Posted on 03/02/2010 11:43:58 AM PST by patlin
I was going to write an seperate article regarding this, but due to time constraints, I am just going to post this long hidden from public domain article regarding eligibilty requirements of those attaining to the office of POTUS. You can click the link at the end of the article to further read why a general definition of 'Native born' does not equate to 'Natural born' and how the DRONES try to obfuscate the debate in order to make them sound like they are equal on all levels. _________________________________________________
NATURAL-BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE OFFICE OF PRESIDENT
By ALEXANDER PORTER MORSE (ALBANY LAW JOURNAL VOL. 66 (1904-1905)
As a wide-spread interest attaches to the discussion of the meaning and scope of the constitutional provision in respect to eligibility for the office of president of the United States, I submit some views in this relation which may be opportune.
The question is often asked: Are children of citizens of the United States born at sea or in foreign territory, other than the offspring of American ambassadors or ministers plenipotentiary, natural-born citizens of the United States, within the purview of the constitutional provision? After some consideration of the history of the times, of the relation of the provision to the subject-matter and of the acts of congress relating to citizenship, it seems clear to the undersigned that such persons are natural-born, that is, citizens by origin; and that, if otherwise qualified, they are eligible to the office of president. In respect to the citizenship of children of American parentage, wherever born, the principle of ius sanguinis seems to be the American principle; that is to say, the law of hereditary, rather than territorial allegiance, is recognized, which is modern, as distinguished from the ancient, and at one time, common-law principle of jus soli. If the provision was as sometimes inaccurately cited, namely, that the president must be “a native-born citizen,” there might be no question as to its meaning. But the framers generally used precise language; and the etymology actually employed makes the meaning definite. Its correspondent in English law, “natural-born subject,” appears in constitutional history and parliamentary enactments; and there it includes all children born out of the king’s allegiance whose fathers were natural-born subjects; and the children of such children (i. e., children whose grandfathers by the father’s side were natural-born subjects), though their mothers were aliens, are now deemed to be natural-born subjects themselves to all intents and purposes, unless their said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with Great Britain. At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “ native citizen” should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are essential to intelligent discussion.
The earliest act of congress to establish a uniform rule of naturalization (March 26, 1790) contained the following clause: “And the children of citizens of the United States that may be born at sea or out of the United States, shall be considered as natural-born citizens.” The draft of this act has been credited to Mr. Jefferson, although his authorship has been questioned; and his reputed relationship to it may be ascribed to the fact that he was the author of the original naturalization acts in the Constitution of Virginia, and was an ardent supporter of a wise system of naturalization laws before and after he became President. But whoever drew the act followed closely the various parliamentary statutes of Great Britain; and its language in this relation indicates that the first congress entertained and declared the opinion that children of American parentage, wherever born, were within the constitutional designation, “natural-born citizens.” The act is declaratory; but the reason that such children are natural born remains; that is, their American citizenship is natural—the result of parentage—and is not artificial or acquired by compliance with legislative requirements. The second act of naturalization (January 29, 1795), which was reported and probably drawn by Mr. Madison, chairman of a select House committee, enacted “That the children of persons duly naturalized dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States shall be considered as citizens of the United States.” As carried forward in the Revised Statutes, the provision reads: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” This provision, as its terms express, is declaratory; it is not the statute that constitutes children of American parentage citizens; it is the fact of American descent, the jus sanguinis, that makes them citizens at the moment of birth—a fact which, for sufficient and convenient reasons, the legislative power of the State recognizes and announces to the world.
If there was ambiguity, the rights and privileges of children of American parents dependent upon constitutional guarantee would demand recognition; and constitutional guaranties in favor of such persons might not be restricted or denied by congress.
To return to the constitutional requirement in respect to eligibility for the office of president, let us inquire what was the obvious purpose and intent of the limitation? Plainly, it was inserted in order to exclude “aliens” by birth and blood from that high office, upon considerations which naturally had much weight at the time of the adoption of the Constitution. It was scarcely intended to bar the children of American parentage, whether born at sea or in foreign territory. Where it was said in the old books that an alien is one born out of the king’s or State’s dominions or allegiance, this must be of the limits understood with some restrictions. A forced or restricted construction of the constitutional phrase under consideration would be out of harmony with ‘modern conceptions of political status, and might produce startling results. It remains to be decided whether a child of domiciled Chinese parents, born in the United States, is eligible, if otherwise qualified, to the office of president and to all the privileges of the Constitution. And it would be a strange conclusion, in another aspect, if the child of American parents, born in China, should be denied correspondent rights and privileges in the United States.
A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.
Our conclusion is that the child of citizens of the United States, wherever born, is “a natural-born citizen of the United States,” within the constitutional requirement; and, as such, if possessed of the other qualifications, would be eligible for the office of president of the United States.
WASHINGTON, D.C., March, 19o4
click on link above to go to the article defining the different definitions of 'Native born'.
Not that you’re necessarily wrong ... but a Law Journal Article is pretty weak support.
SnakeDoc
*** but the rights of citizenship shall not descend to children whose fathers never resided in the United States.***
bookmark
Sorry. Couldn't make it past this opening.
Legally speaking, treatises are not controlling anywhere or for anyone. Law Journal articles are the legal equivalent of an op-ed. Anyone, particularly any “legal scholar” or professor (no matter whether they’re right or wrong) can write a treatise.
When writing about a legal subject — particularly Constitutional law — treatises and law journal articles are among the lesser sources to cite.
SnakeDoc
I’ve seen this argument (that natural born citizenship requires 2 U.S. citizen parents, or at least a U.S. citizen father) before, and I’ve always had one question - what if we don’t know the identity of someone’s father? Is a child born out of wedlock to a U.S. citizen mother, who does not know the identity of the child’s father, a “natural born citizen” who will grow up to be eligible to serve as President?
An infant is subject to the sovreignty of the head of state of the geographical area in which he is born. The conflicting sovreignty was one of the the foundations of the Natural Born requirement in the US Constitution.
At this point, given the politicization of the courts, you cannot be certain how any of these issues would come down on a given set of facts.
In the current setting, I think in a suit seeking to enject Obama for failing to meet the test because of his failure of the place of birth test, I think the Supreme Court would likely decide that McCain flunks also because he fails the same test for the same reason.
I would grant you that the Obama result would be clearer than McCain although the fact that McCain also has a problem with his citizenship (the statute under which he claims was enacted several years after his birth and is not retroactive) combined with the place of birth problem, makes it likely that McCain would be held ineligible also.
Note that many of the European countries treat offspring to the second generation as citizens. Thus the grandchild of a person born in Sweden is a Swedish citizen eligible for a Swedish passport.
Ping
True. and it looks to me like this is more about the jus sanguis prong of NBC anyway, which is why McCain is an NBC. But, it is hard to explain things to them because they are just on a “language hunt” which they pretty much screw up and get out of context.
Its like One L’s doing their first online research, and they start citing “trespass” remedies out of the Timber and Forestry section of the statutes. They can’t figure out the potential damages because there aren’t any trees involved in their fact pattern.
So they come up with, “Mary Lou is not liable to Sally May in trespass for burning down her house during an unauthorized entry onto the property to have a party because no trees were harmed during or a as a result of the entry. Had trees been damaged, then....”
But these guys are even worse than One l’s ,because even after you point out their boo boos, they don’t believe you.
parsy, who has been thru it with them
and your excuse would be ????
laziness??? Ignorance??? You are a DRONE???
It is well documented in US history as well as in Vattel & all other earlier law philosophers that children born out of wedlock & where the father makes no claim to the child that the children then follow the condition of the mother.
Ridiculous.
McCain was born to American parents on American soil, the Panama Canal Zone. He has more credibility for native born status than a child born to American parents on foreign military bases like Germany.
You need to learn some history. Until Carter turned the Cnal Zone over to Panama, it was American soil, and children born there are as American as Daniel Inoue (Territory of Hawaii) and Ernest Gruening (Territory of Alaska).
Sometimes I read ignorant stuff on FR, but you just took the prize.
>> Its like One L’s doing their first online research, and they start citing “trespass” remedies out of the Timber and Forestry section of the statutes. They can’t figure out the potential damages because there aren’t any trees involved in their fact pattern.
Haha.
I remember those people from law school. They’re the ones that would always enthusiastically raise their hand to answer questions because they’d spent hours in a library to come up with a “brilliant” answer from some random obscure source that nobody’s ever heard of.
If nobody’s ever heard of it ... its probably not the right answer.
SnakeDoc
None of the above. If someone doesn’t bother to check for poor grammar or spelling errors, I stop reading. Especially two in the first seven words.
Yule bee reel glad two no eye ran this story threw my pea sea spell checker bee four eye scent it two ewe last when’s day. It plane lee marks four my revue awl the miss steaks aye dew knot see. It freeze up lodes of thyme. Sew much better than bee fore wee rote with checkers!
That’s a lot of moaning over one extra letter in a word.
There is controversy over whether McCain was born in the Zone or in Panama proper — differing accounts. That’s where the questions arise.
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