Skip to comments.The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed.
Posted on 01/27/2012 10:02:09 AM PST by Danae
I have emphasized the word little because the truth of the law on this issue is very simple, folks. So simple that the mystery is deciphered by application of one of the most clear, concise and undeniable rules of law; the code of statutory construction governs, and therefore, natural born Citizen must require something more than being born in the United States.
Let me put it to you in appropriately simple language:
Clause A = Only a natural born Citizen may be President.
Clause B = Anyone born in the United States is a Citizen.
(While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as Clause A and Clause B for now.)
The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.
Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.
Clause A is a specific clause that says only those members of the nation who are natural born may be President.
According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.
Its truly that simple. This is not some crazy conspiracy theory. Its not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. Any attorney who denies this rule, is lying. The rule cannot be denied. And its simplicity cannot be ignored.
Now lets see what the United States Supreme Court has to say about the rule:
Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198 (1939). Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
This is what I mean by no wiggle room The courts are not at liberty to pick and choose among congressional enactments Any court construing Clause A is not at liberty to assume that Congress intended to put the words natural born into Clause B. The general does not govern the specific, and the rule requires the court to give effect to both if possible.
Is it possible to give separate effect to both Clause A and Clause B?
Yes. The Constitution tells us that any Citizen can be a Senator, or Representative, but that to be President one must be a natural born Citizen. The Constitution specifically assigns different civic statuses to Citizens and natural born Citizens. Therefore, not only is it possible to give separate effect to both Clause A and Clause B, it is absolutely required by law, and no court has the ability to circumvent the rule.
Had the original framers intended for any born Citizen to be eligible to the office of President, they would not have included the word natural in the clause. Additionally, had the framers of the 14th Amendment intended to declare that every person born in the country was a natural born Citizen, then the 14th Amendment would contain clear and manifest language to that effect. But it doesnt. Therefore, each clause must be given separate force and effect.
Deputy Chief Judge Malihi explained the rule of statutory construction in his denial of candidate Obamas Motion to Dismiss, wherein his opinion of the Court stated:
Statutory provisions must be read as they are written, and this Court finds that the cases cited by Defendant are not controlling. When the Court construes a constitutional or statutory provision, the first step . . . is to examine the plain statutory language. Morrison v. Claborn, 294 Ga. App. 508, 512 (2008). Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning. Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other natural and reasonable construction of the statutory language, this Court is not authorized either to read into or to read out that which would add to or change its meaning. Blum v. Schrader, 281 Ga. 238, 240 (2006) (quotation marks omitted). Order On Motion To Dismiss, Deputy Chief Judge Malihi, Jan. 3, 2012, pg. 3. (Emphasis added.)
Therefore, the term natural born must be considered as requiring something more than simple birth in the country. And Judge Malihi states, quite clearly, in his ruling above, that the Court is not authorized to read into or to read out that which would add to or change its meaning. The rule is the same for election statutes in Georgia as it is for the Constitution of the United States.
The rule of statutory construction, with regard to the Constitution, was best stated by Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137 (1803):
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. Id. 174. (Emphasis added.)
If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the natural born Citizen clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The United States Supreme Court has determined that it is inadmissible to even make that argument.
Any genuine construction of the natural born Citizen clause must begin from the starting point that it requires something more than citizenship by virtue of being born on U.S. soil. Minor v. Happersett, 88 U.S. 162 (1874), tells you exactly what that something is; citizen parents.
Leo Donofrio, Esq.
[For a more detailed analysis of this issue, please see my Amicus Brief entered in the Georgia POTUS eligibility cases.]
If you are a poster battling obots, or someone unfamiliar with the law and want to be better able to discuss why things are the way they are, or just want to understand the law better, this post of Leo's is one you can't miss.
PING to the Usual Suspects!
This post of Leo’s is brilliant! Enjoy!
This article is arguing for a third class of citizenship: native born but not natural born.
But, but.. What about the Commerce Clause, where the very general is held to require all kinds of specifics?
I wonder how any honest lawyer could argue against it.
I might even be inclined to say that...it's so easy, even a caveman could understand it.
With any due respect owed to any cavemen (or cavewomen) out there who may be ofeeeeended by that.
Great explanation. Yes, I had some obot’s throwing the 14th amendment around just this week. They think they are so smart. And playing the race card has worked so well that the courts and Congress are both too timid to address his ineligibility, even Fox and other conservative pundits.
So, this applies how to Obama? There have been reports a plenty that confuse rather than assure who his biological father even is. This clause business as posed by Leo has teeth, but we want to see it prevail in Georgia courts against the Obama arguement against it. Much smoke and many mirrors will be let, in order to obfiscate and delay that meeting in court before the election.
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 [p168] 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.
So maybe you can explain why the court made a point of emphasizing that it is sufficent to base its argument on ONE class of citizens specifically defined as having citizen parents. Why did the court do that??
Kind of explains why democrat apologists always push the "living Constitution" meme.
A living construct can evolve and change form to better suit evil doers.
A case in —iirc— Indiana recently broke the clear reading of the law as Leo has stated it. Sadly, it appears that teh SCOTUS under the pirate Roberts’ control is more than willing to allow that for the affirmative action Pres—ent he is protecting. If the courts functioned as purely as Leo’s fine description, the Republic would still be functioning under the Constitution. But it hasn’t been restrained by the Constitution for quite some time ... fantasy penumbras are the new Amendments.
Wrong ... but expected.
Holy mackerel. Shouldn’t the EPA also have some say in this litigation? I’m sure there must be a wet spot somewhere! LOL!
Well, I'm an attorney, and I've never heard of some proper noun, specific "Code of Statutory Construction". There are plenty of what normally are referred to as rules of construction, or principles of statutory construction, but I've never heard them referred to as a Code except when said "Code" is specifically enacted as part of legislation in a particular state. Most lawyers know that a Code refers to something formally enacted into law. Of course, that is an impossibility when we're talking about the Constitution, because the Constitution isn't a "statute", and its interpretation can't be governed by some subsequently-passed "Code". If someone is going to argue legal technicalities, they ought to get their terminology correct.
Second, I am familiar with a general rule of construction that corresponds to the "Code of Statutory Construction" the author claims to be citing. So in substance, he's at least right about the existence of such a principle of construction. That the specific controls the general is an accepted rule/principle.
But third, he is simply wrong to the extent he believes that rule compels the conclusion he offers. Either it's bad lawyering, or he's being disingenuous.
For the rule to apply, the second clause must be argued as changing the meaning of the first. If someone argues that Clause B changes the meaning of Clause A, then his argument that this cannot be the case is correct, because the specific governs the general. To the extent someone is arguing that, this point is correct.
The problem is that this ignores the most common argument --that the 14th doesn't change the original meaning of the NBC clause at all, but rather, is consistent with that original meaning. If you argue (as many do)that "natural-born citizen" was intended to draw a distinction between 1) people who were citizens at birth, and 2) people who were naturalized after birth, then the 14th Amendment didn't change the meaning of the NBC clause at all. Rather, it just changed the definition of who was a citizen at birth, but did not change at all the distinction between those who were citizens at birth, and those who were naturalized. The NBC still has its original meaning of barring naturalized citizens from the Presidency.
Now obviously, this put us right back to where we've always been in this dispute, which is whether the Framers were intended to incorporate De Vattel's definition, or the common-law English one, of citizenship. If the former, then the author is correct. If the latter, then he's not. And since people still disagree about this, this article doesn't really advance the ball at all. We're still left arguing over whether the De Vattel interpretation is correct, or not.
This is exactly the reason why anyone that fights for Obamas right to be on any ballot will only fight by stating this judge has no right to claim he is ineligible due to constitutional reasons. This is beyond his scope of practice.
They would never want this issue to be fought! They prefer to use every law in the book to smack it down rather than just getting this constitutional issue on the table and dealt with.
Why not since we have a divided nation on this subject don’t we just put this to rest and have it ruled on? It would be the easiest way to just end this whole dilemma! Instead we have to fight tooth and nail just to get a judgment on this issue.
We have to end the I’m right - you’re right mentality on this issue. Of course I wish to be right (2 citizens make natural born), but I am willing to truce if SCOTUS rules against this. Why are they not willing to state the same? Because I believe they know we are right!
You are naturalized automatically if born in the U.S. You are not Natural born automatically! Still 2 forms of citizenship! One that can be President and one that can not!
Here’s a dirtier little secret. See how many times bills have been introduced ammending the Constitution to allow non NBC’s to hold the office of President of the US. Bills introduced by both Rep.s and Dems. We are being screwed folks.
Whoever is the GOP nominee they should provide ample public proof that they were born in the US of parents who both were US citizens and then challenge Obama to provide the same information. However the GOP has become little more than the court eunuchs in emperor Obama's court so I see little chance of that happening.
The law is whatever the court says it is, on that day. How many courts refused to hear this case with the simple declaration that the complainant had no standing.
I hold out little hope that the courts will begin to look at the destruction of the Constitution as a bad thing, rather than participating in its destruction.
That's precisely what a 14th Amendment citizen is.
A "citizen" because they are born here...but not necessarily a "natural born Citizen" because they might also have allegience owed to another country by way of inheriting their parent(s) foreign citizenship.
Mitt Romney stated in front of a live audience in last nights debate that he was pro immigration because of the fact that his father George Romney was born In MEXICO! So why the world was his Dad running for President against Richard Nixon?
Where oh where will you find one. This thread will soon be invaded by lawyer types to tell you how stupid every one is, that thinks this means anything. They will cite myriads of precedent setting cases just to prove that common sense is really dead after all.
You're an idiot. This article is arguing for no such thing, NOR are those two "classes" of citizenship."
The article is brilliantly clear. You are trying to fog it up with stupid lies.
Go away, shill.
While Romney was born in Mexico, he was still considered a viable and legal candidate for United States president. His Mormon grandfather and his three wives had fled to Mexico in 1886, but none of them ever relinquished U.S. citizenship. While the Constitution requires that a president must be a natural-born citizen, the first Congress of the United States in 1790 passed legislation stating: “The children of citizens of the United States that may be born beyond the sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States.” Romney and his family fled Mexico in 1912 prior to the Mexican Revolution. However, the Naturalization Act of 1795 repealed the Act of 1790 and removed the language explicitly stating that the children of U.S. citizens are natural-born citizens. As such, it is not clear that Romney was actually eligible for the office of president.
Unfortunately, his plight was never ruled on since he never made it that far.
Clause A is a specific clause that says only those members of the nation who are natural born may be President.
According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.
Leo's a nice guy and I think I mostly agree that Framers intended NBC to mean a citizen child of citizen parents though I am less sure that whatever court has the final say on this has to rule that way.
But his logic here about "statutory construction" is flawed. It is flawed because these two clauses are not part of the same statute. Clause B came after Clause A and most likely was adopted without much thought given to clause A. Prior to the adoption of B, there were people born in the United States who were not granted citizenship (Dred Scott was one.) and the purpose of B was to change that.
The logic doesn’t follow through my friend. Read this again.
Wow, you really are an attorney.
All that obfuscation and hair-splitting under the claim of clarification, and then the final build up to two undefined positions with no specific contrast of substantive points.
Yep, you're not only an attorney, you're a well paid one.
constitutionallyspeaking Says:Your comment is awaiting moderation.
January 27, 2012 at 3:13 PM
It continues to frustrate me the misuse/misinterpretation of the 14th Amendment. If one applies the same rule you discussed, then the 14th didnt need to state natural born as subject to the jurisdiction was to guarantee that none born owing allegiance to a foreign nation was automatically granted citizenship as defined by feudal common law of kings. (jus corona) This is why the 1868 Expatriation Act was passed the SAME week as the 14th was ratified. It is why it was always cited along with the 14th as the US never adopted any form of dual allegiance. As both Waite & Gray stated, subject to the jurisdiction means the same at birth as it does for naturalization and an infant at birth has not the capacity to throw off that which is naturally acquired through the parent. Thus putting the word natural in front of born in the 14th would have been redundant which goes against every rule of law writing on the subject. The core of the 1868 Expatriation Act that deals with dual citizenship is still valid law, it has never been repealed or overturned in a court of law.
I GUARANTEE that until the 14th is put back on its foundation of one citizenship either at birth or naturalization, this effort to restore A2S1C5 is hopeless.
Every govt cite on citizenship I have researched states that dual citizenship is a concept. Well, a concept is not law thus since WKA, we have lived in a nation where citizenship is merely a concept. Get rid of the notorious unlawful concept, and then the path to restore A2S1C5 is made straight.
constitutionallyspeaking Says:Your comment is awaiting moderation.
January 27, 2012 at 3:35 PM
Permit me to add a bit. I know it wont be posted as I am not a lawyer, but one doesnt need a law degree in order to understand the law if one uses their God given brain and common sense.
The 14th Amendment was ratified for one reason and ONE reason only. To formally declare that the freed slaves are in fact US citizens.
When someone is sold as a slave, the only allegiance they have is to their master. They have no political rights nor are they considered as persons, they are considered as property. Thus before they were freed, these persons owed political allegiance to no nation and therefore, upon freedom/transformation from property to person, they acquired but one allegiance and that was to the nation they resided in that freed them, the United States.
There was not act of naturalization at that point as they never owed allegiance to any other nation. IOW, no renunciation was required of them. This art of law can be found in the book of Exodus when Israel came out of Egypt. There was a mixed multitude that came out with them, some free person who were naturalized through circumcision, but there was also another group, the slaves of the Israelites. Prior to leaving, YHVH commanded His people to circumcise all the males of the household, both free & slave, thus when they left, the slave was made equal to the master in that at that point he became a bond servant/hired hand, equal to the master under the eyes of the laws of YHVH. He went from slave/property to free man with the freedom to choose the employer he wished to work for.
WKA needs to be thrown out, not reinterpreted.
“I wonder how any honest lawyer could argue against it.”
What’s an honest lawyer?
There are three classes of citizenship.
There are three classes of citizenship. Natural Born Citizen, Citizen (either through Naturalization, or by statute such as the 14th Amendment (Born here, or one citizen parent), and Alien.
The first can run for POTUS, the second and third cannot. The third has no right to any of the benefits of American citizenship including our system of justice, welfare, etc.
“But, but.. What about the Commerce Clause, where the very general is held to require all kinds of specifics?”
That’s because the specifics belong to the general, they do not attempt to override it.
Some things are really so simple they are overlooked because they are so taken for granted. We cannot afford to take ANYTHING for granted these days.
Can you explain to me why my daughter cannot be President?
She was born in Canada, right across the border from our home. She was a “resident” of Canada fore the first 48 hours of her life. She has lived with us, who are both natural born USA citizens, for the rest of her childhood, and is now 39 years old.
But, she cannot be President, because she was born in Canada. Why does the law prevent her, but not Barry O, who doesn’t have two natural born USA citizens, and has not produced an undoctored birth certificate showing the place of his birth. (Which I suspect was right across the border, in Canada)
Inquiring minds want to know why the difference?
Well, I’m not an attorney and I saw the fault in his argument right away
"Without much thought"? LOL, go for the brass ring, eh? I'm afraid its your logic that is flawed. It is irrational and specious to argue that the creation of a Constitutional Amendment was done without regard to the sole alternative to the definition of citizenship it would create. In fact, even a little research would show that the entire purpose of the 14th Amendment was to create an alternate definition of citizenship in order to restrict rights into privileges - and in doing so, enable the federal takeover of the country we see today. And as for differing statutes, that is irrelevent - what matters is the common subject matter.
There is not law that upholds that statement. A concept, yes,m but not a law.
There is no law that upholds that statement. A concept, yes,m but not a law.
His Honor Malihi has already quoted the rules which Leo explains. As for Obama’s pappy, we can only go by what Obama has PUBLISHED. Until such time as the cretin can be forced to come clean. Of course he will not do that. So, we are back to square one. What ever else may be it is OBAMA’s OBLIGATION to prove his eligibility. It isn’t OUR responsibility, it is HIS.
So we will continue to DEMAND he OBEY us, his boss.
Rubio is a “citizen” rather than a “natural born citizen”, because his parents were not citizens at his birth. This is probably true of Jindal also. There is also the question of whether Romney's parents were citizens of Mexico at his birth, or US citizens.
Obama is not a natural born citizen, since his father was not a citizen at the time of his birth.
Under the law at the time his mother could not impart citizenship on him, because she was a minor. Remember the age of majority in 1961 was 21 years of age (she had not lived the require number of years to impart citizenship). It's been a while since anyone brought that fact up on a thread. Only his father, a British citizen could impart citizenship.
If proved that Obama was in fact born in Hawaii, he then is a “citizen”, but not a “natural born citizen”. Especially since the marriage of his parents was in fact not legal, since his father already had a wife in Kenya.
I agree, the constitution is NOT written on Lycra, it is written on Parchment, and Amended through a great deal of blood, sweat and tears.
If your daughter is of color maybe she can be President, then again being female maybe she can scream sexist and that will work. That seems to be the dividing line not the rule of law. Its what the media wants. We now are a lawless corrupt third world country.
You mean a citizen when the parents are “...subject to the jurisdiction thereof...”
Most need an English lesson before dissecting the minutia of lawyer speak.
I believe that Donofrio is defining and explaining the concept for lay people. There is a great deal of disinformation out in the bloggosphere by Obots who deliberately attempt to confuse lay persons. Because we do not have the education in the law, this is relatively easy to do. Donofrio has given the layperson greater understanding of a concept important to understand in the debate as a whole.
Thanks for the cogent post! :)
The 14th Amendment to the U.S. Constitution reads in part:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:
“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
This understanding was reaffirmed by Senator Edward Cowan, who stated:
“[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word...”
The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.
Again statement is still made that they are citizens of the United States. It does not add that they are in fact Natural born citizens as required for the President and Vice President.
Not at all - birth in this country is one way of obtaining citizenship, but IT IS NOT THE ONLY WAY. Obviously, naturalization is another way, and there are still others. A more correct statement than Leo's would be "Therefore the term "natural born" must be considered as requiring something more THAN SIMPLE CITIZENSHIP." That clearly is true under the rules of construction.
It may be provable that Obama does not fall under the umbrella of natural born citizen. But THIS particular argument is not proof that "natural born citizen" means a child born to two US citizens. I have seem other arguments that give a basis for that interpretation, but this particular argument is logically flawed. IMHO
First of all, it was never ratified - it was adopted, but not ratified, and so, in fact, it is not law. It's just used as law. Look up the ratification history.
Secondly, you've put the cart before the horse - it MADE "U.S. citizenship." And that "citizenship" is NOT one of rights, but of administrative privilege. The reason the slaves were "made" 14A citizens is BECAUSE THEY WERE SLAVES. It didn't free ANY of them. Instead, it created a NATIONAL SLAVE CITIZENSHIP for them. It "solved" the State slavery issue by making it FEDERAL. That's how it "freed" the slaves from the States.
And since then, in the same was it was originally "presumed" into existence in the first place, it has been "presumed" to apply to EVERYONE.
That's why. for example, no one can get "standing" to examine Obama's birth certificate in court - slaves cannot demend anything from their masters, by definition. They have no standing.
My answer would be simple. I don't see anything in the constitution that would preclude someone that was ineligible from running. It's assumed if they won, they would be found ineligible and could not be sworn in.
Another answer could be that if both his grandparents were citizens then the actual location of his birth may not have been an issue. As seen in the case of John McCain.
As to the OP. You don't have to be a lawyer to figure this out. The obvious meaning of NBC is a person born to two citizen parents. How do I know this? Because the framers were OBVIOUSLY trying to ensure allegiance to the United States and what force determines this allegiance? The PARENTS of course. Think about it. As an infant you have no idea where you were born, its how you are brought up that matters.
For those arguing that Obama is an NBC then you would have to assume the framers would have been ok if the Queen of England happened to be visiting the US and had a child on our soil that baby could later be eligible to be the president of the United States!! If you believe that, then no amount of legal training is going to help you.
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