Posted on 02/29/2012 2:58:09 PM PST by edge919
Contrary to uninformed opinion, the ruling in U.S. v. Wong Kim Ark (WKA) did NOT make natural-born citizens of everyone who was born in the U.S. One of the best ways to understand this is by reading the dissent, which defined natural-born citizens (NBC) directly from Vattel's Law of Nations.
Before the Revolution, the view of the publicists had been thus put by Vattel:
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.
Justice Fuller tells us where Justice Waite got his "common-law" definition of NBC in the Minor v. Happersett decision. Fuller says, "prior to the Revolution" and Waite said "with the nomenclature of which the framers of the Constitution were familiar." The latter definition was quoted in full by the majority in the WKA decision, and the holding of the decision affirmed that Virginia Minor was found to be a citizen by BOTH place of birth and by having citizen parents, even though the Minor case did not say so directly:
Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] 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.
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
The question that cannot be answered by Obots and Obama apologists, at least not honestly, is why the court included the citizenship of Minor's parents if not for how it is used to specifically define NBC. This is the last point in the majority opinion where the term "natural-born citizens" is used. The opinion continues for another 25 pages, where the majority deftly switches to a discreet term of citizenship based solely on the 14th amendment.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
Notice that this definition is based ONLY on the 14th amendment, and it does NOT say that it covers the children born in the country of citizens, but instead, only of "resident aliens" minus the exclusions pertaining to the subject clause. Lest there be any doubt, the dissent AGREED with this definition, even using the same term "citizenship by birth."
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens ...
The parents permanently located here who might become citizens are "resident aliens," which was the term used by the majority. Fuller is saying the children of resident aliens are NOT excluded from becoming citizens by the 14th amendment, which means he AGREED with the majority's citizenship by birth definition. He used the same term exclusively while arguing that NBC was defined by Vattel. The majority cited Minor for the definition of NBC and noted that the 14th amendment does NOT define NBC. But, if there's doubt, look back a little in the dissent:
I think it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute. Does it bear that construction, or rather is it not the proper construction that all persons born in the United States of parents permanently residing here and susceptible of becoming citizens, and not prevented therefrom by treaty or statute, are citizens, and not otherwise.
Fuller's only dispute was that the 14th amendment does not override a treaty with China that prevented its subjects from becoming foreign citizens, including their children. He asks if it is NOT the proper construction that the 14th amendment makes citizens of the children born in the U.S. of parents with permanent residence and suceptible of becoming citizens, which means "resident aliens."
Some Obots point to this paragraph as proof that Fuller thought WKA was a natural-born citizen:
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.
First, the majority never makes such a statement. This is Fuller addressing a question brought up by the appellant, which the majority punted. Fuller did drectly argue that the majority opinion made aliens of those who were born abraod to citizen parents, but he never argues that the decision makes Ark an NBC. Second, Fuller's comment makes no sense when he argues that persons born of resident aliens can be citizens under the 14th amendment. Again, his reason for dissent was based on the treaty with China, not on how the majority defined citizenship by birth via the 14th amendment.
Courtesy of Fogbow:
PA:
http://www.scribd.com/doc/83119492/PA-2012-08-28-Kerchner-Obama-Motion-to-Strike-and-Dismiss-Tfb
GA (all of the three MTDs are the same as the Farrar filing):
http://www.scribd.com/doc/82998815/2012-02-27-FARRAR-v-Obama-Brief-in-Support-of-Motion-to-Dismiss
Do you have any of Leo’s legal writings prior to 2008? I am trying to read as much of his stuff as possible to get grasp on the scope of his legal experience.
More of the same BS from Jablonski. All he’s saying, basically, is “They’re being mean and I don’t want to play because I have to follow the rules just like everybody else”.
Ankeny made a no call based on connecting dots from Wong Kim Ark’s dicta, but then by footnote admitted there was no legal precedence that makes the children of aliens into natural-born citizens. Marguet-Pillado gives no basis for the assumption that was made on a set of jury instructions. A UNANIMOUS SCOTUS decision tends to outweigh an unsourced opinion from a circuit court. And as the Obots say, it has nothing to do with Art. II in the Constitution. In contrast, the Minor decision provided an exclusive, self-limiting NBC definition to specifically satisfy what the term NBC means in the Constitution.
Harlan, see if you can honestly answer this question. If the English common law was adopted in “all states” (except where it conflicts with the Constitution (a key point to keep in mind)), why did the unanimous Minor court not cite the English common law definition of citizenship to define NBC???
Marguet-Pillado isn't even an ANCHOR BABY! Great precedent for Barry's NBC status! /s
I'll continue to use this...@http://www.scribd.com/Art2SuperPAC and look for other sources if it's not there.
Rogers, this even lazier than you’re usual standard. You simply punted the issue and posted a link hoping anyone smarter than you (which doesn’t take much) can find something to refute my post. Find another topic that you actually understand. This is NOT a winning issue for you.
What are you trying to get at here?
That you don't know what you're talking about...as usual.
The British Navy only impressed naturalized US citizens - those not born on American soil.
How did the British know who they impressed? Did they make them show a copy of their birth certificate while they were at sea?
Because the issue of citizenship was a peripheral one. It was a voting rights case. And no one contested her citizenship.
Let’s not forget that only birthers consider Minor a landmark citizenship case.
Are you really going to deny all those reception statutes existed?
I have no interest in debating someone who is either dishonest or hopelessly insane - and you are one or the other.
The link is there, and anyone can read and discover for themselves what the Supreme Court has said about the issue - which is why they wouldn’t take a case in 2008. They have already given a ruling, to any with eyes to read.
Well... I can’t say what Leo would think of it. LOL Shoot, I wouldn’t say if I knew anyway! LOL I have yet to read this particular article... I just saw the ping. I will go read now :). Not that my take on it is worth anything!
So why did states that joined the union decades after the Revolution pass reception statutes?
Alabama became a state in 1819 - why did they adopt the English common law?
Indiana has a reception statute - why did they adopt English common law?
You're not being honest. Virginia Minor claimed she was a citizen by virtue of the 14th amendment. That's was her basis for claiming a right to vote. The court rejected that argument.
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside." But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision.
If, as the Wong Kim Ark posits, that the 14th amendment was declaratory of English common law, why did the Minor court not even consider English common law and why did they reject that the amendment conferred citizenship on women (not just Minor). What would be the point of citing a citizenship that doesn't utilize the common law that YOU claim was adopted in all states. And out of a nine member court, why didn't any of them dissent??
All you’re doing is admitting that you don’t understand the issue. Find another thread. You’re embarrassing yourself.
So the war of 1812 is irrelevant to WKA? Thats all I wanted to know. The post I was replying to seemed to think it was important and it was not obvious why.
If anyone wants to understand the issue, they can read the case and ruling at the link.
You are clueless, which is why your side has lost every case...even when the other side doesn’t show up!
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