of this will matter. Had our electorate remained sane, it would have vetted candidates and itself provided the best insurance against a disloyal despot.
But now we need a COS. A miracle. A restoration of spiritual faith. A renewed appreciation of the American Ideal. An adequate check against oligarchs buying and selling politicians like commodities. A Congress that writes better immigration laws for ensuring proper assimilation to the American Ideal. Better restrictions on citizenship. Restoration of oath to defend as part of conferring of citizenship.
IAE, not everyone is eligible to become President. A candidate must be a citizen. 35 years of age. With 14 years residency in the U.S. And natural born, within the meaning as inherited from the British. That is, the candidate must have been a citizen of right at birth, who never needed to apply to become a citizen. So, there are restrictions. Just not guarantees of good candidates.
Congress was given an enumerated power to establish a uniform rule of naturalization, with power to make all laws which shall be necessary and proper for carrying into executon such power.
Congress has exercised such power to provide for who is a citizen of right at birth versus who can apply to become a citizen after birth and how such application should proceed.
If Congress continues to fall under complete dominance by the NWO, the republic is a goner. If Congress can have its feet held to the fire, good sense may be restored. Good sense would limit immigration. It would forbid further immigration by Muslims. It would require a basic understanding of English. Congress ought not be making persons citizens at birth unless born of an American parent who has resided in the U.S. a considerable time period. Congress ought to be able to establish rules for forfeiting every kind of citizenship of persons who have voluntarily severed residency and visitation with the U.S. for extended periods of time.
Those are oughts. Taking the law as it now is, Congress has made persons like Ted Cruz, born of an American parent, citizens at birth. As such, they are made citizens in the natural course of things, without needing to make application. IOW, they are natural born citizens.
IAE, all other persons of the world who were not born citizens of right of the U.S. are not natural born citizens, and are not eligible to become President.
In the broadest usage of "naturalization," Congress has power, by statute, to make citizens at birth. In the more narrow usage of "naturalization," persons are more commonly considered to be naturalized when they are brought into a country and made citizens at some time after they were born.
In the common usage, a person who is a citizen at birth is not naturalized. However, in the broadest usage, under the enumenrated powers delegated to Congress, Congress has power "to naturalize" such classes of persons as may thereafter be born under provisions of its statutes.
Under founding precedents, a person born in the U.S. of a citizen father would be a citizen at birth. Under later statutes, a person born abroad of a citizen father would be a citizen at birth. Under the 14th Amendment, a person born in the U.S. (not of invading parents) would be a citizen at birth. Under present statutes, a person born abroad of a U.S. parent, especially one who was an adult who had resided in the U.S. a requisite period of time, would be a citizen at birth.
All such citizens at birth would NOT be disqualified from becoming President on account of citizenship.
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I can't account for bureaucrats. And I suspect agencies do not always write or apply regulations in ways that faithfully comport with the law.
Was there proof of paternity and of each father's citizenship, and of his residence in the U.S. for five years before his child's birth, at least two of which were after age fourteen? Were the fathers paying child support? Were their acknowledgments of paternity under oath?
Regardless of what the mother was told while the children were out of country, did she, once the children were permanently in the U.S., request a Certificate of Citizenship?
When you say the children were naturalized, what do you mean? Did they take a test or oath? Undergo a judicial proceeding? Or did they just get registered? Did the mother calculate that applying for naturalized-after-birth-citizenship was easier than obtaining sufficient evidence of the father's authority to transmit citizenship and then registering the children for citizenship?
See this: https://www.legalzoom.com/articles/is-your-child-a-us-citizen-if-born-abroad:
"[A] child who is under the age of 18, was born outside the U.S., and has at least one U.S. citizen parent automatically acquires U.S. citizenship upon entry into the country as an immigrant. No further paperwork is necessary. The parent may request a Certificate of Citizenship and U.S. Passport for the child if proof of the baby's American-ness is desired."
"The law in place at the time of the child's birth governs immigration, so research carefully."
"In any case, you should register your child's birth with the embassy [CRBA] as soon as possible as the first step in establishing your child's claim [CLAIM OF RIGHT] to U.S. citizenship at birth."
Note: To the best of my information, no one has found any CRBA, or post-birth naturalization application, concerning John McCain.
SEE ALSO http://statesidelegal.org/citizenship-children-born-servicemembers-overseas:
"Certain children born outside the U.S. to U.S. citizens are citizens from the moment they are born. The law on this has changed many times since the early 1900’s. The law in effect on the date of the child’s birth is the law that controls. This discussion refers to the law that has been in affect since November 14, 1986. A child born outside the U.S. after that date is a U.S. citizen at birth in the following situations:
...
The child’s parents were unmarried when the child was born. Only the child’s father is a U.S. citizen. Before the child’s birth, the father lived for at least five years in the U.S. At least two of those years were when the father was older than 14. Time living abroad while on active duty in the U.S. military counts as time living in the U.S. Before the child’s 18th birthday, the father legitimated the child:• through marriage, or through the appropriate legal process in the country where either the child or the father lived.
Or the father acknowledged paternity in writing under oath, or paternity was established by a competent court, and the father agreed in writing to financially support the child until the child turned 18.
A child abroad who is a U.S. citizen from birth can apply (or his parents can apply) for a certificate of birth abroad, and for a U.S. passport, from the nearest U.S. consulate.
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If Cruz was born of an American mother who had met her residency requirement, and if he timely established his own residency, then Cruz is a citizen as a matter of well established law. Apart from that, you have done yeoman's work collecting a mother lode of irrelevant crap.
You would be more convincing if you did not include all the Birther crap in your list. That marks you as uninformed or undiscerning. People who can think, read, and chew bubble gum at the same time tend to understand that Cruz is eligible. Unless you NBC diehards think every judge who has presided over a case on the issue is just a dummy. Since I don't know you for a legal scholar, I'll go with the judges and my own legal training. Thanks all the same.
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I am familiar with the NBC propaganda. I know where all the non-sequiturs in it are buried. Anyone who can think past propaganda should be able to easily see it, too. It's all of a piece with nit-wittery. Sorry, but lameo reasoning and two-bit sound bites do get tiresome.
The arguments are just so completely silly.
1) That we fought the Revolution to break away from English common law.
Uh, no! No sane lawyer says that. We fought because we thought the law was being applied unequally and unfairly against us. Indeed, we enshrined much of English law in our Constitution and Bill of Rights. We got our ideas about due process, ex post facto laws, habeas corpus, bills of attainder, etc., from the English. Not the French.
(See Smith v. Alabama, 124 U.S. 465: The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.)
2) That we applied Vattel instead of Blackstone because we became citizens rather than subjects.
Uh, no. The English are still under a monarchy, and they ARE citizens. Moreover, the French were subjects as much as the British. So that is another silly argument.
If being a monarchy precluded the subjects of Britain of 1776 from being citizens, then the Britain of today would not have citizens. But it does! Indeed, Citizenship is a compulsory subject of the National Curriculum in state schools in England!
3) That all persons born within a territory of parents who are citizens of it are themselves citizens, as a matter of "Natural Law."
Uh, no. Not all nations recognize any such natural law. Some do not accord citizenship to children until they reach an age of responsibility. Some nations, such as tribal nations, have not even had set boundaries to be born into. Many nations base citizenship for children upon the citizenship of their parents. The idea that Mother Nature has handed down "natural law" (on stone tablets?) that everyone agrees upon is ignorantly uninformed.
4) That the Founders took the idea of natural born citizenship from Vattel.
Uh, no. That terminology was not even published in any edition of Vattel's work until more than 30 years after his death. The actual language that was available to the Founders at the time of the drafting of the Constitution does not necessarily or precisely translate as NBC people want to say. *The so-called translation they rely on was made after the fact of the American Revolution and drafting of the Constitution. IOW, it was obviously rationalized to a result. Moreover, the Founders quoted Blackstone more often than they quoted Vattel.
5) That the term, natural born citizen, was not used in the colonies before the Constitution was drafted in 1787.
Uh, no. The term was frequently used and well understood.*
[*Quote from "Dr. Conspiracy" -- Where did John Jay get the term natural born citizen?
I know of no historical reference that directly tells us the answer. He did not get it from the English translation of The Law of Nations, because the phrase wasn’t there until years later. I’m pretty sure that I know where it came from, though. The Naturalization Acts of New York from 1770 used the phrase “natural born subject” such as in the following:
BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.
[A] few years later after the Revolution we see similar language in a naturalization act of Massachusetts (1784):
“…thereupon, and thereafter taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
It seems very likely that when the Colonies became States, and subjects became citizens, the form of the naturalization acts changed, replacing “subject” by “citizen”. It’s certain that the British Colonial language came from British common law. If indeed the States just substituted citizen for subject, then it is pretty certain that they retained the common law meaning. Jay, a lawyer, would have been familiar with the acts’ language. Lacking any other likely candidate, I think this is where Jay got the phrase.]
[Quote from "Dr. Conspiracy" -- It is not that Americans didn’t have English translations of The Law of Nations; they did. The point is that those translations didn’t say “natural born citizen.”
Prior to 1797, all English translations of The Law of Nations, including the 1787 American Edition all said “natives or indegenes” (italics in the original). It was not until the 1797 edition that the new translation used the words “natives or natural born citizens.”]
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Birthers have misconfabulated on so many points, it's hard to see why any person of reasonable intellect would be much influenced by their confused propaganda and often outright misrepresentations. I have been through most all of it. Everywhere, it's filled with weak reasoning, silly misconceptions, and often outright misrepresentations. Others have said, and I agree with them, Never trust a Birther.
Egad! Many Birther interpretations of holdings of case precedents are juvey at best, and often completely antithetical to the actual holdings. Much of it is gagging to anyone with ability to read law.
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*"Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens" would, in English, give, "[T]he natural, or indigenous, are those born in the country, parents who are citizens."
While this may mean that the indigenous are those born in the country of parents who are citizens, it does not necessarily mean that ONLY the indigenous can be considered as natural born citizens!
Moreover, it does not, grammatically, mean that both parents, including the mother, must have been citizens.
ONLY AFTER France became a republic and the U.S had won its War of Independence did translators find it convenient to translate "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens" as if it had all along meant "The natives, or natural-born citizens, are [only?] those born in the country, of parents who are citizens." But for those after effects, there was no necessary one-on-one translation to such effect.
The notion that the American usage of "natural born citizen" was derived from Vattel has become a Birther contrivance of convenience. Whatever edition or translation the Founders may have had in 1787, it did not directly avail the formulazation, "natural born citizen." Moreover, if the framers had wanted to refer to de Vattel, then they surely would have used his words from the edition they had. However, the words “natives or indegenes” are not in Article II of the Constitution.
Uh, to be a natural born citizen, you first need to be a citizen. Or maybe you know a way to be a natural born citizen without being a citizen? A people define a nation. To have citizens of any kind, you need to have a nation. That entails law. Manmade law is how nations and citizens are made. Mother Gaia has nothing to do with it. Mother Gaia is only a fairy tale for children and very confused philosophers.
There have even been nations that are tribal, that don't have fixed borders. If to be a natural citizen among them required being born in country, they would have had no natural citizens.
This is not really that hard. So far, only die hard rationalizers have trouble with it. Certainly not any judges deciding actual cases.
You just don't get that, in the U.S., manmade laws are precisely what convey citizenship. In the U.S., the idea of natural born citizenship was derived through the British, who most certainly did adjust parameters for it via legislation. Mother Nature certainly doesn't define citizenship, regardless of whether or not a person is a pagan.
Manmade law is precisely what defines nations and the very concept of citizenship. Newsflash: The Constitution is manmade law. It gives general guidance and sets out limits within a system of checks and balances. It does not precisely define citizen, whether natural or not. It defers to traditional common law sources and balanced branches of government. What it does not defer to are after-the-fact diehard rationalizers.
All the diehards accomplished was to generate sympathy for Obama and backlash against Trunp. Not so smart. And still with no judge ruling for them. But I guess they're all just dumb, right? Lol.
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More Birther BS. The Nit-Witery just never stops. Nothing can stop the Dukes of Stupidity.
Show me John McCain's CRBA. Do you not understand the difference between registering as a matter of right versus applying subject to discretionary refusal? Lack of a CRBA simply does not make a U.S. citizen not a U.S. citizen.
Regarding the CRBA: The paperwork is only evidentiary of the fact. Everyone can be subjected to having to prove a right especially when crossing borders.
Example: When you apply for a passport, you have to fill out forms. But that does not mean that you did not have the right to the passport. The forms are the method for recording the facts by which to exercise the right.
John McCain did not forfeit citizenship because his parents failed to file a form. Your right to obtain a passport precedes your filling out forms to register for it. The forms simply make it convenient for you to prove and exercise the right.
But if you found yourself in a foreign country and lost your passport, I'll bet an embassy would assist you in reclaiming your right. You would not forfeit your citizenship for not having the passport.
CBRA registration is simply not required to maintain birthright citizenship. See https://www.law.cornell.edu/supremecourt/text/13-628 and unrefuted concurrence by Justice Thomas in Zivotofsky v. Kerry, 725 F. 3d 197, "It [Congress] has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process." 8 U. S. C. §§ 1401(c), (d), (g).
As to McCain, don't give me more Birther crap about military bases.
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.
Birthers -- industrial grade stupidity that can never be fixed. Inform them of their error and they will simply return to it in a few minutes, like a dog returning to its vomit.
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You could not be more wrong. Do you ever actually look at the source law? And btw, McCain, born in 1936, was not likely born in a base hospital or in the canal zone, since the people who were stationed there at the time say there was no such a base facility.
See Post by: TheGribbler | May 2, 2008 11:46 AM |:
"McCain was born in Colon, Panama, on the Atlantic Side of Panama. There was no military or US civilian hospital on the Atlantic at that time he was born. This is the reason there are no Canal Zone Health Department records. He was not born in the Canal Zone. His birth record is right in the Colon Hospital, Panama, records along with every one born on the Atlantic Side of Panama who was living in the Canal Zone at that time. His birth location of Colon is no secret in Panama. In fact, those of us from the Canal Zone are amazed about his "military hospital birth" claim which is pure fiction."
See also http://moritzlaw.osu.edu/electionlaw/litigation/documents/Hollander-Order-7-24-08.pdf, at footnote 1: "1Though Hollander makes this allegation in his complaint, in his objection he states, “[s]ince the hospital at the Coco Solo Naval Air Station did not even exist until 1941 . . . , it is reasonable to assume that [McCain] was born in the city of Colón in the Republic of Panama.”
Regardless, no one but an uninformed Birther would make the argument you just made.
Lol. For a fellow birther's take on why he thinks McCain remains ineligible, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1157621:
"Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union."
....
"[I]n the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens."
....
"[T]he only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution."
MY NOTE: NOPE! SEE COMMENT AT BOTTOM#
Compare http://www.factcheck.org/2008/02/john-mccains-presidential-eligibility/.
And compare http://voices.washingtonpost.com/fact-checker/2008/05/citizen_mccain.html:
"I have been getting phone calls from retired State Department types who say that McCain's strongest argument that he is a natural-born citizen is that he was born abroad to two U.S. citizens. The fact that he was born on a U.S. military base or in the Panama Canal Zone is of secondary importance, they say. Not everyone born on a U.S. military base or in the Canal Zone (during the period when it was under U.S. jurisdiction) has the right to U.S. citizenship."
....
"Normally, parents of children in the Jus Sanguinis category file a Form 240 Report of Birth to the local U.S. Consulate to establish the right to citizenship. For what it's worth, it does not seem that McCain's parents filed such a form. Looking through State Department records at the National Archives, I found numerous Forms 240 filed for children born in the Canal Zone in 1936, but no such form for Senator McCain. (The fact that his parents did not file the form does not mean that he is not a citizen, just that it could be a little more difficult to prove.)"
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MY COMMENTS:
See https://en.wikipedia.org/wiki/United_States_nationality_law#Through_birth_abroad_to_United_States_citizens:
"In 8 U.S.C. § 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother or father who is a United States citizen, was "declared" to be a United States citizen at birth."
NOTE: Problem is, that statute was not enacted until 1952. So how could it make McCain a citizen upon his birth in 1936? So, was another Naturalization Act in effect that could do the job, such as a predecessor to the Immigration Act of 1952?
McCain was born after the Immigration Act of 1924 and before the Immigration Act of 1952. The writer for the Washington Post assumed McCain would be a citizen at birth based on both his parents being U.S. citizens. However, without more research, I am uncertain whether there was a statute in effect in 1936 that established such a result. If there was not, then McCain's claim of eligibility may have been based on legislation after the fact. See e.g., http://law.justia.com/constitution/us/article-1/35-naturalization-and-citizenship.html
FOLLOW UP NOTE: I FOUND THE STATUTE. SEE COMMENT AT BOTTOM.
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For birth in Panama:
See "http://panama.usembassy.gov/consular_report_of_birth_abroad_and_first_passport.html#WhichChildrenAcquire
The Consular Report of Birth Abroad (CRBA) is a light blue certificate which usually serves in lieu of a local birth certificate and is considered a basic U.S. citizenship document. U.S. citizen parents should file for a CRBA as soon as possible after their child’s birth. When filing for a CRBA for your child, you may also apply for his or her first U.S. passport and Social Security number at the same time. CRBAs cannot be issued for persons 18 years of age or older.
Children born outside the U.S. or its outlying possessions acquire U.S. citizenship at birth in the cases listed below. In ALL cases the U.S. citizen parent must have acquired his/her U.S. citizenship before his or her child’s birth.
For birth in Germany:
See https://de.usembassy.gov/u-s-citizen-services/military-families/:
"All Department of Defense-affiliated personnel must apply for passports." and reports of birth through their local Passport Agents on base.
Report of Birth:
Consular Reports of Birth Abroad
Most children born to an American citizen parent will become U.S. citizens at birth, but you should document the birth as soon as possible by applying for a Consular Report of Birth Abroad (CRBA). You can find information on the acquisition of U.S. citizenship by a child born abroad here. The CRBA is proof of the child’s U.S. citizenship and substitutes for a U.S. birth certificate for most purposes. You can apply for your child’s passport and for a social security number at the same time. (You will need a social security number for the child to claim a deduction on your federal tax return.)
Process: Your military passport acceptance agent will help you complete the required forms and advise you on the documents you need to present. Once all the forms and documents are done, the military acceptance agent will send the package to the Consular Section in Frankfurt to process. You will normally receive the CRBA within 6-8 weeks of applying.
....
– If the parents are not married and the father is a U.S. citizen, he must have been physically present in the United States for a minimum of five years before the child was born, at least two of which were after the age of 14. The presence does not need to be continuous.
....
For Japan, see http://japan.usembassy.gov/e/acs/tacs-crba.html:
"A Consular Report of Birth Abroad is only issued to a child who acquired U.S. citizenship at birth and who is under the age of 18 at the time of application."
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#See http://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd:
At the time of Senator’s McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73- 250, 48 Stat. 797.
So, McCain was a citizen at birth, i.e., a natural born citizen. He qualified as such only because of a statute, similar to Cruz's situation. If such statute made McCain an eligible NBC, then its successor likewise made Cruz an eligible NBC. So how do Birthers respond? Well, by denial, covering their ears, and repeating lalalala.
