Skip to comments.Who is a Natural Born Citizen?
Posted on 07/03/2011 7:26:19 PM PDT by sourcery
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Just my opinion?
I’d have a long residency requirement..maybe 20 years or more.
Given folks like Bill Ayers, Rev Wright and JFKerrey, I see no sign that being born in the USA has anything to do with giving a rat’s rear about the USA or its traditions and values.
Some of the most rabid America haters satisfy even the most restrictive birther eligibility requirements. Cynthia McKinney comes to mind.
Statements suggest doubt about Obama growing
WND ^ | July 01, 2011 | Bob Unruh
Posted on Sunday, July 03, 2011 1:29:40 PM by RobinMasters
Two members of Congress have begun to express doubts about Barack Obama’s eligibility in statements that constituents have forwarded to WND, including one from Rep. Bob Goodlatte, R-Va., who said, “Any circumvention of these constitutional requirements would be a slap in the face to the rule of law and our very democracy.”
The second comment came from Rep. Blake Farenthold, R-Texas, who told a constituent that it appears the courts should be resolving the issue, not Congress, but he wonders what claims can be brought to Obama’s doorstep.
The comments suggest that members of Congress are breaking away from recommendations from the Congressional Research Service on how to dismiss such questions.
WND reported earlier how Jerry W. Mansfield, an information research specialist in the Knowledge Services Group of the CRS, issued a memo to prepare members of Congress to rebut and defuse questions constituents were asking regarding Obama’s presidential eligibility under the natural-born citizen requirement of the Constitution.
WND has posted the CRS memo on Scribd.com for download.
Attached to the memo was an attack piece published by FactCheck.org to dismiss claims that Obama’s short-form Certification of Live Birth, originally published during the 2008 presidential campaign by DailyKos.com, was a forgery.
When Obama released an image of a Hawaiian “Certificate of Live Birth” on April 27, after years of stating that the document was not available, the Hawaii’s Department of Health and governor’s office refused to confirm for WND that the image released was an accurate representation of the state’s records.
(Excerpt) Read more at wnd.com ..
Perhaps he was writing in response to the lack of any wording regarding requirements for the executive, because the plans that actually were being discussed didn't include any. There's no reason to believe he was responding directly to Hamilton's already-rejected proposals, and I seriously doubt you could find any scholarly sources that support this assumption.
Having studied this passage for over 2 years I am not sure as to what the relevance of the repeated passage is.
The doubt that referenced is the doubt that the 14th amendment provided citizenship (not natural born Citizenship but just plain citizenship) to what we call today ‘anchor babies’. And since Ms. Minor’s citizenship had nothing to do with the 14th amendment, which was her claim, the doubt of the 14th amendment bestowing citizenship on an anchor baby did not have to be addressed - and was not - by this ruling. Clearly, the issue of anchor babies was in full swing at the time of this ruling and this judge did not want to entangle this case with that issue. Hence why this passage exist. It is an excellent case of an example of ‘judicial restraint’ and ensuring that the ruling was not over broad.
Inserting Ms. Minor into the actual wording of the phrase we have:
Because Ms. Minor was born in a country of parents who were its citizens [she] became [herself], upon [her] birth, [a] citizen also. [She is a] native, or natural-born [C]itizen,
And thus, we have the supreme court definition of a natural born Citizen (who citizenship is NEVER in doubt): “born in a country of parents who were its citizens”.
There it is - THE supreme court definition that so many have said does not exist. It does, it is clear.
Repeat - this IS the Supreme Court definition of ‘natural born Citizen’:
“born in a country of parents who were its citizens.”
In 2008, both major candidates failed to meet the Supreme Court definition of a natural born Citizen and both failed to qualify under Article 2, Section 1.
“Repeat - this IS the Supreme Court definition of natural born Citizen:”
Followed by the next sentence:
“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.”
Go further connects the second sentence with the first, and explains that some authorities go further in their definition and include those born of non-citizen parents.
NO ONE EVER questioned citizenship for those born in country of citizen parents, and only those who thought we should follow the SWISS model of citizenship questioned it for those born of alien parents.
In any case, the definition of NBC was known BEFORE the Constitution. It doesn’t need anyone to come along afterward and define it, because it was KNOWN. The states that ratified the Constitution had already started replacing the phrase NBS with NBC, and they did so without any further modification - so they are thus equivalent phrases.
Minor did not try to define NBC, saying it wasn’t needed for the case. WKA did do so, spending half of the decision showing WKA met the qualification for a NBC.
But I know better than to try to convince a birther. Anyone who can’t accept the fact that every state, every court and the Congress without exception accept as fact that the legal definition includes those born of alien parents per WKA will not be convinced by me or any other.
But what is undeniable is that your side can’t win a court case, can’t get the US Supreme Court to accept squat from you, and cannot get the Congress, Palin, or any state any where to agree with you.
It is also apparent that you have not read the leading case on natural born citizenship, Wong Kim Ark. The SCOTUS relies more heavily on British common law definitions than the 14th amendment in arriving at their decision and holding. The WKA case is the leading citizenship case by SCOTUS and is accepted law today. Scotus had an opportunity to address this In December 2008 and refused to grant writ on the Donofrio case before at a time when it would have been ripe.
Why did C.J. Roberts swear Obama into office if the law and constitution are as you claim? There appears to zero support for your position in the conservative, constitutional legal community. What do you attribute that to?
The key to the meaning of natural born citizen is the word natural.
Going back to the old dictionaries...Natural and Kind have the same meaning. Kind comes from the anglo saxon word gecynde.
Research Kind Natural Gecynde..and you will find the Founders meaning and reason why they opted to use natural born citizen.
A natural born citizen has to come from citizen parents.
Secondly, I in turn concede that it's impossible to know which proposed and/or working draft of the Constitution (or other document under discussion by the Committee of Detail) it was that prompted John Jay's letter to Washington. Recently, yet another draft of the Constitution was discovered, written by James Wilson.
Of course, John Jay must have been responding to something. The date of his letter to General Washington was 25 July 1787. He was not one of the delegates. He wrote the letter from New York, as evidenced in the text of the letter itself:
Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)
It is clear from the accounts of other members of the Convention that Pinckney's plan was sent on to the Committee of Detail that drafted the first copies of the Constitution, and many of his ideas and phrases are included in what we read today.
However, it was the British/Hamilton Plan that had most recently been submitted, and was the last such submission on 18 June.
The words "born a citizen" occur in Article I, section IX of the British/Hamilton Plan, which states:
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. Pryor, Jill A. "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty". 97 Yale Law Journal 881, 889 (1988);
According to Madison's notes, discussion of the issues surrounding the selection and eligibility of the President commences on 17 July, and continues off and on for more than a week. Nothing is mentioned in Madison's notes regarding any requirements that the President be any sort of citizen. However, on 25 July (interesting date), Madison reports that he made the following comments to the Convention:
Mr. MADISON. ...Besides the general influence of that mode on the independence of the Executive, 1.  the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2.  the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3.  The Ministers of foreign powers would have and  make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them. -- An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not  & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people -- and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. ...
So Madison and John Jay both state the same concerns regarding foreign influence on the President ("the Exective") on the same day, even though one is in Philadelphia and the other in New York. Is that just an amazing coincidence, or were discussions occurring for which he have no documentation?
In any case, the most reasonable assumption is that Jay was familiar with all of the proposed plans, and satisfied with none. If not, on what basis was he making any objection? As of 25 July, no one had any idea which proposal so far made, or yet to be made, would emerge from the Convention—if any. It is therefore evident that Jay's criticism can only be assumed to apply to all the proposals. Therefore, it applies just as strongly to the strictest eligibility requirement proposed at the time, just as much as it does to the most lenient. Therefore, it applies to Hamilton's "born a citizen" requirement.
Your objection is overruled.
So Jay could have been responding to the text of the Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)
Consider my posts #51 and #52 as my replies to your post.
What’s apparent is that you haven’t carefully read my essay. It categorically refutes every one of your points.
“What you did constitutes a concession that I am right on the original topic (the meaning of “natural born subject,) and that you were wrong (note the past test, in honor of your having conceded the point.)”
No, you are wrong. Natural born subject was used in colonial law. When the states became independent, they started replacing that phrase with NBC, making no other changes. Thus we see that NBC = NBS, as the US Supreme Court has said:
“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.
In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:
Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.
2 Cranch 64, 119.
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.
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.
3 Pet. 164.
In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby...
...Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
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.
19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,
that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
Garder v. Ward (1805), 2 Mass. 244, note. And again:
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . 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.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”
Notice the last case mentioned said:
And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” &c. The only standard which then existed, of a natural born citizen, was the rule of the 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.
6. 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 were the situation of his parents, is a natural born citizen.”
And again, the first draft approved by the Founders was done in Aug 1787, and it had NO requirement for the President to be born in the USA. It allowed naturalized citizens to become President. Further discussion in August resulted in major revisions to the section on the President, including a requirement for him to be a NBC - a legal phrase already in use prior to the Constitution.
What matters isn’t precisely who qualified as a “subject born” or as a “subject made,” but rather that there is in fact a distinction between “subject born” and “subject made,” and that BOTH were legally “natural born subjects.” Given that, to assert that “natural born citizen” is simply “natural born subject” with “subject” replaced by “citizen” fails for the reasons given in my essay.
The relevance is that in Minor the Court explicitly declined to resolve the doubts. Universal agreement that children born on U.S. soil to citizen parents are natural-born citizens does not imply that other classes are *not* natural-born citizens.
For the native-born, the doubts were decisively resolved in U.S. v. Wong Kim Ark (169 U.S. 649):
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.Got that? The British rule that, with narrow exceptions, the native-born child of aliens is a natural-born subject continued to prevail under our original Constitution. Supreme Court said so.
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.
You ignore the fact that Hamilton's "plan" was already voted against in its entirety. With Hamilton's proposals dismissed by the Convention, Jay could simply be reiterating Hamilton's proposed eligibility requirement in the legal language he was familiar with. If he was "objecting" to anything, it was most likely the idea the committee would meet to draft the Constitution without having agreed on any eligibility requirements for the Executive.
It cannot be assumed that Jay knew which plans had already been rejected. Technically, he wasn’t supposed to know about any of them. The Convention was operating under a veil of secrecy, which apparently wasn’t fully respected. But it does not follow that Jay knew all the key facts, not even after a week’s delay.
What matters is that what survived included the “natural born citizen” eligibility constraint, and all alternatives were rejected. Based on the comments made by Madison and others, that constraint was clearly included so as to prevent the spectre of “foreign” influence in the Office of the President.
However, I will revise my essay based on the fact that Jay may well have not been specifically objecting to the wording “born a citizen.”
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