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To: Sherman Logan
I'm familiar with the Wong Kim Ark case. It's ambiguous on the ramifications of the term of art "natural born citizen."

At any rate, I think we are in agreement as to the position of the government. It holds that term "natural born citizen" for presidential eligibility purposes means "born in the US" even if the birth is to a non-citizen mother who is vacationing in the US.

-- One of the dissenting justices pointed out that if we recognized him as a citizen despite his ineligible for citizenship parents, we would be opening up the presidency to "coolies," thus pretty clearly indicating this particular man was "natural born" despite his parentage. --

That's the dissent's take on what the majority ruled. It notes that a "citizenship is by birth location only" rule cuts in both directions:

If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.

The logic that statutes would have no effect is based on the majority holding the 14th amendment to the Constitution mandating citizenship by birth location, and the constitution cannot be overridden by statute. Under this logic, not only in McCain not eligible to be president, he is not eligible to be a Senator because he is not a naturalized citizen. This how the dissent in Wong Kim Ark characterizes the majority holding.

The statement by the dissent that touches on eligibility to be president is itself short on analysis:

Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that 'natural born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.

I also note that Wong Kim Ark marked a change in the treatment of persons born to foreigners who happened to be located in the US. In other words, the statement that the policy today is the same as it was at the founding is incorrect.

See too Minor v. Happersett, 88 U.S. 162 (1874), which discusses but (because there was no need to) also does not resolve the meaning of "natural born citizen." The issue in both cases was simple citizenship, not eligibility to be president.

I assume that we have irreconcilably different takes on the meaning of the Wong Kim Ark case, as well as on whether or not it was correctly decided. Again, my observation was that Congress has roughly adopted the view of the majority in Wong Kim Ark, by concluding (or assuming without debate) that a dual citizen can be eligible to be president of the US. My beef is with Congress, as I see it as derelict in its duty. This is just one more example.

39 posted on 12/09/2009 9:12:49 AM PST by Cboldt
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To: Cboldt
If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.

I would disagree with the justice. There is no reason I can see why there cannot be more than one route by which one qualifies as a "natural born" citizen.

The problem is that there has never been a definitive ruling as to what is meant by the term. We can argue about it all day and drag in various quotes from Court decisions, regulatory rulings, etc. In the end, the actual meaning of the phrase is kind of a Schrodinger's Cat. Its meaning is indeterminate until the Supreme Court has ruled.

I'm not a fan of the "living Constitution" by any means, but when terms in the Constitution are ambiguous, as this one is, some body has to make a decision what it means.

43 posted on 12/09/2009 9:34:40 AM PST by Sherman Logan ("The price of freedom is the toleration of imperfections." Thomas Sowell)
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