-Submitted by David Drumm (Nal), Guest Blogger
Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.
Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.
Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.
Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.
While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.
Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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.
Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.
H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.
Thanks nal and I suppose this answers martins question…
“Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations.”
********************
A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.
~Ralph Waldo Emerson (Essays. First Series. Self-Reliance.)
In retired Justice John Paul Stevens’ book, “Five Chiefs,” and in essays written since his retirement, he refers to some of these issues. It’s interesting reading as the legalese isn’t too bad.
One of the reasons I started reading this blog was to gain an understanding of the Supreme Court … yes, there is a small joke there but I will leave it to others ….
Blouise,
Very funny! The Roberts Court can be understood using one word…corporations.
OMG…I’ve been dealing with a bunch of dictas….
Woosty’s,
There’s the joke! lol
It’s all Greek to me. Cum grano salis.
If a child is a citizen only if the parents are, you have made the problem twice as hard, and, by induction on the generations, difficult without limit.
Nal,
Great post. It certainly cleared something up for me.
“Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so.”
This statement verifies that which I have always known in my heart. The Justice system, like the rest of the Government is in the business of deceiving the public rather than protecting them. Full disclosure is the best protection they can provide and it is the one thing they will not do.
The idea that a court decision would be written in such a way as to confuse it’s meaning rather than clarify is perhaps the most disheartening of all the disheartening things I have heard about our government since i began my interest in it’s workings (or non-workings if you chose).
One might hope that even if the other branches exert inappropriate force and influence, the courts would reign them in. I guess I shouldn’t be surprized that SCOTUS is justv as corrupt as the rest of the system but somehow I still am. I;m sure I’ll get over it in short order when my anger takes over from the disappointment. Not that I had full faith but perhaps just a little more than I had in the rest of the government. I guess Naivete’ sneaks up just when you think you are fully jaded.
Eschew obfuscation!
So, Bush v. Gore is neither horizontal or vertical. I guess that makes it a lone point, kind of a singularity, or black hole…
“The court clearly states that, for this case, it is not necessary to determine if citizens born within the jurisdiction of the United States are natural-born citizens. That follows the classic definition of dicta.”
“Clearly”, you have misquoted the Court.. Nowhere does the Court say that it was not necessary to determine if citizens born withing the jurisdiction of the US are natural-born citizens. Instead, the Court stated that it was not necessary to determine if persons born in the US without citizen parents are “citizens”. The Court did state “clearly” that those born in the US to citizen parents were natural-born citizens. The Court identified the class of natural-born citizens “clearly” and excluded those who were not born of citizen parents.
Leo Donofrio
Maybe, the only dough he’ll admit to taking in Public is this:
Scalia Deep-Dish Pizza Ruling: Supreme Court Justice Calls Chicago-Style ‘A Tomato Pie’
http://www.huffingtonpost.com/2011/10/20/scalia-deep-dish-pizza-tomato-pie_n_1021778.html?icid=maing-grid7|main5|dl6|sec3_lnk2|106202
and 20 years later we’re still gittin’ chitlins’:
Two decades later, Clarence Thomas is still a (relatively) young justice
http://www.salon.com/2011/07/10/clift_clarence_thomas/singleton/
Leo,
Thanks for your comments. I agree, and have removed that sentence.
Angrymanspeaks,
You have apparently had the opposite view from mine: I have believed for 30 years that it is the courts that are responsible for really screwing up our government. Not that it wasn’t pre-screwed-up, I didn’t mean that we are sliding DOWN from some golden-age, no, just that as the screwing-up has been continual, the courts have continually been the dominant screwers.
The reason I believe that is that the courts are working on precedent so that they hide (as unpublished, and even as impounded) the results-driven decisions they make which they do not want to stand as precedent, and then they mark as “PUBLISHED” all the decisions — most notably the worst, of course — that they DO want to stand as precedent. Executive branches of government are, of course, less uniformly horrible because each corrupt bureaucrat can only do so much, and he or she can be reigned in if necessary. Legislators cannot perform as atrociously as judges, of course, because they have REAL elections and face REAL opposition and they have to account for their decisions and answer for their votes.
Anyway, who’s the worst? I don’t know. I vote for the JUDICIAL BRANCH.
“Leo,
Thanks for your comments. I agree, and have removed that sentence.”
Thanks for updating the report. It’s not easy to do stuff like that, to reconsider things and act on such reconsideration. I applaud you for it.
We still differ and I have addressed more below, but I respect you and hope that we will be able to find common truth one day.
Let’s start with your conclusion:
“Portland Examiner contributor Dianna Cotter claims this passage is a holding. The Wikipedia entry correctly identifies this passage as orbiter dictum.”
I don’t think that’s an accurate conclusion based upon Ex Parte Lockwood, 154 U.S. 116 (1894), an essential case which confirms Minor v. Happersett as precedent on the definition of federal citizenship:
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;”
Please discuss this passage and then I will respond.
Leo Donofrio
Oops… my URL was wrong in the first two comments… I have reposted the link to this article at my blog.
Orbiter Dicta: is this what astronauts say while circling the Earth?
Leo,
With regards to Minor, what constitutes a natural-born citizen is not necessary to sustain the result that confining the right of voting to “male citizens of the United States,” is not a violation of the Federal Constitution. Hence, dictum.
Ex Parte Lockwood doesn’t mention natural-born citizen at all.
Ralph,
I wouldn’t listen to Scalia when it comes to pizza. Chicago Deep Dish is the best!
The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later… and please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor.
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …
Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.
I’m curious as to how this misrepresentation as to Minor started and people became so adamant. It requires one to completely ignore the language which explicitly states that the court would not decide whether a person born in the US of alien parents is a natural born citizen as it was unnecessary to answer the question before them which involved someone born to citizen parents. “As to this class, there have been doubts …. 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.”
blhls: Disagree. They would not decide whether a person born in the US of alien parents is a “citizen” not a natural born citizen. They needed to establish citizenship to this person to make the decision of the case. They did not need to establish the class of citizenship either. But this person was in the other class of citizenship, the class with citizen parents, the NBC class, which it was “never” doubted who those type of citizens are, right? That’s the whole point.
So, per the Court, there is no doubt that NBCs are those who are born to citizen parents. No matter how you slice it, the definition is there.
I keep seeing an s associated with parent and it’s becoming more apparent that the 2012 election could see a certain someone bow out.
The question inquiring minds want to know now that the cat is out of the bag. Since we seem to have a clearer explanation of exactly what a NBC is, how will any new challenges be met in re to Obama’s status as an NBC ? Remember it was all moot and no one had standing the last go around.
Ha ha I just noticed NBC as in GE. That may be the only thing Obama can affiliate with his status.
Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”
I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:
The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later. Please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …
Nal ?
I have stated my argument for why it’s dictum. If someone wants to point out my error, they’re free to do so.
If someone wants to argue why it’s not dictum, they’re free to do so.
Nal I questioned you because it looks like Leo was asking you a question.
“Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”
I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:”
Was looking forward to your response or anyone elses for that matter but it looks like the thread has gone silent and it’s quite defining
Sorry SB deafening, we were wishing for defining
Obiter, Orbiter
You say po-tay-to, I say po-tah-to
You say tom-ay-to, I say to-mah-to
Po-tay-to, po-tah-to
Tom-ay-to, to-mah-to
Let’s call the whole thing off!
You say Obama, I say Orbama
You say Yo mama, I sat Your mama
Obama, Orbama
Yo mama, Your mama
Let’s call the whole thing off!
Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.
If no Court, who cited Minor on citizenship declared it to be obiter dictum, why should the determination be left to someone who would benefit by making that determination?
Any attorney quoting Wikipedia as a reference for legal opinions has to have a screw loose.
Weazie is an Obama political operative.
http://naturalborncitizen.wordpress.com/2011/11/11/justiagate-say-it-aint-so-carl-malamud/
Bill C Says:
November 12, 2011 at 10:59 AM
Will JT ever answer the question ? Great comments, Thanks Leo
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/
What’s your evidence that I’m a Obama political operative?
Bdaman,
Do you know of a case–any case–where a portion of a prior case was declared obiter dictum (or orbiter dictum for that matter…)? Is it unusual for it not to have happened in the case of Minor or would it have been unusual if it did? Because if you don’t know these things, then your argument is just a straw man.
Bdaman
“Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.”
There is this:
Justice Morrow, Wong Kim Ark, District Court Northern District of California, January 3, 1896 No. 11, 198.
“But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.”
And this,
Court of Appeals of Indiana, Ankeny and Kruse, vs. Governor of the State of Indiana,
“The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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. Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”
And there are other legal authorities:
Charles Gordon, ‘Who Can be President of the United States: The Unresolved Enigma” 1968, Maryland Law Review
“The only question in the latter [Minor v. Happersett] case was whether a state could validly restrict voting to male citizens of the United States. The answer, since expunged by the nineteenth amendment, was that women could be denied the vote. In his generalized discussion, Chief Justice Waite observed that “new citizens may be born or they may be created by naturalization.” The court mentioned the presidential qualification clause and stated that it unquestionably included children born in this country of citizen parents, who “were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
“While this language appears to equate natives and natural-born, the Court specified that it was not purporting to resolve any issues not before it.”
And this,
J. Michael Medina, 1987, “The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement” 1986 Oklahoma City University Law Review
“Who is a Natural Born Citizen?”
“The answer to the above question is, quite simply, we do not know. “The Constitution does not, in words, say who shall be natural-born citizen. Resort must be had elsewhere to ascertain that.”[Minor v. Happersett] Because no case squarely on point has arisen, resort must be had to the basic federal scheme of citizenship. It is only clear that naturalized citizens are not natural born.”
On the question of dicta versus holding, there is the decision by the United States Court of Appeals, Seventh Circuit in United States of America v. John Allan Crawley, 837 F.2d 291
“So instead of asking what the word “dictum” means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion–it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court’s jurisdiction depended (if a federal court).”
So even if the Minor court held that Minor was a citizen, it did not need to decide if she was natural born and the single sentence about the definition of natural born “can be sloughed off without damaging the analytical structure of the opinion”.
Finally, one need only read the first paragraph in the Minor opinion to see what the issues were:
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite
Clearly, the question of citizenship was “not presented as an issue, hence was not refined by the fires of adversary presentation.”
Please, for the love of God, change the “orbiter dicta” in the text of this post to the actual correct spelling, which is “obiter dicta.” Please don’t use Latin phrases unless you spell them correctly. I thought you were a proofreader.
The US Supreme Court in Ex Parte Lockwood, 154 U.S. 116 (1894) held:
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since…”
Justice Horace Gray who wrote the opinion in Wong Kim Ark was on the Court for Lockwood. Minor continues to be cited as good law for 100 years on both the definition of federal citizenship under A2 S1, and voting rights, and it is beyond question controlling law. Minor was not decided under the 14th Amendment’s citizenship clause.
When the SCOTUS in Lockwood said…
“In Minor v. Happersett…this court held…”
it was a direct recognition of stare decisis on the federal citizenship issue.
The Court construed A2 S1 and determined that Minor, having been born of citizen parents within the US, was a citizen BEFORE the adoption of the 14th Amendment and further held that she did NOT derive her citizenship from that amendment.
Since she was in the “class” deemed to be “natives or natural-born citizens” her citizenship was not in doubt. The Court noted that the other “class”, those born in the US without citizen “parents”, was subject to doubt as to their citizenship. Some of those doubts were resolved as to persons domiciled permanently in the US under US v Wong Kim Ark, where Justice Gray cited the nbc passage from Minor as precedent.
Furthermore, in Lockwood voting had nothing to do with the case at all.
Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.
Leo Donofrio
“Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.”
Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. The dicta correctly labeled as such quoted above was ancillary to the case at bar and gorefan’s excellent summary of why it is dicta shows the difference between someone who understands the logic and legal reasoning of a decision well enough to sort the dicta from the holding proper. Minor was a case about voting rights. Nothing more, nothing less. Anyone thinking Minor is a citizenship precedent is either incompetent to read case law or living in a fantasy land.
There are plenty of really good legitimate reasons to criticize Obama. His escalated attack on civil liberties and his refusal to prosecute war criminals topping that list. However, the citizenship argument is facile crap usually pimped out to hide what the real motive for people making such a lame argument: simple racism.
He’s a citizen.
Deal with it.
If you want to excoriate the President, start with his refusal to prosecute members of the Bush/Cheney administration for war crimes and his insistence that the Executive has the “right” to execute American citizens without Due Process. Those are actual and important issues.
The Birther ship done sailed, boys, and she’s lost at sea.
P.S. Really nice job there, gorefan. First class work.
Justice Fuller, who wrote the Lockwood opinion, also wrote the dissent for the Wong Kim Ark opinion. In that dissent, he wrote,
“And it is this rule [English Common Law], pure and simple, which it is asserted [Justice Gray's opinion] determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”
And later he writes,
“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.”
He writes about the meaning of the term “natural born citizen’ and the qualifications for being President but never mentions the Minor decision as having settled that meaning. He never cites it as precedent for the meaning of the term “natural born”. In fact, when he finally does mention Minor, he writes,
“I do not insist that, although what was said was deemed essential to the argument and a necessary part of it, the point was definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 167, remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve.”
He never mentions Minor as defining “natural born citizen” but does mention that Minor decision did not solve the doubts about children born to alien parents.
The one sentence in the Minor opinionn, “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” was not essential to the decision. And as the Court of Appeals, Seventh Circuit said “can be sloughed off without damaging the analytical structure of the opinion”.
And as the Indiana Court of Appeals wrote in Ankeny v. the Governor of Indiana,
“the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”
Leo,
Now, I’m not a lawyer–maybe one of the many real lawyers here can correct me if I’m wrong–but it seems to me that your argument comes down to some simple logic. If we let:
A = a child born on the soil of two citizen parents
and
B = a natural born citizen
then what the plain language of the two cases says to me is that the court in Minor said, “if (A) then (B), and we’re not going to say anything about (not A)” and the court in Lockwood said, “The court in Minor said, ‘if (A) then (B)’” (presumably because they had established A and wanted to establish B…).
On the other hand, you seem to be saying “If (not A) then (not B)”. Well, as I said, I’m not a lawyer, but I am a mathematician and the error you seem to be making is a pretty basic one–not something I would expect someone with legal training to misunderstand. Could this be why you are content to try to persuade the gullible on the internet rather than put your theories to the test in court?
Bdaman,
What’s the matter, gorefan got your tongue?
Gen H said:
“He’s a citizen.”
This we agree upon. He’s a citizen, but I do not believe he is natural born.
“Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. ”
With all due respect, in the pursuit of legal truth, I submit without snark or ridicule, the following:
What part of “this court held” do you not understand?
Holding = precedent. This is not disputed.
Acknowledge that you understand those words have such meaning and I will be happy to engage the rest of your comment. If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.
You should read this too:
http://naturalborncitizen.wordpress.com/2011/10/09/multiple-instances-of-historical-scholarship-conclusively-establish-the-supreme-courts-holding-in-minor-v-happersett-as-standing-precedent-on-citizenship-obama-not-eligible/
As to Gorefan’s comments, if he should choose to answer the following, I will be happy to address his comments, but I asked the following here first above. And I shall put it to anyone who cares to engage peacefully and with mutual respect:
Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …
Leo Donofrio
Slartibartfast,
You have stated an argument, but it’s not my argument. And you have slighted me, but I will disregard the dig. Peace be with you.
The Court in Minor separated those born of citizen parents in the US into one class, and those not born of citizen “parents” into another. They put Minor into the first class and said that this class were natural-born citizens.
The Court further stated that there was never any doubt as to their “citizenship”. As to the second class, the Court stated they suffered doubts as to their “citizenship”. Minor’s class were undoubtedly citizens because they were natural-born citizens, the other class was not in the same class as the nbc class. The Court indicated that the second class might be “citizens”.
But if that class were natural-born citizens, the Court would have put them in the nbc class. But the Court didn’t.
The citizenship of some factions of the second class was later determined in US v Wong Kim Ark. But that case was decided under the citizenship clause of the 14th Amendment. Whereas, the Court in Minor was not required to construe the 14th Amendment, and instead construed A2 S1, the Court in WKA was required to construe the 14th Amendment. This was necessary because WKA was not in the natural born citizen class.
If WKA had been deemed to be a natural-born citizen, as Minor was, the Court in WKA would not have reached for the 14th Amendment and would have avoided it as the Minor Court avoided it. But they couldn’t avoid it.
Moreover, the Minor Court also held that the 14th Amendment granted no new privileges to anyone. So, if WKA was not POTUS eligible before the 14th Amendment, the 14th Amendment could not have conferred such eligibility upon him.
Furthermore, in Wong Kim Ark, Justice Gray quoted Binney’s paper on at 169 US 649, 665:
“‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”
Two children are discussed and compared.
The principle discussed is “born in the country”.
Child 1 is the child of an alien
Child 2 is the child of a citizen
The passage indicates that the child of the alien, by operation of the principle (born in the country), is “as much a citizen as the natural-born child of a citizen”.
The child of the citizen is natural-born, and the child of the alien is not… but both are equal citizens.
And this passage, in my opinion, was used by Gray to quiet the dissent’s fears that Wong Kim Ark could become President. The passage acknowledges that the child of an alien is not natural-born. Gray not only cites this on pg. 665, he cites the EXACT same passage in the final holding of the case on pg. 693:
“The foregoing considerations and authorities irresistibly lead us to these conclusions…Every citizen or subject of another country…if he hath issue here…his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
The dissent’s fears that Wong Kim Ark would be eligible to be President are mis-placed in light of this passage. And the dissent is certainly not the law.
De-orbitered.
gorefan:
I agree.
Leo,
What part of holdings are the arguments materially relevant to the issue at bar don’t you understand? Aside from all of it. Judges can say all manner of things in a holding that aren’t relevant to the case at bar. I know relevance is hard to deal with for someone like you, but the bottom line is Obama is a natural born citizen with a valid birth certificate in the State of Hawaii. On April 27, 2011, the White House released a copy of his long form birth certificate. It is in the proper form, stamped and signed by Alvin T. Onaka (Hawaii state registrar). It is admissible as evidence of citizenship in any court in the land. His mother was a citizen so he’s a citizen jus sanguinus and the highest quality of state documentation as evidence shows he is a citizen jus soli. It don’t get more natural born.
So either his birth certificate is a forgery, none of the birth certificates issued by the State of Hawaii are valid or you’re simply full of crap.
I’m thinking the later, Leo.
I didn’t make a comment to engage you in a discussion. I made a comment to compliment gorefan on a job well done. Believe it or not, not every comment is about you and your “scholarly” endeavor. However, you are quite well known to me. “If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.” Great! Because I’m not interested in arguing with someone who can’t tell dicta from decision or recognize valid state documentation that’s admissible evidence when it is inconvenient to their political agenda.
I’m no fan of Obama, but my criticism is restrained to legitimate matters of his abuse of office and failure to follow the rule of law, not some dog-whistle nonsense to play to simple racists based upon facile analysis of dicta.
But you are right about one thing. You really don’t want to engage me in conversation. I don’t suffer fools gladly. So next time I decide to compliment someone else, instead of speaking to me, you talk to someone who takes you seriously instead.
Gen H,
Peace be with you.
Leo
Nal,
Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …
Leo
Leo:
Therefore, it doesn’t matter whether they’re called “natural born citizens” or not, when determining their citizenship. The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”
Justia sloughed off parts of 25 cases which cite MInor, but that’s not gonna work in the long run.
The Court in Minor construed A2 S1 as authority for avoiding the 14th Amendment. Minor’s construction of A2 S1 was an independent ground for avoiding the 14th Amendment.
The Court in Minor justified their avoidance of the 14th Amendment by construing A2 S1. Therefore, they quoted from it and defined the term, “natural-born citizen”. This was an independent ground in their reasoning for finding Minor to be a citizen with no regard for the 14th Amendment which the Court stated did NOT apply to her. But it did apply to WKA, and it did not create any new privileges for him or anyone else.
In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
Leo,
That those born of citizen parents within the jurisdiction of the United States are citizens of the United States.
Nal said:
“The determination of citizenship is critical in Minor, not what constitutes ‘natural born citizen.’ ”
OK, we reach common ground that MInor is a citizenship precedent. Thank you. Fair play.
I also agree that determining “citizenship” was critical. She wasn’t running for President, so, in that sense, her eligibility to be POTUS was not a direct issue.
But that does not mean that when they did invoke it, it is only dicta.
If the Court could have determined she was a citizen – without regard to the 14th Amendment – and without defining who was nbc, perhaps they would have avoided that as well… but by placing Minor in that class of persons referred to by A2 S1, which they cited directly, the Court identified the Constitutional provision which made her a federal citizen prior to the 14th Amendment.
The Court looked into the Constitution and construed A2 S1, defined the class who fit into that, and placed her in that class. The Court also noted that the 14th Amendment might have created more citizens, but that it did not give any of them new privileges. Therefore, if WKA was not POTUS eligible prior to the 14th Amendment, it did not make him eligible after it.
In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The Minor Court’s construction of A2 S1 and subsequent identification of the natural-born citizen class (those born in the country to parents who are citizens) was an independent ground for their determination that she was a citizen with no regard to the 14th Amendment.
If the Court in WKA felt that he was also in that class, they too would have avoided the 14th Amendment. But they didn’t.
Leo
GeneH,
I am not a lawyer, but I am bright enough to know that the long form COLB that was proffered on April 27, 2011 is an absolute forgery. And posting it on the whitehouse.gov website proved nothing but whomever forged it also left telltale signs that were intended to out the usurper. It is most unfortunate that things have degraded so terribly in this country, that no one in the government or in the media is willing to ask for some forensic examination of this document. Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery, legions of experts have ripped it to shreds.
In due course, we shall see who is full of crap.
I am guessing you will be found in that camp.
Leo,
I slighted you because I believe that you don’t engage in good faith. This is based on your past history–most recently you posted this comment on your blog:
http://naturalborncitizen.wordpress.com/2011/11/02/4217/#comment-19671
Now, it’s your blog and you get to do what you want on it, but if you make a big deal about only posting dissenting comments and then just post comments from sycophants it doesn’t look good…
I looked at your response and it seemed to me that you failed to refute my point, but instead of going around and around with you about the law (which I admittedly know little about), let’s talk about something I do know quite a bit about: regex. You say that Justia screwed up the citations to Minor which (presumably) caused you to miss the reference in your on-line research. Now, Justia published the line of regex in both its original and corrected form. Both lines of code do exactly what Justia says they do–one removes only spaces up until the next pipe and the other removes all characters. Now, having written thousands of lines of regex and countless lines of code in general, I can tell you that this sounds perfectly reasonable. This sort of bug happens and I wouldn’t expect a free site like Justia to have the best quality control. On the other hand, your theory is incredible and lacks any evidence. Evidence, in this case, would be a citation which should have been mangled by the regex that was correct when the bad line of code was running. So either you didn’t think about this (which speaks to the credibility of your allegations–if you didn’t then your opinion of Justia’s explanation isn’t really worth anything, is it?) or you couldn’t find this “smoking gun”. Either way, I don’t think your allegations are anything but frivolous (especially if you are wrong and every other lawyer is right about Minor) and I think that you are aware of this and it is one of the reasons that you wont even try to take this to court. In any case, I don’t bear you any ill will either (unless I see you across a poker table in which case I’ll be aiming to take you down hard–and you wont know who I am…
) so peace to you to.
Kevin Kesseler (since you were signing with your real name…)
p.s. I think the whole “Paraclete” thing is pretty funny–you must have been smoking some pretty good shit…
Ray,
Clearly you aren’t very bright. John Woodman (a conservative who greatly dislikes President Obama) looked at every so-called “expert” claim of forgery and determined that there was absolutely no credible evidence of forgery whatsoever. Combined with the fact that there would be no reason to make a forgery (as the Hawai’i DoH would necessarily have to have been in on it and they could produce the document–as they said they did–by any means they chose and it would still be perfectly valid [what makes it valid is that the state of Hawai'i stands behind it]). What would making a forgery have accomplished? At what point in the chain of custody (which is impeccable) was the forgery supposedly introduced? Why is the Hawai’i DoH playing along? (under two administrations, no less…). Face it, you’re just someone who hates President Obama based on nothing but the propaganda you’ve been fed who has neither the intelligence nor the integrity to check out both sides critically. Why do you waste people’s time like that?
“Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery.”
Other than the State of Hawaii, of course — the governmental entity that issued the document.
The legal authorities cited by gorefan are compelling, but Leo Donofrio by the force of his own argument, wins the day. This bankruptcy law expert,, who understands that it is a “fraud upon the court” when a judge cites evidence that Donofrio thinks was wrong, is a legal genius who is unappreciated. From what I understand, that lack of appreciation may soon be ordered to be $128,000 by the bankruptcy court in the Chrysler bankruptcy case.
Yes, Leo is not only a bankruptcy court expert, but he is now branching out and creating new law with new interpretations of a voting case where both parties STIPULATED Ms. Minor was a citizen. Yes, indeed, the holding must have been about citizenship and how to qualify for it. Even though the court did not address the issue and mentioned in passing that others of Ms. Minor’s status were also citizens, and natural born, to boot.
Bravo, Leo. Please file a lawsuit pushing this theory and sue Justia. Maybe after you do you’ll be lucky enough to top the $128,000 in sanctions that are headed your way.
Come on, Stern–Leo has a compelling precedent to cite:
“these are my rules, I make them up”
–George Carlin re what is and is not a sport…
How can anyone argue with that?
You are holding your own Leo. Truth will prevail. The “elite” are going down….
Remember who is FOR you – His plans cannot be thwarted. There is no Plan B in His order.
Remember D3
Leo,
Maybe, but it lends credibility to the argument that it is dicta.
In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.
In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.
The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.
The entire discussion of citizenship in Minor is clearly obiter dicta. The question presented to the Court was “whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States” has the right to vote. The question did not ask if Minor was a citizen as it would have if the question of citizenship was before the court. Citizenship was conceded by defendant in the original pleadings and never raised or argued on appeal. Hence the issue was waived. The court does not need to address issues that are waived. For example, take Hamdi v. Rumsfeld, where the question presented was whether a citizen who was an enemy combatant could be detained by the Executive. The government did not argue that Hamdi was not a citizen and hence the court did not address such issue (though they were urged to by certain amicus briefs). In both Minor or Hamdi, the question of citizenship was not put before the court and hence any discussion of it is dicta.
Even, though the question of citizenship was not put before the court, it could still be precedent if part of the ratio decidendi of the decision. In other words, was such a necessary part of the rationale used to answer the question presented. In the case of Minor it was clearly not necessary to answer the question on sufferage as the court held that no one was guaranteed a right to vote under the Constitution and hence Minor’s citizenship was irrelevant to the right to vote. Obviously, it is not necessary to determine citizenship if citizenship is irrelevant to the right to vote.
“The Court further stated that there was never any doubt as to their “citizenship”. As to the second class, the Court stated they suffered doubts as to their “citizenship”. Minor’s class were undoubtedly citizens because they were natural-born citizens, the other class was not in the same class as the nbc class. The Court indicated that the second class might be “citizens”. But if that class were natural-born citizens, the Court would have put them in the nbc class. But the Court didn’t.”
This is just making stuff up and trying to re-write what Justice Waite said. Obviously, if someone is a “natural born citizen” they are a citizen as the previous paragragh tells us there are two types of citizens under the original Constitution, natural born and naturalized. But why can’t the court be saying there is doubt about whether children of aliens are natural born citizens? Such is a perfectly reasonable reading. When speaking of children of aliens, the court does not say they are talking about a type of citizenship other than natural born. To say so is simply a lie. Though it using the term “citizen,” not “natural born citizen,” when discussing children of aliens, the court repeatedly tells us that “natural born citizens” are also “citizens” and hence calling someone a “citizen” does not mean one is not talking about “natural born citizenship.” In fact, it is pretty clear that is what type of citizen Waite is talking about. This whole paragraph is talking about the “common law” where everyone knows there are only two types of persons, the natural born and the alien born. Waite even tells us this as he only distinguishes natives and natural born subjects from aliens, not aliens and some other type of citizen.
“These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
This is straight from Blackstone who states “[t]he first and most obvious division of the people is into aliens and natural-born subjects.”
Trying to claim the court is talking about another type of citizenship simply makes no sense in this context and is reading into the decision something the court does not say. What is clear is the court expressly declined to address the citizenship status of children of aliens at common law and does not tell us what doubts and what type of citizenship they are talking about. Hence is the nature of dicta. Claiming such case is precedent for the status of children of aliens when it expressly declines to address their status at all is absurd. Of course, Wong Kim Ark spends 20 pages addressing the status of children of aliens under the common law but such case is apparently too difficult for some to understand.
“If WKA had been deemed to be a natural-born citizen, as Minor was, the Court in WKA would not have reached for the 14th Amendment and would have avoided it as the Minor Court avoided it. But they couldn’t avoid it.”
It seems someone hasn’t read Wong Kim Ark as you have the case backwards. The issue presented to the WKA court was citizenship under the 14th Amendment and, of course, the court answered the question that was presented to it on the 14th Amendment. However, the court said that the 14th Amendment was simply declaratory of pre-existing law under the original Constitution. Hence, the court spends the first 20 pages telling us WKA would be a citizen under the original Constitution since the English common law definition of “natural born subject” was incorporated into the natural born citizenship clause of the Constitution. Hence, WKA’s discussion of “natural born citizenship” was necessary to the determination of the meaning of the 14th Amendment and hence is not dicta, but part of the ratio decidendi. Do birthers minds just go blank when they read these 20 pages? The Minor court never called Minor a natural born citizen, but made clear that a person of her status was. Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was. One doesn’t need to call someone natural born in order to clearly define the term. And, of course, WKA followed Minor and hence would supersede anything Minor said about the status of children of aliens.
So we have two cases that say “natural born citizen” must be defined by the common law of the founders. One doesn’t clarify what this means, the other spends 20 pages explaining what the common law meant in England and the United States. One is orbiter dictum, the other binding precedent. One cites no authority at all, the other cites pretty much every legal giant in England and the United States on the subject. One court declined to address children of aliens, the other spent the entire opinion on children of aliens. One Court followed the other and hence supersedes any implication with respect to natural born status of the former court.
“Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was.”
Made clear like this?
“a person born of alien in the U.S. “is as much a citizen as the natural-born child of a citizen.”
This is what defines who can hold the high office? ‘as much as citizen’
heck, i am naturalized, I should hold the office too, I am as much a citizen also.
mrjr101,
You, being naturalized, are not “as much a citizen” as a natural born citizen–you are treated the same by the law in every way save eligibility for the presidency. The phrase “as much a citizen” indicates equality and your citizenship will never be equal to a natural born citizen’s (in this one regard only). Weren’t you supposed to learn this stuff when you were naturalized?
Nal,
I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.
NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?
As is typical of birthers, you present half the quote and try to read into it something it doesn’t say. Horace Binney is saying that children of aliens and children of citizens are “citizens” by operation of the same principle.
“The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”
If they are citizens by operation of the same principle, they are obviously the same typy of citizen. If you read Binney’s paper, that principle is the English common law rule of locality of birth. He says we adopted the English common law and that parentage is irrelevant. He defined “natural born subject” and “natural born citizens” as someone born “within the limits and under the jurisdiction” of the sovereign in accordance with Blackstone. Binney’s paper is just more evidence that we adopted the English common law. You have to learn that just because someone calls someone a “citizen” doesn’t mean they are saying they are not a “natural born citizen” as “natural born citizens” are also “citizens.”
Now try going to the part of the decision where the court actually defines “natural born citizen” instead of trying to cherry pick citiations our of context.
“I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.
NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?”
You clearly don’t know what “holding” means. It means the answer to the question presented and it is simply a fact such question was not presented to the court. Hence, it can’t be the holding no matter what some other court said. The syllabus is not written by the court and has nothing to do with what is the holding or what the court satys. The supreme court cites prevous dicta of the court all the time. Wong Kim Ark is full of citations of previous dicta.
You don’t seem to understand how cases work and what dicta is. The court didn’t need to address whether Minor was a citizen before getting to the merits anymore than it had to determine if there was personal jurisdiction. Arguments not raised are waived. The question the court accepted to hear dealt with sufferage and its holding was that citizenship was irrelevant to sufferage. I would think even a child would understand that it did not have to determine if Minor was a citizen if citizenship was irrelevant to the holding.
It is also worth noting that Justice Fuller, Gray and the litigants in Wong Kim Ark all talked about natural born citizenship and no one suggested that Minor defined who was a “natural born citizen” or was in any way precedent. In fact, both the majority and dissent point out that Minor failed to address the status of child of aliens.
Well, Leo, it would seem that quite a lot of people wish to politely debate you on the facts of your assertions on a site where you can’t stifle dissent via moderation. They seem pretty erudite (more so than you, I’m sad to say…) and on point, too. Can your arguments withstand criticism on a level playing field? I don’t think so… Will you even try?
Slartibartfast,
Peace be with you.
Leo
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”
Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?
Well, here is MY two cents worth. The language in Minor v. Happersett is NOT dicta. It isn’t precedental for defining natural born citizenship, because it clearly says that it is not resolving the doubts.
But it isn’t dicta either, because some of it is quoted later in Wong Kim Ark, like this part:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar. . .
The Wong Kim Ark judges took this language and said:
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
Sooo, I figure the Supreme Court judges ought to know what is dicta and what isn’t. Plus, I am not a lawyer, but my BFF Fabia Sheen, Esq., is a lawyer and she says some very academic lawyers have a different view of what is dicta stuff than trial lawyers. She says if a judge says it in his decision, the odds are it isn’t dicta, and she will quote it and see what happens.
Squeeky Fromm
Girl Reporter
Hi Leo,
Is that an indication that you are working on responses to all of the substantive arguments that have been made against you or an indication that you are leaving the field? I am especially curious of your response to my own argument–one, to the best of my knowledge, you’ve never addressed. The technical details in Justia-the-non-scandal-undeserving-of-the-suffix-”gate” are much more consistent with an honest coding error than a conspiracy coverup (in my opinion, which I believe is the expert one in this case…). Furthermore, you’ve avoided (by ignorance or design–neither of which lends credence to your argument) presenting evidence of conspiracy. Evidence which certainly would have been extant when you made your “discovery” and could most likely be obtained from the Wayback Machine even now if it existed. In light of this (and the powerful arguments by others against your legal position, why should anyone consider you credible on this issue? Can you get your job as the Paraclete back?
Remember, if you can’t spot the fish in your first 30 minutes at the table…
Kevin
Squeeky, i suggest you read again both decisions…I don’t think you’re getting what the judge meant about doubts. He was referring to those of persons born to non-Americans (Minor was born to Americans). Other than that, I agree with you it is demonstratively true that Miner is not dicta due to the numerous times the citizenship holding has been cited in later cases, to include Wong Kim Ark.
I didn’t cherry pick the words ‘natural born child of a citizen’ in that sentence, the judge did. It wasn’t me who made the comparison between a citizen of aliens and a natural born child of a citizen, the judge did. But anyway, I would love to know where in the holding the judge made the so “clear” conclusion that WKA is an NBC other than that sentence. I can’t find it. Please…
mrjr101,
You cherry picked the words because you ignored the phrase, “and by operation of the same principle” which immediately followed the part you quoted and which invalidates your argument. The judge, on the other hand, said all of the words…
Squeeky,
Wow, it’s getting to be quite the party here… I’ve seen the video of Ms. Sheen’s discussion with a birther–brilliant! You should link it here.
Isn’t it fun to not have any mention of BCs or SSNs? Miner is on the books as case law and been cited numerous times. It’s worth it for lawyers and laymen, alike, to determine as to it’s actual import and value. Pushing certain matters (NbC) aside until others are resolved makes for an interesting debate.
First, is Miner dicta or is it precedent with regard to citizenship (regardless of which class)?
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”
Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?”
You need to read case law more. The court cites previous dicta all the time. Dicta is still substantial authority and can be cited. Fuller cites the dicta from Slaughterhouse prominently in his WKA dissent for example.
Hi Slarti!!!
OK, here is the video, which I am linking from youtube not The Birther Think Tank, so peope won’t call me a “Blog Ho.”
Squeeky Fromm
Girl Reporter
here…”and by operation of the same principle” WKA is a citizen the judge held. Right…what does this tell me about if WKA can be President? Still waiting for the clear link…
Nal said:
“In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.”
I do not understand this contention. That would make it more precedent than dicta. The Court is simply discussing various sources of information. Regardless, the Court was construing the Constitution generally and the citizenship clauses specifically. It ruled out any relevance of the 14th Amendment, and instead found the power to grant citizenship within the Document in two places…
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’ and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization. ”
The Court then established Minor’s citizenship under A2 S1. The issue wasn’t who can be President, but it was who is a natural-born citizen, to which the Court stated:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. ”
It then goes about ascertaining that.
It’s proclamations on this point are precedent under any analysis of precedent from every Supreme Court case I am familiar with which discusses precedent, particularly Ogilvie, but ESPECIALLY Wong Kim Ark (see below).
I have yet to see a single quote from another Supreme Court case more directly on point than Ogilvie as far as this situation. I am happy to address any such quote should one be cited. I would like for you though to discuss Ogilvie.
Nal said:
“In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.”
I agree that the “holding” of Minor is specifically pertaining to citizenship, not nbc. The Court in Lockwood, which was deciding an issue about Bar admission, had no reason to cite the nbc part of Minor. But the Court in Wong Kim Ark did have reason to cite that specific provision as precedent. I believe that was done to alleviate the pressure of the dissent which was arguing that WKA would be POTUS eligible.
The nbc language was not part of the specific holding, but it was an independent ground by which the Court arrived at the citizenship holding. They could have arrived at the very same holding under the 14th Amendment, but they didn’t. The Court determined Minor was nbc because that class had no doubts attached to their citizenship.
The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.
Nal said:
“The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.”
This I will acknowledge is a relevant and rational argument. But there is no rule that a point of law must have a ton of analysis attached. Look at Justice Breyer’s analysis of precedent v dicta in Ogilvie. It’s not supported by any point of law at all, but it is a precedent of that case.
The bigger problem with your argument, however, is that in Wong Kim Ark, Justice Gray said the same thing about the Court’s statement concerning “subject to the jurisdiction thereof” in The Slaughter-House cases, that it was dicta, but in doing so, part of his proof that it was dicta included his quoting DIRECTLY the nbc passage from Minor:
“That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House Cases, understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sentence of the fourteenth amendment, is manifest from a unanimous judgment of the court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are…’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, ofparents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens…’”
Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.
More important right now than the classification of Minor’s nbc definition as precedent v dicta, is national recognition of the statement, that it is controversial, that it deserves respect, if not Stare Decisis affect, and that it should be resolved by the Supreme Court. This dialogue did not take place prior to the ’08 election, but it needs to take place now, and it is taking place now.
The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.
Ballantine, dicta is frequently cited, got it. How about the rest? “What weight does the citation have and if very little, why is it used at all?”
I get what you’re saying regarding her waived citizenship, it just does not follow that the court could determine one without finding the standing of the other. I hope you agree that it is not merely a case involving suffrage.
“I didn’t cherry pick the words ‘natural born child of a citizen’ in that sentence, the judge did. It wasn’t me who made the comparison between a citizen of aliens and a natural born child of a citizen, the judge did. But anyway, I would love to know where in the holding the judge made the so “clear” conclusion that WKA is an NBC other than that sentence. I can’t find it. Please…”
The court didn’t say they were different. You are trying to make an inference in that since it didn’t call children of aliens “natural born” the court was implying they were not “natural born” even though it says the children of aliens and citizensa are citizens by the same principle and hence obviously the same type of citizen.
I suggest you go to the beginning of the case where the court says “natural born citizen” must be defined by the English common law.
“The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States……The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution….The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” U.S. v. Wong Kim Ark,169 U.S. 649, 654-55 (1898).
What can that mean? Do understand that under the English common law parentage was irrelevant? If you don’t, the court goes on with about 5 pages telling us WKA would be a natural born subject before stating the rule that would make him one “prevailed under the constitution.”
“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. 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.” U.S. v. Wong Kim Ark,169 U.S. 649, 658 (1898).
So “natural born” is defined by the English common law and the defintion of natural born subject prevailed under the Constitution. In case anyone was still didn’t get it, Gray goes on:
“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” U.S. v. Wong Kim Ark,169 U.S. 649, 662 (1898).
“Natural born” defined by “place of birth.” Pretty clear. Gray continues:
“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 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.” U.S. v. Wong Kim Ark,169 U.S. 649, 662-63 (1898).
“Natural born subject” defined the same as “natural born citizen.” The rule the same here as in England. The rule the same as before the revolution. Hard to be clearer. Of course, some birthers still claim that “born in the allegiance” must mean something different in England and the US. Don’t worry, Gray quotes authority defining “allegiance by birth” in the United States using the words of Blackstone:
“allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign…” U.S. v. Wong Kim Ark,169 U.S. 649, 659 (1898).
Finally, in case one didn’t get the message that “citizen” and “subject” meant the same thing:
“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.”U.S. v. Wong Kim Ark,169 U.S. 649, 664 (1898).
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” U.S. v. Wong Kim Ark,169 U.S. 649, 665 (1898).
Portney:
You said: Squeeky, I suggest you read again both decisions…I don’t think you’re getting what the judge meant about doubts. He was referring to those of persons born to non-Americans (Minor was born to Americans).
True. There were some doubts as to whether they were natural born citizens (NBC) or not. For example, there was a lot of uncertainty about the Chinese, because of some legal questions relating to them getting their heads cut off or something if they naturalized. (By the Chinese, not us Americans)
However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!
Squeeky Fromm
Girl Reporter
If anyone wants to engage me here, address your comment to me and have it refrain from any emotionally charged language and I will be happy to partake in a mutually respectful dialogue in pursuit of genuine truth.
I do not respond to insults, direct or implied. Address me with respect and your respect shall be returned.
If I answer you as follows, “Peace Be With You”, I mean it and I also intend for that to be the last correspondence I have with you. I have tuned you out until such time as you may redress your disrespect.
Leo
“The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.”
Nope. Citizenship was never raised before the court. It wasn’t argued or briefed. The judge brought it up on his own. It is dicta. However, even if the court held Minor to be a citizen, the issue of children of aliens was not before the court and hence anything said about children of aliens is obviously dicta. Minor can simply not be cited on the issue of children of aliens.
“Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.”
Gibberish. The sole purpose of the citation was to show the Minor court was no committed to a view of on children of aliens under the 14th Amendment as the Minor court failed to address the citizenship status of them at all and, again, nothing in the Minor quote says children of aliens were some type of citizen other than “natural born.” Such is just making stuff up.
“The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.”
Time to read Wong Kim ark again. The court said the 14th Amendment and the NBC clause are both defined by the English common law and hence mean the same thing. No subsequent court has ever said they mean something different.
The fact is that no one in history has cited Minor as precedent for definition “natural born citizen” because it is not. At most it stand for children of citizens being natural born and leaving the question open whether children of aliens are.
Natural Born Citizen:
There is no sense in me engaging you here, because I have just been giving you HECK at my website. Sooo, if disrespect bothers you, OH I would just be giving you tizzies. Plus, I am scairt of that “Stream” of yours. Because I am pretty sure it isn’t “rain.”
That being said, you are living in an alternate reality universe wherein all the history after the 1875 Minor v. Happersett case do NOT recognize it as precedent for determining natural born citizenship. Even Breckinridge Long snubbed the case in 1916 in his hit piece on Charles Evans Hughes, who was seeking the Presidency against Woodrow Wilson.
If ever a writer could have used Minor v. Happersett to prove his case, it was poor Brecky. Yet, no mention of the case. Anomalies like this are the responsibility of the person advancing the theory to explain. Should you need a list of anomalies to start you off, try this:
http://birtherthinktank.wordpress.com/2011/11/12/the-alternate-reality-universe-of-leo-donofrio-a-white-paper/
The “Et tu, Breckinridge???” Internet Article is the one after that.
Squeeky Fromm
Girl Reporter
Ballantine,
Peace be with you.
Leo
Squeeky,
Peace be with you.
Leo
“Ballantine,
Peace be with you.
Leo”
Translation: “I have no answers to your arguments.”
Bless your heart.
Leo,
I didn’t think that my last comment was emotionally charged, but since you apparently did, here’s the gist of my comment:
Why didn’t you show evidence of your allegations against Justia? (i.e. a non-mangled link in citations that the defective regex was allegedly used on)
Also,
Since the “coding error” explanation much simpler than the “conspiracy to cover up Minor” explanation, is it not much more likely to be true? Especially if you are wrong (as it appears) regarding Minor and precedent…
Ballantine:
A better translation:
“But, I don’t want to take off my big red rubber nose and floppy shoes first. Can’t you just respect me and my seltzer bottle the way I am???”
I think he should put a “Non ridet” clause into his stuff. Although it will probably not be enforceable for “impossibility.”
Tee Hee! Tee Hee!
Squeeky Fromm
Girl Reporter
@ Natural Born Citizen:
Why does no one in the mainstream legal community agree with your take on what Minor held?
bob,
The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.
Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.
The only question which is open for debate as to Minor concerns what is the precedent of citizenship from that case. We know the holding, but the precedent is not limited to the holding.
Leo
Professor R. D. Skidmore of Pierce College in California agrees with Leo.
http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/
Attorney Mario Apuzzo agrees with Leo.
http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html
It’s hard to believe that the birther controversy has re-emerged. I have read the entire opinion in Minor v. Happersett. Nal is absolutely correct. The reference to natural-born citizens in the opinion is dicta in its purest form. That is to say, the comment had no bearing on the determination of the issue before the court. I have also read Ms. Cotter’s piece in its entirety. Unfortunately, earnestness is not a cure for ignorance. She ought to have consulted a lawyer before she spent what appears to have been a considerable amount of time uselessly.
BTW, Nal, great comment and explanation.
“Professor R. D. Skidmore of Pierce College in California agrees with Leo.
http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/
Attorney Mario Apuzzo agrees with Leo.
http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html”
Uh, Skidmore is not a lawyer and Apuzzo has embarrassed himself every time he has debated the issue in a public forum. And what are Apuzzo’s qualifications as a constitutional scholar? Why not try citing real scholars like Tribe or Olson who say Donofrio is wrong. Try citing real judges like the judges in the Ankeny court or actual legal treatises or dictionaries which all say Donofrio is wrong.
The 1894 Lockwood case cite of MvH:
In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities.
Sooo, this means it takes two citizen parents to be president??? Funny how the Wong Kim Ark Court did NOT think so four years later. Maybe the MvH case was scrubbed??? This is the usual Vattle Birther trick. Make a broad statement and leave out all the context and troubling little details.
Squeeky Fromm
Girl Reporter
Philo-Publius,
Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)
“Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.”
Fuller citing Minor doesn’t change dicta to the holding. Unless the question of Minor’s citizenship was put before the court, the discussion of citizenship is not the holding. Really no argument on this point. In addition, Ex Parte Lockwood did not cite Minor on whether Lockwood was a citizen, an issue not before such court, but on whether suffrage was a privileges and immunity, the argument Lockwood was making before the court. And Fuller’s description of the holding does include the actual holding which was, in Fuller’s words:
“but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.”
It is not clear from Fuller’s citiation whether he thought citizenship was part of the holding, but law school 101 analysis makes clear it was not. Of course, nothing in Fuller’s citation asserts or recognizes that children of aliens were not citizens or natural born citizens as nothing in the Minor court says that.
I really don’t understand the argument that speaking of just “citizens” when referring to children of aliens means they were not referring to “natural born citizenship” when the Court only calls Virginia Minor a “citizen,” not a “natural born citizen,” and repeatedly makes clear that “natural born citizen” is a type of citizen. Can birtherdom really not understand the Minor court’s explanation that there were 2 types of citizens under the original Constitution. Natural born and naturalized. And saying it is unclear whether someone was a “citizen” meant it was unclear whether they were a “natural born” or naturalized citizen. It in no way means they are not “natural born citizens.” Accordingly, to claim Minor says that children of aliens cannot be natural born is simply being dishonest. It never specifies what type of citizenship it is talking about though, as I explain above, the context makes clear it is natural born citizenship. Such is the problem of citing dicta that doesn’t cite authority or detail the doubts it is mentioning.
“Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)”
Skidmore does not understand the issue. Perhaps he should go to law school England did not consider persons made subjects under the British Nationality Act of 1772 to owe allegiance to England or to be British subjects unless they moved back to England. Such statute merely conferred municipal rights to such persons when in England and did not confer rights that could not be claimed against their native country. From the Royal Commission on Natualization and Allegiance:
“no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.”
If England didn’t think children of British subjects born in the United States were to be treated as British subject while in America, why would anyone think the United States would? Indeed, there is no early authority at all that claims that dual citizenship or allegiance was relevant to American citizenship. Rather, our executive branch declared that we did not recognized foreign claims of allegiance on our native or naturalized citizens. In fact, in 1868, a report to Congress stated that a majority of our native born and naturalized citizens owed a foreign allegiance under the laws of Europe. Congress reacted by proclaiming that our native born and naturalized citizens only owed allegiance to us and that we would protect our citizens against all such foreign claims. The notion that we let foreign nations determine who are our citizens is absurd and has no basis in history. Foreign nations could make all Americans citizens if they wanted. To claim such is relevant to our municipal law is just silly.
Leo,
Peace be with you.
Nal
The Minor “precedent” on the Citizenship “class” which they found Minor to belong based on their determination of the circumstances requisite to be in conformity to the needs of A2S1C5 notwithstanding;
“There is NO acknowledged “legal” definition of the Constitutional idiom of natural born Citizen which is “enforceable” independent of adjudication within a Court of Competent Jurisdiction;
a circumstance upon which the Courts REFUSE to accept Jurisdiction or acknowledge standing since there has been no promulgated laws by the Congress to address the issue, therefore the ONLY means to seek the “legal” Constitutional definition in order to have an uniformly acknowledged “legal” definition is to challenge the status of a POTUS / V-POTUS or candidate for the Offices under the various State Election Laws.
Nevertheless, the question of the definition of the Constitutional idiom is in the 1st instant a Citizenship Question, with the transient Political aspects being of incidental import to the National Security interests which prompted the usage of the turn of words within the Clause.
In the totality of the Clauses Statutory Construction it is found to be an “exclusionary provision” constructed as a “Prerequisite imperative requirement” with no apparent discretionary language that would suggest that a “person” that was not could be made one by the office.
Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).
That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.
In conclusion and with full disclosure, I too considered the Minor v. definition as “dicta”, but have been persuaded that it stands as unenforceable “precedent” on the question of the ONLY form of Constitutional Citizenship surviving the Founding Generation and not a function of naturalization Acts.
The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.
In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.
The “Repeal” and then rewording of the 1795 Act establishes that Jus Soli is a circumstance requisite along with Jus Sanguinis in the determination of a who is or is not a natural born U.S. Citizen (sic).
Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.
The FACT is, there was doubts whether “women” were citizens independently of a “husband” prior to the 14th.
A “woman’s” rights were greatly curtailed in “ancient times” to the extent that when a woman married a “Foreigner” her ‘citizenship’ was assumed as being that of her husbands.
Not trying to “change” minds, I’m fully aware there is little “hope” of that, just like the record to be accurate.
What is with the “idiom” nonsense? Do you really think anyone understands you?
“Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).”
The Supreme Court has made clear over and over that they meant he same thing.
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.” Luria v. United States, 231 US 9, 22 (1913)
“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.” United States v. Schwimmer, 279 US 644, 649 (1929)
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency” Baumgartner v. United States, 322 US 665, 673 (1944)(quoting Luria v. United States”).
“The Constitution of the United States provides as a qualification for the offices of President and Vice-President that the person elected must be a native-born citizen.” Ex Parte Garland, 71 US 333, 395 (1866)(Justice Miller Dissenting).
“The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more.” United States v. Macintosh, 283 US 605, 624 (1931).
“Citizenship obtained through natuvalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Knauer v. United States, 328 US 654, 658 (1946).
“That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.”
No confusion. The Minor court itself tells us that there are two types of citizens, i.e., natual born and naturalized. Not really that difficult. “Natural born” is a subset fo “citizen.”
“The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.”
No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing. No legal authority other than the sovereign citizens nuts have ever argued the 14th Amendment confers a different type of citizenship.
“In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.”
Completely wrong. Such Congress said they were copying English law applying to foreign born children of citizens just like Parliament did for foreign born children of British subjects. Such statute had nothing to do with persons born in the United States and just like the English statutes they were copying conferred a secondary type of citizenship that was only recognized for municipal purposes as Secretary of State Marcy would claim. Hence, just like the English, persons made citizens under such statute were only regarded as citizens when they returned to the United States while natural born citizens born on our soil were treated as our citizens no matter where they were. Have you actually done any research at all on this?
“Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.”
The defendant did not even argue the case on appeal. No one asserted that Minor was not a citizen. The Missouri Supreme Court didn’t address the citizenshhip issue below because it was not raised. The Court, like it did in Slaughterhouse, decided to speak abour citizenship even though such issue was not raised before the court. The Court does this all the time but it doesn’t turn such discussion into the holding of the case. It is simply a fact that the court held that citizenship was irrelvant to the question presented to the court. One can spin all day, but such makes such discussion dicta.
Furthermore, even if the Minor court said that children of aliens were not natural born citizens, since Minor was not a child of aliens, there was no way one can argue such statement would not be dicta as there is no way the status of aliens was before the court or relevanat to the decision. Of course, the court did not say children of aliens were not natural born citizens for those who can read English.
slcraigbc,
The “overuse” of “quotes” or their “incorrect” use as some “sort” of “indication” of “empahsis” makes your “posts” appear “juvenile”–just my “opinion”…
I would also note that there is only one living person whom I am aware of who has judicial precedent saying that they are a natural born citizen–President Obama. The holding of the Indiana Court of Appeals in Ankeny v. Daniels is quite clear on that point…
Ballantine,
Thanks for the additional info!
A few further points on naturalizing children of our citizens born oversees and how such were treated only as citizens for municipal purposes and not treated as natural born citizens.
“The 4th section of the act of April 14, 1802 (Rev. Stat., § 2172) (making children of naturalized persons citizens, and extending citizenship to children born abroad to citizens), “is only a municipal law, and can have no effect beyond the jurisdiction of this country, and especially in Holland, if it should be in conflict with the local law of that country. If, therefore, Johannes (whose citizenship was contested) voluntarily placed himself within Dutch jurisdiction, his rights and his obligations must be measured by the laws of Holland and not by the laws of the United States.” Mr. Marcy, Sec. of State, to Mr. Wendell, Sept. 7,1854. MSS. Doni. Let.
“If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.” Attorney General Hoar, 1869.
This follows the law of England:
“It is competent to any country to confer by general or special legislation the privileges of nationality upon those who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.” Royal Commission on Naturalization and Allegiance, pp. viii, 67 (1869)
Hence, in both England and the United States, jus sanguinis for the foreign born was a secondary citizenship that only applied for municipal purposes but could not confer such privileges against the nation of their birth. Hence, while England protested the drafting of unnaturalized British born subjects during the civil war, they told children of British subjects, born in the United States, that they were American citizens, that they owed allegiance to the United States and that they would only be treated as British subjects if they returned to England.
I think Natural Born Citizen was referring to me when he used the words:
“Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”
Which canard, if it was true, would be worthy of discussion and condemnation of the guilty party. But the non-lawyer could at least plead ignorance as an excuse, or defense. Would that defense be available for a:
lawyer arguing on forums who has an agenda and is hell bent on denying the truth of the case.
Respectfully submitted,
Squeeky Fromm
Girl Reporter
pro se
“I think Natural Born Citizen was referring to me when he used the words:
“Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”
Looks to me like Squeeky is doing just fine against the Vattellites who have some kind of law degree. This really isn’t rocket science.
naturalborncitizen wrote:
“The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.”
It is true that all cases begin with disagreement. That does not imply there is any disagreement in how they were resolved, or why.
Ernesto Miranda and the State of Arizona, for example, disagreed whether the state’s interrogation of Miranda violated the U.S. Constitution. SCOTUS was closely divided on how to resolve this case. But there is no disagreement in the mainstream legal community about how SCOTUS did, in fact, resolve the case, and its rationale for doing so.
So, again: Why does mainstream legal community reject your perspective on the rationale employed by the Minor court to resolve the dispute between Minor and the Missouri’s registrar?
slcraignbc:
I have read your posts several times and must confess that I have no idea what you’re talking about.
Mike A:
As a veteran Vattle Birther fighter, let me try to translate what slcraignbc was trying to convey into English. He is referring to several early Naturalization Acts where the language basically said that children of naturalized foreigners would also become citizens. The laws did not specifically say it was referring only to those who were born overseas. The implication was made that these acts controlled citizenship of ALL children of foreigners, not the common law natural born citizen concept.
This claim was first made way back in 1844 in Lynch v. Clarke. That judge was not persuaded, but the two citizen-parent Birthers have a hard time taking “NO!” for an answer, even after 167 years:
The provisions of the naturalization laws enacted by Congress, are urged as decisive, that children born here of alien parents were not citizens. The act of 1802, § 4, declares that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States. (2 Story’s Laws of U. S. 852, 3.) A similar provision was enacted in the acts of 1790 and 1795. And the second section of the Act of 1804, provided that when any alien who had declared his intention, &c., should die before he was actually naturalized, his widow and children should be considered as citizens, and entitled to all the rights and privileges as such, upon taking the oaths prescribed by law. (2 ib. 943.) This section was repealed in 1828, (ch. 106.)—The acts make no distinction between children born here, and those born abroad, and it is said, this shows that none existed. That if, in fact, there had been any difference, the statutes would have provided only for the latter class.
The general words used, do not prove that general words were necessary. The statutes were necessary, and every part of them is fulfilled, although children born here were already citizens. They operate on the much larger class of the children of aliens, viz : those who were born abroad. With a law which admits aliens to naturalization after five years residence, the children that are born to them in the five years, will usually bear but a small proportion, to the number who come with their parents from abroad. It was just as necessary in the act of 1804, to have ditinguished between widows who were already citizens, and those who came here with their alien husbands. For a great many adult aliens come here single men, and marry citizens. Probably as great a proportion of the widows who are provided for in the general words of the Act of 1804, are native citizens, as the proportion of the whole number of children embraced by both acts, who are born here; yet no distinction respecting widows who are citizens, is made in the Act of 1804. And on this omission, the same argument urged relative to the children, will prove that all the widows of aliens must of necessity be aliens.
Upon the whole, the implication claimed from these statutes is not a necessary one, and cannot be raised to overturn an established legal principle.
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
This same issue was discussed again in Wong Kim Ark 1898, with the holding that naturalization statutes do not trump natural born citizenship. I hope this helps.
Squeeky Fromm
Girl Reporter
“slcraignb
I have read your posts several times and must confess that I have no idea what you’re talking about.”
LOL. You should read the silly complaint he has filed based upon this nonsense. I gave up trying to understand his argument about 3 pages in as it made no sense.
Leo,
In citing Wong Kim Ark, you point to the statement by Binney, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”
But in fact, Justice Gray cites this passage twice. The second time he writes:
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
So he starts the sentence saying that a foreigner has a direct and immediate allegiance to the United States and that allegiance is so strong that it makes a child born to the alien “natural born”. And such a child is as much a citizen as the “natural-born child of a citizen”.
Why is he quoting the Calvin’s Case? Isn’t that the basis for the English Common Law principle of jus soli?
The problem with those that consider the citizenship decision of MvH as dicta is that it appears an argument of convenience, if not expedience, If it is dicta than it can be summarily dismissed regardless of its later use. Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.
Portney
“Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.”
Cite some of those cases.
Portney,
Since the court in Minor refused to say anything about the children of aliens born in the US, the question of dicta v. holding is irrelevant to President Obama’s citizenship.
It seems like Squeeky, Ballantine, and gorefan are not unknown to each other.
Welcome. Hope you all stay around for some of the non-birther topics, such as the stereo melodies.
Nal:
Thank you!!! Yes, this is a nice website. I have browsed some of the other threads.
Squeeky Fromm
Girl Reporter
The lack of intellectual honesty and zealous advocacy that argues against not only the accurate and historic natural law definition of the Constitutional idiom that was advanced as a National Security measure is disheartening, but the inability to accept the linguistic fact the the “turn of words” was made an “idiom” by its “specific usage for specific purpose” of being an
“exclusionary provision” within the POTUS qualification Clause makes it difficult to accept that the “defenses” of your contrary positions are made in the best interest of the support, protection and defense of the Constitution.
The arguments seem to accept every kernel of “enlargement, abridgement and modification” to the nature of the idiom without the imprimatur of an AMENDMENT.
On the one hand it is advanced that Jus Soli was always the case and on the other it took the 14th to establish jus soli to be “legal” in the Constitutional sense.
But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.
What then of the Supremacy Clause of the Constitution and the predecessor Articles of Confederation that retained only the “structure and prerogative writs’ of the English common law and rejecting those things that were “repugnant” to a sovereign State.
But I have to ask how, by walling off of the truth with inaccurate and deceptive readings of case law and history are any of you 0′pologists able to reconcile the “exclusionary provision of the prerequisite imperative requirement” expressed in A2S1C5 let alone the Minor v opinion, whether considered precedent OR dicta, (which, being cited in numerous cases since its publication is at the minimum, “dicta redux.
It is indisputable that the 1790 Act to make an uniform Rule on naturalization “established” jus sanguinis as the “guiding principle” for determining a persons citizenship status as the 1st principle, i.e., “birth-right”, followed, of course, by promulgated laws to allow those who had no jus sanguinis upon which to rely.
Any judicial act that extended the benefit of citizenship based on solely jus soli prior to the adoption of the Constitution and the act of the 1st Congress is moot and any such occasion after adoption and before the 14th must be looked at with scrutiny of the status of the parents and if of an un-naturalized alien father must be considered as an act of judicial naturalization in controvention to the laws of the Congress.
In the matter of WKA it is more rightly to be considered a judicial kidnapping, given the the Burlingame Treaty’s Article VI was controlling of the Ark’s prodigy. For those that say the 14th Amendment trumps a Treaty need to refer to the Constitution before advancing that argument, lest diplomatic immunities fall into question.
But one last eye opener for all you legal eagles to debate and that is to explain that the only surviving function of the “declaratory born provision” of the 14th is to provide the citizenship benefit to persons born to alien foreign nationals when within the “territorial jurisdiction”, whether present legally or otherwise, since the “statutory benefit” is available, jus sanguinis, to a person born to a citizen parent, whether within the “territorial jurisdiction” or not.
“Tweak”.
“No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing.”
Since this is the defining dictum thread, will you please post the non-dicta citations from WKA that are specific to your assertion?
Nal, will you please verify if indeed the citations are not dicta, and form an actual holding, that perfects the synonymy of the term “natural-born citizen” and the term “citizen”?
Thanks in advance.
To Komfort and Craignbc:
Do you need a link to Wong Kim Ark??? Plus, this same thing is in Ankeny v. Governor in case you never read that one either.
From Section V, Wong Kim Ark:
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. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
Squeeky Fromm
Girl Reporter
So combative. No wonder you picked the name of an attempted murderer of an American Presidents.
If that is your non-dicta citation, I think the author of this thread should weigh in for validation.
Thanks again.
@ Komfort:
If the author (Nal) does confirm that is the ratio decidendi of Wong Kim Ark, then would you agree that President Obama is a natural-born citizen?
…President.
I never said he wasn’t.
“But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.”
Seriously, I have not seen anyone say something more stupid than this on English law. Slcraignbc is not a lawyer and has no understanding that Blackstone stated that English statutes were solely an exception to the general common law jus soli rule. In fact, no one in English history thought such statutes were anything other than an excpetion from the jus soli common law rule. Funny that non-lawyer birthers who have never studied English nationality law claim they are experts. Funny that Squeeky is able to run circles around these birther experts who have never actually read what English law was in 1787. No real legal authroity would ever dispute that parentage was irrelvant to “natural born” status under the common law.
Ballantine:
Thank you!!! It is really not hard if you just read the 2 or 3 cases. Then if you do a little research in addition to that, there is no excuse for somebody being a Vattle Birther. Plus, if you just read the arguments on the Internet between Vattle Birthers and the anti-VB’s, you watch the VBs getting smeared time after time to where you almost feel sorry for them being that ignorant of stuff. Then they go and say something mean to you, so then you start to enjoying watching them getting their brains beat out WITH LOGIC.
Am I cruel???
Squeeky Fromm
Girl Reporter
Komfort;
Squeky, like Justice Gray, is lost in a world of their own making. What “Ancient law of Jus soli” making of citizens…? Subjects, yes, but “citizens”.
I suppose the FACT that the Constitution adopted by CONSENT is lost on many and that the consent of a minor is only TACIT until continuing as a Citizen after the age of majority.
There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.
But facts do not matter to those that choose the contrary position to what even Aristotle understood in 350 BC.
“Domicile” made synonymous with “within the jurisdiction”…?
And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.
But I suppose myopia has that effect on some.
I did not know asking a dicta question on a dicta thread would require so much thought. I will check back tomorrow.
slcraignbc:
You said: “There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. ”
You are COMPLETELY mistaken. Read this case. It is from 1844:
http://nativeborncitizen.wordpress.com/category/precedent-cases/lynch-v-clarke-1844/
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. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country, does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important, and more deeply felt, in reference to political rights, than to rights of property. The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.
You are wrong. I have proven you wrong. Now, it is time for you to admit that you are wrong, and change your mind.
Squeeky Fromm
Girl Reporter
You want someone who can’t spell “obiter” to weight in?
OK, here goes.
There is no holding in any Supreme Court opinion regarding what constitutes a “natural born citizen.” It’s all dicta.
I further predict it will never be decided.
Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.
Do you predict team WKA will go after you in the same way they go after anyone else who questions their “holding”?
Thanks for the response, Nal.
Goodnight.
@Bob
What do you think of all this?
“There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.”
There is not a single legal authority of signifigance prior to adoption of the 14th disputing that our law was jus soli. Why do you think making up your own history means anthing. Wong Kim Ark cites pretty much every legal giant of the early republic saying you are wrong. I guess Kent, Story, Marshall et al were all worng. Wong Kim Ark concludes:
“Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
The Supreme Court’s opinion counts. Your opinion as a non-lawyer with no understanding of the issue means nothing.
“And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.”
You are ridiculed because you make no sense. Gray’s opinion as a matter of fact is the current law and is supported by all pre-existing legal authority in the United States in the early Republic. Domicile was never the rule in the United States and, honestly, I can’t even understand whatever point you are trying to make. The Court following Wong Kim Ark has repeated over and over that there is no rule of descent under the Constitution and that persons born outside of the United States can only be made citizens by statute.
“Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.”
Wong Kim Ark cites Lynch as authority and reiterates its interpretation of citizenship as well as dozens of other early authorities who embrace the jus soli rule. Thus, it is Wong Kim Ark which is binding authority.
Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.
What did Nal and I miss?
“Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.
What did Nal and I miss?”
I suggest you read above where I point out in painstaking detail how the ratio decidendi of WKA defined “natural born citizen” according to the English common law. It essentally spent 5 pages saying “natural born citizen” meant the same thing as “natural born subject.” If you can’t understand the majority opinion, I suggest you rad the dissents’s summary of the majority opinion as it really is quite simple although it simply paraphrases what the majority says. Here is the dissent’s simple summary of the majority opinion:
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;
and
that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.
Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”
Such is exactly what the majority opinion stated summarized in simple form for the dense to understand.
slcraignbc,
That’s a pretty limp, lifeless word salad you’ve served up which doesn’t change the fact that the court in Ankeny ruled President Obama a natural born citizen and the only legal arguments to overturn that precedent are completely frivolous. Holding or dicta, Minor says nothing about President Obama’s eligibility…
Squeeky,
It’s not cruel to devastate irrational arguments nor to ridicule stupidity and willful ignorance–just don’t hold your breath until they finally learn better…
Insults. Slick job, counselor, you just called Nal “dense.”
I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.
Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.
???
So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?
Komfort:
You said: Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.
Learn to read. Learn to comprehend what you read. slcraignbc stated:
There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. ”
I pointed out a case from 1844, which was 24 years prior to the 14th which flatly contradicted him. Duh. I never said the New York case was binding on Federal courts. Yet, as was pointed out above, Wong Kim Ark did cite the case.
Try to keep up. OK???
Squeeky Fromm
Girl Reporter
In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.
Now that we have disposed of the myth that the US Supreme Court in Minor v. Happersett ruled that two US citizen parents are required to be a Natural Born US Citizen, it is worth asking how a US Supreme Court would rule today.
The idea that two US citizen parents are required to be president is based on the notion that children born in the United States of foreign parents are somehow less reliable citizens than US-born children of US parents.
IF you believe that that is true, then it is possible to believe that the writers of the Constitution also believed it—despite the fact that they did not say it. There are no articles from the writers of the US Constitution saying that they considered the US-born children of foreigners would be security risks or that they should be treated differently than the US-born children of American citizens.
On the other hand, if you DO NOT believe that this notion is true, if you cannot see a way in which US-born children of foreigners are likely to be less reliable than US-born children of US citizens (given that the US-born children of US citizens also can be unreliable), then it is difficult if not impossible to believe that the writers of the US Constitution believed it. If they had said that they believed it, that would be a different thing, but they didn’t.
What this means is that in addition to the four liberal justices on the Supreme Court, virtually all the conservatives would vote against the two-parent theory as well.
The conservative justices would not have to ask themselves whether making the US-born children of foreigners not eligible to be president is a good thing or a bad thing. The fact is that the writers of the US Constitution did not say that wanted the US-born children of foreigners to be treated differently than the US-born children of US citizens, and that absence is sufficient.
Under strict construction principles, if the US Constitution does not say it, the US Constitution does not mean it. So the strict constructionists among the conservative justices would not vote for the two-parent theory.
As for the originalists, the historical evidence holds overwhelmingly that the meaning of Natural Born at the time the Constitution was written refers to the meaning of Natural Born Subject in the common law. The idea that the writers of the Constitution, who were mainly lawyers and justices, would pull the phrase out of Vattel (whose words were not even translated to use the words “Natural Born Citizen” until a decade after the Constitution) is simply laughable.
Moreover, originalist justices on the US Supreme Court would have the guidance of the Wong Kim Ark ruling as to the original meaning of Natural Born. And, when they do their own research, the justices would have the evidence of such uses of the term Natural Born Citizen in the years around when the Constitution was written as this, written in 1803:
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
As you can see, the meaning of Natural Born Citizen refers only to the place of birth, not to parents. Natural Born Citizens were “those born within the state.”
And this, written in 1829 by a man familiar with many of the writers of the Constitution:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
Thus the votes of the originalists among the conservative justices are lost to the two-parent theory as well as the strict-constructionists.
These conservative justices, the strict constructionists and the originalists, would likely then review the Minor v Happersett decision, and determine, as is obvious, that it is dicta and not a ruling, and that the statement that at one time there were doubts is meaningless in any case. (At one time there were doubts as to whether zippers would work).
So, if the case were ever called by the US Supreme Court, it is likely that the two-parent theory would lose with the vote being nine to zero, or maybe eight to one.
But the court will never call the case because to call it you have to get four justices who think that it is an issue—and if you have eight or nine justices who think that the Constitution is obvious how can you get four justices to think that it is an issue?
At this point two-fers often reply that it does not matter whether the US Supreme Court calls the case or what it would rule, they think that the two-parent theory really is what the Constitution meant. The obvious answer to this is that even if they were right, the law is based on court rulings, and if there is no court ruling that two citizen parents are required, it is not the law.
But in a broader sense they are right. It is possible for each of us to hold a theory about what the Constitution means, and that is really what we are discussing here. In the debate about what the US Constitution meant in the phrase Natural Born Citizen, we can be liberals, in which case the idea that it meant that a child with two citizen parents is better than a child with foreign parents is profoundly immoral, not to mention wrong.
Or, we can be strict constructionists, in which case the fact that the writers of the US Constitution never said that they intended for the US-born children of foreigners to be treated differently than the US-born children of American citizens is sufficient. Or we can be originalists, in which case the meaning in the common law, and the quotations from Tucker and Rawle (and the fact that Vattel is not mentioned in the Federalist Papers while the common law often is) will be the guide.
The two-parent theory is absurd in itself, and the notion that the majority of justices in the Minor v. Happersett case held to it is equally absurd.
Nal said:
In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.
Nal is playing fair. Thanks Nal, there goes 90% of the bloggers here who won’t engage in that conclusion.
Despite the contempt you have shown, I will take your advice and attempt to improve my reading skills.
I will start with this:
“However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!
Squeeky Fromm”
By “answered” do you mean they “held”?
That would contradict this:
“In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”
Show your style, girl, let Nal have it! (Of course I may have misinterpreted what you wrote. Duh on me, if I did.)
Komfort:
I wrote a very kewl Motion here, and it disappeared into limbo. I am waiting for it. Give me a few minutes.
Squeeky Fromm
Girl Reporter
I will check tomorrow. I hope it stays on the dicta topic.
Nal:
(I am having trouble getting this to post. There aren’t any naughty words in it. Plus, another post went thru on me, sooo I am not banned or anything. If this duplicates, I am sorry. Just keep the latest one time wise.)
I respectfully make a Motion for Reconsideration regarding your decision to classify the language from Wong Kim Ark as “dicta.”
You said above:
While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.
The subject language begins:
From Section V, Wong Kim Ark:
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. . .
I would submit that the language, “the foregoing considerations and authorities irresistibly lead us to these conclusions” goes far beyond mere “wand waving” and “uttering words” and constitutes an actual conclusion of the SCOTUS on a point germane and relevant to the decision, to wit, that the 14th Amendment is rooted in the common law concept of natural born citizenship, and declaratory thereof.
There was no dispute as to the place of Wong Kim Ark’s birth. The only question was the meaning of the term “under the jurisdiction” as required by the 14th Amendment, and without a finding that the 14th Amendment was an affirmation of the concept of natural born citizenship, the Court would have been left to create its own interpretation of the term.
Therefore, such a conclusion was a necessary step and indispensable finding on the pathway to interpret the meaning of the phrase, “under the jurisdiction” as found in the 14th Amendment.
Further, said subject language was fully cited in the Appeals court level decision of Ankeny v. Governor, thus again proving the necessity for this intermediate conclusion, that the 14th Amendment was based in the old common law concept of natural born citizenship. Since 1868, the year of passage of the 14th Amendment, additions to citizenship would have to be via the 14th Amendment. Without that finding, that the 14th Amendment was rooted in the common law, that Court would have been left to fly by the seat of its pants.
Such a characterization would be absurd in light of the clear and definite language used by the Wong Kim Ark Court, to wit: “The foregoing considerations and authorities irresistibly lead us to these conclusions. . .”
Respectfully submitted,
Squeeky Fromm
Girl Reporter
pro se
PS: I do some typing and stuff for my BFF Fabia Sheen, Esq., a lawyer, sooo I hope my “Motion” isn’t too bad.
@ Nal:
Is there anything in Wong Kim Ark to suggest that SCOTUS held that he was a citizen but not a natural-born citizen?
Quote: “Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth.”
A child who is a citizen at birth is born a citizen, and hence, a natural-born citizen.
“Insults. Slick job, counselor, you just called Nal “dense.”
I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.
Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.
???
So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?”
Justice Gray points out that undefined terms in the Constitution should be defined by the common law. Justice Waite said the same thing in Minor and the court has said the same thing a hundred times because the common law the legal system of the founders as it was in place in every state. The court goes on to state that “natural born citizen” is thus derivative of “natural born subject” and cite authority after authority that we had adopted the common law rule. Calling Gray’s comprehensive history lesson on the origins of the nationality law of England and the United States “ramblings” shows you are not serious in trying to understand what the court has said.
After spending 20 pages on the common law under the original constitution, Gray finally turns to the 14th Amendment. He say it is simply declaratory of pre-existing law:
“the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Hence it is “declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed.”
Hence, Gray defines the 14th Amendmnt with the definition of “natural born subject” that he had just told us defined “natural born citizen”:
The 14th 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.”
That is the definition of “natural born subject” from Calvin’s Case with indian tribes thrown in as an additional excpetion, an excecption the British maintained as well and one that was discussed in great detail in the 39th Congress. No legal authority has ever said the 14th Amendment created a different type of citizenship than the original Constitution and the Amendment simply restated the original rule but made clear it was color-blind. According to Gray:
“Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”
“Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”
It is not dicta if the 14th Amendment is deemed declaratory of pre-existing law which I pointed out is what Gray said. Gray was asked in WKA was a citizen under the 14th Amendment. Gary said the Amendment was simply declaratory of pre-existing law. Hence, the determination of WKA’s citizen depended on his status under the original Constitution where the only type of citizen by birth was a natural born citizen. Thus, the examination of the pre-existing law under the original Constitution is clearly necessary to answer the question presented and is not dicta. One can spin all one wants, but if WKA was not a natural born citizen, how could he be a citizen under the 14th Amendment if the Amendment was simply declaratory?
For those who cling to their English Law and State courts to remain in the debate I suggest you relent and accept that the Constitution is the Supreme Law of the land and realize that among the enumerated powers of the Congress you’ll find at Articles I Section VIII;
“…To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;…”
Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?
Lynch was a Probate/Estate inheritance case, in a New York Chancery Court with the most pertinent aspect of the case being that there was property and money involved. A New York Judge would naturalize a rat off a ship from Timbuktu for the right price, so you keep your Lynch and I’ll keep the Constitution.
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I
Nationality at Birth and Collective Naturalization
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
You may dispute my reading of the codification of the “collective naturalization provision” of the declaratory born statement of the 14th but then that is to be expected, but the point is. THIS is the 1st instance of an expression of jus soli, under the Rule of Law emanating from the Constitution, with the various DICTA emanating from the various Courts notwithstanding.
“Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?”
You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417 (1857)
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
“But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.”Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
Squeeky,
The WordPress spam filter gets flaky sometimes and won’t pass comments for some unknown reason. Nothing the blog administrators can do about that except flag a comment as not spam, then the comment will show up. Let us know if any of your comments don’t show up, we can clear them.
Ballentine,
You did previously post about the declaratory nature of the 14th. I need to think about that implication some more. I don’t see that the declaratory nature of the 14th is necessary to answer the question before the Court.
If the purpose of the amendment reaffirms pre-existing law, how can one define it without determining what the pre-existing law was. One can’t.
What’s the difference if the 14th “reaffirms pre-existing law” or not?
The question before the Court stopped at the 14th. Whether the 14th “reaffirms pre-existing law,” or not, seems more like a political or historical question.
Does Gray’s Minor cite, that declares the definition on “natural born” in not found in the Constitution, contradict your interpretation?
Although I can’t stop you, I do ask you to explain without insults. Just trying to learn about dicta.
Ballantine, I scrolled past your earlier post, by mistake. I will read it now. Sorry for posting the Minor question, if you already answered it.
“The question before the Court stopped at the 14th. Whether the 14th “reaffirms pre-existing law,” or not, seems more like a political or historical question.”
My view is that the holding goes to the question answered. However, the ratio decidendi or the rationale the court uses to come to its holding is broader than the holding. One cannot get to Gray’s definition of the 14th Amendment without defining pre-existing law and hence is part of the rationale of the court.
@Philo-Publius
Since you referenced Mario Apuzzo it is appropriate to note that he just speculated on his blog that President Obama is not the child of Stanley Anne Dunham but is instead the child of a woman named Jo Ann Newman and Malcolm X. http://puzo1.blogspot.com/2011/11/is-putative-president-barack-obamas.html He still argues that Obama is not a natural born citizen however!
Also, is it just a coincidence that your screen name is suspiciously similar to “Mountain Publius Goat” used by Apuzzo’s client Charles Kerchner?
Not sure I understand the question. The Constitution is full of undefined terms. When the Court is asked to defined such terms it usually looks to the common law since common law lawyers wrote the Constitution. Gray cites Minor and several other cases for this proposition that terms not defined in the constitution should be defined by the common law:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
Waite and Gray were both on the Smith v. Alabama court:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
Not sure this has anything to do with whether this is dicta or not.
Ok, you got me on WKA. I have not read it with such scrutiny. I disregarded much of Gray’s “dicta”.
I will reread.
I am worried that Laurence Tribe and Ted Olsen missed as much as I did. IIRC as Gray pulled quotes from British law to define Natural Born Citizen, he found many instances where a British child, born out of british land, but to a British father, was a Natural Born Subject. The non dicta in WKA would have made their testimony, in SR 511, for McCain, a slam dunk.
Where does the dicta end and the authority began? You pointed to 5 pages, but you also mention the 20 pages.
Not being an attorney, I tend to rely on old-fashioned common sense and logic. Noting that the Constitution requires members of Congress to be “citizens” while the CIC must be “natural born” implies that the framers were indeed making a point.
Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable. The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.
As a member of the unwashed masses, I consider that the framers were simply attempting to ensure strong and singular allegiance, the kind that comes from parentage.
Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts. His “common sense” statements regarding “natural born” citizenship as birth to two citizen parents are also interestingly similar to another very famous philosopher with whom I’m sure the framers would have been familiar: Aristotle.
In Politics, Book 3, Aristotle wrote the following:
“Part 1: …Who is the citizen, and what is the meaning of the term?…Leaving out of consideration those who have been made citizens, or who have obtained the name of citizen any other accidental manner, we may say, first, that a citizen is not a citizen because he lives in a certain place, for resident aliens and slaves share in the place; nor is he a citizen who has no legal right except that of suing and being sued; for this right may be enjoyed under the provisions of a treaty…
Part 2: But in practice a citizen is defined to be one of whom both the parents are citizens…
Part 3: …It would be a very superficial view which considered only the place and the inhabitants (for the soil and the population may be separated, and some of the inhabitants may live in one place and some in another)….
Part 5: … But in many states the law goes to the length of admitting aliens; for in some democracies a man is a citizen though his mother only be a citizen; and a similar principle is applied to illegitimate children; the law is relaxed when there is a dearth of population. But when the number of citizens increases, first the children of a male or a female slave are excluded; then those whose mothers only are citizens; and at last the right of citizenship is confined to those whose fathers and mothers are both citizens…”
http://classics.mit.edu/Aristotle/politics.3.three.html
The language of Vattel and Aristotle is also interestingly similar to that contained in the first version of Larry Solum’s Michigan Law Review paper on the subject of McCain’s eligibility, which he later changed in a second version the phrase “whose parents are citizens” to “with an American parent,” with no explanation for the change other than the added phrase, “as a matter of inclusion.” Very lawyer-esque–what, no citations of case law in support?
To see some of you here actually contradict yourselves while arguing the very narrow ruling of WKA is also quite entertaining. And I have yet to see any of you answer with facts, and not opinions, Donofrio’s question as to why Lockwood included the phrase “this Court held…” when referring to what you call the dicta of Minor.
The condescension displayed on this forum to “birthers” is also quite stunning and sad, considering the time and attention given by other attorneys and academia on the McCain question. Squeeky brought up Breckinridge Long, who once argued against the eligibility of Presidential candidate Charles Evans Hughes (an opponent of Woodrow Wilson) because of his dual citizenship at birth (his father did not naturalize until after Hughes was born), and fortunately for Long, he wasn’t labeled a crazy racist “birther” and went on to serve in the State Department under two Presidents. Imagine that.
Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.
Obviously, to argue otherwise would cast a shadow on the eligibility of Obama. So, these must consider that anchor babies, even children born to tourists, as long as they live here for 14 years, are eligible to the Presidency; and people like Hamdi and al-Awlaki are also natural born citizens entitled to habeus corpus.
Those of us outside the ruling class of these attorneys and academics, relying on common sense, consider that “natural born” implies, simply, that no laws are required to make the person a citizen; they are a citizen by virtue of natural law: born in the country to parents who are citizens.
No operation of any statute is required to make a “natural born” citizen, thus he is the opposite of “naturalized.” The resulting difference between the two, then, is the inescapable fact that the “natural born” citizen from birth held only a single citizenship. To the framers, this condition implied and preserved the “allegiance” they were attempting to ensure for the office of the presidency.
I think Tribe and Olson did miss a lot. First, they failed to recognize that under the Insular cases and the naturalization laws in effect when McCain was born, McCain might not have even been a citizen. The Canel zone was not treated as US territory for purposes of the 14th Amendment. I don’t think they cited Wong Kim Ark but merely asserted that persons born on US soil were natural born due to the English common law rule. If they read Wong Kim Ark, they would have found the court said:
“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
Such is not helpful to McCain. However, this is clearly dicta for the issue of foreign born persons was not before the court.
I have seen lawyers argue forever about whether something is dicta or not. My view is one needs to look at the rationale the court used to answer the question presented. In WKA, I thus view pages 653 to 675 which defines citizenship law under the original Constitution to be part of the rationale since the Court then goes on to say the 14th Amendment simply reaffirmed this definition. The discussion on citizenship law under the original Constitution begins with the statement that “natural born citizen” must be defined by the English common law and, thus, the definition of “natural born subject” “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” and that “natural born citizen” and “natural born subject” mean the same thing.
“Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable.”
Just because you say so does not make it true. One needed to be born on English soil to sit in Parliament. In the Convention, place of birth like the English rule was the only thing discussed. Simply not a shred of evidence anyone thought parentage of Vattel’s definition was relevant.
“Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts.”
Not really. Blackstone and Coke were cited far more often. There is no evidence that Vattel was relied upon for any provision of the Constitution while it is simply a fact that much, if not most, of the Constitution was based upon English law. And, of course, the words “natural born citizen” were not in any edition of Vattel in 1787. Finally, name a single person prior to the Civil War who ever said “natural bon citizen” was defined by Vattel or by any definition other than the English common law. Doesn’t exist.
“Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.”
Yes, the members of the 14th Amendment Congress were fully aware that they were clarifying who would be President as some were wary of a black or Chinese President. The “subject to the “jurisdiction” is simply another way of defining the English concept of allegiance or subjection as put forth by Coke and Blackstone. You may not like birthright citizenship, but both the framers of the original Constitution and the 14th Amendment clearly embraced it so you issue is with them.
Sallyven said: “The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.”
There is no evidence, and there would HAVE to be evidence under strict construction principles, that the writers of the US Constitution were talking about anything other than place. That is what Natural Born meant under the common law, and they were overwhelmingly lawyers, familiar with the common law. And here is an example of how the phrase Natural Born Citizen was used in 1803, shortly after the US Constitution was written:
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
As you can see, it refers only to place. Natural Born Citizens were “those born within a state.”
IF the writers of the US Constitution had meant Natural Born Citizen to mean anything other than the use of Natural Born in the common law, they would have told us–and they didn’t.
Hello, Ballantine, its been a while. Resorting to hints of racism, again?
Among a few other things I’ve never seen fully addressed on these forums: the long-standing notion of “partus sequitur patrem,” also mentioned by Fuller in his WKA dissent.
The Court recently held, in Flores-Villar v. US, that naturalization laws can indeed differ depending on whether the US citizen parent is the mother or the father.
By virtue of the Cable Act, US citizen wives no longer lost their citizenship when they married a foreigner, thus the quandary established that a child could be born a dual citizen, while at the same time foreign-born individuals, in order to become a US citizen, were (and are still formally) required to reject past citizenships. Fair?
I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”
In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.
WKA held that natural born citizen and natural born subject mean the same thing.
A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.
I will study the definition of synonyms before I reread WKA.
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite
From the opening statement the Court establishes dominence of Constitutional authority ie; “in the court below”. The question, since the adoption of the fourteenth amendment and “who” is a citizen of the United States becomes the foundation of the opinion as to suffrage (the right to vote), ie; “a citizen”. Justice Waite distinguishes citizenship as of the Constitution in only per the Constitution, “a natural-born Citizen”, not to the latter to ascertain citizenship of the United States. One being the foundation of the law, the Constitution, ie; “natural-born Citizen” the latter a right of citizenship by amendment or by a law enacted to the Constitution. “The question is fairly made”.
“I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”
In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”
You can speculate all you want on what you believe the founders would have thought. In law, you need to cite authority, not speculation. No founder said dual citizenship was relevant. It wasn’t relevant under English law and no one said it was relevant in the US. In the Convention there were a few delegates who feared that foreign born persons would have attachments to their native land. No one suggested native born persons had such attachments.
For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to. No nation lets other nations determine who there citizens are. Such is an absurd notion. Rather, it is simply a fact that most Americants in the early Republic did have dual citizenship under the laws of Europe. The reaction of our state department and Congress was to declare that we did not recognize any foreign claims of allegiance on our citizens. Of course, when our citizens left our Country to issue became more complicated.
Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.
You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.
I do want to stay on the dicta topic, though.
Sallyven said:
“In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”
Under strict construction principles if they didn’t say it, they didn’t mean it, and they didn’t say it.
“Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.”
As was reported to Congress , the nations of Europe in the early republic transmitted citizenship by descent for 2 or 3 generations making most Americans dual citizens even if born in the United States to citizen parents. There is no rule that they couldn’t extend such for as many generations as they wanted. Since we are a nation of immigrants certainly everyone in the early repulic could have been a dual citizen by operation of foreign law. However, citizenship is a creature of the municipal law of each nation that is binding inside the sovereign nation, but under Public Law, it has no effect outside such nation without the consent of the other nation. Accordingly, the United States simply ignored claims of foreign allegiance.
Ballantine, your statement: “For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to,” is just priceless. Is this the best you can do?
If a child is born in their territory, I suppose a nation does have a right to confer citizenship, although why they would want to do so is an interesting question. If you had a baby while on vacation in Jamaica, if Jamaica had jus soli laws, your child could have dual citizenship, although I’m not sure that Jamaica has enough to offer so that this status would be thought of as a good thing. Such a citizenship would imply that the child could vote in Jamaican elections, and wear their uniform if called to war? Hmm.
But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?
So your statement is ridiculous. Foreign nations, if a birth does not take place on their soil or to its citizens, have no right to “make all americans dual citizens if they wanted to.” Even if they tried to, you really believe anyone would take them seriously?
Yet, I am the one not thinking critically?
“You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.
I do want to stay on the dicta topic, though.”
I am talking about the early republic, not today’s law. We recognized people were dual citizens in the early republic as well, we didn’t recognize that people owed a dual allegiance at least when they were in the United States. When they domiciled oversees was a matter nations argued about as the public law was unclear. This is a pretty complicated subject but any nation can make a foreign born person a citizen for municipal purposes. Such doesn’t mean one can claim their allegiance under public law. England made children of its subjects born on our soil British subjects for municipal purposes. It meant they had the municipal rights of British subjects when in England but did not mean they could claim the political allegiance of such subjects under notions of public law at least without a protest from the United States. One can look all day and find no one in the Early Republic that thought a baby born on our soul owed a foreign allegiance.
Komfort, interesting that this same State Department, when addressing the security clearance of employees and contractors, is in fact very interested in the status of dual citizenship, noting that such a status may find an application rejected?
I do respect your desire to stay on topic. I was making the point that sometimes there is the need to step back and use a little common sense, even if evaluating whether a portion of a holding is dicta or precedent. After all, couldn’t either be simply a restatement of such common sense?
This is why there is such an outcry against “birthright citizenship” by many of us–such an idea flies in the face of logic, especially when one reads the history of our founders’ notions of “consent.”
A question to those who may understand the legality of a document such as the Constitution. Their is a term or a status defining such a proculmation in legal terms such that the document must be construed in only just such a fashion in order to be acceptable to other entities in presentation. Just something thats been gnawing at me since all of this concern, I think it was in Elementary School since and can’t seem to remember or find it on the internet. Thanks.
Komfort said: “WKA held that natural born citizen and natural born subject mean the same thing.”
NO it didn’t. It said that the Natural Born part of Natural Born Citizen means the same thing as the Natural Born part of Natural Born Subject. It also said that in general subjects and citizens are the same, but obviously laws change and if the British or the US changes its laws on citizenship, the requirements for citizenship will differ.
Re: “A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.
I was not aware that this is the case in Britain now. However, it certainly was not the case when the Constitution was written. At that time Natural Born referred to birth within the jurisdiction, mainly meaning “in the country” but also including other areas dominated by the British crown.
“But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?”
There is no rule on what persons they could bestow the rights of citizenship on. European nations bestowed it for 2 or 3 generations from descent and could have made it 5 or 6 or 7 if they wanted to. Such is the municipal right of every nation. Doesn’t mean saw law has any effect in the United States or under international law. People in Obama position in 1878, on US soil with a British father, was a dual citizen in the sense that if he went back to England, and only if he went back to England, he would have the municipal rights of a British subject. While in the United States England would not insist he owed allegiance to England and, even if he went back to England, the United States would still claim that he owed his sole political allegiance to the United States. No one said such dual citizenship relevant to anyone’s citizenship status or eligiblity to be President. Woodrow Wilson was such a dual citizen. Andrew Johnson probably was though we are not certain where his father was born. Again, in 1868, it was reported to Congress that a majority of our native born citizens were such dual citizens.
Ellen, please read Ballentine’s 10:47, and dispute that with him. I was repeating his assertion.
I would appreciate it if you would post the non-dicta portion of WKA that separates the natural from the born, or was it the born from the subject. That might settle this issue.
A discussion of partus sequitur patrem (as it relates to President Obama):
http://nativeborncitizen.wordpress.com/2010/01/25/mario-apuzzo-and-the-partus-sequitur-patrem-argument/
Plus, on this dicta stuff, I asked my BFF Fabia Sheen, Esq, again this morning and she said that judges are NOT One L’s, and they don’t have to follow “IRAQ”(???) when they write their decisions. She said on a long decision like Wong Kim Ark, they are going to do findings and holdings all through the case. She said that they don’t have to save them all up and put them all at the end sooo that the Professor will give them points for form. And that this was particularly true back in 1898.
She said that on a case like Wong Kim Ark, you may have to read it several times, with a yellow highlighter, to understand how it all ties together. And, that the stuff I read to her from above was NOT dicta. That it was highly unlikely that 3 appeals court level judges would cite dicta at length in their decision. (The Ankeny v. Governor judges)
She also said that dicta is NOT “everything in the case that isn’t the holding.” She also said the dissent is NOT dicta. It’s the dissent. And that dicta is off hand remarks about stuff not related to the case or clearly un-necessary and un-related to the holding.
I made her read Wong Kim Ark a few months ago to help explain stuff to me (because she hates all this Birther stuff). Even she had to read the case a few times to get it all, and she is very smart. She said that there were entire sections of the seven section case which dealt the issues the Court found relevant, and that 2 of those 7 sections dealt with natural born citizenship as existed in English common law, and in American law.
Because interpretation of the 14th Amendment required an understanding of how the law came to be, and whether it was declaratory of old law, or a brand-spanking new law, the determination of natural born citizenship was necessary.
I hope this help.
Squeeky Fromm
Girl Reporter
People in Obama’s situation are dual citizens at birth presently, as well as in the path.
The multi generation allegiance chain is broken by the first person to renounce citizenship to that nation. Once this is done, there are no legitimate claims to unborn future generations.
That is a pivotal component of WKA. Wong’s parents were disallowed the ability to break the chain, if you will. The court recognized the absurdity of the Exclusionary Act, and allowed the chain to be broken because their permanent domicile, and employment ,seemed satisfactory.
If you do not wish to break this chain, then your children will suffer.
BTW, is Ellen right, Ballentine?
Sallyven,
Every sovereign nation has the sole right to determine to whom it extends the benefits of citizenship (except the US in the minds of ignorant birthers). If, say, Spain decides that only people born in the US of French parents are Spanish citizens and treats all of the people within its borders accordingly, that is its right as a sovereign nation. France doesn’t have any say about it. Likewise, no British law has anything to do with determining eligibility for the presidency of the United States! The very basis of Vattel birtherism is founded in this unAmerican lunacy based on a mistranslation of a Swiss philosopher writing in French that wasn’t even available until 10 years after the Constitution was ratified.
http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-translation-of-vattel-from-the-french/
There is no rule that the chain was borken by remouncing citizsenship. Foreign nations could have any rule that they wanted with respect to descent. Foreign allegiance or citizenship was irrelevant to Justice Gray’s decision in WKA so I am not sure why you say it is pivital.
With respect to Ellen, do you mean with respect to a rule of descent in England? England in the 18th century passed 3 different statutes that made children of British subjects “natural born subjects” for all intents and purposes. Such persons were not treated as native born subjects in that they could not hold elected office and generally were not treated as British subjects outside of England other than perhaps for commerical purposes. Imagine Isreal bestowing Isreali citizenship on all American jews. Such would mean that such persons would be given the rights of Isreali citizens if they go to Isreal. Such citizenship would have no effect inside the United States unless the United States would consent to it.
It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.
Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.
Ballantine.
I was referring to this quotation from Blackstone:
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/
(And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)
The WKA ruling also quoted this:
“Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”
Slartibartfast, does that mean the US could not do anything to stop Obama’s allegiance to the crown, that his birthright natural born subjecthood bestowed upon him?
“It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.
Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.”
I think we need more help from the BFF after all.
For all the birthers out there, of every persuasion. There are medications for OCD.
If england claimed the allegiane of any American citizen while they were in England all we could do is file a diplomatic protesty or threaten war. Indeed, both ocurred including a real shooting war. We have treaties dealing with some of these issue.
Do those medications help “birther thread” hunters? Why are you commenting? Obsessed?
Komfort,
It means that President Obama’s allegiance to England (in the eyes of the English), is not relevant to his allegiance to the United States.
In other words:
President Obama was born in the US which is sufficient ascertain his allegiance. We don’t need to go any further–and I’m not the one saying so, James Madison is. Thus the Vattelist position is that the Father of the Constitution didn’t understand citizenship–and they come to this conclusion based on the writings of an incompetent translator a decade after the Constitution was ratified. Is in any wonder that every rational person aware of these arguments thinks that they are idiotic?
Are members of al qaeda “foreign diplomats”?
Sorry Ellen. I am missing your point. The authorties you sight correctly state the common law rule that was in place until 1870 when it was modified to allow children of aliens to denounce their allegiance at majority. This is not the law today and I am not sure when it changed.
Kontort and Mrjr101:
You asked for some dicta from WKA, sooo here is you some:
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which 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.
PLUS, I am not afraid to double-check myself on stuff. I also do not mind asking for directions if I am out driving and can’t find something. Perhaps if you Vattle Birthers double-checked yourselves once in a while, you wouldn’t be all lost and stuff on cases like Minor v. Happersett. For example, if you think the case was a precedent on natural born citizenship, you could have just double-checked yourself with Ankeny v. Governor where the court said about Minor v. Happersett:
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.
Id. at 167-168. Thus, the [Minor]Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
See! If you had double-checked yourself you would not have gone off on the wild goose chase.
Squeeky Fromm
Girl Reporter
Blame the framers for not having the forsight to think of al queda. Such is the problem with strict originalist interpretation as obviously the world has changed. Madison, for eexample, didn’t think the Constitution or the Law of Nations allowed deportation of aliens from nations were are not at war with.
What did the US Department of State, circa Obama’s birth, have to say? Has Madison rendered their Policy, or lack thereof, moot? Has Madison nullified all dual citizens of their second allegiance?
Powerful stuff.
I will venture back when BFF posts something, or when Nal is done thinking about WKA’s dicta.
Otteray Scribe,
Alas, there are currently no know drugs to help control Obama Derangement Syndrome–a malady from which all birthers (and most on the right, it seems) suffer. Milder forms can be recognized by the victim labeling the president as “liberal”, “progressive”, or “socialist”; in more severe cases “communist” or even “nazi”; and in the most severe cases present as birthism.
Komfort,
No, there isn’t anything to stop a US-born child of OBL from being a natural born citizen–except the fact that President Obama put a bullet in his head so he wont be having any more children. However, there are many other safeguards that would prevent such a person from becoming POTUS…
Alright! We are back to resolving dicta.
Nal, will you please double check BFF’ work?
Thanks again, Nal.
Komfort
“Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.”
Here is a little research for you to consider:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” William Rawle, 1826, “A View of the Constitution of the United States”
ballantine says;
“You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:….”
Now, you are getting close but the statement requires additional analysis in light of the status of Constitutional Law from the time of Adoption forward.
1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER, (women being “assumed” as the same citizenship as her husband) and if born to a ‘alien’ father remained as an alien until the Father naturalized or the child reached the age of majority and naturalized in their own right.
So the 1st circumstance is the Birthright benefit of Citizens and the 2nd the means of acquiring citizenship through naturalization.
Secondly in order to Amend Article II Section I Clause V it would be necessary to say so in words or words that would REQUIRE it.
I find NO such words or REQUIREMENT in the 14th Amendment.
The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.
So, although you are approaching a reasonable understanding of the LAWS under the Constitution as they existed and exist, still a tad more critical thinking is demanded.
Squeeky,
That’s what happens when someone comes to a conclusion and then sets about “proving” it–it doesn’t work nearly as well as the methods you suggest, does it?
Komfort,
The US department of State said the President Obama was a US Citizen (and there is no evidence he ever naturalized, so he must be natural born) while investigating for his father’s visa request. Regarding Madison–the US doesn’t recognize dual citizenship. If they consider you a US citizen, they will not treat you as a foreigner (even if you hold a foreign passport). We don’t ask the rest of the world who they will let us elect to the presidency–we decide who we consider eligible–those born under the jurisdiction of the United State. Like President Obama.
I thought we were supposed to research holdings, dicta, and stare decisis for the purposes of this thread.
No wonder Otreray scribe thinks this OS a birther thread; you are leading him astray.
slcraignbc,
You’re assuming the the 14th Amendment changed the law rather than extending existing law to the former slaves. Please show us an example of two white people born under the same circumstances before and after the 14th Amendment who were treated differently under the law (which you claim has changed). If you can’t do that, then your argument isn’t rational (don’t worry–we already knew that…).
“The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance.
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship.Most countries permit a person to renounce or otherwise lose citizenship.”
http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html
Some things are tough to prove.
Also, “for the record”: any allegiance President Obama may have had to England was lost when England granted Kenya independence (when he was two years old). And any allegiance President Obama may have had to Kenya was lost (when he was 23 at the latest) under the terms of Kenyan Constitution then in effect
So this “dual allegiance” concern is entirely hypothetical.
“1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER..”
No. It means that such persons didn’t need citizenship by statute just like in England. Justice Waite didn’t look to any statute to define who was natural born. He looked to the common law. Justice Gray didn’t look to any statute to define who was natural born, he looked to the common law. No legal authority in our history has ever said a native born person get’s his citizenship from a statute. Do you really not understand this? Cite one legal authority in the early republic who ever said one needed a citizen father. You cannot as there are none. You can keep saying you are right and the Supreme Court and every early legal authority is wrong all you want. No one cares.
“The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.”
You obviously have not read anything the 39th Congress said as no one said anything remotely similar to your gibberish. Seriously, admit it, you have not read anything any member of such Congress actually said. If you did, you would understand they were clarifying that the common law jus soli rule was our law and such was colorblind. Why not try citing some authority when you made these claims that our contrary to all our scholarship and court decisions. Have you found a single person who has ever said any native born person was ever “naturalized.” Could you not understand the citations i pointed out making clear naturalization could never apply to the native born? Do you just turn off your brain when you read authority that says you are wrong in everything you say?
Komfort,
The professor doesn’t choose to force people to stay on topic on this site. I personally participated in a massive threadjack that spanned at least 3 threads and consisted of (literally) thousands of comments. If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about. Given that you are a birther troll who has no intention of engaging in any discussion in good faith (my opinion), you should just be glad that it’s only your ideas that are being shown to be defective rather than your behavior.
“However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.”
First of all , the state department does not define citizenship. It determines when it will intervene to protect our citizens. Secondly, “allegiance” is a complicated subject. It can mean one is required to obey traffic laws when travelling abroad, but in the field of public law it means one’s political allegiance,i.e., the ability to draft someone into one’s military, try them for treason or pretect them from all claims of foreign allegiance. Show me the instance when our state department has ever allowed a native born American citizen to be subject to the political allegiance of a foreign power unless they were permantently domiciled in such foreign power. Such has never been the position of our government or any principle we have recognized under public law.
Bob, you should have told Obama in 2007, before he had this written on his website:
” When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
I thought it expired when he was 2.
When do get off the tangent and determine what is dicta in WKA?
…2008…
Slarti and Ballantine:
Have you ever noticed that when you point out what the Ankeny Court said, that the Vattle Birthers get really quiet???
Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
Plus, if that Philo-Publius person really was Kerchner, I bet he was not happy with this Squeeky Smackdown of his attorney:
La Bocca Della Falsita (The Mouth of Falsehoods)
http://birtherthinktank.wordpress.com/2011/11/16/la-bocca-della-falsita-the-mouth-of-falsehoods/
I managed to work Mario Apuzzo’s picture of La Bocca Della Verite into it. I bet he is just LIVID.
Squeeky Fromm
Girl Reporter
Dr. Slarti, I agree on the ‘Obama Derangement Syndrome.’ It is so pervasive that I won’t be surprised if it appears in the new edition of DSM-V.
No known treatment, no known cure, and the duration is known to be for at least the term of office for a Kenyan, socialist, communist, Nazi, liberal, Muslim, Harvard educated guy who had the bad manners to be elected President of the USA by a landslide. And oh yes, did I mention he is Black?
Ballentine, you switched gears and have been nice to me, I appreciate that. Slobberbongfest is a different story. He said the State department does not “recognise” something that, per their own site, they do. Look at the argument, i think you will agree with me. Also, of note, I made no assertion that the Dept of State defined Citizenship. I should not have to be on defense for something I did not say.
BTW, did I ever say Obama is not natural born? Please research 1 site; the one we are on.
President Obama’s site omits the historical reality of Britain granting Kenya’s independence. The site is otherwise accurate albeit incomplete. Again: Any possible allegiance President Obama had to England expired when he was 2, and any possible allegiance President Obama had to Kenya expired when he was 23 (at the latest).
As for Wong Kim Ark: What in the court’s rationale suggests that he was a citizen but not a natural-born citizen?
Otteray Scribe:
You said: I agree on the ‘Obama Derangement Syndrome.’ It is so pervasive that I won’t be surprised if it appears in the new edition of DSM-V.
Well, “Dr. Squeeky” has already done some preliminary work in that regard. de Vattel Delusion Disorder and Cognitive Decompensation.
http://birtherthinktank.wordpress.com/2011/10/30/de-vattel-delusion-disorder-a-psychiatric-diagnosis/
The second one is a few articles later and is a Case Study of a Vattle Birther who tries to use Shakespeare’s Henry V to prove that neither Obama nor Herman Cain were natural born citizens. Really. I am NOT putting you on.
http://birtherthinktank.wordpress.com/2011/11/11/cognitive-decompensation-when-vattel-birthers-pay-the-piper-a-case-study/
Squeeky Fromm
Girl Reporter
aka Dr. Squeeky
SF, nothing that smacks of conspiracy theories about national figures and celebrities will surprise me any more.
Bob, also I thank you for being nice.
I am assuming that an opinion chock full of the term “natural born” could have used that term one more time in the direct holding. They did not. I have not seen Nal’s final word on the two terms being made synonymous in a meaningful way. ie, in non-dicta language.
I am curious too.
Komfort,
If you’re going to make straw men out of my arguments, please quote them so I can point out the logical fallacies that you are using.
Squeeky,
Your article about The Mouth of Falsehoods was interesting. You’re right, Mario better stay away from it… Regarding Ankeny and quieting the Vattelist cult, I’ve found that Madison’s quote (posted above) and referencing the citation of Vattel by the majority in Dred Scott work as well.
I am curious about Nal’s take as well.
But you didn’t answer my question: What in the court’s rationale supports the notion that Wong Kim Ark was a citizen but not a natural-born citizen?
I will try to be more specific, Bob. So we are on the same page, how inclusive is your take on the rationale of WKA. Is it five pages?
Will you post a quote of what you see as the entire rationale? I do not want to answer apples to an orange question.
slcraignbc said that because there were no federal laws regulating who was a US citizen at birth prior to the 14th Amendment: “all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER, (women being “assumed” as the same citizenship as her husband) and if born to a ‘alien’ father remained as an alien until the Father naturalized or the child reached the age of majority and naturalized in their own right. “
That is clearly not true, as can be shown by this letter to the editor of the New York Times by the US Secretary of State, William L. Marcy, in 1854. http://query.nytimes.com/mem/archive-free/pdf?res=9B06E2DC153DE034BC4851DFB566838F649FDE (It is a PDF file so I am unable to cut and paste.)
Secretary of State Marcy was asked by a notary public in a letter to the editor of the Times whether children born of foreign parents in Connecticut and in New York were citizens and if so would the US State Department grant them passports. Marcy replied in another letter to the editor, which appeared in the same edition of the paper (I guess they liked to do that in those days) that not only were both children US citizens, but that they were Natural Born Citizens and eligible to be president.
I am still digesting Ballantine’s argument about the ratio decidendi of WKA being broader than the holding. My post starts off by equating ratio decidendi and holdings, I’m not so sure this is true anymore.
The best papers on ratio decidendi (especially one by Goodhart) are not available to those of us who don’t have access.
The first page, which can be viewed on JSTOR) looks like it’s just what I’m looking for.
Also, ratio decidendi is binding, so I need to reread WKA focusing on the ratio decidendi aspects.
I also need to determine the difference, if any, between native-born and natural-born citizens, WKA uses both terms.
Thinking about an analysis of WKA post.
Leo Dissembling Donofrio is a liar, plain and simple. Unless he’s an unbelievably incompetent and ignorant lawyer (not to mention, not fluent in English), he knows that the Supreme Court can ONLY create binding precedent on an issue before it. Since there is no distinction between the voting rights of natural born citizens vice naturalized citizens, there is no need for the Supreme Court to create a binding precedent as to the definition of natural born citizen. Virginia Minor was suing for voting rights, NOT trying to run for president. Ergo, there is no need for the Supreme Court to rule on her natural born citizenship.
I don’t know WHY everyone who keeps bringing this issue up keeps leaving out the very next sentence, since it’s relevant to the discussion, but I’m at the end of my patience. Notice the next sentence: “It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Notice…they are saying that all they need to know, for the purposes of this case, is that those born in the U.S. to citizen parents are CITIZENS! Not “natural born citizens.” Just “citizens.” Of course, they ARE natural born citizens, but for the purposes of this case, all they need establish is that Virginia Minor is a CITIZEN, without regard to what kind of citizen she is.
As for the citation itself that birthers dishonestly claim RESTRICTS the term “natural born citizen,” only someone who is not fluent in English or a liar would make such a claim. It reads, “…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.”
Notice it says “these were natives or natural born citizens…” It does NOT say, these were the ONLY natives or ONLY natural born citizens. Anyone who speaks English can tell you that lacking this qualifier, then “natural born citizen” is left often to the possibility that those born in other circumstances might qualify for this distinction. However, since apparently Minor was born in the U.S. to citizen parents, there was no need to settle the question any further. Virginia Minor was a U.S. citizen; that’s all they needed to know.
Finally, any restriction placed by the Supreme Court on the definition of the term “natural born citizen” would be unconstitutional. The power to define the terms of citizenship belongs to Congress and Congress alone.
Article I, section 8, clause 4 of the Constitution makes plain that the “Power To establish an uniform Rule of Naturalization” is strictly the function of Congress; there is no provision in the Constitution for either of the other branches to share in this function.
And does defining natural born citizenship belong under this function? The Supreme Court in Minor v. Happersett says it did:
“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided ‘that any alien, being a free white person,’ might be admitted as a citizen of the United States…and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.”
Notice that last sentence. Congress is extending natural born citizenship to those born OUTSIDE the U.S. to citizen parents. Yes, the Naturalization Act of 1790 was superseded five years later by a different Act that didn’t use the term “natural born citizen,” but that doesn’t matter. SCOTUS when citing this law is NOT declaring it “unconstitutional.” On the contrary, they recognize this Act as under Congress’s “power to adopt a uniform system of naturalization,” including the portion of the Act that extended natural born citizenship to those born OUTSIDE the U.S.
The idea that Minor defined natural born citizenship fails so ignominiously under any type of scrutiny — linguistic, Constitutional, contextual — that it becomes impossible to believe that anyone who makes this claim could be only guilty of misunderstanding, and not deliberate mendacity.
Simply put, birthers who claim this are not “mistaken” or “misinformed.” They are LIARS!
Ellen:
That is a great letter, and I saved a copy of it. There was no federal law because the issue was a matter of common law. What the Vattle Birthers do not get, is that the 14th Amendment moved this birthright natura born citizenship from common law, and from the 1866 Civil Rights Act to the 14th Amendment, where it would be safer and better protected. Much the same way the Bill of Rights did with many common law rights. From Wong Kim Ark:
From Section V of Wong Kim Ark:
The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.
Squeeky Fromm
Girl Reporter
OS,
It’s the sheer size of the ODS epidemic that’s disheartening–the only ones I see attacking President Obama based on the reality of what he has or hasn’t done are the left–everyone else (who opposes President Obama politically) has either bought into the copious right-wing propaganda or seems to be content not to denounce it because it helps their “side”. It’s easy to inoculate people against birtherism with facts (because the movement lacks both merit and competence [as well as class and a sense of shame]), but how do you fight all of the talking heads calling President Obama “communist”?
Komfort,
The fact remains that the US is not going to treat someone they consider one of their citizens as a foreign national–regardless of what passport they hold.
Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.
The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.
At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.
Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),
That understanding is expressed in whole in the 14th when it is said that all persons born or naturalized are citizens and there it stops and does not broach the form of Citizenship expressed in A2S1C5, who are natural born Citizens by virtue of the circumstances understood by the Founders, persons born of Citizen parents, women obtaining the Citizenship of the husband upon marriage,
The Law is NOT a self reconciling system. The FACT that NO laws have been promulgated to reconcile the independence of a women’s citizenship from that of a husband does NOT modify the historical and Constitutional definition of natural born Citizen.
The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.
But it doesn’t fit your template of fundamental change so go on and continue to ignore the guaranteed Republican form of Guv’mnt under the Constitutional Rule of Law and cling to your hope & change in the chaos of public policy derived from pure democracy and I’ll watch as your chickens come home to roost.
Komfort,
Since you are looking for what is dicta and what is holding in WKA, you need only look to Leo Donofrio’s statement above from the Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996).
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
Leo has used this statement as support for the belief that the Minor opinion on the term natural born citizen is not dicta. That Justice Waite defined the term as “an “independent” ground in support of our decision” and the term is therefore not dicta.
But this same argument can be made in WKA. When Justice Gray writes,
“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, and 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.”
This reason is an “independent ground in support” of the decision and is therefore not dicta.
Patrick,
Well said.
Not all birthers are liars, though (although I agree with what you said about Leo–any birther lawyer is either dishonest or incompetent [Sorry Leo, sometimes the truth hurts...
]), some of them are stupid and/or willfully ignorant due to confirmation biases that can sustain cognitive dissonance of biblical proportions. The one universal characteristic of birthers (in my opinion) is their bigotry against President Obama.
As an example, consider the latest post by slcraignbc. Clearly this person is unable to understand the law (whether due to lack of intelligence or willful ignorance–my guess is both), but I think he believes the crap he is spewing (and I doubt you could get him to say a single positive thing about President Obama…).
“Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.”
Where did you learn to write? You really make no sense.
“The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.”
No, legal authorities decreibed two types of citizens, natural born and naturalized, when they were not talking about eligiblity.
“At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.”
Such is true. However, naturalization only applied to foreign born aliens. There was a debate that continued up until the 14th Amendment whether the states could define native born citizenship or whether the common law definition was incorporated into the Constitution. The latter position would prevail.
“Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),”
Makes no sense at all. The founders did consider themselves natural born citizen and no one said citizen parents were required. You do realize that making assertions that you can’t back up with any authority is not going to convence anyone.
“The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.”
Again, you make no sense. The 1790 statute was merely copying English statutes which bestowed “natural born” status on foreign born British subjects for all intents and purposes. Nothing about these statutes changed the English common law rule for the native born and nothing about our naturlaization statutes changed the common law rule for our native born. According to the Supreme Court:
“So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371″
I know, you, a non-lawyer who cannot cite any legal authority to support your position, are right and the Supreme Court is wrong.
Gorefan, I am appreciative that you are being fair to me. I am here for the topic at hand, despite the smears.
Does that mean that if Donofrio is right about Ogilvie, both Minor and WKA are affected by that decision? Or is it one and not the other?
Bob, have you located the exact quote yet?
Is this an easter egg hunt? Am I supposed to find what you think the rationale of Wong Kim Ark is? Wouldn’t it be easier for you to state what you think the rationale of Wong Kim Ark is?
Bob:
Good luck with Kontort. I have tried on many occasions to get a Vattle Birther to analyze Wong Kim Ark, briefly, by section. No luck.
They are afraid of the case. That is why they run back in time to Minor v. Happersett. It is in their blood. It is instinctual, like a cat hissing at a dog. In the Ankeny case, the Vattle Birthers completely ignored WKA:
The Plaintiffs do not mention the above United States Supreme Court authority [WKA] in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.
Squeeky Fromm
Girl Reporter
Bob, be fair. Three times you have asked the same question. It is your question. It is your interpretation of the “rationale” that your question is based on. I never posed the question.
It most certainly would not be easier, or wise, for me to guess at the basis of another’s question. Please do not shift like that again: it is obvious when you do. Does your question have a foundation of not?
Come on Queefy, you cannot point to any statement I have made here that claims Obama is anything less than a natural born citizen. I am looking at a group that is having so much trouble proving dicta is holding, the site host, who is being a helluv a lot more fair than you guys, is now looking to “pay sites” to reach a conclusion.
Why don’t you and BFF post the 2 or 3 sites for Nal, so he can shorten his search?
The topic is dicta.
Kontort:
Read my stuff above. I have even provided a Motion for Reconsideration which sets forth my rationale why the language is NOT dicta. As far as PROVING that ALLEGED dicta is holding, I simply refer you once more to Ankeny v. Governor:
http://birtherthinktank.wordpress.com/the-case-the-two-citizen-parent-birthers-just-hate/
Read that, and notice how much comes from Wong Kim Ark. I have been madly googling for “The International Court of Dicta”, “The Dicta Police”, Dicta for Dummies”, and “ANSI Standards for Dicta” without any success.
Sooo, I am going with the 3 appeals court level judges citing the language.
Squeeky Fromm
Girl Reporter
I repeat the same question because you do not answer a straightforward question in a straightforward manner. So here’s another:
In Ankeny, the Indiana Court of Appeals analyzes Wong Kim Ark, and from that analysis, concludes the appellant failed to state a claim because under Wong Kim Ark birth in the United States is sufficient for natural-born citizenship.
Did the Ankeny err in its reading of Wong Kim Ark‘s rationale? If so, how?
The Ankeny decision:
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
Komfort,
“Or is it one and not the other?”
If Leo is right then Minor was precedent that was overturned by WKA.
A whole thread string is dedicated, with the exception of the insults and unwarranted birther accusations, to distinguishing dicta from holding.
You ask a question that is based on controversial statements in WKA. (I say controversial because we have not seen Nal’s conclusion.)
You cannot point to what you believe is in fact the rationale, so I am supposed to set myself up for the tear down by making up your mind for you?. You say it is there, show it.
Queefy, are you speaking for Bob? Bob, is Queefy speaking for you?
Bob, is the entirety of the “rationale” in WKA the quoted material in Aneky? Or will there be more after I look into Aneky?
In The Longest Yard a play like that would be called “incidental damage after the ball has been blown dead.” So please commit.
…Ankeny…
Gorefan, I like that!
Let me stew on it, though.
“If Leo is right then Minor was precedent that was overturned by WKA.”
Interesting…So what part of the holding will be overturned?
Anyway, can’t wait for Nal’s conclusion on WKA.
Patrick J. Colliano
“Virginia Minor was suing for voting rights, NOT trying to run for president. Ergo, there is no need for the Supreme Court to rule on her natural born citizenship.”
The Court established Mrs. Minor’s citizenship by defining the “class” of natural born citizens as those born in the U.S. to parents who were citizens. By recognizing Mrs. Minor as a member of the class of persons who were natural born citizens, the Court deemed her a U.S. citizen. Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.
“Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.”
Nonsence. The Missouri Supreme Court addressed the same question and didn’t establish here citizenship. It simply noted that her citizenship was conceded by defendant nad hence was not at issue. There are a multitude of cases where the question before the court was whether a citizen had a certain right or not. Unless citizenship was contested and the court decided to address the citizenship issue, the question of citizenship was not before the Court. In Hamdi v. Rumsfled the question was whether a citizen could be detained as an enemy combatant. Under your logic, the court would have had to determine if Hamdi was a citizen before address the detention issue. However, since the government did not contest his citizenship, the court did not address citizenship simply presuming he was a citizen and proceeding to answer the question on detention which is the question the court agreed to review. No court needs to address conceded issues not put before it.
Kontort:
Mr. Soros says in the paper I signed that I am a “Independent Contractor” and I guess that is true for the rest of us, too. I have to Indemnify him or something, and not tell anybody about the Contract. Which on page 17 it says just the opposite “Nothing herein shall be construed as a contract between the parties.” Plus, the Venue is someplace called Astana, Khazakhstan which I guess is in Kansas???
Sooo, I am guessing we each speak for ourselves. Now what exactly is it that you want???
Squeeky Fromm
Girl Reporter
The Ankeny court cited pages 653 through 663 of volume 169 of United States Reporter. In doing so: the Ankeny court, in essence, restated Wong Kim Ark: The phrase “natural-born citizen” is not defined by the U.S. Constitution; the U.S. Supreme Court therefore looked to English Common Law to determine its meaning; doing so revealed that a natural-born subject was someone born in the England; therefore, someone born in the United States was a natural-born citizen; because Wong Kim Ark was a natural-born citizen under the U.S. Constitution, he necessarily also was a U.S. citizen; the law preventing him from becoming a U.S. citizen was accordingly unconstitutional.
The Ankeny concluded by ruling if President Obama was born in the United States, then he therefore is a natural-born citizen. Because President Obama is a natural-born citizen, appellants failed to state a claim in its suit.
Some interesting quotes from the Ankeny decision:
Key word: “guidance”
Key word: “interpretation”
Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.
Just saying.
“If Leo is right then Minor was precedent that was overturned by WKA.”
Interesting…So what part of the holding will be overturned?
Anyway, can’t wait for Nal’s conclusion on WKA.”
Leo can only be right that Minor was precedent with repsect to native born children of citizens being natural born. There is no way on earth anything Minor said about native born children of aliens can be precedent as Justice Waite expressly tells us the status of such persons were not before the court and there is really no way to pretend that they were. Of course, Minor says nothing about children of aliens except someone, somewhere had some doubt about their citizenship without telling us what those doubts were or what kind of citizenship it was talking about. Again, it is hard to believe that on the subject of citizenship of children of aliens, people cite a case that expressly declines to address the status of children of aliens.
I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?
“Lie:
Obama Is Not a Natural Born Citizen
Truth:
Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1959. Obama became a citizen at birth under the first section of the 14th Amendment
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “
They should have left that statement in force and provided the rationale. After all it is a lawyer running for President.
I wonder why they changed it?
“Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.
Just saying.”
Such is true. Ankeny does no analysis on whether Minor or Wong Kim Ark are dicta or precedent. Probably because lower courts follow Supreme Court dicta like it is precedent.
“I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?”
Do you really think Obama or a Constitutional scholar was editing his website?
Nal:
You may find this of interest. It is an 8 page article from the American Law Review of 1898 concerning Wonk Kim Ark.
http://books.google.com/books?pg=PA555&lpg=PA555&dq=law+review+articles+wong+kim+ark&id=_kgZAAAAYAAJ&ots=0VY-iUaXIu#v=onepage&q=law%20review%20articles%20wong%20kim%20ark&f=false
I did an Internet Article on it.
Squeeky Fromm
Girl Reporter
PLUS: I think you can pick “Plain Text” on this one, and then you can cut and paste. Being this close in time to the decision, it may give you some extra perspective.
Squeeky Fromm
Girl Reporter
So, it does not raise the question of why they would change it?
Do you think they wrote that without the advice of a Constitutional scholar?
NAL:
Here is what I was taking about earlier about determining the meaning of natural born citizenship being necessary to the 14th Amendment considerations.
“While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.”
Of course the “common law” was natural born citizenship.
Squeeky Fromm
Girl Reporter
Your questions would be better directed at someone who had worked for Obama.
Wong Kim Ark‘s rationale has been repeatedly explained; how did the U.S. Supreme Court get it wrong?
@Nal:
Courts interpret; it is what they do. When the U.S. Supreme Court “interprets” the U.S. Constitution to mean something, that interpretation is the (binding) law of the land.
Someone doesn’t seem to understand the WKA decision, even after it has been explained to her in detail several times. Justice Gray respected and upheld the NBC definition used in Minor. He noted that when construing the citizen clause of the 14th amendment, the Constitution does NOT say who shall be NBCs. IOW, this is a clear declaration that NBC is NOT defined by the 14th amendment. Later, it notes that the SCOTUS UNANIMOUSLY excluded children born of citizen parents from the citizen clause of the 14th amendment. It AFFIRMS that V. Minor was found to be a citizen by virtue of BOTH jus soli and jus sanguinis criteria (which wouldn’t be necessary unless the court was upholding the NBC definition).
The Lynch case was ONLY cited as an example of birth citizenship being tied to a common law definition (Gray ignored that Lynch opined that anyone born in the country could be eligible for president). The binding common-law case that Gray did cite was dependent on the allegiance of the parents and noted that children born in the country could be EITHER U.S. citizens OR natural born subjects of Great Britain. Under that ruling, Obama is a natural born subject, not a U.S. citizen. These common law examples were cited to give the 14th amendment teeth so that it could justify overriding an international treaty. Gray’s last citation of the term natural-born citizen in the WKA decision is where it cited the definition of NBC from Minor that nearly matches Vattel’s definition word-for-word.
The Ankeny decision, as was also explained to this person, errs and contradicts itself by noting that the so-called guidance it was relying on from WJA was not actually followed in the WKA decision itself since it never declared WKA to be a natural-born citizen. Ankeny quotes WKA’s citation of Minor in saying that the 14th amendment doesn’t say who shall be natural-born citizens. It contradicts itself in one section saying that Minor leaves open the question for children born of alien parents, but then says it contemplates scenarios where both parents are aliens. How exactly does it leave a question open that it contemplated?? The Indiana Appeals Court was an ignorant embarrassment. They downplay Vattel as nothing more than an 18th century treatise. They cite a passage from WKA saying NBC must “be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution,” and yet they turn around and call the original intent of the authors of the 14th amendment as “various citations to nineteenth century congressional debate,” as if it has no value.
Fortunately, we all know that Ankeny doesn’t overrule the Supreme Court in Minor or in Wong Kim Ark, which eloquently and exclusively characterized the children born in the country to citizen parents as natural-born citizens.
@Philo Publius
“The Court established Mrs. Minor’s citizenship by defining THE “class” of natural born citizens as those born in the U.S. to parents who were citizens. By recognizing Mrs. Minor as a member of THE class of persons who were natural born citizens, the Court deemed her a U.S. citizen. Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.”
Not so fast my friend. The court may have defined A class of natural born citizens in Minor but it did not rule out the possibility that another class existed. The Court in the WKA ruling defined the NBC population was larger than the class of citizens born of citizens.
So now we are goimg to speculate on who changed a website and what qualifications they had as constitutional scholar? Getting pretty silly. No one took the Vattel bs seriously back then . In fact, I bet no one connected with the campaign even knew someone was making such a claim if in fact the birthers had made it yet.
ksdb:
You said:Later, it notes that the SCOTUS UNANIMOUSLY excluded children born of citizen parents from the citizen clause of the 14th amendment.
OH, this looks like a familiar argument. That the 14th Amendment does not include people born in the United States of two citizen parents. This is common among the Sovereign Citizen crowd. (and one particular Vattle Birther I know).
I guess next the Henry V Vatte Birther will show up.
Squeeky Fromm
Girl Reporter
Sorry KSDB your BS won’t work here. If you don’t understand that WKA only cited Minor to show that rhe Minor court was not committed to a view on the citizenship of children of aliens since Minor punted on such issue, you have shown you have no clue as to how to read case law.
But since we’re speculating: Why is it that only birthers commented on this change on the campaign site?
Sorry I mentioned it. I just wonder why, with the obvious rationale presented here, they did not stick with it.
Not just birthers, Bob.
Mrjr101
“Interesting…So what part of the holding will be overturned?”
I can answer that but first answer a question for me.
Does the Minor decision limit the class of natural born citizens to those born in the country to two citizen parents?
And neither WKA nor any court has ever excluded children of citizen parents from the 14th amendment. Seriously, why do people with no understanding of law pretend they are scholars on the internet. Squeeky os right, this is sovereoign cotizenship bs.
ksdb
What is your interpretation of this statement from the WKA decision?
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
Squeaky, the fact that your comments quickly degenerate into name calling because someone disagrees with your stance demonstrates immaturity and weakness. Any hope you had in convincing me that your point of view is the correct one was completely destroyed by your own actions and any consideration I would have given your blog is now lost.
The only sites that comment on the change at the campaign site are birther sites. Funny that.
Also, the original rationale invited the argument that President Obama was a citizen but not a natural-born citizen (as the 14th Amendment does not use that modifier).
EW: What name calling do you object to, specifically.
Squeeky Fromm
Girl Reporter
Bob, what?
I am trying to understand what you just wrote. Are you saying they wanted to avoid the 14th amendment discussion?
How about asking Squeaky why she chose the name of a Murderer for her online persona?
How about it it Squeaky?
The campaign site’s original verbiage invites this type of response: “The 14th Amendment refers to citizens, not natural-born citizens. Because he doesn’t say he’s a natural-born citizen, he knows he isn’t one!”
Who cares? He has the court on his side. Right?
To the people who weren’t going to vote for him this would mean nothing to them, they already had their arguments. It only deceives the people who looked to him for honest interpretation of his situation.
Both the original verbiage and later verbiage were honest (and correct).
Philo-Publius obviously forgot to mentioned that his attorney lost the case where they espoused their theory on the definition of NBC and Apuzzo was sanctioned to boot.
Fred Muggs:
Was Apuzzo really sanctioned??? How much did he have to pay? Do you have a link?
Thanks!
Squeeky Fromm
Girl Reporter
@ Squeeky F.
In Kerchner v Obama the Third Circuit was going to force Apuzzo to pay costs because he failed to cite Berg’s case in his appeal. Kerchner’s case was Berg redux with a dash of de Vattel and the court was wise to them. Not citing Berg was extremely arrogant and unethical. Apuzzo was able to argue his way out of monetary sanctions but the reprimand stood.
Couple of recent items
Taitz said she received calls on Tuesday from two Republican state representatives from New Hampshire, Harry Accornero and Larry Rappoport, to say they are joining her in her elections challenge of Obama in New Hampshire. According to Taitz, they have forwarded her complaint to other legislators, asking them to join.
Sonoran News learned late Wednesday afternoon that the Ballot Law Commission will review Taitz’s complaint seeking removal of Obama from the New Hampshire primary ballot at 2 p.m. this Friday, Nov. 18.
http://www.sonorannews.com/archives/2011/111116/frontpage-storm.html
This is the original order from the 3 judge panel in the Third Circuit: http://www.scribd.com/doc/33824651/KERCHNER-v-OBAMA-Precedential-Opinion-Transport-Room From the order:
“Because we have decided that this appeal is frivolous, we
will order counsel for Appellants to show cause why just
damages and costs should not be imposed. Federal Rule of
Appellate Procedure 38 provides that “[i]f a court of appeals
determines that an appeal is frivolous, it may, after a separately
filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the
appellee.” “The purpose of an award of attorneys’ fees under
Rule 38 is to compensate appellees who are forced to defend
judgments awarded them in the trial court from appeals that are
wholly without merit, and to preserve the appellate court calendar for cases worthy of consideration.” Huck v. Dawson,
106 F.3d 45, 52 (3d Cir. 1997) (internal quotation and citation
omitted)..”
As mentioned, Apuzzo was able to grovel his way out of paying monetary sanctions.
Gorefan et al;
Your clinging to WKA and the English Statutory Law of subject-hood and naturalization is instructive of your disdain for the Constitution and the Laws promulgated under its authority. The same disdain that Justice Gray displayed when he dismissed the Burlingame Treaty as not controlling of the Ark parents and their prodigy. Article VI of that Treaty, which was passed and signed and by operation of Constitutional Law attached to the Constitution for the purposes contained therein, clearly states that no person covered under the Treaty shall be eligible to naturalize to the host country. By virtue of the Treaty there were Constitutional limits on the “benefits” available to the Ark’s. But with disdain for all things American Justice Gray sought the Lord Coke and Blackstone rather than Joseph Story of Taney.
The Scott v Sandford Opinion, although highly vilified, followed the Construction of AMERICAN STATUTORY LAW, (rather the the English), which not only paved the way for the Civil War, but also for the 13th and 14th Amendments. Yes, an Amendment was necessary to provide ‘citizenship’ to persons previously denied the benefit, through the Collective naturalization provision of the declaratory born statement.
Scott v. Sandford () 100 U.S. 1
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
I want to repeat the last sentence of the passage posted;
The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Now to the point of citing a case that I’m sure makes your head spin, nevertheless the Court Ruled on the LAW as it then existed, without the aid of Lord Pepsie or Blackrock and looked only at the Laws emanating from the Constitution and cases adjudicated under the Rule of Constitutional law,
…so we find this;
It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
“Birthright or otherwise”, i.e., “naturalization”.
Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th, as would be applied to an alien foreign national nor any words in the 14th. or words that require the the enlargement, abridgement and or other modification of the exclusionary provision of the prerequisite imperative requirement of being a natural born Citizen, being the birthright prerogative of Citizen parents.
I’m still looking for all the English Statutory Law that Gray cited and find none of it in the debates on the 14th or any semblance of it in the language of the Amendment its-self which leaves me curious if Gray was attempting to make whole cloth or to dislodge something from upon what he was sitting.
Where do they post the non-monetary sanctions?
slcraigbnc:
You asked: Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th,
Answer: It was NOT promulgated law. It was English common law brought to America. Read Wong Kim Ark. 1898. You can find it above.
Read Lynch v. Clarke, 1844. I won’t keep cutting and pasting for you. It is above.
Squeeky Fromm
Girl Reporter
gorefan said:
“I can answer that but first answer a question for me.
Does the Minor decision limit the class of natural born citizens to those born in the country to two citizen parents?”
Ok, sure, I’ll give you a pass even though I asked first. Why not.
It is an affirmative definition of that class per A2S1C5.
Would you like to share what part of the holding would be overruled if Leo’s argument holds true?
English common law controlled McCain’s birth status.
Komfort,
So that means that A2S1C5, 14A, controlled McCain’s birth status also? Or not?
Tough to say. Natural born subject is synonymous with natural born citizen except when it is not synonymous. Leave it to the Brits.
MvH:
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”
“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.”"
The very next sentence with emphasis added, “But, IN OUR OPINION, it did not need this amendment to give them that position.”
Hmm…didn’t need the 14th to determine her citizenship. Interesting, no? And how does the court go about defining her citizenship which is integral to answering the question before the court (see first paragraph)?
Gee, it shouldn’t be a surprise that later courts would hark back to this particular citizenship holding (i.e. RE Lockwood and WKA).
So we don’t know if McCain fit into WKA’s guidance?
mrjr101,
MvH with emphasis added;
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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 PURPOSE 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.”
1. The court affirmed and defined a class of citizenship (A2) that was doubtless.
2. If this is a valid holding, then SEN McCain fails in his eligibility for presidential office due to his foreign birth (i.e. “all children born in a country”).
4. The MvH court could have lumped 14th “born” with A2 “natural born” and remarkably regarded them as separate and distinct by not doing so.
4. Incidentally, hopefully it is noted that WKA specifically and solely referenced the 14th in its consideration of what class of citizen is considered “born” without overruling the opinion of the earlier MvH.
5. “For the purpose of this case” and “sufficient” emphasis is noted with regard that Minor was born in United States to parents who were American citizens and undoubtedly a citizen entitled to certain rights.
I was wondering If McCain status is or isn’t controlled by the 14th A or A2S1C5 (Well Established English Common-Law in it’s root). If so, then McCain would be deemed a “natural born subject” by operation of which principle?
mrjr101,
He was born a citizen by naturalization statute. A power granted by the constitution to the congress.
Tribe and Olson wrote that Wong Kim Ark explains the sources that may be referenced when defining terms not expressly defined in the U.S. Constitution: the context in which those terms are used; statutes enacted by the First Congress; and the common law at the time of the founding (i.e., English Common Law).
After examining those sources, they concluded McCain was a natural-born citizen (and, implicitedly, President Obama as well).
http://www.scribd.com/doc/25457698/The-Tribe-Olson-Natural-Born-Citizen-Memo
bob, perhaps Tribe and Olson were wrong in their analysis. What do you believe to be true?
Congress can only make law with regard to Naturalization. A Natural Born citizen needs no statute, and needs no investigation.
Natural Born Citizenship means there is no question… there is only one potential citizenship for such a person. there is no need to question the birth circumstances of such a person, there are no questions to ask.
For a person not born to two parent citizens, or born in a place other than their nation, there are questions. This person is a citizen by statute – and potentially affected by new or changed laws coming from congress, but not by birth.
It isn’t rocket science. If the question has to be asked, then there is something to question. If there is something to question, then there must be an investigation of one sort or another, and this starts to run into the realm of the subjective, rather than an objective observation which would state simply, this person cannot have any citizenship other than this one.
That is what Natural Born means. Naturally that person is born with one citizenship… Naturally, there is no need for explanation or justification. Naturally there can be only the one.
It isn’t rocket science. MvH is clear.
Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.
I tend to believe two prominent attorneys with exceptional careers more than some anonymous nonexpert who often spells the name of the case M – I – N – E -R.
But that’s just me.
bob, no doubt the academicians are renown and to be respected…I was curious as to your personal thoughts on the matter.
Lexisnexis spelled it M-i-n-e-r in Re Lockwood. Did you expect that?
I know it was just a memo, Bob, but does the Obama language within the memo fit the dicta template Nal based this thread on? ( assuming the memo was an opinion of the court, of course)
slcraignbc
“Your clinging to WKA and the English Statutory Law of subject-hood and naturalization is instructive of your disdain for the Constitution and the Laws promulgated under its authority.”
Even the Founders used the term subjects in their rightings. The Delaware Legislature as late as 1788 and the Massachusett’s legislature as late as 1791 were passing acts of Naturalization that gave foreign born immigrants the same rights as “natural born subjects”. And the future Chief Justice of the Connecticutt Supreme Court wrote in 1795 that,
“The children of aliens born in this state are considerded as natural born subjects and have the same rights with the rest of the citizens.“
Did all these members of the Founding Generation have disdain for the Constitution or did they just use both terms interchangeably?
Danae:
You said: Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.
Actually, my way is real simple. Doubts means doubts, no doubt about it. Plus, haven’t you read the Alphabet Book yet??? Here is a video you can probably fit into your busy schedule:
This will probably help you with your spelling!
Squeeky Fromm
Girl Reporter
Danae,
You’re just playa hatin’ on Squeeky because she’s got the goods on you (as do about a dozen other posters here–but most of them are polite when they utterly devastate your ideas). You birthers really crack me up–you pretend that you are making an erudite argument about legal arcana while at the same time demonstrating that you don’t know the difference between “if A then B” and “if not A then not B”. I think that this is a pretty good indicator of the quality of your understanding. I’d ask you what you thought, but…
Bdaman,
That’s awesome news! I don’t know of any bigger publicity whores (we used to call them “TV sluts” back in Cameron Indoor… [WAY TO GO COACH K! #903! GO DEVILS]) than Dr. Orly Taitz, esquire (who is not, to the best of my knowledge, currently disbarred). I hope Orly can drum up a big ol’ spotlight for this one. If she’s correct about New Hampshire law and gets standing, she might just be able to get to arguments and present her ‘zibits to a judge! You are aware that Orly has been posting President Obama’s (likely) former social security number all over the interwebs and that it was fraudulently obtained, right? Perhaps one of the lawyers here might enlighten us as to what would be likely to happen if an attorney stuck the fraudulently obtained social security number of the president (which she has proven completely unable to correctly redact) in front of a judge and demanded they recognize it. I bet it will be fun (Orly never disappoints! [unless you're a birther])–especially if there is video from the courtroom!
Hope your mom is well.
Komfort
“English common law controlled McCain’s birth status.”
Not strictly true. English Common Law controlled those born in the realm. English Statutory Law controlled children born to English subjects outside the realm.
Blackstone summed it up this way,
“THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such” (Common Law)
“But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes” (English Statutory Law)
And this is where the term “natural born Citizen” is normally debated. Did the Framers (who were aware of the two sets of Law) intend for the term to be enclusive of both concepts (Common and Statutory Laws) or did they intend the more narrow meaning (Common law)?
Just before the Constitutional Convention ended, Alexander Hamilton presented to James Madison a draft constitution. It did not have the term “natural born Citizen” instead it used the term “born a Citizen”. This might mean that Hamilton understood the Constitution to be using the more narrow definition.
Hamilton did tell us where to look for the definition of terms used in the Constitution. In a legal brief on Carriage Taxes, he wrote,
“where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
Mrjr101
You answered the question.
If Leo (in his use of Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996)) is right than the Minor decision limited the class of citizens known as “natural born”. However the later WKA decision widened that definition to include the children of aliens born in the United States.
As explained in this passage from the WKA decision:
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
A child born in the United States of non-citizen parents is natural-born and “as much a citizen as the natural-born child of a citizen”.
Ok, so, it is not always English Common Law to interpret the provisions of the Constitution in regards to NBC. I thought that Justice Gray told us to that we needed to look at the English Common Law.
gorefan, very interesting quote you gave us by Hamilton. In light of such consider the following from Tonchen’s blog;
“Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).
Under the “Aliens” section of his Law Dictionary, Cunningham defined “natural-born subject” as one who is born within the king’s realm, of parents who are under the king’s “actual obedience”:
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled “Aliens”)”
“[P]arents [who]…were under the actual obedience of our king…at the time of their birth” can not include those beholden to another sovereign in any measure. At least that’s how I read it.
Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Senator McCain is covered by the first definition, and President Obama is covered by the second.
Do we need to interpret NBC in light of the English Common Law according to Justice Gray, or is it not strictly though? Isn’t this the same argument of those in favor of the Minor decision being dicta, as to the definition of NBC not being a strict one?
Full circle. Are we discussing dicta again?
“Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Senator McCain is covered by the first definition, and President Obama is covered by the second.”
Only that Justice Gray did not concur with the first definition. But of course, the first definition was all dicta in Gray’s guidance.
“Full circle. Are we discussing dicta again?”
You bet. But I think this thread is very close to the decision. It’s two or three cases and a little research away.
@slartibartfast: you and squeaky are the ones slinging the ad hominiums, so turn it on yourself dear. How about addressing the comment instead of flapping your threats. Because I am frankly unimpressed with either thus far.
You have yet to make a convincing argument though you have been trying for years to do so.
@Squeaky…. spelling suggestions from a little girl who cannot spell Fromme correctly and finishes posts with: “So there!”. Riiiiiight. I’ll get right on that.
Now, why did you take up the name of a murderer for your online persona?
Address the comment and answer the simple questions. Why should anyone listen to you when you won’t answer simple questions, nor address valid topical comments?
Portney,
““Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. “”
So the only law dictionary that the Continental Congress had and that was on the shelves of the brightest of the Founders was an English Law dictionary.
Did you know that one of the Framers, Charles Cotesworth Pinckney studied law at Oxford University and actually attended the lectures of Justice Blackstone?
Did you also know that in 1775, Sir Edmund Burke said this about the Colonists,
“Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.”
Did you know that during the Constitutional Convention, Blackstone’s “Commentaries on the Laws of England” was consulted for legal concepts.
“Mr. DICKENSON mentioned to the House that on examining Blackstone’s Commentaries, he found that the terms, “ex post facto” related to criminal cases only” August 19th, 1787
Did you also know that during the 1790 Congressional debates on the Naturalization Law, Representative Jackson talking about English Naturalization Laws quoted from Blackstone’s Commentaries on then said,
“So that here we find, in the nation from which we derive most of our ideas on this subject”
And that during the same debate, Representative Burke made a statement to the effect that the “case of children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.“
When Virginia’s Governor Thomas Jefferson became a member of the Board of Visitors at the College of William and Mary, he convinced them to start a Professorship in Law. He got his old mentor, George Wythe appoint as the first Law Professor. Wythe used Blackstone’s Commentaries as the principle law text.
bob, so I take it it is your personal belief that WKA overruled MvH as to the definition of NbC in line with Tribe and Olson’s assertion? I’m curious as to what you think with your own reading of the WKA decision, is it your contention that by defining 14th “born” to include non-citizen parents that somehow through squinty nuance and inference it also defines A2 “natural born”? I take it you believe the MvH court defined 14th ‘born” inferentially in the same manner and as such was overruled by WKA? Sure is alot of supposition going on if you ask me.
gorefan. that is interesting and thanks.
“Sure is alot of supposition going on if you ask me.”
About what I think? Absolutely.
bob, this is a debate and not a request for forfeiture of your immortal soul. In all probability neither of us have a clear understanding of the matter. It’s just our opinions as to what is likely true. Relax.
I tried to limit the supposition, Bob, but I still do not know the limits to WKA’s rationale. Have you decided if the rationale is specifically the text included in Ankeny? Or is it greater?
Danae,
Ad hominems (or ad hominiums or mad homiminiums) are only a fallacy if they are unjustified (and I don’t believe I’ve made threats of any sort–can you cite an example?). Can you point to any of mine that weren’t true? I don’t care to comment on the topic of the thread–my purpose is to point out the ignorance, lack of intelligence, lack of integrity, and incompetence of the birthers. Not being a lawyer, I don’t have any insight into the difference between dicta and holdings–except what I’ve gleaned from reading the comments of people I respect like Ballantine and Nal–, but, being a mathematician, the blatant logical mistake being made by Leo and the other birthers offends me. I’m not someone who suffers fools gladly and birthers are all fools. I notice that you are upset that Squeeky and I are calling birthers names, but you are completely unwilling to discuss the substance of our arguments–why is that? If our arguments are as unconvincing as you say, you should be able to easily attack them on their merits. What should we infer from your failure to do so? What do you think, Squeeky? What is behind the birthers’ impotence?
Danae,
What part of “do your own research” do you NOT understand??? That advice would work for both my “name” and your erroneous statement of the law. Particularly, this one:
“For a person not born to two parent citizens, or born in a place other than their nation, there are questions. This person is a citizen by statute – and potentially affected by new or changed laws coming from congress, but not by birth.”
First, the 14th Amendment is not a “statute.” That is why birthright citizenship (nbc) was placed into the Constitution. The 14th Amendment does give a lot of headaches to Sovereign Citizen types who are convinced it has something to do with gold fringe on flags, or capital letters in lawsuits. I truly hope that is not the source of your confusion.
Second, you made this curious statement:
“That is what Natural Born means. Naturally that person is born with one citizenship… Naturally, there is no need for explanation or justification. Naturally there can be only the one.”
I think that maybe you are confusing natural born citizenship with that TV show called The Highlander, where they chop off each others heads and lightning bolts flash everywhere. In REAL LIFE, natural born citizenship, for most people, is just being born here under the jurisdiction of the United States. That is, born here, and not the kid of a diplomat or invading soldier.
I suggest you read Wong Kim Ark, all 19,464 words of it, and maybe just TIVO, or do a DVR thingie on The Highlander.
Squeeky Fromm
Girl Reporter
Squeeky,
You should really be referring her to the movie “The Highlander” (Christopher Lambert, Sean Connery–a classic [under no circumstances should you watch the first sequel--ever {seriously}]–”There can be only one.”). Just my opinion…
Slarti:
I think that a lot of the anger comes from the inability to get any respect for their theories. It is as if the existence of valid legal disputes, such as over the constitutionality of Obamacare, automatically implies that any legal dispute is valid and has some basis in reality.
This is why the Cognitive Decompensation seems to be accelerating among them.
Squeeky Fromm
Girl Reporter
Slarti:
Maybe you are right about the movie. Plus, this is a very interesting website. I did a poem for them over on the Humphrey the Hippo thread. I hope they like it.
Squeeky Fromm
Girl Reporter
@ballantine
You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded and that citation was supported in Elk v. Wilkins. Gray affirmed and upheld the finding in MvH, but he used creative license to bypass EvW by claiming that Indians were “alien nations” not “not foreign states” and that Indians had “a peculiar relation to the National Government, unknown to the common law.” Since Wong Kim Ark was Chinese, then he treated China as a “foreign state” instead of an “alien nation” to make a distinction that would exempt Wong Kim Ark from these exclusions. From this point forward in the decision, Gray does not use the term “natural-born citizen” but instead opts for what he calls “citizenship by birth” which is controlled by different criteria.
@gorefan
The phrase “as much a citizen as the natural-born child of a citizen” serves to show a distinction, and it does not mean “equal to.” An apple is “as much a piece of fruit” as a banana, but an apple is not a banana. A child of an alien might be as much a citizen as a natural-born child of a citizen, but the child of an alien is still NOT a natural-born citizen. What does this mean in regards to Obama? He is a fruit, but he is NOT a natural-born citizen under the definition used in BOTH Minor and WKA. He’s not even a 14th amendment citizen according to WKA because his parents did not have a permanent residence and domicil.
Squeeky,
I definitely agree that birthers are prone to false equivalences like that. You can see it on this thread with people trying to score abstruse debating points as if they could convince people of their ludicrous theories if they’re right about enough bits of trivial minutia. I think they see everything as a kind of zero-sum game…
Squeeky,
I liked your poem (and Mr. Eliot’s part, too…)–you should check out some of Elaine’s poetry (“Elaine M.”, one of the guest bloggers), she’s written some good stuff on this site. Definitely check out the movie if you liked the TV show–it was similar, but better (my opinion–it also came first).
KSDB:
You said:
You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded . . .
Uh, I think you are excluding about everybody born here in the country with your analysis. I am trying to think of people who either don’t have citizen parents or foreign parents, and I am coming up short. With what Danae said earlier it kind of sounds like movie night here, sooo are you maybe referring to the mutant X-Men???
Have I missed something???
Squeeky Fromm
Girl Reporter
ksdb
I did ask you to give your interpetation of the entire sentence. Here it is again,
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
An alien in the United States owes allegiance to the United States as long as he is in “our territory” and in the words of Lord Coke if he has a child that child is natural born and as much a citizen as the natural born child of a citizen.
You ignored the part about the alien owing allegiance to the United States while in the United States, his child born here being natural born and a citizen.
squeezy, you ARE missing a lot. You need to take your own advice and read ALL the words from the decision. Here’s the passage I was referring to:
“committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …”
Do you SEE where it says “subjects of foreign States”??? These are the words of the court, not mine.
And you’re right about one thing: this would exclude a lot of people, but this is ONLY talking about the citizen clause, not the entire 14th amendment which has broader application. The birth clause in the 14th amendment was written to grant citizenship to a select minority of persons born in this country. It wasn’t designed to grant birth citizenship who were already citizens by virtue of being natural-born citizens. All others were expected to naturalize.
KSDB:
You are butchering quotes. This language “committed to the view that all children born in the United States of citizens or subjects of foreign States. . .” comes from Section 5 of WKA as I recall, and was part of what the WKA court was rebutting from the Slaughterhouse Cases.
This was why the Minor v. Happersett cite was made in that section of the case. Not as precedent, but to show the Slaughterhouse judges were NOT committed to that view as proven by what those same judges said two years later in Minor.
For goodness sakes, please pay attention to what you read and don’t just match words. You need some context.
Squeeky Fromm
Girl Reporter
danae
fromm was never convicted of murder, only the attempted assassination of a president.
she was also paroled in august 2009 so the person you’re addressing may well be that squeeky fromm and since it is her nickname she can spell it any way she likes.
also neither the series or the sequel of the highlander lived up to the original movie. as you said doc, “there can be only one”.
Squeeky,
Context is not the birther’s friend…
ksdb
“You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment ”
You are joking right? Or was that a typo?
Here is the passage:
“understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sentence of the fourteenth amendment”
The phrase is “citizens or subjects of foreign states”.
Here is what Justice Gray is talking about. Before the Minor case there were the Slaughter House Cases. In Slaughter House, the court (which included most of the Justices who decided the Minor Case) said that the children of foreigners born here were not citizens. So, Justice Gray is saying that those same Justices who said that children of foreigners were not citizens in the Slaughter House, changed their minds in the Minor Case and said there are doubts but they would not settle the doubts.
Go back and read the paragraph. It starts “That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House Cases, understood the court to be committed to the view”.
The Justices are not committed to the view that was expressed in the Slaughter House Cases.
Pete,
Danae already knows that. Who I am, and what my name is all about is in my profile on the main forum where we usually fight. Who knows what she is trying to prove. For what it is worth, I suspect the real Squeaky Fromme is also older than 27.
Slarti:
I agree. The Vattle Birthers come up with all these weird interpretations of law, and then are too lazy to do the research to try to reconcile all the anomalies.
Squeeky Fromm
Girl Reporter
Squeeky Fromm
pete,
I love the dissolves with the wrestling match and the aquarium.
The sequel may well be the worst movie I have ever seen.
(I’m ambivalent about the TV show–I’ve only watched about a half dozen episodes…)
@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born. You’re trying to connect a dot that isn’t connected this way in that passage.
And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance. This is why the court gives several passages on residence and domicil, including the same paragraph you cited:
“including all children here born of resident aliens”
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection …”
“Domicil” is defined as having a permanent residence and it is used to satisfy the subject clause of the 14th amendment. Under this definition of citizenship (which is still NOT the same as NBC), Obama would fail to be a citizen because his father was not domiciled here, and technically, neither was his mother upon marrying his father. This means Obama, even if he could legally prove he was born in the U.S. is neither a natural-born citizen NOR a 14th amendment citizen.
squeezy, the only butchering of quotes is on your part. The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. That argument was rejected by citing the definition of natural-born citizen “all children born in the country of parents who were its citizens.” It’s why the NEXT paragraph in WKA after this one cites that definition. Reading is fundamental, squeezy. Read ALL the words in the decision. Pay attention to the context. Gray’s comments about the Slaughterhouse case was only to point out that Slaughterhouse does NOT provide an exclusive (pun intended) decision on the exclusions from the subject clause of the 14th amendment.
Squeeky,
Only some of them are too lazy–others don’t understand how to do research (they do what I call “cargo cult”* research–like Butterdezillion) and some of them understand that they can’t really do the research as it would prove them wrong and some of them are stupid enough to fake the research and don’t realize that rational people see how incompetent they are.
* A chapter in Richard Feynman’s autobiography was a speech he gave on “cargo cult science”–as in the cults on south pacific islands trying to bring the planes (with all the good stuff!) back after WW II by building fake towers and runways.
@gorefan … you’re leaving out parts of the citation and ignoring the context of this paragraph and the following paragraphs. Read it.
“all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment”
Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States. This is why the next couple of paragraphs are about the Minor decision and the next few paragraphs AFTER that are about the Elk decision.
Also, the context of the same paragraph on excluding the children born in the U.S. of citizens is supported by citing the unanimous Minor decision. That’s what the court is talking about when it says:
“manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),”
The judgment delivered but two years later is Minor v. Happersett. The citation from Chief Justice Waite is from Minor v. Happersett. The next paragraph is a continuation of the citation from Minor v Happersett. The definition in the next paragraph of natural-born citizens was the same definition in Minor v Happersett that was used to exclude children born of citizens from the birth clause of the 14th amendment. Read it. Learn it. Comprehend it.
ksdb:
Maybe “butchering” was the wrong word. “Butchers” provide a valuable service to society. Perhaps I should have said “massacring quotes”— because that word means an indiscriminate slaughter or botching or bungling.
Here is what you said that caused me to opt for a stronger word:
“The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. ”
That was a bizarre statement. Do you ever try to think about this stuff before you say it???
Squeeky Fromm
Girl Reporter
Slarti:
The cargo cult stuff has some sympathetic magic qualities going on. “Like gets like”. I did a poem on Halloween which used that. It was a take-off on the Shakespeare witches in MacBeth. Here is part of it that applies here:
Second Birther Witch:
Case of Minor Happersett
Throw it in, you won’t regret.
Cut a paragraph in two
Throw the first part in the stew.
Here’s the part you must leave out
It’s the half that mentions “doubt”.
They won’t find it, so we think
(Justia has lost the link!)
All
So dance about the magic pot;
And Thank God, ethics. . . we have not.
Squeeky Fromm
Girl Reporter
I’m not sure what you folks thought of the opening paragraph of Minor and the relevance of citizenship in their decision;
MvH:
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”
(snip)
“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.” Emphasis added.
I don’t believe that there are nearly 400 posts on something that should be clear. The vast majority are provoked by birther liars simply asserting and reasserting the same drivel.
(a) WKA differentiated between citizen and natural-born citizen.
I offer these two statements, both are undoubtedly true:
[1] Jackie Robinson was a black, major-league baseball player.
[2] Satchel Paige was a baseball player.
Note that nowhere do I exclude Paige from being a black major-leaguer by merely referring to him as a baseball player.
Birther are liars! Not stupid or dense–merely bigoted liars. They don’t actually believe the venom that they spew.
“Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”
BOth wrong. Minor didn’t exclude anyone from the 14th Amendment and Elk dealt solely with indians who were treated as being born in a foreign state and said nothing about children of aliens. Need to actually read the case.
“Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”
Nonsense. Minor did not exclude anyone from the 14th Amendment and Elk was solely about indians and said nothing about children of aliens. You can spin all you want but WKA only cited Minor to point out that is did not address the question of children of aliens. You are either being dishonest or don’t know how to read cased law.
“And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance.”
Wrong again. The court never said domicile was required. It said it was included under the common law. He actually cites Calvin’s Case in his conclusion:
“His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
Seriously, the dishonest twisting of WKA to try to make it say the opposite of what it actually says is embarassing. These type of arguments would get a lawyer sanctioned in court but it seems clear the people making these arguments are not lawyers. SImply ignoring the clear statements that natural born citizen is to be defined by the English common law, that the definition of natural born subject prevailed under the original Constitution that :
“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.”
That
“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 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.”
“@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born.”
No, you are trying to read something into a quote that isn’t there. Binney is saying children of citizesn and children are both “citizens,” it says “citizens,” by operation of the same principle. It doesn’t say they are different types of citizens. If they were different types of citizens they would not be citizens by operation of the same principle. Simply not calling someone natural born does not mean they are not natural born. A “natural born citizen” is also a “citizen.” Binney actually defined “natural born citizen” in the paper that Gray is quoting as one born “within the limits and under the jurisidiction” of the sovereign which is straight from Blackstone. Binney also said parentage was irrelevant. Why do you focus on an ambiguous quote from Binney and ignore the clear quotes from Justice Curtis and Gray which clearly define what natural born means? Do you skip over those pages?
Monkey Boy, why so angry?
Squeeky Fromm, Girl Reporter1, November 16, 2011 at 9:31 pm
slcraigbnc:
You asked: Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th,
Answer: It was NOT promulgated law. It was English common law brought to America. Read Wong Kim Ark. 1898. You can find it above.
Read Lynch v. Clarke, 1844. I won’t keep cutting and pasting for you. It is above.
Squeeky Fromm
Girl Reporter
Well, seems that is an admission against interest…..a State Court and ‘dicta’ citing foreign Law is controlling of a Clause of the Constitution that pays homage to the Founding generation and tho Prodigy, (read Posterity), they provided for…..
…..I just do not find that in any Article or Clause of the Constitution which CLEARLY states that it is to be considered the Supreme Law of the Land and ONLY those things in the Constitution by the powers delegated therein constitute the Law to be respected with all powers not delegated and laws not expressed are reserved to the States and to the People.
So I’ll continue to ask, respecting that I am guaranteed a Republican form of Guv’mnt operating under the Constitutional Rule of Law……….wher are the laws written that support your assertions…..
…P.S. The citations in WKA are NOT English “common law” , but rather English Statutory Laws on the subject of subject-hood Promulgated and known as the Queen Anne Statutes under the Political theory of the Divine Right of Kings and. although the philosopher writers devote inquiries into the political systems of Kingdoms, Our Declaration of Independence CLEARLY states that the U.S. was God-bent to break away and sever the bonds from such form of Guv’mnt and to establish a New Nation respecting the Peoples inalienable Rights.
You should start with Aristotle & Cicero and the jump to Pufendorf & Grotius if you are bent to cite “common law” but al least should attempt to understand that the actual meaning of the “English Common Law” refers to the System used to adjudicate cases and controversies, replete with a hierarchy of Writs, Rules and Regulation and that it is within that system the conflicts of “statutory law” are adjudicated, That is the “common law” that was retained in varying degrees, NOT the English Statutory Law.
P.S.S.;
Take the time to read the Queen Anne Statutes and as they subsequently evolved and you will find that the British Empires “natural born subjects” were divided into multiple categories with most being DEEM AS IF natural born subjects, once subjugated by conquest, and DEEMED so AS IF from birth and into perpetuity with NO RIGHT to EXPATRIATE.
Clearly, to my understanding of Inalienable Rights, not synonymous with the needs of the American form of the turn of words, made idiom by virtue of its specific purpose within the Clause, natural born U.S. Citizen, (sic).
Slarti, I appreciate your honesty in admitting you do not want to discuss the topic of the thread. Sorry I jumped all over you. I hope you understand that I was offended at being labeled a birther, when I made no statement that would support that claim.
Since you are a mathematician maybe you could help me with this. Can you take this quote and break it down into an x,y,z type of formula to show the relationship of the major terms?
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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.”
I have always been curious how it would look, if portrayed in a different format.
Thanks in advance.
Squeaky, I’m not going to go through and pull out each instance of name calling or insult. Once was more than enough for me to disregard anything you have to say on this and any other subject you might discuss in the future. The same can be said to others here, but they don’t have a blog they’re promoting. The reality is you do make good points but good as they are they do not outweigh your poor behavior. I follow many blogs and yours looked to be worthwhile addition to my reading list, however every snarky comment and insult detracts value from anything you say leading me to conclude you should not be taken seriously. For future discussions, if you wish to be taken seriously and have any amount of gravity assigned to your arguments, refrain from any name calling and insults. Your treatment of others reflects on you which in turn casts a long shadow on your blog. It’s your choice the kind of shadow you cast.
squeegy, you need more than ad hominem characterizations about butchers or massacres to make a salient point. You also need to learn to read. The justices in Slaughterhouse were the same ones who unanimously voted in Minor. The quote from WKA says this very clearly:
“while all those judges but Chief Justice Chase were still on the bench”
What part of that do you NOT understand?? You can look up both of these cases and see that eight of the justices took part in BOTH decisions. Gray was explaining that the list of exclusions to the subject clause in Slaughterhouse was NOT comprehensive. This was clear from the unanimous Minor decision. That’s what the sentence sence. The context supports this. Read it. Learn it. Understand it.
slccraignbc,
I am curious as to what is the definite position of those in favor of WKA case that settles who are NBC. When Justice Gray pointed out to us that we needed to look elsewhere outside the Constitution. Didnt he give us guidance that we needed to interpret it in light of the English Common Law, or is the English Statutory Law, or both?
No Gray was saying the members of the Slughterhause court were not committed to the view that children of aliens were not citizens under the 14th Amendment since the same Justice in Minor failed to address the status of children of aliens at all. Didn’t say they were not citizens under the original Consitution or the 14th Amendment but expressly stated they would not address their status. Anyone saying Gray cited Minor for any other reason, or that he agreed with anything said in Minor, is simply not telling the truth.
“P.S. The citations in WKA are NOT English “common law” , but rather English Statutory Laws on the subject of subject-hood Promulgated and known as the Queen Anne Statutes under the Political theory of the Divine Right of Kings and. although the philosopher writers devote inquiries into the political systems of Kingdoms, Our Declaration of Independence CLEARLY states that the U.S. was God-bent to break away and sever the bonds from such form of Guv’mnt and to establish a New Nation respecting the Peoples inalienable Rights.”
Simply not true. WKA mentions these statutes and says they didn’t change the common law rule.
“So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.”
Can’t be clearer. You just can’t seem to understand that there was no statute making anyone born in the United States a citizen prior to 1866. Do you not think that children of citizens born in the United States were citizens? No one ever said they were citizens by statute.
Was there a statute that defined “foreigner” and/or “alien” prior to 1866?
Portney
“But, IN OUR OPINION, it did not need this amendment to give them that position”
The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.
The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.
Gorefan, I have been thinking about your theory.
If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?
Not really “due” to Ogilivie, but I think you get my drift
“Was there a statute that defined “foreigner” and/or “alien” prior to 1866?”
No, but their was no dipute what “alien” meant in any legal treatise or court case. An undiputed legal term of art.
“But to return to the subject of alienage—an alien, according to the notion commonly received as law, is one born in a strange country and in a foreign society, to which he is presumed to have a natural and a necessary allegiance.” James Wilson, The Works of James Wilson, Vol. II, pg. 291 (1803)
“ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts.” See Citizen, Inhabitant. Bouvier Law Dictionary (1843)
“An alien is one who is born in a foreign country.” Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)
Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 81 (1871)
“An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. ” James Kent, COMMENTARIES ON AMERICAN LAW (1826)
“If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?”
Only if its discussion was not dicta and it cited Minor for the proposition that natural born citizens need citizen pareents. This would never happen because Minor doesn’t say natural born citizens need to have citizen parents.
ksbd
“@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen.”
Why do you continue to skip the first part of the sentence? Here it is again.
“His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
He is quoting Lord Coke’s description of how things worked in England to explain how they worked in the United States.
Thanks Ballentine. I have to run. I will read and comment a little later.
BTW, does anyone know how to “refresh” this thread on a Droid, without scrolling to the top? I hope it can be done without an “app”.
Re what Minor say;, see if you can talk Slarti into making a formula out of the quote I posted.
Minor says…
Komfort
“Gorefan, I have been thinking about your theory.”
If Leo is right in his analysis of Ogilvie, the answer to your question is it would depend on what the ruling actually said. Simply citing Minor without a context to why it was cited would not have an effect.
But that is if Leo is right.
Not a lawyer, but Obama’s father was never a citizen. He came as a foreign student to attend college. He never naturalized as far as we know. He supposedly married Obama’s mother and went back to Kenya. That information alone states that Obama was not a NBC, According to the constitution, You have to have been born of 2 U.S. citizens.
ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”
My understanding of the WKA decision is one wholly and utterly premised on the 14th permissive use of “born” (noted by the court’s understanding of the amendment’s authors intent described 10 or so paragraphs later).
The Oglibe agument has no merit. Determining Minor to be a citizen did not answer the question presented at all. Citizenship did not give her the right to vote. The court’s answer to the question presented was that citizenship was irrelvant to the right to vote. It was not an independant grounds to answer the question presented, it was irrelevant to the right to vote.
For anyone who actually reads alot of case law, there is another obvious reason Minor discussion is dicta. It simply makes a few assertions, cites no authority, give no explanation of why the common law should be followed or what the common law rule was, cites no countervailing arguments and fails to tells us what doubts exists. You would never see that in precedent. Compare Minor’s discussion of the common law with Wong Kim Ark’s. The latter spends page after page telling us why the common law should be followed, what the common law is, the original and basis for the rule, who is coveedr and who is not, cites every supreme court case that have touched on the subject as well as most of the legal giants in England and the United States and addresses and dismisses all opposing theories that have been put forth. That is what precedent looks like.
“ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; ”
My citation was to refute the point that domicile was required under WKA which Coke’s quote makes clear is not required. Binney’s quote doesn’t identiry a distinct difference betweeen native born children. You are reading that into his quote by inferring that not using “natural born” when referring to children of aliens means they are somehow a different type of citizen. Binney say children of aliens and children of citizens are both “citizens” by operation of the same principle. If they are citizens by operation of the same principle, they are obviously not different types of citizens. The principle Binney is talking about is the rule from Calvin’s Case which madde everyone of subject or citizen by locality of birth and, by definition, are natural born. Binney entire paper was on the United States adopted the English common law and obviously defined “natural born” by the common law for example:
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).
Makes you wonder why WKA bothered to quote Minor.
“But, IN OUR OPINION, it did not need this amendment to give them that position”
The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.
The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.
gorefan, would you please explain what you mean?
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.
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.”
The context of “But, IN OUR OPINION, it did not need this amendment to give them that position” is simply that women, such as Minor, were citizens of the US and respective state without any need for consideration of the later amendment, her political rights based on citizenship are found in the original constitution (which, of course, the court rules did not give her right to the vote).
BTW, where does the court declare them citizens by the 14th and, as such, didn’t need to go any further to decide the case?
My prior context argument is bunk (gibberish) without relation to what the court was really intimating…which was NbC, that persons born on the land of natives are themselves citizens (making the later amendment unnecessary).
“The court’s answer to the question presented was that citizenship was irrelvant to the right to vote.”
Ballantine,
Should I interpret that as you do not agree with Nal then when he said:
‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”
“Should I interpret that as you do not agree with Nal then when he said:
‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”
Yes, why is it critical to determine if Minor is a citizen if citizenship is irrelvant to the right to vote. The Court, for example, could have simply said it need to to determine her citizenship since it was not relevant to the right to vote. Why didn’t the Missouri Supreme Court determine here citizenship? Because it was conceded and no bearing on its holding that citizenship did not give one the right to vote.
Wow, so much confusion in regard this issue. It seems like most on this site think alike and quickly trash dissenting opinions; however, doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.
The Missouri Supreme Court actually never mentioned whether Minor was a citizen or not in its opinion. It held that nothing in the 14th Amendment prohibits the states from restricting “the right of suffrage to the male inhabitants.” Being a citizen simply was not relevant to such holding.
http://books.google.com/books?pg=PA60&dq=minor+v+happersett+missouri+supreme+court+1873&id=ENIaAAAAYAAJ#v=onepage&q&f=false
cynkading said:
“Obama’s father was never a citizen. He came as a foreign student to attend college. He never naturalized as far as we know. He supposedly married Obama’s mother and went back to Kenya. That information alone states that Obama was not a NBC, According to the constitution, You have to have been born of 2 U.S. citizens.”
Who told you that? It is wrong.
“Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President….”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
@ballantine, you’re not understanding the context of Gray’s citation of Slaughterhouse, Minor and Elk. In the series of paragraphs he looks at how the SCOTUS viewed the 14th amendment, specifically the subject clause. In Slaugterhouse, it says:
“The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Gray takes exception with this because a) because he didn’t think children of consuls should be lumped in with children of foreign ministers:
” … Mr. Justice Miller concurred, that consuls, … are not considered as entrusted with authority to represent their sovereign … or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers …”
And b) says that these exclusions in Slaughterhouse are not comprehensive. This is why he quotes Justice Marshall in saying that you have to look at the context of the case when “general utterances” are made within a decision.
“general expressions in every opinion are to be taken in connection with the case in which those expressions are used. …. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
Gray was trying to “completely investigate” the court’s rulings of citizenship under the 14th amendment. The exclusions listed by Miller in Slaughterhouse were not comprehensive and Gray says it was not completely investigated. This is made clear by the two following decisions: Minor and Elk. In Minor, the court UNANIMOUSLY said that children born in the country to citizen parents did NOT need the 14th amendment to confer their citizenship. This EXCLUDES those persons from the operation of the citizen clause and it explains the context of Gray’s comment that the court was:
“committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …”
The Minor decision referenced in the next two paragraphs does NOT say that children born of aliens are excluded from the citizenship clause of the 14th amendment. It says the children born in the country of citizens do NOT need the 14th amendment to confer citizenship. That EXCLUDES such persons from the citizen clause.
The Elk decision excluded Indians from the subject clause because it said:
“are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”
I’ve already explained how Gray wiggled around the Elk exclusion by making up a distinction between “alien nations” and “foreign states.” He also works around this exclusion by using permanent residence and domicil to satisfy the subject clause. It’s all there. Read it all.
“doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this.”
We have no control over whether the Supreme Court takes a case. Until then we have to interpret the law that we have. There is no disagreement among scholars or subsequent court cases on this point. There is disagreement by poeple on this board who are clearly not scholars. The problem is people here insisting Minor says something it doesn’t say and deparately trying to ignore what Wong Kim Ark has said. Since WKA, there are a half dozen or so Supreme Court decisions stating the President must simply be a native born citizen, dozens of federal cases where children of aliens are called natural born citizens, a recent state court case affirming the English common law rule based upon WKA and, of course, hundreds of treatises, dictionaries and law reviews affirming the common law view. That is the law we have.
scott osborne 1, November 17, 2011 at 11:56 am
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.
Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:
“Natural Born Citizen” was defined as children born of two U.S. citizens – regardless of the location of the birth. It found: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 parents who were its citizens became themselves, upon their birth, citizens also.”
scott osborne said:
“…doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.”
IF the US Supreme Court took the case, the two-parent theory would lose OVERWHELMING, a unanimous decision or at worst eight to one. But the US Supreme Court is highly unlikely to take the case for that very reason. There has to be four justices who think that there is an issue, and if all or virtually all of them think that the meaning of Natural Born Citizen comes from the common law and includes all the children born in the USA obviously they do not think that there is an issue.
Personally, i would be delighted if the court took the case because I know that the unanimous or near unanimous decision would be made and that would tend to discourage two-fers, meaning the proponents of the two-parent theory.
As I have pointed out above, in my post of November 16, 2011 at 1:22 am, there is good historical evidence that Natural Born Citizen stems from the common law and in fact was used in America to refer to the place of birth. That means that among the conservative justices the originalists would not vote for the two-parent theory. And there is nothing in the Constitution itself or any American law or document or anything written at the time that said “two parents are required”–or anything like that. And under strict construction judicial principles “if it does not say it, it does not mean it.” So that is why it is highly probable that all or virtually all the conservative justices on the court would vote against the two-parent theory, along with all the liberals and the swing vote too, of course.
Joe goes to an employment agency and tells them he wants to be a mathematician. The agency opens their book of jobs to see what may be required of Joe.
They find it was never doubted that a person holding a degree in mathematics was indeed a mathematician.
They do note that some references go so far as to allow persons with an unknown educational background to become mathematicians. But that group is plagued with doubt.
Joe does not have a degree in mathematics. The agency sets about resolving the doubts before Joe leaves.
Does this mean that when the doubts are resolved, Joe now has a degree? Or does it mean a person who does not have a degree can be a mathematician?
cynkading said “SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.
Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:”
Answer: Haven’t you been reading anything on this post? NO, the US Supreme Court made no such ruling.
What did SCOTUS mean when the said that the plaintiff’s whole argument proceeded upon the idea of women to be considered as citizens the same as men?
“. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
…
“But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. “
Sorry ksdb, you are again twisting what Gray said. He said the passage was clearly dicta which is “not formulated with the same care and exactness as if the case before the court.” To illustrate such lact of case he points out that Miller lumped ministers and counsels together. The reason Gray is citing this was to dismiss Miller’s exclusion of children of foreign subjects which is contrary to the holding of this case. Such is illustrated when Gray says:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment.”
He cites Marshall to point out that this Slaughter dicta should not be given weight. Seriously, do you not realize you are twisting the meaning of all this beyond recognition. It is simply dishonest.
Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens. By the same token, Gray clearly stated on pate 675 that before 1866, native born children of aliens were citizens. So clearly children of aliens didn’t need the 14th Amendment either since he says they were citizens before that. Doesn’t mean they are exluded from the Amendment. You are dishonested claiming the court is saying something it doesn’t. This is very simple. Miller says children of foreign subjects are exluded. Gray says such is dicta and to illustrate the court was not committed to this view cites a case which simkply says the citizenship status of such persons was in dispute.
Now, try going to the part of the decision where Gray actually talks about who is natural born.
“The Elk decision excluded Indians from the subject clause because it said:
“are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”
Do you not even read what you write. Gray is comparing indians to aliens born in a foreign country. DUH. That is becuase Gray tells us that we treat the tribes as foreign nations hence children born to suich tribes are treated as born in a foreign nation. There was a whole debate about this in Congress where indian children born in the indians nations were deemed aliens but indian children born to indians who had left their tribe and came within our jurisdiction would be citizens.
We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why????These questions should have been settled before he was elected and not now as we head towards another election. We as people will have differing opinions about things but we should all be united as to a common goal and that is to stop this country from free-falling into country of hate and division. I have an open mind and I can see points to both sides of the equation. What I do not understand is why things are written to where there is confusion when it should be so very clear as to the meaning of what these documents and rulings have stated.
Re: “We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why???”
Because a small group of people with evil motives are willing to lie, and to keep on lying, about the facts and the law. Obama was born in Hawaii, which has been demonstrated overwhelmingly, and the US Constitution considers every child born in the USA except for the children of foreign diplomats to be a Natural Born US citizen.
Komfort,
Interesting take… the reasonable logic is that Joe even though is granted to be a mathematician, never had, or never will hold a degree in mathematics. So it is not absolutely necessary to hold a degree in mathematics to become a mathematician for that authority.
Which hospital? There is confusion there as well.
Komfort,
Axiom1. The Pythagorean theorem is a mathematical construct
Axiom2. Persons who create mathematical constructs are known as mathematicians
Axiom3. Universities were invented after Pythagorus’ death
Lemma: Pythagorus did not have a degree
Proof:
Theorem: It does not require a degree to be a mathematician
Proof: Exercise for reader (rafflaw–this is logic about math, not actual math, so you shouldn’t have a problem…
)
Does that answer your hypothetical?
Re: “Which hospital? There is confusion there as well.”
No there isn’t any confusion. There are only birthers who say that there was confusion.
Obama has always said Kapiolani. HIs sister always said Kapiolani (she was simply misquoted by UPI once, and a correction was made). His long-form birth certificate says Kapiolani. The former Republican governor of Hawaii says Kapiolani. The current Democrat governor of Hawaii says Kapiolani. And this witness–who recalls being told about Obama’s birth in 1961 and writing home to her father about it (because he was named Stanley and so was Obama’s mother) also said Kapiolani (http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).
Komfort,
I’ll accept that you’re not a birther (and answer your question about the logical structure of the quote) provided you can say “shibboleth”. In this context, “saying shibboleth” is equivalent to saying: “I believe (or know) President Obama is a natural born citizen and eligible for the office of POTUS.” No birther can do that.
Komfort,
You don’t doubt Pythagorus was a mathematician, do you?
Ellen, back off the birther comments. I don’t care where he was born. I am not affiliated with any political party. Don’t assume because I have questions that you can label me.
If everything was settled about his eligibility then we would not be having this conversation.
@ballantine,
Nothing was twisted and you’re actually helping support my point. You said:
“He said the passage was clearly dicta which is “not formulated with the same care and exactness as if the case before the court.””
I already pointed this out when I talked about Miller not “completely investigating” the subject at hand in Slaughterhouse. This is why Gray went on to cite Minor and Elk. The ONLY thing Gray actually took exception with from the exclusions in Slaughterhouse was the inclusion of consuls. Gray clearly agrees children of foreign ministers should be excluded. He cited Elk to show the court was committed to excluding children born of foreign subjects, but worked around this by saying Indians were part of “alien nations” and not “foreign States.” Note that Gray doesn’t actually explain nor support what this difference is. This is pretty hypocritical after criticizing Slaughterhouse by making a statement “unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness …” This is exactly what Gray did with his alien nation distinction.
As for your comment on Minor: Are you paying attention to what you’re saying??? Talk about stupid commentary:
“Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens.”
This means the same thing. Waite specifically said the 14th amendment did not confer citizenship on Virginia Minor. His reasoning is based on definition of citizenship for a class of people: those born in the country to parents who were its citizens. These people did NOT need the 14th amendment and it did NOT confer citizenship on this person. Further, the syllabus, which was cited in Ex Parte Lockwood notes:
“women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since …”
Note that it says SINCE the adoption of the 14th amendment … this means the 14th amendment has no affect on this class of persons who were characterized as natural-born citizens. It EXCLUDES them.
Your comment from page 675 says, “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States …” This is limited only to white persons and it’s based on a handful of cases that were influenced by state laws, such as Lynch v. Clarke, that were not universal. If this were a compelling argument, then you would agree that Gray could have stopped here, but he did not. Instead he continued his decision for another 40 pages. He went on to affirm and uphold the Minor decision and its exclusive definition of natural-born citizen which is a different term. Minor’s definition is the final place where Gray uses the term in WKA. Clearly that definition did NOT apply to Wong Kim Ark. From the point forward, Gray uses a different term — citizenship by birth — that is defined only by the 14th amendment. This is different from NBC because Gray clearly acknowledges that NBC is NOT defined by the 14th amendment (again, NBCs were excluded). Gray says so very clearly here:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision.”
Do you understand that?? When construing the 14th amendment, the Constitution does NOT says who shall be NBC. IOW, this says the 14th amendment does not define NOR redefine NBC. The common law, according to Gray, was only used as an aid to construct the citizen provision of the 14th amendment. It was NOT used, according to this paragraph, to define NBC in Minor. The definition that was used in Minor was a verbatim match of the law of nations definition, which can be clearly seen by putting the definitions side by side.
Gray used common law to establish what he calls citizenship by birth, defined specifically by the 14th amendment. He says so here:
“But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.”
Do you understand that?? NBC is NOT defined by the constitution. CBB is defined BY the Constitution in the 14th amendment.
Re: “If everything was settled about his eligibility then we would not be having this conversation.”
Everything is settled about his eligibility. His birth in Hawaii has been proven overwhelmingly and the meaning of Natural Born Citizen includes every US citizen born in the USA. After the first pictures of the earth taken from satellites showed that the earth was round (and there had been considerable evidence long before that of course), a few people continued to insist that it was flat.
Ellen,
You left out Stig W’s mother (Stig was born the day before President Obama at Kapiolani) who said she remembered seeing President Obama in the nursery (the only African-American baby–something uncommon at the time) with her son on CNN in April (right before President Obama whipped out his long form and broke all the birthers’ hearts…).
YOUR mom must be so proud. Are you available for nights and weekends???
mrjr1011, November 17, 2011 at 9:55 am
slccraignbc,
I am curious as to what is the definite position of those in favor of WKA case that settles who are NBC. When Justice Gray pointed out to us that we needed to look elsewhere outside the Constitution. Didnt he give us guidance that we needed to interpret it in light of the English Common Law, or is the English Statutory Law, or both?
Well, here is where the 1st misunderstanding seems to keep popping up with few researching for real understanding of what is said and meant.
“Common Law” if Enjglish or other is NOT a body of promulgated Laws but rather is the system by which cases and controveries are adjudicated.
The ‘common law’ system had’hjas developed a ‘body’ of Writs, Rules and Regulations that are developed to advance varios types of ‘case and controversy’, be they civil or criminal in nature, money and property, damages and assaults, so on and so on.
Common Law is the SYSTEM, Statutory Law regulates according to the needs of the society. They at times fall into conflic, b developed toe it by breach or in interpretation and the common law is the system developed by civil societies to aid in finding justice and or equity.
Look, Gray in the WKA Opinion and decision is flawed in sooooo many ways that it is hard for me to give it ANY consideration except as an example of Judicial arrogance and incompetence.
For ANY that wish to truely understand the definition, meaning and intent of the usage of the term of words, natural born Citizen, made idiom by its usage, need look no farther than the Declaration of Independence, the John Jay letter suggesting the prudent measure that the Office devolve to known but a natural born Citizen as a National Security measure, the Constitution, the 1790 Act to make an uniform Rule on naturalization and the 1795 Act repealing and revising the former.
It is ALL right there providing each, definition, meaning and intent without any ambiguity for those willing to look oblectivly and with a modicum of intellectual honesty.
I have waded through for the past three years reading the minutia offered as creditable interpretationsof what the U.S. Law is in regard to the definition of NBC, all of whitch I have PROVED wrong by virtue of confronting Guv’mnt Agencies and Courts seeking to be acknowledged as being an American NBC.
If it were as the 0′poligists say that it is it should be a simple matter for a Guv’mnt agency and or Court to say so and, not withstanding the three stooges of the Akney three Judge panel making an unsupported claim as to the ’0′s status, there are ONLY “dicta and rhetoric” as to the definition that would satisfy the needs of the Constitution.
Look, other than Mexico, I know of NO Country that does not extend “citizenship” the the children born of Citizen Parents, these are, in the words of Aristotle, the “true citizens”, although he posited it might take three of 4 generations for their production. But in all cases I have found it is the nature of the “custom, tradition and or laws’ that the children born of parents who are themselves citizens are ‘natural born citizens’. That too was the custom, tradition and “common law of England up until Queen Anne.
Her Reign was the period in which Britain embark3d upon Empire Building and the Colonization of distant lands with the MOTTO, “Where there is a Englishman, there then is England”. To accommodate the needs of Ruling the ‘native peoples’ of the distant lands she, under the political theory of the Divine Right of Kings, deemed that all that were conquered were then “DEEMED” the Subjects of England and were considered so AS IF from birth and would remain so for life.
But what is lost in the Lord Coke, Blackstone and from the English Statutory Laws cited by most and especially in WKA is that there were various categories of Status and Classes of denizens & subjects with ANY Public Office of the Monarchy off limits to ALL but that ‘natural born subjects’ that were indeed the prodigy of “true subjects’ and or the Royal MONARCHY across the Continent.
In other words the nature of the American Citizen, made individually and mutually Sovereign by the adoption of the Constitution is in NO WAY synonymous with the usage of the turn of words, made idiom by its usage in the Constitution.
Ellen,
Keep pounding on the birthers for their disconnection from reality!
I believe that the first evidence of the (local) roundness of the Earth was when ships were first able to sail out of sight of the shore–and the body of the ship disappeared before the mast. On a tangential note, we can now see where we parked our car–on the Moon! (Sadly the technology does not exist to find the keys…) That wont dissuade those that think it’s a hoax any more than bouncing a laser beam off of the Moon did. I think Buzz Aldrin got it right:
I love lamp.
My brother is a natural born artist but neither of our parents could draw worth a darn. Makes you think, doesn’t it? Tee Hee Hee (with apologies to Squeeky)
I do doubt that all mathematicians are Pythagorus.
ksdb,
Sorry, repeating the same nonsense over and over does not make it true. Gray only mentioned Miller’s not differentiating between counsel and ministers to show such statement was not made with care. What he had issue with was the notion that children of foreign subjects were not citizens under th 14th as that would exclude Wong Kim Ark contrary to his decision. SPin all you want, he then cites Minor solely to show Miller and his court was not committed to such viesw of children of foreign subjects.
Elk v. Wilkins doesn’t say children of foreign subjects are excluded. Such would be contrary to Gray’s WKA opinion. It equates indians to foreign born people. Pretty simple. We treat indian nations as foreign countries and poeple born in such countries are treated as born in foreign nations.
Waite didn’t say persons of Minor’s class were excluded from the 14th. It said she didn’t need it to become a citizen. She was born before the Amendment and was already a citizen under the original Constitution. How could a child of citizens not be born “subject to the jurisdiction” of the United States under any interpretation of the rule. And it is simply a fact that Gray spend 20 pages looking at the status of children of aliens under the original Constitution before unambiguously concluding on page 675 that they were citizens. Do you just ignore stuff you don’t like? Gray may have stopped there, but the question before the Court was the interpretation of the 14th Amendment, so it is not suprising that he went on to address the 14th amendment and tell us it was declaratory of pre-existing law.
I can’t even fathom what you point is on the common law. Waite clearly looked to the common law to define “natural born citizen.” Gray say “natural born citizen” and “citizen” are undefined and cites multiple authorities that all undefined terms must be defined by the Constitutuion. Such obviously means all the undefined terms which would include “natural born citizenship” he just mentioned. He doesn’t say “subject to the jurisdiction is not defined. Gray then goes on to tell us the definition of “natural born subject” prevailed under the Constiution and “natural born subject” and “natural born citizen” mean the same thing. Can’t you read?
He’s a citizen.
Deal with it.
————————-
Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys so that the truth of history (so seemingly desired here in these comments otherwise) will remain hidden from the citizens. This along with the government’s own e-verify flagging the SSN # used by Obama as no match with his name screams fraud. If you are a citizen OF ANY KIND NOW you don’t need to dummy up and use a phony SSN.
A private investigation reveals that the Social Security Number being used by Barack Obama does not pass a check with E-Verify, the electronic system the U.S. Citizenship and Immigrations Services of the U.S. Department of Homeland Security has created to verify whether or not prospective employees have the required authorization to work legally in the United States.
Over the past few years, the E-Verify system has received national attention because of its ability to determine if prospective employees are illegal immigrants who have entered the United States without the legal authority to work.
http://politisite.com/2011/09/17/e-verify-flags-obamas-social-security-number/
Deal with those actual facts that present themselves in the present while the OBOTS scrub, consciously deny, break any ethical standards left within them, in order to participate in the scam to the detriment of not only themselves but the entire country.
This is not any kind of hearsay backed by Alred types that gets national coverage in order to simply smear, without facts, a fellow NBC, but the real stuff not touched by the “purists”/elitists who could care less if the Constitution is ripped and stomped upon. There is NO transparency. In fact just the opposite/the Chicago way has been installed and thuggery reigns.
Komfort1, November 17, 2011 at 1:47 pm
I do doubt that all mathematicians are Pythagorus.
You know, with all of the dismissiveness of the needs of the Constitution insofar as the “exclusionary provision” of the Executive qualification Clause is concerned it might be instructive to “run the numbers” on which “persons” are most likely to assert fidelity to the Constitution and the Principles it espouses, including the Defense of the Nation from all enemies, foreign and domestic.
Alien foreign national citizen/subjects of other countries,
1st generation naturalized Citizens having taken Oath and denounced all other allegiance.
Dual-Citizens, born or elective.
natural born Citizens of Citizen parents.
According to history it would be the later, however, given the state of the educational system and the advance of the radical progressives cum socialists it may not be as strong a showing as history would suggest.
Re: “Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys.”
Okay.
The “declared as fraudulent” was done by “experts” quoted by WND and other birther sites. Their experts included Douglas Vogt, whose autobiography, on his own Web site reads:
”
About the author:
Douglas Vogt is a geologist and science philosopher. He has funded and directed three expeditions to the Sinai desert where he was the first person since Baruch (Jeremiah’s grandson) to discover the real Mount Sinai. He discovered all the altars that Moses describes in the Torah. In addition he was the first person since Moses to see the real Abraham’s altar also located at Mount Sinai and not in Jerusalem. He has discovered the code systems used by Moses when writing the surface story of the Torah, which enabled him to decode the Torah and other earlier books of the Hebrew Scriptures.”
In other words, he is a nut.
And another “expert” quoted was Paul Irey, who repeatedly stated his hatred of Obama and his claim that Obama never attended Columbia University (even though Columbia stated that he did, and even graduated). In other words, he is not impartial.
But WND never quoted these:
Dr. Neil Krawetz, an imaging software analysis author and experienced examiner of questioned images, said: “The PDF released by the White House shows no sign of digital manipulation or alterations. I see nothing that appears to be suspicious.”
Nathan Goulding with The National Review: “We have received several e-mails today calling into question the validity of the PDF that the White House released, namely that there are embedded layers in the document. There are now several other people on the case. We looked into it and dismissed it. … I’ve confirmed that scanning an image, converting it to a PDF, optimizing that PDF, and then opening it up in Illustrator, does in fact create layers similar to what is seen in the birth certificate PDF. You can try it yourself at home.”
John Woodman, independent computer professional, said in a series of videos that the claims of fakery that he examined were unfounded.
Ivan Zatkovich, who has testified in court as a technology expert, and consultant to WorldNetDaily: “All of the modifications to the PDF document that can be identified are consistent with someone enhancing the legibility of the document.”
Nor this:
http://www.marketwatch.com/story/tea-party-conservative-refutes-claims-of-obama-birth-certificate-forgery-2011-08-30
More importantly, no official in Hawaii has ever said that either Obama’s short-form or long-form birth certificate is forged, and after all they are the experts. If WND really were convinced that the birth certificate was forged, it could ask to see the official copy of the long form (or for that matter the short-form, or both), the one on security paper with the seal (on the back, where it is supposed to be) and take it to such recognized experts on documents as members of the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But WND has never attempted to do this. Why not? Because the chance of the document being forged is NIL, while the opportunity to get nuts and anti-Obama zealots to claim that the document is forged is high.
This is what is known as LYING–like the guy who went to Kenya and claimed to have gotten a birth certificate there and who never even proved that he had gone to Kenya.
Sorry slcraignbc we don’t interpret the Constitution by who you think would be the most loyal. I know you caanot find any statement from a framer to suppport your position, but speculation has no place in Constitutional interpretation. You need to present facts. The facts are that the most important framers wanted no restrictions on office holde legalars and place of birth was all they discussed. The facts are that all early legal authority adopted the common law rule.
How about first proving “with evidence” that President Obama has spent $2 million on these frivolous suits?
http://motherjones.com/politics/2010/01/whats-obamas-birther-legal-bill
Further to: “Re: “Prove it with what “evidence” has been offered.”
I have just disproved the claims that the birth certificate was forged. Now to prove the place of birth. For Obama to have been born anywhere else than Hawaii, all six of the following would have to be false. But all six points are accurate:
1. Obama’s two official birth certificates, with the state seals on them. (The official physical copy of the long-form birth certificate was handed around in the White House press room, and one reporter said that she had felt the seal and took a photo of the document.
2. The confirmation of the facts on the two birth certificates–that Obama was born in Hawaii–by THREE Republican officials in Hawaii.
3. The notices of Obama’s birth in the Hawaii newspapers in 1961. (The claim that the notices could have been placed by lying relatives turns out to be false because whenever there was a claim of a birth outside of a hospital, Hawaii insisted on a witness statement.)
4. The absence of a US travel document for Obama in 1961. Nor has there been an application for such a travel document found.
5. This witness, who recalls being told of Obama’s birth in Hawaii in Kapiolani Hospital in 1961 and writing home about http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).
6. Obama’s Kenyan grandmother said repeatedly in the taped interview that he was BORN IN HAWAII, and she said in another interview (Hartford Courant) that the first that her family in Kenya had heard of Obama’s birth was in a letter FROM HAWAII.
In addition to those six points there is very strong confirmation of Obama’s birth in Hawaii, as pointed out by Slartibartfast above. He noted that the mother of “Stig W.” (Stig Waidelich) remembers that she saw a black child in the hospital nursery at the time. Of course there are many black children, but not so many in Hawaii in 1961.
I wish that this thread stays on target. It seems that relevant questions are not being discussed for some reason.
Ballantine,
“. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
…
“But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. “
See, the whole argument of the plaintiffs proceeded upon the idea that women must be included as all persons when defining citizenship and ..more is necessary to show. Iis necessary to show in this case that women “have always been considered as citizens the same as men”.
and immediately after that the Court adds:
“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed”
See, the case must be dismissed if citizenship is not “affirmatively shown on the record”
Then it goes to say after a few paragraphs:
“Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.”
Justice Waite established the fact that gender is not undoubtedly one of the elements of citizenship.
Again, does the above show that citizenship was not relevant to the case in Minor?
Ellen,
Give mirrose a break–it could just be stupid and willfully ignorant. I would note that John Woodman (an anti-Obama conservative) has also written a book and has a website:
http://www.obamabirthbook.com/
Which says that none of the dozens of forgery claims he investigate has any merit whatsoever and that the purveyor of the POSFKBC (Piece Of Shit Fake Kenyan Birth Certificate–as it is commonly known) is Lucas Daniel Smith (it’s an open question whether or not he forged it or is just trying to use it in a con). By the way, if you need to prove that it is a fake, just looking at it with any degree of objectivity will do the trick, but these are some of it’s flaws:
Baby footprints
Hospital administrator’s name misspelled on stamp (commonly misspelled in many sources which a forger may have come across…)
Wrong administrator when the document was allegedly explained
height/weight on form (atypical)
shoulder width on form (unusual statistic–I know of no other example of it being on a birth certificate)
statistics combine to be outside the norm of human variation (unlike President Obama)
incorrect date format (US not UK)
completely different than known (and rather distinctive) Kenyan birth certificates
A dramatization of what “I, Lucas Smith” claims:
http://www.thefogbow.com/forum/viewtopic.php?f=24&t=3806#p132113
@ballantine: You said:
“SPin all you want, he then cites Minor solely to show Miller and his court was not committed to such viesw of children of foreign subjects.”
Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class. The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be:
“not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”
Elk continued:
“And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins:
“in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”
You said: “Waite clearly looked to the common law to define “natural born citizen.”
Please show which part of the common law that Waite looked at. I’ll Waite.
Komfort,
You get an “F” for that answer and I’m starting to suspect that you can’t say “shibboleth”…
Now, for those of you who still believe that Obama could have been born somewhere else than in Hawaii, a question for you:
I’ll bet that you know (but probably have forgotten) that the US government requires, and has long required, that a child being carried into the USA requires some kind of official travel document to be admitted. This is usually a US passport for the child. Or, it could be the fact that the child is entered on the mother’s US passport. Or, it could be a US visa for the child on a foreign passport. Without one of those, we would not let the child into the country.
So, IF Obama really had been born in Kenya (or in any country other than the USA), he would have had to have one of those documents–wouldn’t he? His family would have had to show the passport, wouldn’t they? To show the passport, they would have had to have applied for the passport or the visa for Obama. And, if Obama really were born in Kenya (or another country), they would have had to have applied for it in the US consulate or embassy there, wouldn’t they?
Such applications are FILED by the US government. The documents exist in multiple files, the actual application itself, communication about it with Washington, entries in the passport file, entries in the application file, entries in the places where the child is carried into the USA. The Bush Administration was in charge of the State Department and the INS for eight years before Obama was elected. Don’t you think that they would have checked the claim that he was born outside the USA?
All they had to do was find one of those files and McCain would win the election.
Well, they never did. There is no such file.
So the question is, do you think that the Bush Administration was part of the plot? Do you think that the files, the documents, the application for the documents, the communications about the documents were all lost or hidden? Remember, they are in multiple files, the file of the passport holder, the files of applications for passports, the files in the US embassy in foreign countries, the files in the State Department and in the INS (which would have checked in Obama at an entry point if he had actually traveled in 1961)–and yet no document has been found. Why not?
The absence of the travel document, plus the Hawaii birth certificate, plus the notices in the Hawaii newspapers, plus the witness who remembers writing home, plus Stig W’s mother. Want more proof?
“Out, out, prolix birthers! Birtherism’s but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.” – Macbeth (Act V, Scene V).
Would you like some dead horse with that?
“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed”
See, the case must be dismissed if citizenship is not “affirmatively shown on the record”
Then it goes to say after a few paragraphs:
“Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.”
Justice Waite established the fact that gender is not undoubtedly one of the elements of citizenship.
Again, does the above show that citizenship was not relevant to the case in Minor?”
No. This was not a diversity case, so citizenship was not relevant to jurisdiction in this case. Minor was not a citizen of a different state than the defendant. This was a federal question. The Minor Court was actually pointing out that citizenship is necessary in diversity cases and, in all the multitude of such cases, no one had ever suggested women were not citizens for purposes of jurisdiction.
“If found not to exist the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account.”
Such citation is not talking about jurisdiction of the Minor case. Again, if determination of citizenship was necessary, why didn’t the Missouri Supreme Court even mention Minor’s citizenship status when addressing the same question as the Supreme Court? Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.
ellen
1, November 17, 2011 at 2:04 pm
——————————–
You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so. Of course, to demonstrate your good will, you might try, but I’ll simply warn…you won’t get very far with this “transparent” office holder and his willing obfuscators, including his personal mouthpiece media!!!
And those “images” (which you appear to certainly desire to trust with every fiber), suddenly forced to present themselves as exact copies of originals held in secret, differ in fact with the prior and recent to their presentation description by HI DOH official herself on national TV (oops!), of same originals which she had witnessed and which these so called “copies” were to exactly represent. Her description of such, as witnessed by herself was that they were (and still are apparently then) “partially written and partially typed”.
“They’re going to question the ink on which it was written or say it was fabricated,” said Fukino.
……..Fukimo said she has personally inspected it — twice.
…….She found the original birth record, properly numbered, half typed and half handwritten, “
http://www.msnbc.msn.com/id/42519951/ns/politics-more_politics/t/ex-hawaii-official-denounces-ludicrous-birther-claims/
So where is the exact match? Ahh, ye of so easy trust, even after the immense amount of error exposed via those who don’t so easily trust.
And you who doubt the amount of filthy lucre “earned” during 3 and more years of defending the secrets? Check out the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types. Just the mere request of the entrance forms to Occidental, with the admission by the officials there as legal, was met with strong “threat” for monetary payment if such request were not withdrawn. So what is our “guy” so fearful of as demonstrated by his extreme lack of “transparency” that EVERYTHING of his past remains without backup of support in fact?? What are you as well so fearful of finding that you too would support such duplicity?
Didn’t see any refutation of your own gov’s site that shows you more of the error of fraud….what about “no match” flagging don’t you conveniently get?
And people want to spend sweat on what isn’t as blatant and what is only historical and not as yet clearly defined when you have this in the present staring you in the face as evidence of fraud? Go figure.
Ballantine,
You said: “Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.”
Perhaps because their whole argument did not proceed upon that idea?
““. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
Re: “the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types.”
Odd that you should not remember it but law firms are hired to do a lot of things, not just defend birther cases. For example, during a presidential campaign, the campaign has to rent a lot of offices, and the law firms have to check the contracts. I read somewhere that McCain’s campaign spent some $1.2 million on its legal representation, and it had hardly any birther cases to defend.
Now as to the estimated cost of defending birther cases. The law firm would get some tens or twenties of thousands of dollars to defend the first case (but I understand that some were done pro bono), and then they would file THE SAME LEGAL PAPERS to get all the other cases thrown out. Not much money involved. Yet you were ready to believe that there was millions.
@ellen
1. The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:
http://hawaii.gov/health/about/rules/prac_proc.pdf
2. There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court proceeding.
3. The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.
4. There’s still an absence of legal evidence Obama was born in Hawaii or that he was EVER in Hawaii in 1961. The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.
5. This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. It relates that story as happening sometime during the day (Obama was born at night). There are plenty of holes in this story.
6. The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim.
7. The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black. It’s doubtful that the baby would have stood out from any others if it was indeed born at Kapiolani, especially since Obama’s father wasn’t there.
mirrose,
The veracity of the COLB and the LFBC are unassailable in court and their validity has been confirmed (among numerous other times) in sworn testimony to the Hawai’ian legislature by the head of the only body qualified to determine the validity of Hawai’ian birth certificates.
Are you lying, willfully ignorant, or just hard of thinking? I’m guessing all three.
Re: “You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so”
The legal copy of a birth certificate is not the original in the files. That would be damn inconvenient to use as proof of birth because it is never taken out of the files. The legal copy of a birth certificate is the official physical copy on security paper. THAT has been shown in the White House and numerous reporters there got a chance to see it, hold it, and even feel the seal on it. One even photographed it. The AP photographed the Xerox copy of it.
If WND or another birther organization thought that there was anything wrong with Obama’s birth certificate, it could ask to see the official physical copy. If the Obama team rejected that request, the organization would then report that fact. Or, if the Obama representatives did give the birth certificate, WND could take it to such organizations as the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But that has not been done.
Wonder why not? Because they prefer to lead the credulous around with the claims of “experts”.
By the way, mirrose, you haven’t answered the question about why, if Obama were born outside of the USA, no travel document has been found.
Nor have you been able to explain the birth notices in the Hawaii newspapers. (Don’t say that they were ads because Hawaii newspapers did not take birth notice ads at the time.)
Re: “We all know that the state rules in Hawaii allow the registration of out-of-state births.”
Actually, Hawaii did not allow that in 1961, and it did not send out notices of birth for births outside of Hawaii, only for births inside of Hawaii.
“Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class.”
Gibberish. I hope you are not a lawyer. Gray said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment…”
He says neither Justice Miller nor the court was committed to the view that children of aliens were excluded. That means they were not committed to such view. DUH. The Minor Court did not confer citizenship on Minor under th 14th Amendment because she was born before the Amendment as was already a citizen by birth under the original Constitution. It earlier states that women were obvisouly citizens under the 14th Amendment but goes on to say they were already citizens under the original Constitution. You are simply being dishonest to claim it says a citizen under the original Consitution is excluded by the 14th Amendment. Obviously one can be a citizen under both. In fact, basic statutory construction makes clear that the 14th Amendment would supersede any earlier definition of citizenship.
The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”
Yes and no one said children of aliens were not subject to political jurisdiction nor did anyone in the 39th Congress.
“The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins: “in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”
Again, you are making stuff up. Gray never states in WKA that permenant residence is necessary as his citation of Coke and temporary allegiance demonstrates. “Residence” can be either permenant or temporary and no one suggested it must be permenant to confer citizenship or political jurisdiction. Elk never defines what “complete, political jurisdiction” means, nor did anyone in the 39th Congress. “Complete jurisdiction” was only used to refer to indians who lived in territory we did not fully control. Neither Gray nor anyone in Congress said that aliens born on our soil were not completely within our political jurisdiction. Gray’s defintion of 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.”
It says “including all children here born of resident aliens,” not that the ancient rule was limited to resident aliens which clearly it was not. Gray tells us we are looking to the common law of Coke and “[h]is allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” Temporary allegiance is clearly sufficient.
The facts simply are that nothing in Elk or Wong Kim Ark says children of foreign subjects are excluded from citizenship or that the parents need to be permenant residents or citizens, which is why we have anchor babies today.
ksdb,
You are completely full of crap like all of the other incompetent birthers on this site. Your pathetic lies aren’t even worth addressing.
Moron.
ellen,
Dr. Fukino said under oath that President Obama had posted an image of his (valid) birth certificate to his website as well. This statement falls under penalty of perjury, I believe (testimony to the Hawai’ian legislature). Also, Hawai’i has never issued birth certificates to persons born out-of-state that say they were born in Hawai’i*.
If you want to really confound birthers, ask them to explain the numbering on the BCs of Stig, the president, and the Nordyke twins–it is simply explained by the BCs being numbered in roughly monthly batches after being alphabetized by last name. The numbering is: N,N,(small gap),O,(large gap),W. The birthers can’t come up with any reasonable explanation for this pattern which matches the alphabet pretty damn well (evidence that the birthers don’t understand the alphabet–good for Squeeky trying to help them upthread!).
* Incidentally, this statement is like chumming the water for sharks–don’t tell any of the birthers and we’ll see if they take the bait…
@ ellen, there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii. The registrations only go by place of residence, not by where the birth occurred. The address in the newspaper report was allegedly Obama’s grandparent’s residence. It’s very typical for college students to list their parents’ address as their own permanent address. The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant and there were more total births for the state of Hawaii then were births listed by county of occurrence. This differential allows for 38 births outside of the state. And again, there is nothing in the law that prevents the registration of out-of-state births.
Re: “The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:”
Answer: That is what YOU say. Do you have any confirmation? Neither the current officials in Hawaii nor anyone else has said that there is any difference between the official seal on Obama’s birth certificate and what is supposed to be there. HOWEVER, if you really believe that the seals are different, then why not ask to see the official physical copy and take it to be examined by the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners?
Re: “There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court?
Answer: So what? THEY SAID IT. And no official of any kind has made a statement about George Bush’s birth certificate. If the officials had said that the birth certificate were forged, THEN it would go to court, but they didn’t. (Why haven’t any of the Republican candidates shown their birth certificates????)
Re: “The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.”
Answer: They did not allow registration of out of state births in 1961, and they did not send out notices of birth for persons born outside of Hawaii. When there was a claim that there was a birth outside of a hospital, they insisted on a witness statement—so they could not have been fooled by relatives.
Re: “The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.”
Answer: Birthers did not even ask to see Obama’s mother’s passport details in the file. They only asked to see the APPLICATION for the passport in the files. The passport document is in the files, but they didn’t ask to see it. The applications in the file were eliminated—but then millions of such applications were scrapped to save space in the 1970’s or 1980s. The FACT is that if Obama were born out side of Hawaii, he would have had to have a travel document in 1961—and no such document has been found. And he would have to have been checked into the USA by the US Immigration Service in 1961, and no such record has been found.
Re: “This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. “
Answer: The story made an error about who the delivery doctor was. Rodney West was HEAD OF OBSTETRICS at the hospital, He talked about a delivery at the hospital. That the reporter thought that the delivery was by him; that is is a mistake. The fact is that the teacher remembers Rodney West saying it and writing the letter about it to her father.
Re: “The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim. “
Answer: Sure, everything went through the interpreter. You don’t believe the interpreter? Okay, you don’t—big deal. In fact, the grandmother was also interviewed by the Hartford Courant newspaper, and it reported (again using an interpreter—what else) that she had said that the first that her family in Kenya had heard of Obama’s birth was in a letter from Hawaii. A LETTER FROM HAWAII.
Re: ‘ The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black.”
Answer: Okay, I have no idea whether Obama was pink or black. The fact is that the Stig W definitely was born at Kapiloani Hospital because he has shown his birth certificate, and his mother says that she noticed a black child. You think that she is making it up? Okay you do.
You think that she is lying, and the teacher who wrote home about the birth is lying, and the officials in Hawaii are lying, and the interpreter is lying, and the absence of a travel document can be explained, and the notices in the newspaper are due to the government of Hawaii sending out a notice of a birth outside of Hawaii. Are you birthers nutty, or do you have a motive?
@ Slartibartfast, sorry but this is lame and lazy.
Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement. The stuff about numbering in “batches” is outright BS.
ellen,
Reality Check did an interview of a Questioned Document Examiner on his web radio show a while back–it was very interesting (and supports your point about what the birthers should have done if their allegations had merit).
ksdb,
What you just demonstrated was an attempt to lie with statistics. Badly. You should be ashamed at your pathetic attempt to propagandize.
ellen,
I think they have a motive.
Re: “there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii.
Answer. Of course not. Do you think that they had to have a law that said that they could or could not send out notices of people born outside of Hawaii. They just didn’t. That was not the procedure. The procedure was to send out notices of birth of children born in Hawaii. And besides in 1961 a child born outside of Hawaii was not registered in Hawaii, so the officials in Hawaii would not have a record of the birth to send to the newspapers.
Re: “The address in the newspaper report was allegedly Obama’s grandparent’s residence. It’s very typical for college students to list their parents’ address as their own permanent address.”
Answer. I agree. The address given was an address where the couple could be contacted. Maybe they hadn’t gotten an apartment yet. Are you claiming that the birth took place at that address and not at Kapiolani Hospital? If so, the witness who wrote home says Kapionali. So does the birth certificate, so do the present and former governors of Hawaii, etc.
Re: “The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant..”
Answer: Yes, and when the child was registered with the government THE GOVERNMENT REQUIRED A WITNESS STATEMENT.
Re; “And again, there is nothing in the law that prevents the registration of out-of-state births.”
Answer: The law in 1961 said that the DOH registered the births that were IN the state. It did not say that the DOH should or could register births outside of the state. The law was changed in 1982 to allow that, but before 1982 it was not allowed.
ksdb,
I’m sure someone will correct me if I’m wrong, but I believe that written testimony to the Hawai’ian legislature falls under penalty of perjury (and that you are a lying bigot). If you don’t like my hypothesis (originally put forward by Doc Conspiracy who has extensive experience in record keeping), then come up with one that fits the facts better. Since I know you can’t do it, I’ll just say that your response to this comment is just another example of your bad faith.
As for being lazy, what is there in the crap you’ve posted that’s worth me taking any more time than I do to expose?
Re: “Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement.”
Answer: Why, if there is no proof that Obama was born outside of the USA, not even a travel document, should Fukino make a statement under oath?
ellen,
Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.
Re; “Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.”
That is right. And both the short-form and the long-form birth certificates do list Honolulu as the place of birth, confirmed by the officials, confirmed by the teacher who wrote home, confirmed by the grandmother who said that the first that her family had heard of Obama’s birth was in a letter from Hawaii, confirmed by Stig W’s mother, etc.
@ ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.
2. George Bush is a deflection. One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:
“You know, during the campaign of 2008, I was actually in the mainland campaigning for Sen. McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”
The news release that came out “during the campaign” was only released a few days before the election. It only said that an original birth certificate was “on record.” It did NOT says the president was born at Kapiolani Hospital nor that he was born Hawaii, nor that his alleged COLB was genuine. Lingle lied.
3. The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.
4. Sorry, but this is a bunch of rambling nonsense. The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.
5. The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. Obama was born at night. He wouldn’t have a story to report to anyone. Sorry, but it’s nothing but a bunch of hot air.
6. When did the Hartford Courant do the interview?? Let’s see this story.
7. I don’t care about stories that magically appear ONLY after there’s a controversy and huge unexplained holes in the Obama backstory. Stig W. magically showed up when there was no logical explanation for Obama’s out-of-sequence birth certificate number. Barbara Nelson showed up when there were no witnesses to corroborate the Kapiolani story. Sorry, this stuff is a little too convenient to be credible. And each one is countered by things like Michelle “birther” Obama who said Kenya is her husband’s home country and that he returned there at a time when he hadn’t allegedly been there before. It’s countered by an Aug. 31, 1961 immigration record in which Barak Sr. fails to list having any children, and a year later, only claims one child: Roy, not Barry.
Slarts,
Good work here, but didn’t the courts already throw out these birther claims?
Re: “Michelle “birther” Obama who said Kenya is her husband’s home country.”
Answer, she didn’t. She never said any such thing. IF Obama actually were born in Kenya, how did he get from Kenya to the USA without a travel document? How come he wasn’t checked into the USA by the US Immigration Service?
@ Slartibartfast, Take a look at Chiyome’s statement to the Hawaii legislature.
http://www.capitol.hawaii.gov/session2010/Testimony/SB2937_TESTIMONY_JGO_02-23-10_LATE.pdf
She wrote: “For more than a year, the Department of Health has continued to receive approximately 50 e- mail inquiries a month seeking access to President Barack Obama’s birth certificate in spite of the fact that President Obama has posted a copy of the certificate on his former campaign website.”
Sorry, but this doesn’t say Obama posted a CERTIFED birth certificate. It doesn’t say the alleged COLB is accurate. And it is an intentionally misleading statement. The inquiries aren’t “in spite” of the certificate that was posted, it was because there were serious questions about the authenticity of the alleged certificate. She also neglects to mention that she had statutory authority to disclose any and all records to address these inquiries. The Uniform Information Practices Act in Hawaii allows for the disclosure of any private records if it is outweighed by the public interest. Well, duh, if the DOH was getting 50 e-mail inquiries a month, then there was substantial public interest.
BTW, you’re doing yourself a huge disservice if you go by anything the self-name “Dr. Conspiracy” posts. This guy has been debunked thoroughly on many occasions. He does nothing but make lazy excuses.
@ellen, you’re ignoring that I’ve already explained that the state deparment claims the pre-1965 documents were destroyed. Obama would have traveled with his mother (since she took him off her passport in 1967 or 1968 — when he was listed as “Soebarkah.”). The lack of a record doesn’t prove he didn’t travel. It’s just another hole in the Obama birth myth. We don’t have a travel record to show that he went from Hawaii to Washington state either, but we do have a witness who saw him there as new, pink baby with a mother who didn’t know how to change the baby’s poopy diapers. Like the diapers, everything about the Obama myth stinks.
Hi raff! Thanks! (that wasn’t math above–it was just logic–really!
I believe that the current scorecard is something like 0-75, but Orly Taitz (who still has yet to be disbarred) has filed in New Hampshire and I’m guessing we’ll have a steady stream through primary season increasing into the general, so I bet they’ll reach the century mark by election day…
ellen,
I came up one short of two dozen for the number of errors of fact, obfuscations, logical fallacies, and outright lies in ksdb’s post at 4:34pm–how about you? Wait a second… two dozen… minus one… that’s… 23! Oh no–ksdb is an Illuminati agent! Whatever will we (fnord) do?
ksdb,
You haven’t contributed a single true or insightful statement to this discussion–why should anyone respond to you?
as pointed out by Slartibartfast above. He noted that the mother of “Stig W.” (Stig Waidelich) remembers that she saw a black child in the hospital nursery at the time.
——————————–
ooh wow! Now there you go….for sure ROFL! Thank God that HI was chosen as THE go to place for “trustworthy” info….many tittles have been tattled BUT the original nowhere to be seen….hmmm why? And thank God also for O that his defenders are simply lemmings of useful service to the secrets. A little of that “willful ignorance” as prescribed to myself above with no refutation of the facts presented?:
As an island nation, Hawaii has had procedures in place to allow for “stragglers” who were born on other islands, or in other countries (Guam is similar, BTW). Such is the “loophole” Sun Yat-sen exploited, Chinese revolutionary and political leader often referred to as the “Father of Modern China.” He was able to file a “Certificate of Hawaiian Birth” application and immigrate to the US in 1904 using the form. Yat-sen was born in Guangdong province, China, in 1866. His “Certificate of Hawaiian Birth” was issued based on Sun’s typewritten testimony rather than on any documentation from witnesses. The “Certificate of Hawaiian Birth” for WAS STILL ISSUED UP UNTIL 1972; BHO was born in 1961.
……..This Certificate of Hawaiian Birth, dated March 14, 1904, was issued after Dr. Sun signed a raggedy type-written statement affirming that he was born in Hawaii on Nov. 24, 1870.
Sun Yat-sen was born on November 12, 1866, to a peasant family in the village of Cuiheng, Xiangshan county , Guangzhou prefecture, Guangdong province (26 km or 16 miles north of Macau), not Hawaii, as this document affirms.
We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.
http://theobamafile.com/ObamaCOLB.htm
The exploitation of such a “system” is quite evident in the obvious lack of any basis in fact with backup material worthy of the tale …. other than hearsay stuff proclaimed and easily manipulated by the rather confused family who itself can’t even get the simple fact of just which hospital this marvellous story occurred, or, for that matter which country! Two different ones claimed by brother and sister themselves in the one country people here wish to accept and another one across the sea claimed by that other “family” member! With this bunch that swampland in Florida could be sold many times over!!
Slarti and raft:
Do not forget the suits already filed by the Liberty Legal Foundation. Here is the federal suit:
http://libertylegalfoundation.org/wp-content/uploads/2011/10/Federal-DNC-Complaint.pdf
I bet their name comes from the fact they take “liberties” with “legal” stuff.
Squeeky Fromm
Girl Reporter
Re: “Ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.
Answer: Once again it is only you who say that there is a difference between the seal on the Obama document and the official seal. There is no confirmation. If you want confirmation, the way to do it is to get a real document specialist or several to look at it.
Re: “George Bush is a deflection.”
I disagree. Birthers have made up a story about Obama being born outside of the country. I pointed out that it was not normal before their unsubstantiated claim to examine birth certificates. That is still the case. None of the Republican candidates for president has shown her or his birth certificate, much less have it examined. Do I have to make up a story about them so that they show birth certificates and have them examined? If so, that is easy to do.
Re: “One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:”
Answer: Sure she did. I suppose the other two (Fukino and Okada) did too?
Re: “we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”
Answer: An error, not a lie. Say that they had prepared a draft press release including the name of the hospital, and it was looked at by the lawyers and the lawyers said that they could not give those details but the governor had only seen the draft press release. The fact is that the press release said that there was a record of Obama in the files, and a subsequent press release said that the records in the files VERIFIES that Obama was born in Hawaii.
Re: “The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.”
Answer: The law prevented the registration of foreign births. The law allowing registration of foreign births did not come into force until 1982.
Re: “The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.”
Answer: IF the State Department were lying, the people who worked at the State Department at the time could refute the statement, and no one has. It is completely believable that applications for passports were scrapped to save space.
Re: “The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. “
Answer: Sure he did. All that had to have happened was that the doctor or a nurse told West, who thought that the name was interesting and remembered it, and told the teacher. For the teacher to have made up the story she would have had to have researched the name Rodney West and, conveniently, changed the name of her father to Stanley so that she could say that she wrote home to her father Stanley about a birth to a woman named Stanley.
Re: “When did the Hartford Courant do the interview?? Let’s see this story.”
Glad you asked:
“Six months after they wed, another letter arrived in Kenya, announcing the birth of Barack Hussein Obama, born Aug. 4, 1961. Despite her husband’s continued anger, Sarah Obama said in a recent interview, she “was so happy to have a grandchild in the U.S.” (
http://www.courant.com/news/nationworld/world/chi-0703270151mar27-archive,0,2145571.story?page=4
Squeeky,
That complaint is pure science fiction. The attorney who filed it should be ashamed of him/herself.
Slarts,
Thanks for keeping the math out of it!!
@ Slartibartfast, name-calling is lazy. I’ve sourced much of what I posted. Did you read the Fukino “testimony”?? Where does it say that Obama’s alleged COLB was genuine or that it was even a “certified” copy??? She claims she couldn’t disclose any information about these records. Here’s what the law says:
“Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.”
Do you see the part that says AS THE DIRECTOR MAY AUTHORIZE. The part about the direct and tangilbe interest has an exception. It says:
” except as authorized by this part or by rules adopted by the department of health.”
Under the rules adopted by the DOH (of which the director has broad authority), it says that an abbreviated copy of a birth certificate can be released to ANY person requesting it (see page 4 of chapter 8B in the link below):
http://gen.doh.hawaii.gov/sites/har/AdmRules1/8%208A%20B%20VR%20Admin%20Rules.pdf
Why didn’t Fukino explain any of this to the HI legislature in her statement? Try to focus on that, as there is a serious attempt here by the DOH to withhold information and documentation that can legally be made public.
Re: “We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.”
That also turns out to be false. A prominent birther, Leo Donofro, did some excellent work using the Hawaii version of the Freedom of Information Act (whose name I forget), and he found out that Maya did not even have a file in the Hawaii birth registry files.
It is true that after 1982 Hawaii allowed, and still allows, people who have children out of state to have their births registered in Hawaii. But Obama was born before 1982, and the law does not allow such a registration to lie about the place of birth. In other words, IF Maya had had a Hawaii BC, it would say “Hawaii BC: Place of Birth: Indonesia.”
ellen,
When I posted this:
I was referring to someone bringing up this:
I assume this is supposed to be persuasive because the document standards for an island nation in 1904 are such strong precedent for documents in a US state in 1961…
mirrose,
Thank you for providing a wonderful example of how predictable and incompetent birthers are. You did a very good job!
rafflaw:
Yes, it is science fiction. Long ago, on a planet far away, named Minor Happersett 4, a group of space cadets. . .OH that reminds me of the Mars Need Vattel Birthers thingie!
http://birtherthinktank.wordpress.com/2011/10/07/mars-needs-vattel-birthers-do-you-have-what-it-takes/
Tee Hee! Tee Hee!
Squeeky Fromm
Girl Reporter
(PS: Stuff like this is why the Vattle Birthers just hate me.)
raff,
I have yet to see the birther that feels shame–I think that feedback loop needs to be broken before you can become a birther…
Re; “Obama would have traveled with his mother (since she took him off her passport in 1967 or 1968 — when he was listed as “Soebarkah.”). The lack of a record doesn’t prove he didn’t travel.”
Yes, he would have traveled with his mother, but he would have had to have been entered on her passport (unless issued one of his own, which is unlikely) or a US visa on a foreign passport. If this was done in Kenya, as claimed, the application for the passport, passport change or visa would have had to have taken place in Kenya (or if in Indonesia, then there, and the same for any other country).
Such a document or application has not been found. NOR HAS THERE BEEN A RECORD OF OBAMA’S BEING CHECKED INTO THE USA BY THE US IMMIGRATION SERVICE.
Thus there is the absence of either of these normal requirements for travelers, plus the Hawaii birth certificates, the confirmation by the officials, the statement by the teacher, the statement by the grandmother that the first that her family had heard of the birth was in a letter from Hawaii, etc.
ksdb says (paraphrased): “It’s true, I found it on the inter-toobz!”
Sorry, but I’ve known how to debunk every argument you’ve made since shortly after each lie was first told by a birther. Don’t worry, ellen has been more than ably outing you for the pathetic, incompetent birther* that you are. Name-calling is all you deserve. Show good faith and it will be returned, show bad faith and I’ll call you out for your willful ignorance, stupidity, dishonesty, and bigotry. Your credibility is already zero right now–I don’t feel the need to do anything more than remind you of that fact.
*(non-birthers: sorry for the repetitive redundancy, but you need patience when trying to communicate with birthers…)
Squeeky,
The Vattelites may despise you, but they love you over at the Fogbow…
Squeaky,
Huh? I think Flash Gordon is calling!
yesterday was a much more interesting day in this thread.
I hope Nal will soon have new insights to share with us after he is done with the research.
Anyway,
This is what he left us with…
“Some interesting quotes from the Ankeny decision:
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, …
Key word: “guidance”
To the extent
that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, …
Key word: “interpretation”
Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.
Just saying.”
I must admit I have never heard this claim before…
Slarti:
That NOT showing good faith when arguing is what bothers me the most about the Vattle Birthers. I could be patient with people who were just un-informed. But it takes willful ignorance, at a minimum, to continue this two citizen parent foolishness. I mean, how hard is this:
Question 1: When a court says there are doubts about an issue, and says it does NOT (Hint!) need to address those doubts in THIS particular case, it means:
a) The court did NOT make a ruling on that issue.
b)Yippee We Win!!! The Court Decided That Issue In Our Favor!!!
c) It depends on the meaning of the word “NOT“
d) Is this a “Trick Question”???
This is from the test I give them.
Squeeky Fromm
Girl Reporter
Squeeky,
Whenever I wrote tests, my students always felt that they were way too hard. I saw a question I liked recently–it was something like:
What are the odds that you will get this question correct by guessing?
A) 25%
B) 33%
C) 25%
D) 60%
Get it?
(Sorry, raff…
)
Slarti, you are avoiding making a mathematical equation for me, based off the Minor quote. Does it have you worried?
Slarti:
I think the answer is 25% because there are 4 possible answers. But it could be 50% which isn’t on there or it could be 33% depending on the meaning of ["this" question].
The PJFoggy Obots like me??? I never would have dreamed that.
Squeeky Fromm
Girl Reporter
Slarts,
My head is already hurting!
@Slartibartfast, expect better of yourself instead of resorting to lazy name-calling. I gave you very specific citations of law that showed Dr. Chiyome Fukino was not being completely truthful to the HI legislature. Namecalling doesn’t explain away her lack of candor.
@ellen, you’ve ignored now for the THIRD time, that the state department has claimed that records prior to 1965 were destroyed. Obama’s absence of records does not disprove that he could have traveled from Kenya to Washington state after his birth. These records were destroyed. You should be concerned because the state deparment may be trying to hid the truth about Obama. The bottom line remains: There’s no legal nor physical evidence placing Obama in Hawaii until he was a toddler.
@squeegy: You’re still confused about what doubts the Minor court was discussing. The only doubt they raised was over the citizenship of persons born in the country without reference to the citizenship of the parents. There were NO DOUBTS about the children born of citizen parents. This group of persons was exclusively characterized as natural-born citizens. You’re not showing any good faith until you recognize this fact. It’s in the decision in black and white. Read it. Learn it. Understand it.
I would love to see more mathematical equation in quotes actually, they are fun. Not that it matters but at the very least, it exposes consistency, right?
One question. Why is Obama using a Connecticut social security number out of a state that he never lived in that belonged to someone else??
kdsb:
The Case of Virginia Rabbit Versus Happersett (1875)
The Court: At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. 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.
Vattle Birthers: See!!! This PROVES platypuses are NOT mammals!!!
Rational People: Uh. . .No. Because the case was about a rabbit, they didn’t have to deal with platypuses at all.
Really now, how hard is this to understand???
Squeeky Fromm
Girl Reporter
To answer Slarti’s question: the answer is 33% since the odds are 1 in 3 of guessing correctly.
Queefy has just proved she has not read Minor. FWI, girlfriend, there are non “Vattle birthers” that don’t like you either.
Slarti’s question is designed to switch the subject. The same question has littered the internet for some time.
@ Cynkading
There is no such thing as a “Connecticutt social security number”. The Social Security Administration has a warning on their site that you should not make much of the geographic correlation of SS#’s. Something as simple as a mistakenly keypunched zip code would account for assigning a number other than what would be normally associated with an area. Dwight Eisenhower received a “California” number even though he was residing in Pennsylvania at the time it was assigned.
Kontort:
Uh, what do you mean??? In my example there is a class (mammals) to which some critters obviously belong. (the Rabbits). There are doubts about other critters who lay eggs and have bills – the platypuses.
By stating the obvious, that rabbits are mammals — and with-holding judgment on the weird ones, the platypuses—all that is being done is stating the obvious while avoiding the questionable ones. At that point, platypuses can not be said to NOT be mammals, only that their status is debatable.
23 years later, in the case of Wong Kim Platypus, any doubts are laid to rest.
Said obviousness leads one to ask, have you said “Shibboleth” yet??? Or are you just trying to maintain an aura of neutrality while tooting the Vattle Birther tin whistle???
(No wonder you don’t like me. Incisive analysis like I provide is devastating isn’t it???)
Squeeky Fromm
Girl Reporter
23 years later
From Minor:
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 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.
Frommme a minor:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. 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.
In order as written. ( I did my best)
Rabbits=children or parents
Mammals=citizens
Children=?
Mammals=natives
Common sense mammals=natural born citizens
Platypuses=aliens
Weird animals=foreigners
Mammals=citizens
Platypuses=children with no reference to citizenship of parents
As near as I can tell, platypuses are not considered common sense mammals. Maybe your BFF highlighted Minor for you after all.
[raff... close your eyes and go to your happy place.]
Squeeky,
It’s a trick question–if one answer is right then it would be 25%, but if A and C are correct the odds of guessing correctly would be 50%, and if one of three equally likely choices were correct it would be B. D is right out.
[Okay, raff, you can open your eyes now.]
The people at the Fogbow like anyone who engages in good faith-but your recent series of smackdowns certainly caught people’s eye…
http://www.thefogbow.com/forum/viewtopic.php?f=25&t=3044&start=2100#p304715
Your exploits were also noted on the threads for Mario and Leo (when they were having their lack of a clue ).
mrjr101,
No you wouldn’t. Breaking down the logic of a quote exposes meaning not consistency–that’s something you need to avoid at all costs. You can’t lie in the language of mathematics–that’s why lying with statistics is so effective…
Komfort,
I’m avoiding breaking down the logic of the Minor quote for you because you haven’t said “shibboleth”* (and proved you weren’t a birther). That’s my price–I don’t care if you pay it or not. American soldiers in the Pacific in WW II used “Lollapalooza”–if the first two syllables came back “rorra”, they opened fire. Be glad I’m just going to excoriate you if you can’t say it…
* http://en.wikipedia.org/wiki/Shibboleth search on the term in this thread if you want to know what I mean by “shibboleth”…
Fred,
But you’re guessing randomly amongst four answers…
cynkading,
The SS# in question (which Orly Taitz should be disbarred for spreading over the internet in my opinion) was most likely (even the SSA says the state codes are unreliable) the result of the confusion of a “0″ and a “9″ in President Obama’s zip code by a SSA clerk. I would also note that it is a crime to check the number on e-verify (asserting you are President Obama’s employer), the person (Hollister) who originally got the number did so fraudulently (by registering on a (government) website as President Obama and getting the Selective Service form mailed to him, and the number almost certainly fails a check because President Obama has been assigned a new one (due to the old one being plastered around the internet by the most incompetent lawyer in the world–Orly Taitz [my opinion]).
You’re just a pathetic, incompetent birther. What are you going to try next? Indonesian Adoption? Pakistani travel ban? There is no birther argument with any merit whatsoever, so why don’t you and the rest of your impotent birther friends just STFU?
Yeah, it is pretty devastating. I will give you that.
Slartibartfast: I assume this is supposed to be persuasive because the document standards for an island nation in 1904 are such strong precedent for documents in a US state in 1961…
mirrose,
Thank you for providing a wonderful example of how predictable and incompetent birthers are. You did a very good job!
————————————
Well, since you didn’t comprehend the info re: the same “freedoms” towards acquiring Certificates extending to O’s time, I’m afraid you aren’t in any place to advise those providing you with helpful info to unconfuse your confused mind re: incompetency. Heh! So just flip your comment to reflect your own qualities of not being quite as up to snuff as you would like to convince.
Squeeky,
What I’m wondering is if he just can’t bring himself to say “shibboleth” or if he just doesn’t understand what I mean…
Awwww Slartibartfast, you talk so purdy……
brought this over from one of my favorite sites……
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Citizen Wells site….
yo | November 17, 2011 at 12:54 pm |
A fly on the wall in the social security administration says that there are furious efforts to contrive documents showing obama’s ssn is authentic before the meeting in new hampshire. Yelling, screaming and threats are being leveled against anyone who will not co-operate. It is said that it doesn’t matter what the contrived evidence is or whether it looks authentic or not, because the network news contacts have assured the white house that anything will be accepted.
Informed sources say that the white house will refer to anyone who doesn’t accept the dubious documents as authentic is a hate mongering racist and doesn’t deserve any media attention.
-the ghost of Jack Anderson
mirrose,
How do you explain the unblemished record of epic FAIL that is the birther movement? How do you explain not knowing the difference between a nation and a state? How do you explain your endless repeating of long-debunked lies? I think that the fact that you are an unPatriotic birther bigot who probably denigrates the Constitution whilst wrapping itself in it is explanation enough…
cynkading,
Hey, at least you found a new lie…
Squeeky,
That there is an example of birther journalism: no link, no primary source, no credibility whatsoever…
http://citizenwells.wordpress.com/2011/11/17/obama-uncle-onyango-obama-due-in-court-november-17-2011-illegal-alien-since-1992-deportation-order-never-enforced/#comments
Slarti, yesterday you told me”If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about.”
I assume you are not interested and that is why you are telling me what to talk about.
Komfort,
No, you asked me to do something and I told you that I would do it if you met a condition. So far, you have failed to do so. I’ve never told you what to talk about, by the way, I’ve just noted that what you do say seems to indicate that you are a birther… I’ve told you what you need to do to convince me otherwise–either do it or don’t, but quit whining, it’s pathetic.
cyn,
Sorry, it’s too late–you’ve already shown that you have no credibility (your cut-n-paste journalism was just one example, but there is plenty more to choose from…)
Komfort:
In your opinion, is Obama a natural born citizen and eligible for the presidency??? If no, why not. If yes, based on what. Just a short answer is fine with me, unless you are feeling wordy.
Squeeky Fromm
Girl Reporter
Nice example on whining. Queef knows the code and handshake. It is up to you to help her mess of an analogy.
Komfort,
Search this thread for “shibboleth” and you will see what I mean (you would have known already if you could actually read and comprehend others comments…).
Komfort is one of those folks who are often wrong, but never uncertain.
I have no answer until the dicta is resolved. Honest.
I thought a rational discussion would sway my opinion. It has been hit and miss today.
I would like to know what Minor really said. I would like to know why Minor was used in WKA. And I would like to know the true rationale of both opinions.
Nal is searching for the same thing, without being forced to join a side that will profit or perish from the conclusion.
I believe the quote from Minor has only one way of being read. I asked the math guy for help, instead I need to buy a Nancy Drew decoder ring.
Now, i am whining.
I cannot force anyone back to the topic, but I wish I could.
Slarts,
My happy place has no math problems allowed!
Otay Scribble comments often but is never certain.
raff,
That’s why I told you to go there!
Komfort,
If you weren’t a birther, your answer wouldn’t depend on Minor (ruling or dicta) and your request is somewhat disingenuous because my original point was about birthers misunderstanding the quote you posted because they don’t know the difference between “If A then B” and “if not A then not B”. Do you know? (the fact that you had trouble with Squeeky’s analogy argues that you don’t…)
Nal started the conversation that I am participating in, not you.
Komfort:
You asked:
I would like to know what Minor really said. I would like to know why Minor was used in WKA. And I would like to know the true rationale of both opinions.
Answer: What Minor said is obvious. It is not something which requires legal analysis, just basic English skills. If you require legal analysis, that was done by the Ankeny court, thusly:
” 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.
Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12″
This mitigates in favor of the Plain English School of Thought.
Your second curiosities:
Minor was cited in WKA for the proposition that the court had to go to the common law for a definition of natural born citizenship, and in Ankeny for that ,and the fact that there were two sources of citizenship – birth and naturalization.
The subject language was cited in Wong Kim Ark to prove that a statement by Justice Miller in The Saughterhouse Cases had been misinterpreted.
You can read those two cases if you doubt me. Plus, all this has been copy and pasted above, more than once.
Squeeky Fromm
Girl Reporter
Looks like Komfort is not only logic challenged, but spelling challenged as well.
If not for me would you put Squeaky’s quote in A then B format for her sake. Do it in your head first.
Dr. Slarti, there you go abusing birther trolls with syllogisms, trying to force logic into their heads. As Eric Hoffer observed, “An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head.”
I guess we could offer mathematical proofs, but then we run the risk of doing permanent damage to rafflaw.
That will win it, Otay.
I guess that means Otay hides behind rafflaw’s skirt. Go ahead, show me the a to b format.
K, you do not really want to go there. Doc Slarti is a mathematician and I am a scientist as well. We live for logical proofs. As I said, you have been living proof of what Eric Hoffer was talking about. I do not have time for people who keep their minds in a logic tight compartment.
Now I am about done. I have to be in Court in the morning. G’day.
In your own example you excluded “platypuses” from “common sense mammals”
Are you sure you are reading Minor correctly?
OS,
It’s okay, this is just logic, not math–raff will be fine…
Komfort,
On the off chance that you are just hard of thinking and not willfully ignorant and dishonest as well, here you go:
A=child born on the soil
B=child has citizen parents
C=child is a natural born citizen
the first part says “if (A and B) then C”
Now you have a choice: say “shibboleth” or tacitly admit that you are a birther.
OS,
Too late.
You do not want to go there, otherwise you would have already.
Komfort:
I did not EXCLUDE Platypi from the class of mammals. I simply said there were doubts. Some authorities included platypuses as mammals. Some didn’t.
Just like the Minor Court, the Virginia Rabbit Court could punt with impunity, because Virginia was a RABBIT.
This isn’t hard.
Squeeky Fromm
Girl Reporter
Komfort,
Oops! I’m going to stop playing with you now–just remember that you were way out of your league and everyone here knows it (except the birthers–can you say “shibboleth” yet?). Re your comment about Squeeky’s analogy: I guess we can add “analogy” to the list of things you don’t understand…
Your quote does not have the term “natural born citizen”. Your definition of C is not in play.
Did you mean to make C = “citizen” ?
The last sentence:
‘It is not necessary to prove “if A then C”’
should be:
‘It is not necessary to prove or disprove “if A then C”.’
Komfort,
I’m not going to discuss how Godel’s theorem affects the reasoning here–figure it out on your own…
Komfort,
In context, it is the only thing in play. Birther fool.
That is right Squeaky. They are a class of mammals. Your example failed to make them “common sense mammals”
Thank you for being more civil. I can work with a patronizing tone, I just don’t like being called something I am not.
The math guy just blew it in front of the home crowd. Swing and a miss. You made up a definition. Be glad I am not grading you.
OS,
It’s funny how easy it is to trap birthers–you just insult them without providing any support for your arguments for a bit and let them get off and running and then… have you seen any of the Mythbusters episodes with a rocket sled?
I got it. Komfort had no idea what you were talking about when you mentioned Godel. Let alone the natural progression into Tarski’s work.
Myself, I prefer simple stuff. Like the guy is President, will remain President, and is likely to be re-elected President. Did I mention that he is black?
In the meantime, birthers heads will continue to explode.
Komfort,
I don’t know what game you’re watching, but when the crowd cheers, it’s good for the home team… (some people need practical advice).
Yes I saw several shows involving the application of Newton’s Third Law.
My favorite was the old car with JATO rockets on the roof to check out the story of the 300 MPH car.
OS,
That’s a great one–with the birther sized FAIL at the end. It’s a good thing for the birthers that “failure is always an option” (Adam’s motto) It is sad that failure is their only option, though…
They cheer for a fraud. You know you erred. They probably know it too.
Later gang. I will check back for any updates from Nal.
“Gee teach you took my made up out of whole cloth definition out of context”, would fail to persuade me to change your score.
Fail. You should be ashamed.
There are a couple where they completely annihilated a car with a steel wall mounted on a rocket sled and split a car in two with a “snow plow” mounted on a rocket sled–I think it was Tory that said, “any day with the words “rocket sled” in it is a good one” (unless you’re the car…)
Ahh, make a straw man, claim victory, and quit the field–classic birther tactics! Bravo!
Komfort:
You said: That is right Squeaky. They are a class of mammals. Your example failed to make them “common sense mammals”
You are confusing classes. Common sense mammals and weird mammals are both non-aquatic mammals. They also belong to a larger class, simply known as “mammals” which includes the naturalized “Aquatic mammals.”
Squeeky Fromm
Girl Reporter
Right again Squeeky. That would translate to ” citizens children born within the jurisdiction without reference to the citizenship of their parents ” AND “natural born citizens” BOTH belong to a larger class called “citizens”.
The larger class, unless you make up definitions, is citizens, not natural born citizens.
Your analysis confirms that.
Gee, a casual drop-in to this (birther) thread I end up going to Wikipedia to see if there’s any new news on the classification of the Platypus; geez, I love this blawg!
Lottakatz:
If you think this is “elementary”, you oughta see the “Fun With Dick and Jane And A Vattel Birther” Internet Article.
http://birtherthinktank.wordpress.com/2011/10/18/fun-with-dick-and-jane-and-a-vattel-birther/
You have to be have to think on the level of the average Vattel Birther.
goo. goo. blurgle.
Squeeky Fromm
Girl Reporter
KSDB said: “ellen, you’ve ignored now for the THIRD time, that the state department has claimed that records prior to 1965 were destroyed. Obama’s absence of records does not disprove that he could have traveled from Kenya to Washington state after his birth. These records were destroyed. You should be concerned because the state deparment may be trying to hid the truth about Obama. The bottom line remains: There’s no legal nor physical evidence placing Obama in Hawaii until he was a toddler. ‘
Answer: The US State Department has said that SOME records before 1965 were destroyed. It did not say that all of them were. Were you of the impression that it had said that–that all records were destroyed–that no documents exist showing who was granted passports or visas? If so, you are delusional.
There ARE records, and if Obama received a US passport, or was entered on his mother’s passport or received a US visa, they could have been found.
Moreover, we are not just talking about the US State Department. There is also the US Immigration Service. They also have records. And, if Obama was recorded as having entered the USA in 1961–which he would have had to have been if he were born overseas–that would be in the records as well, and would have been found.
There is no evidence that Obama was outside of Hawaii until he was a toddler, or even after that.
The evidence that he was born in Hawaii is the official birth certificate of Hawaii, which is sufficient legal evidence to prove that anyone was born in the state that grants it. The State of Hawaii has never said that it did not not issue a birth certificate for Obama in 1961, and it sent a notice of Obama’s birth to the newspapers in 1961. In addition to the birth certificate, there is the evidence of the teacher who wrote home and the grandmother who said that the first she had heard of Obama was in a letter from Hawaii.
As for Obama “could have traveled from Kenya to Washington State”–not without a passport or a visa he couldn’t.
The State Department, you claim, “may be trying to hide the truth.” I take it that you think that they are part of the plot, along with the three Republican officials in Hawaii, the Democrats in Hawaii, the Kenyan government, the Bush Administration, and the Main Stream Media. They are all part of a massive plot to hide the fact that Obama’s mother traveled to Kenya at enormous expense (and they were not rich) and gave birth in that foreign land. Sure she did. Sure they are. And there are monsters under your bed too.
LK
i was at wiki refreshing on platypi too. it’s funny that there is no set plural for the animal.
The platypus is living proof that the FSM has a sense of humor.
DICTA?
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”
“But, in our opinion, it did not need this amendment to give them that position.”
If the court was asked whether the 14th afforded women like Virginia Minor certain political rights and the answer specifically lay elsewhere in the “opinion’ of the court, how is this dicta? I’m not lettered in the law, but it seems apparent A2 was integral in the decision.
I got stuck at “disambiguation” of Platypus … I dropped in and am now dropping out … none the wiser
I would never disambiguate a platypus.
That’s almost as cruel as vivisection or forcing them to watch “Jersey Shore” or read an entire thread of birther nonsense.
Lottaplatypi,
Hi! I proposed a shibboleth for birthers upthread, too. I tried it out on Komfort and he couldn’t say it:
OS,
Yeah, that’s the one–Komfort was just sitting there… enjoying a sunny afternoon… and then the second stage kicked in. I love the slow-motion shots on this one.
pete,
What is the word for a group of animals who’s singular form is “platypus”? I think the word for a group of birthers should be a “FAIL” as in: “did you see the FAIL of birthers at the latest rally? They barely got a deca-Usurpathon*–how sad.
* The “Usurpathon” is the standard measure of turnout in birther events–it is based on the turnout at drk(H)ate’s Usurpathon on the Mall. One Usurpathon is equal to 3 birthers (5 if you include the two obots making fun of them).
Komfort,
That’s right, you play with Squeeky–she’s out of your league, too, but at least she’s nicer than I am…
Squeeky,
Sorry, I can’t do that–it makes my brain hurt.
‘Nite all!
Slarts,
I am in my happy place now, so please, no more math!
gene
of course not, platypuses are venomous.
thus proving evolution
raff,
No worries, I’m done. Enjoy your happy place.
Gene,
Just be careful what you do disambiguate…
pete,
Oh no, I don’t have time to deal with the cintelligent designists after all the birther trolls…
DICTA?
“To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership.”
The court found it “necessary” to define who were citizens prior to the 14th and did so with A2. Some argue that the use of the presidential citizenship eligibility requirement was used “in passing” rather than the court’s self imposed necessity. Read the case is my answer.
Pete: “….no set plural for the animal.”
You know you’re on shaky ground classification wise when no firm plural is attached.
———————–
Gene, of course you wouldn’t [disambiguate a Platypus], you’re not that sort of guy, but if you were, please upload the video. It might help me discern the meaning of “disambiguate”. Pete’s right BTW about the venom. As well, the Tasmanian Platypus is being plagued with a serious fungal disease for which there is no known cure so wear protection; a full bio-hazard suit would be appropriate…
Of course he is done. He is a liar and a cheat. He posted his own evidence to attest to that. A quote that does not mention a term that he claims it mentions.
“Natural born citizen” was not used in the quote you provided. Yet you pretend it was. If you used the entirety of the quote then your argument may not have been so overtly false.
Slarti: “The “Usurpathon” is the standard measure of turnout in birther events–it is based on the turnout at drk(H)ate’s Usurpathon on the Mall. One Usurpathon is equal to 3 birthers (5 if you include the two obots making fun of them).”
LOL.
I would have taken the debate more seriously if it hadn’t been brought regarding the country’s first black President. McCain’s Panama birth never seemed to raise the question, even as a technical exercise.
They had a resolution over McCain. How did you miss that?
lotta,
Yeah, but some of their best friends are black–they just don’t come to any of the rallies…
My opinion on McCain (and some of the birthers attack him, Rubio, and Jindal as well) is that I’m not sure if he is technically a natural born citizen, but no court would rule against him and no opponent would make an issue of it. I don’t think that the Founders would have intended to exclude someone born in his circumstances either.
Komfort,
As I said, “citizen”, in the larger context, referred to the class of citizens that Virginia Minor belonged to–i.e. natural born citizens. The problem is that you don’t understand, not that I’m a “liar and a cheat”. I’m sorry that you are a mentally inferior birther fool trying to score abstruse debating points in your Quixotic quest to incite a coup against the lawful POTUS, but at some point you put getting the answer you wanted ahead of getting the truth and then you were sliding down a long and slippery slope…
Speaking of dicta and platypi, is it of any consequence that dicta is usually the statement of a single judge. (as in “one”, not as in “unmarried” or “free”)??? See, for example, from the Free Dictionary:
Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum.
Therefore, I submit, that when more than one judge embraces the language, as in a SCOTUS decision, it can not be dicta.
Squeeky Fromm
Girl Reporter
Slarti,
I thought you were done
… left you a post over there
The Gardening book does not, in words, say what shall be Plums. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Gardening book were familiar, it was never doubted that Fruit from trees, in which the shoots have a terminal bud and solitary side buds (not clustered), the flowers in groups of one to five together on short stems, and the fruit having a groove running down one side and a smooth stone (or pit), were Pit Bearing. These were Plums, as distinguished from Apples and Oranges.
Some authorities go further and include as Pit Bearing the Fruits of trees with no reference to the genus of the tree. .As to this class there have been doubts, but never as to the first.
Watch Slarti pull a banana out of his arse and turn it into a plum.
Even Mythbusters will cheer when you pull that one off.
…it was never doubted that trees…
Nal, and others:
I am way too lazy to read thru this entire thread again, but I recall you wishing you had certain reference materials. This may help:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=619124
Defining Dicta
Maxwell L. Stearns
University of Maryland Francis King Carey School of Law
Michael Abramowicz
George Washington University Law School
Stanford Law Review, Vol. 56, 2005
It is free, and looks pretty good. I am reading it.
Squeeky Fromm
Girl Reporter
Komfort:
At least you are starting to think about classifications and how to re-phrase Minor. I am awaiting your imminent voluntary exclamation of “SHIBBOLETH!!!”
Squeeky Fromm
Girl Reporter
DICTA?
Justice Fuller stated in EX PARTE LOCKWOOD (1894), “Minor v Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;”
Justice Gray stated in US v WKA (1898); “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 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.”
Some argue that MvH is solely a case involving the matter of suffrage contrary to citations used by later courts that are entirely reflective of the nature of citizenship and associated political rights, specifically as to whether derivative of the 14th or A2.
I am awaiting Slarti to show some humility and admit his deception.
Squeeky please note that the most that a tree with doubts can be is pit bearing, assuming the doubts are resolved. It cannot be a Plum.
Unless you cheat, it works out this way every time. Going to bed now. In the morning I will create another one that relates to mathematicians and fraud.
Komfort, The questions about McCain were a response to the questions raised about Obama. There are still questions about McCain’s citizenship but those on the right sure aren’t pushing them or demanding a definitive answer to the question. Ms. Taitz sure doesn’t seem to care. Hmmmm, it’s all about the black guy, I’m gonna’ stick with that.
lotta,
I agree with your response to Komfort. Can you imagine how the Republicans heads would have exploded if the Dems had pushed this same BS about McCain?!
Clinton supporters raised the first questions about Obama during the primaries. Then McCain was the rage around Feb of 2008. The Obama garbage started again around June of 2008. The most prominent case was brought by a democrat, yet I do not remember him being labeled a racist.
Thanks for sharing Squeeky, I thought I had to smash my piggy to see what Nal is reading.
Wow Komfy, is that the best you could do? Squeeky’s metaphor is what we in the reality-based world like to call “apt”–meaning that it is a true map of some aspect of the territory. Yours, on the other hand, was to an accurate map what Ballantine is to slcraignbc on the subject of the law–finely crafted words vs. word salad. You do understand the metaphor of the map and the territory, right?
I look forward to the straw men you plan on making tomorrow. I’m sure that they will feed my confirmation bias that birthers are losers… yum!
Squeeky,
I think he’s just dimwitted–he doesn’t know what we’re talking about, so he’s latched on to what he thinks is a valid technical point (which unfortunately just further demonstrates his lack of understanding) and he’s desperately hoping that somehow it will translate into victory in people’s minds. I can’t decide if it’s an example of cargo cult thinking or Underpants Gnome reasoning:
1. Claim victory
2. ???????
3. Birthers uber alles
What do you think?
Re shibboleth: I’m really pleased with myself for remembering that term–it really is a perfect shibboleth, no birther can say it. It’s better than asking potential Jerries about baseball or suspected Japs to say “Lollapalooza”. To use another analogy, Komfy has no idea who Babe Ruth is (let alone Ty Cobb) and can’t pronounce “L” instead of “R” to save his life. He probably doesn’t even understand what we’re talking about–erudite conversation is an impenetrable code to the thinking impaired…
Tee hee!
Hi Blouise!
Komfy,
You’re playing the PUMA card? Really? The first birther (Phil Berg, for those who don’t know) is a 9/11 truther and completely rejects the “Vattel” position (Kenya or bust!). His only current birther litigation is in the civil war with Orly (who is still, at last I checked, not disbarred. Taitz (needed to get her last name in for the search engines…
). Dude, you just keep making things worse–I suggest you get out while you’re only way behind… In other words: RUN AWAY!
Brave, Brave Cur Komfy
Bravely bold Cur Komfy
Rode forth from Birfestan.
He was not afraid to lie,
Oh brave Cur Komfy.
He was not at all afraid
To be shamed in nasty ways.
Brave, brave, brave, brave Cur Komfy.
He was not in the least bit scared
To be mashed into a pulp.
Or to have his eyes gouged out,
And his elbows broken.
To have his kneecaps split
And his body burned away,
And his limbs all hacked and mangled
Brave Cur Komfy
His head smashed in
And his heart cut out
And his liver removed
And his bowls unplugged
And his nostrils raped
And his bottom burnt off
And his pen–
“That’s… that’s enough music for now lads,
*** there’s dirty work afoot*** ???.”
Brave Cur Komfy ran away.
(“No!”)
Bravely ran away away.
(“I didn’t!”)
When reality reared it’s ugly head,
He bravely turned his tail and fled.
(“no!”)
Yes, brave Cur Komfy turned about
(“I didn’t!”)
And gallantly he chickened out.
****Bravely**** taking (“I never did!”) to his feet,
He beat a very brave retreat.
(“all lies!”)
Bravest of the braaaave, Cur Komfy!
(“I never!”)
That explains why you can’t solve jack doo doo, Snoti. You do not read before you post.
I guess you left the banana in place and pulled words out that I did not say. You are good at making stuff up.
Komfort, You may well be right about where it started and if that’s the case then I would lump the perps in with the subsequent people that embraced the issue and keep it going. I know the right jumped on it in early summer and it’s been a circus ever since with no let-up in sight. After 3+ years and losses on every front there’s more going on than a clean question of law.
Is Komfy haz a sadz I not read his precious post? I read it–you’re flailing pretty badly, aren’t you? Your problem is that you lack an isomorphism between your construct and reality, thus your logical framework is ill-formed and no truth is conveyed–in other words, your map bears no relation to the territory. If you’d payed attention to your Hofsteader, then you wouldn’t have had this problem. Just sayin’…
A=child born on the soil
B=child has citizen parents
C=child is a natural born citizen
the first part says “if (A and B) then C”
” 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.
” “if A then C” has been asserted. “if A then C” has not been proven, but “if (A and B) then C” has been proven. It is not necessary to prove “if A then C”.
Was this a joke? I was expecting an honest equation. I’m very disappointed.
“A holding consists of those propositions along the chosen decisional path
or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”- Defining Dicta, by Stearns and Abramowicz
Is MvH dicta per the three criteria for a holding?
Lotta, here is Clinton supporter Stephanie Tubbs in Feb of 2008 eluding to Obama’s “country”, I thought it was BS at the time, I still think it is BS today.
Sadly she passed away in August of 2008, so there will be no follow up questions.
For the typical reasons I do not think she would be labled a racist.
Snoti, you are a lost cause.
mrjr101,
You’re disappointed because you are a foolish birther and you don’t understand formal logic. I bet I’d have a better chance to teach a horse calculus than to get a birther to understand…
Komfy,
All birthers are bigots (the are prejudiced against President Obama).
All racists are bigots.
All birthers are NOT racists.
Do you understand?
right formal logic. Leaving out the “Citizen” variable out of the equation is formal logic to you. Good try mathematician.
Lotta, if you have the time, I think you should search the events of the last three years. You will find the “birther” questions have almost always come from the left. Sure, dummies on the right answer the questions, but they never bring the topic up.
That same phenomenon has transpired here. I have not brought up any of the birther nonsense, but the attacks continue. I have tried very hard to stick to the topic.
Team WKA claims the holding is much greater than it would appear. Yet when asked what the limits are (5 pages 20 pages) the answers are vague and delivered with insults. Even the author of this thread is still searching.
I have had a reversal of how I read the quote from Minor. It is key in my answer to squeeky’s honest question of me. I see the wording differently than I used too.
This looked like a thread that was not going to go birther batty, but it did. Too bad it ended with such a top dog around here cheating. All good teams have their Barry Bonds.
Portney:
That is a long article. Please give page numbers where you find stuff.
Thank you!
Squeeky Fromm
Girl Reporter
No you wouldn’t. Breaking down the logic of a quote exposes meaning not consistency–that’s something you need to avoid at all costs. You can’t lie in the language of mathematics–that’s why lying with statistics is so effective…
logic exposes order, patterns, hence consistency. Meaning is what you make of it. You can’t lie in math but you can definitely mess up the math with your logic.
All anchor babies are citizens
All natural born citizens are citizens
All anchor babies are not natural born citizens
I almost Googled Godel, and here you are coming around.
Squeeky,
After Komfy’s last comment, I’m going to have to go with “cargo cult”.
mrjr101,
You probably don’t realize it, but to someone with my training, it’s obvious from your last couple of comments that you don’t even have a clue what the terms you are using mean. You’re like a toothless little yapping dog–hardly loud enough to be annoying, let alone intimidating…
Komfy,
You’re really not the brightest bulb in the bunch, are you?
Native born children of (generally illegal) aliens are called anchor babies
All native born children* are natural born citizens (it is the standard of citizenship used in the US according to President Madison)
illegal aliens are neither diplomats nor foreign occupiers
Conclusion: All anchor babies are natural born citizens
*except children of diplomats and foreign occupiers
Barry Bonds, Everyone knows he cheated but he doesnt admit it, although, didn’t he retired?
Your work is no longer trusted.
Why so irritated Slarti? That really sounds like you are afraid of being intimidated.
Komfy,
By whom? Do you think I really care about what you or your yappy dog or your other incompetent birther friends think? I’m sure everyone I care about here still trusts me just fine.
Sorry about not citing the page number…does make it hard to follow, now included with quote this time.
“A holding consists of those propositions along the chosen decisional path
or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”- Defining Dicta, page 9, by Stearns and Abramowic
Awwww, nothing more sad than a mathfauxtician pouting. Well ding dang it, you have friends. Do you want me to keep your deception a secret from them? It will be tough, unless you can scrub your erroneous post.
mrjr101,
Irritated? Nah–I’m amused by you and your fellow birthers. Plus your squawking is the perfect wedge issue–it splits the independents from any birther-friendly or birther-curious candidate…
“[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.” -Defining Dicta, page 15, by Stearns and Abramowicz
“Crediting necessary propositions that a court has actually decided as holdings is obviously important. A legal system that did not count decided propositions that are necessary to the disposition as holdings is effectively a legal system without holdings. Thus, we can at least tentatively conclude that decided propositions that are necessary to the disposition of a case are holdings, even if those propositions are not sufficient for the result.” -Defining Dicta, page 17, by Stearns and Abramowicz
“With alternative justifications, it is unmistakable that the opinion author did more than was necessary. Thus, there may be a stronger case for excluding alternative justifications from the status of holding than there would be for excluding statements representing alternative possible justifications.68 If we were to accept the simplistic “necessary” definition of holding, alternative justifications would not be holdings. Eventually, however, we will conclude that neither problem by itself should transform a statement from holding into dicta.” -Defining Dicta, page 21, by Stearns and Abramowicz
In reading “Defining Dicta”, it is impossible not to admit that lawyers like ballantine would need a hand puppet and significant patience to explain it to me. Though the individual words are plainly english the legal context is a tough slog. I hope the future conversations on this blog steer back toward Nal’s original post and whether the juicy portions of MvH constitute dicta. Perhaps we can ignore the “birther” aspect and discover if “Defining Dicta” has a workable set of criteria.
REPOST OF SQUEEKY’S SUGGESTED REFERENCE (THANKS, GIRL REPORTER):
Nal, and others:
I am way too lazy to read thru this entire thread again, but I recall you wishing you had certain reference materials. This may help:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=619124
Defining Dicta
Maxwell L. Stearns
University of Maryland Francis King Carey School of Law
Michael Abramowicz
George Washington University Law School
Stanford Law Review, Vol. 56, 2005
It is free, and looks pretty good. I am reading it.
Squeeky Fromm
Girl Reporter
“All anchor babies are citizens
All natural born citizens are citizens
All anchor babies are not natural born citizens
I almost Googled Godel, and here you are coming around.”
The Court has obviously never addressed anchor babies. In Phyler v. Doe there is dicta extended Wong Kim Ark’s definition of subject to the jurisdiction to resident illegal aliens. Textually, there is no way to distinguish illegal from legal aliens. Since Wong Kim Ark say natural born citizen is to be defined by the same common law definition, it is the current assumption that anchor babies are included. I know, I know, there are people here who skip over the part of the decision about NBC being defined by the common law. However, no real legal authority has ever said a citizen under the 14th is not natural born.
It is amazing that people here insists on re-writing case law and insisting they are write. No real lawyers would do any such thing. Take Gray’s quote of Minor. Gray unambiguously states that he is quoting Minor to show neither Miller nor the court were committed to excluded children of foreign subjects. To claim the citation is for any other purpose is lying. To say Gray cited it because he agreed with its definition of “natural born” is lying. If Gray wanted to cite it for that purpose, he would have said so. A laywer claiming otherwise would be sanctioned. The truth is that no one involved with Wong Kim Ark, not the government, the majority, nor dissnet said Minor defined “natural born” because it doesn’t. They all talked about who was “natural born” but no one thought Minor was relevant. Again, it is simple a lie to say Minor said children of aliens are not natural born citizens. Minor didn’t commit to their status at all and didn’t said what type of citizens they might be. Claiming that it was talking about another type of citizenship than “natual born” is not ethical. One simply cannot claim a court says things it doesn’t actually say. Speculation is not legal interpretation. Such is why the birther lawyers have their cases call frivolous by the courts and get threatened with sanctions.
For those who have trouble with WKA, please point out where Chief Justice Fuller’s summary of the majority is wrong. A summary that says exactly what I say the court says and a summary Justice Gray would have read and commented on before publication. Honestly, perhaps we both are wrong. Please point out what Fuller says isn’t in the majority opinion that he is paraphrasing:
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;” and “that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.” Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power…. And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”
@ballantine, you’re interpetation of Gray’s citation of Minor is completely delusional. Why on earth would someone quote a decision that wasn’t about foreign subjects to show that the Court was NOT committed to excluding foreign subjects from the citizen clause of the 14th amendment?? This is pure stupidity or intentional comedy gold. Second, your premise fails because Minor clearly summarizes the citizenship path for foreigners as following naturalization. Third, your premise fails because Gray acknowledged a paragraph AFTER citing Minor’s definition of NBC that V. Minor was found to be a citizen by BOTH jus soli and jus sanguinis critieria. The Minor decision doesn’t specifically say that Minor was born to citizen parents, but Gray DOES say this in WKA. Why would he do this when he posits afterward that citizenship by birth does not require citizen parents?? The answer is because he was respecting NBC as a separate class of citizenship and upholding the finding in Minor. Read it. Learn it. Comprehend it.
Ksdb, you are simply dishonest. In plain english Gray says he is citing Minor to show that neither miller nor the court were committed to the dicta that children of foreign subjects were excluded from the 14th. To say minor was cited for anyother reason is lying. And the Minor quote contains the statement that there was disagreement as to whether children of aliens were citizens, a disagreement the court would not address. Hence, the court was not comitted to a view on the children of aliens, the sole purpose of the citation. Spin, twist, re-write all you want, you are just proving you are dishonest or can’t read
ballantine1, November 17, 2011 at 2:21 pm
Sorry slcraignbc we don’t interpret the Constitution by who you think would be the most loyal. I know you caanot find any statement from a framer to suppport your position, but speculation has no place in Constitutional interpretation. You need to present facts. The facts are that the most important framers wanted no restrictions on office holde legalars and place of birth was all they discussed. The facts are that all early legal authority adopted the common law rule.
Notwithstanding ALL arguments, dicta and rhetoric in favor of Jus Soli determination of U.S. Citizenship irrespective of the citizenship of the parents prior to the 14th I STILL see NO express LAW promulgated by the Congress that lends ANY credence to that position.
When, in fact the ACTUAL LAWS promulgated state quite clearly, that immigrant aliens must register at local district Courts and follow established procedures for a number of years and, upon completion and naturalization, their wives and children will share in the achieved Citizenship.
From that point on the benefiting Citizen possess the Birthright prerogative and any children then born are Citizens at birth and if born within the Jurisdiction are born in the fullness of the requisite circumstances of being BORN as an American natural born Citizen, (the period between 1790 and 1795 that child, even if born abroad, would be CONSIDERED a natural born Citizen).
The 1790 Act to make an uniform Rule on naturalization clearly acknowledges and establishes jus sanguinis as the Ruling Principle of Citizenship of U.S. Citizens and ALL Laws promulgated since reinforce that Principle. The jus soli Collective naturalization provision was intended 1st to benefit those persons who had previously been denied Citizenship by the Constitution, but once made Citizens then they too possess the Birthright via jus sanguinis.
Read the U.S.LAWS, they are clear and unambiguous in spite of the feudal Lord leanings of much of this crowd.
To accept jus soli as ruling under the English Statutory Law on subject-hood is to accept FORCED expatriation of the prodigy of ANY foreign national that happens to be visiting U.S. soil. and, too, is to accept that the position of the British Crown regarding the status of U.S. seamen remaining as British subjects in 1811.
Jus soli, of the English brand, was integral to their Empire building of distant CONQOURED lands just as jus sanguinis is integral to the U.S. brand of Citizenship, by expressed consent beginning with the Founders and those subsequently naturalized and “tacit” consent of their prodigy, leaving it to time to determine if those prodigy cling to the inalienable Rights guaranteed by our Republican form of Guv’mnt.
slcraignbc,
So you are just going keep saying you are right over and over without citing any authority to back you up. I pointed out that the Supreme Court stated that our naturalization statutes didn’t change the fact that we followed jus soli birthright citizenship. That the Supreme Court and Congress said people born on US cannot be naturalized. That the Supreme Court said both before and after 1866, native born children of aliens were native born citizens. That you cannot cite a single authority that says native born children of aliens were ever naturalized or needed derivative citizenship. That Congressional debates made clear they were following English law with respect to naturalization. That no one ever said that native born people get their citizenship from any statute. To everyone else in the world, derivative citizenship was only for foreign born children as the native born were already citizens. In the words of the authority of the Civil Rights Act citizenship clause:
“And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868).
So, I guess you are going to keep saying you are right and everyone else is wrong.
Did you know that for several decades following 1802, there was no naturalization statute that conferred jus anguinis citizenship on children of citizens born oversees? Numerous scholars pointed out that since we followed jus soli and the common law rule, such children of citizens were born aliens. Congress eventually listened expressly acknowledging that we followed the common law rule and amendment our naturalization laws to provide for such citizenship.
Per “Defining Dicta”;
“A holding consists of those propositions along the chosen decisional path
or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”
And;
“[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.”
Did the MvH court put the A2 as a necessary proposition for dismissing the political voting rights demanded by Virginia Minor under the 14th?
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”
“But, in our opinion, it did not need this amendment to give them that position.”
With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.
@ballantine, the honesty problem is yours alone. You claim Gray was trying to show the court was not committed to excluding foreign subjects by citing a case that wasn’t about foreign subjects. This means he would be trying to rely on a non sequitur because Minor didn’t involve a foreign subject. And you’re inserting a “not” where none was used. Gray didn’t say the court was not committed, he said the court WAS committed and that this was manifest (which means clear) from a UNANIMOUS decision. For the court to NOT be committed, it would have to result from a split decision. Minor was NOT split. It was unanimous in excluding children born of citizen parents from the citizen clause of the 14th amendment. Context is key. Read it. Learn it. Understand it.
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”
“But, in our opinion, it did not need this amendment to give them that position.”
With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.”
But the discussion of citizenship does not lead to the judgement. The answer to the question presented was citizenship was irrelevant to the right to vote. Why would it need to determine citizenship if it was irrelevant? Why did the Missouri Supreme Court not even mention Minor’s citizenship when addressing the same question? It was not necessary and it was not raised.
But let’s step back, let’s assume that Minor can be read as holding that Minor was a “natural born citizen.” There is no argument at all that anything the court said about children of aliens would clearly be dicta as there is no argument that the status of such persons was relevant to the decision as Waite clearly stated. Thus, at most, Minor can be cited for the proposition native born children of citizens are natural born. It cannot be cited for the proposition that children of aliens are not natural born since it doesn’t say that, and even if it did, it clearly would be dicta. Such is the biggest problem with Donofrio’s claim. He wants to cite the case for the proposition that children of aliens are excluded and there is no way Minor can be cited as precedent for that.
“@ballantine, the honesty problem is yours alone. You claim Gray was trying to show the court was not committed to excluding foreign subjects by citing a case that wasn’t about foreign subjects.”
Because that is what Gray said in unambiguos terms. The case was not about children of foreign subjects but the quote contained a clear statement that there was disagreement about children of aliens, i.e., foreign subjects, that the court would not address and hence was not committed to. This really isn’t that hard. It is plain English that you refuse to accept. Dishonest.
And you’re inserting a “not” where none was used. Gray didn’t say the court was not committed, he said the court WAS committed and that this was manifest (which means clear) from a UNANIMOUS decision.”
More dishonesty. It said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed ..”
Saying neither Miller nor the rest of the court were committed in English means the same thing as they were not committed. Is English your first language?
“For the court to NOT be committed, it would have to result from a split decision. Minor was NOT split.”
No, when discussing the status of children of aliens, the court did not take a view. Whether iof not they were split on this point, the court did not committ to a view on the subject. You r argument is with Gray not me. He makes unambiguously clear why he is citing Minor. How well it supports his point is another question. However, English is English and there is no dispute as to what Gray says.
“It was unanimous in excluding children born of citizen parents from the citizen clause of the 14th amendment.”
Again, just making sutff up and repeating it over and over is not going to impress anyone. It never says “children born of citizen parents” are excluded from the 14th and saying so is dishonest. It says she was a citizen from birth and hence didn’t need the 14th Amendment to be a citizen. She was born before the Amendment. There is nothing that remotely says such persons are excluded from the 14th. What possible interpretation of “subject to the jurisdiction” would exclude her?
“The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption.”
She had it long before its adoption. Someone what was a citizen in 1865 didn’t need the Amendment to become a citizen.
ballantine, I’m a layman and can only state what appears to be true rather than in the light you understand. But, the court is presented with someone who has asked in the context of the 14th to be afforded certain political liberties. So, the court examined exactly what they might be…as a citizen without necessity of the 14th. The court’s view of suffrage and US citizenship is wonderfully fascinating.
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”
A great quote which follows, “We might, perhaps, decide the case upon other grounds, but this question is fairly made.”
Ballentine, you have been fair to me the whole way along. I hope you will see the my “anchor baby” post for what it was.
All of A is in group C
All of B is in group C
All of A is not in group C
Snoti picked birther, racists, and bigots, as his A,B, and C. And asked if I get it. I did not think the labels we choose were material, mainly because Snoti labels, if looked into, could never be proven to be “All”. I assumed it was a questiong of logic and reasoning.
The terms I picked were immaterial to “getting” the equation. But now I think “getting it” ment I am supposed to accept gratuitous slams of a group I am in no position to defend.
I still believe I followed Snoti’s example perfectly, if it was a logic example. Tough to tell with him.
Don’t pencil in a victory for President Obama in New Hampshire’s Democratic primary just yet. Today, the incumbent president must withstand a legal challenge that again questions his eligibility to seek the country’s highest office.
At 2 p.m. in Room 307 of the legislative office building, the state’s Ballot Law Commission is set to hear a complaint filed by Orly Taitz, a California lawyer who has continued to question the validity of Obama’s birth certificate and Social Security number since his 2008 election.
Backing her complaint, Taitz said, are four Republican members of the New Hampshire House: Harry Accornero of Laconia, Larry Rappaport of Colebrook, and Lucien and Carol Vita of Middleton.
“There’s sufficient controversy that I want it investigated,” Rappaport, a Ron Paul supporter, said yesterday. “Every time this is brought up . . . we get a lot of flak, but we’ve never gotten an answer.”
http://www.concordmonitor.com/article/293101/birther-challenges-obama?CSAuthResp=1321630857%3Akq4p5cjvnc9ejtf440la3tlec7%3ACSUserId|CSGroupId%3Aapproved%3A63A0FF2A7EA6D910AD49343EF7D1C822&CSUserId=94&CSGroupId=1
@ballantine, you wrote: “Because that is what Gray said in unambiguos terms” Sorry, but this is you being delusional. What he said in unambiguous terms is that the court WAS committed to the view that children born in the country or citizens (Minor case) and foreign subjects (Elk) were EXCLUDED from the citizen clause of the 14th amendment. There’s NOTHING here that says the court was NOT excluded. It said the Miller didn’t understand these other exclusions two years earlier when he wrote Slaughterhouse, but it doesn’t change the rest of the sentence that says the court was committed to the view that these other individuals were EXCLUDED. Read it instead of making up silly nonsense.
“Ballentine, you have been fair to me the whole way along. I hope you will see the my “anchor baby” post for what it was.”
I see. I wasn’t following very closely. I think the issue of anchor babies will come before the court eventully and represents a very interesting case for the Conservative jurists who claim fidelity to strict constrution or original intent and there is really little in the text or legislative history that support excluding them. It will obviously be a 14th Amendment case but might touch on the NBC clause. Far more likely to get such a case than an eligiblity case.
Technically WKA addresses the anchor baby issue by requiring the parents to have permanent residence and domicil, which would require the parents to be in the country legally. If the parents are subject to deportation or expulsion, the children would be too. Under this doctrine, as expressed in Diaz-Salazar vs. INS, Obama, for example, would have been sent back to Kenya with his deadbeat dad. The only thing that prevented this was that Obama’s mama divorced Barak Sr. before he was told to return to Kenya. Had they not had a sham marriage and had she been a loyal and faithful wife, Obama would have gone back to Kenya too.
ballantine, I would have to agree that Justice Gray understood that their was a distinction between “born a citizen” and “natural-born citizen”. In his citation of Binney the evidence is clear;
“Mr. Binney in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: ‘The common-law principle of allegiance was the law of all the states at the time of the Revolution and at the adoption of the constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned namely, foreign-born children of citizens, under statutes to be presently referred to, such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the states before the constitution, or, since that time, by virtue of an act of the congress of the United States.’ Page 20. ‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ Page 22, note. This paper, without Mr. Binney’s name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204.”
Semantically, if Binney were to have believed that those born of aliens were in actuality “natural born” he would have never said, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
Mr. Binney made the distinction and thus so did Justice Gray. In fact, that is the fundamental reason the 14th, without reference to A2, can be construed as such in the WKA decision.
“Sorry, but this is you being delusional. What he said in unambiguous terms is that the court WAS committed to the view that children born in the country or citizens (Minor case) and foreign subjects (Elk) were EXCLUDED from the citizen clause of the 14th amendment.”
Good grief. You don’t understand saying “neither was committed” means they were not committed. Are you serious? It says neither Miller nor the court was understood to be committed from the view that “all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th. Not committed that children of foreign subject were excluded. Do you really not understand that sentence? It says nothing about children born in the country of citizens. Nothing. It doesn’t matter if that was what Minor was about, Gray was interested in the court not taking a position on children of aliens. That was the sole purpose of the quote.
And Elk did not say children of foreign subjects were excluded and obviously Gray did not think that since such would include Wong Kim Ark. Gray on Elk:
“The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”
Did you not read that he said Elk “had no tendency to deny citizenship to children born in the United States of foreign parents…” Gray himself wrote the Elk decision. How can you possible say it excluded childern of foreign subjects when Gray says it “had no tendency to deny citizenship to children born in the United States of foreign parents?”
“Semantically, if Binney were to have believed that those born of aliens were in actuality “natural born” he would have never said, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
Mr. Binney made the distinction and thus so did Justice Gray. In fact, that is the fundamental reason the 14th, without reference to A2, can be construed as such in the WKA decision.”
You are reading that into his citation. How can there be a distinction if they both are citizens by operation of the same principle which both Gray and Binney say is the English common law. Binney wrote this before the 14th Amendment said we adopted the common law and that a natural born citizden was one born “within the limits and under the jurisdiction” of the sovereign. Neither Binney nor Gray say they are different types of citizens, you are inferring that since he didn’t call children of aliens natural born. Not calling someone natural born doesn’t mean they are not natural born. Gray cites Coke in the same sentence and makes clear the whole paragraph is reciting the English common law rule. Binney says the same thing. There simply is no other type of citizen under such common law other than natural born. There is only one principle and it is that of Coke cited in the same sentence. I suggest you focus on clearer,unambiguous citations like:
“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. 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.”
“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.”
“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.”
“Technically WKA addresses the anchor baby issue by requiring the parents to have permanent residence and domicil, which would require the parents to be in the country legally.”
You just keep making stuff up. It never says one needs permanent residence and domicil but cites Coke to say:
“His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
He says:
“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,..”
Includes, not limited tom children of resident aliens. The English rule had no such limitation and such suggested was rejected in the 14th Amendment debates the only time it was brought up..
balantine, I would beg to differ…if it were otherwise the sentence should properly read, “The child of an alien, if born in the country, is as much a natural born child as that of one born of a citizen, and by operation of the same principle.’
Would you not agree.
“balantine, I would beg to differ…if it were otherwise the sentence should properly read, “The child of an alien, if born in the country, is as much a natural born child as that of one born of a citizen, and by operation of the same principle.”
That might be clearer. Still doesn’t mean he is saying they are different. Calling someone a citizen does not mean they are not natural born citizens. Again, there is no dispute that Binney was talking aobut the common law and saying they were both citizens by operation of the same principle under the common law. How can they be different if their citizenship comes from the same principle and there is only one type of citizenshp by birth under the common law. Are you saying that a paper on the English common law defined “”natural born” different than the English common law.
That should have been “All of A is not in group B”
Ballentine, I think this illustrates an obsession equivalent to the birthers. There are more than five distinct terms in the minor quote. Snoti pretends there are only three but will not reveal how he concludes that. His students must not be required to show their work.
Getting hung up on defining the terms individually before making the equation, that shows the relationship of the terms, is his mental block.
Too bad. At least Otay Scribble will help him with spell check, if that keeps him from lying again. Assuming it was unintentional.
Binney seems pretty adamant about jus soli citizenship and reinforces the narrow “citizenship by birth” (i.e right of citizenship) argument without mention of the citizenship of the parents. Pure jus soli, which of course is attractive to a court defining “born” subject to the jurisdiction. Gray’s use of Binney removes the complication of whether those so identified are eligible for the presidency due a parsing of the amendment’s measure of “incident of birth”.
“The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute.”
Komfy,
If you’re such the expert that you know how I got it wrong, then there is an easy solution–do it the right way yourself and explain why you are right. I’m not going to show my work for you (or anyone–unless I want to) and good faith would require making a formal objection to a formal argument (that being the point–to identify where and how we disagree). To start with, you say there are 5 lights*… er… 5 logical objects in the quote from Squeeky that I addressed. What are they? Also, why was I wrong in saying that “citizen” referred to the class “natural born citizen” in the greater context of the quote? (hint: did the term apply to Virginia Minor?)
Look, if you want to fight on my playing field, feel free–but you’ve got to play by the rules or reveal yourself to be nothing but the birther troll I’m guessing most people reading this see you as. I hope you try… it will be amusing for everyone and you might even learn something–a win-win!
* THERE. ARE. FOUR. LIGHTS.
Komfy and his birther chorus:
By the way, you have been grossly misusing the term “equation”–here’s a tip, if you don’t see one of these: “=” (or some other symbol for a type of congruence), then it probably isn’t an “equation”. Just sayin’…
“Are you saying that a paper on the English common law defined “”natural born” different than the English common law.”
ballantine, are you throwing semantic wrenches at me? Ha! I’m not certain I can answer succinctly…I think the answer is complicated. First, ECL had understanding that natural born subject-hood was held as distinct classes depending of the parents’ relationship to the crown. All natural born, but different. Second, the history of understanding of natural born changed significantly between 1600 and 1800 in merry ole England. I have been convinced for some time that when one quotes ECL, it is required to put some framework on the reference so as to differentiate with a terms use at another time. Same words, slightly different meanings.
Biiney entire paper was that we adopted the English common law. Why wouldn’t that mean that “natural born citizen” means the same think as “natural born subject” which Binney actually says in his paper. Binney says there are two types of citizens:
“The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.”
So before the 14th Amendment was adopted Binney said there were two type of citizens under the English common law that we adopted, those born born within the limits and under the jurisdiction of the United States and naturalized citizens. Only two types and by birth and natualization are not the same principle.
He makes clear the “within the limits and under the jurisdiction” language is referring to natural born citizens:
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).
“First, ECL had understanding that natural born subject-hood was held as distinct classes depending of the parents’ relationship to the crown. All natural born, but different. Second, the history of understanding of natural born changed significantly between 1600 and 1800 in merry ole England. I have been convinced for some time that when one quotes ECL, it is required to put some framework on the reference so as to differentiate with a terms use at another time.”
No there was only one type of natural born subject at common law. Later status deviated from the common law and conferred such status on certain foreign born persons but they were not treated as common law natural born subjects. They didn’t have all the rights and didn’t owe the same allegiance. There were only two types of subjects at common law and Binney tells us there were only two types of citizens prior to the 14th Amendment, only one of which was by birth.
I’d like to take us a bit afield for a moment if you don’t mind. For clarity (presuming you don’t quickly figure it out ) let me start by saying that I am a birther and I am not a lawyer.
In reading through (most of) this thread, three things strike me. 1.) ‘natural born citizen’ is not defined beyond the limited definition found in Mv.H and 2.) that persuasive arguments can be made on both sides and that 3.) a SCOTUS decision would likely depend more on the makeup of the panel (politics) rather than the validity of the arguments. Scary.
It seems clear to me that constitutional authors were concerned about foreign influence on the administration as evidenced by Jay’s letter to Washington and other writings of the time. My question is, “Are we less concerned about foreign influence on the administration today than we were in 1787?” My answer is a resounding “NO!”
There is some evidence, though hardly conclusive, that our POTUS is a closet Muslim. I don’t know one way or the other but his parentage, his early life and some of his actions as POTUS make that a distinct possibility. By reading the ‘natural born citizen’ clause to mean simply Jus Soli, did we make a mistake? Could we make a similar, and possibly much worse, decision in the future without proper guidelines preventing it?
Frankly, I think that the U.S.of A. is headed down the tubes because we don’t figure into End Times prophecy so this may all be moot anyway but I just don’t understand anti-birthers who seem intent on bringing down this great country by weakening the Constitution in this way? Does that make sense or am I being blinded by my constitutionally conservative bent?
OK, rant mode off. Y’all are now free to continue where you left off.
ballantine, you obviously didn’t need a history lesson. I would think that some of your understanding is why the entire matter has become convoluted by the court and by folks like me. Very little understood clarity exists for those born subjects-citizens, common law and the natural born. Binney, in my understanding, recognizes both…both are born subject-citizens. I think there is no error in his writing or the understanding that comes from reading. The English history of subject-hood has muddied the conversation. Maybe not ours, but in general.
MvH was explicit in its detail of what constituted A2 natural born. The WKA court used an incredible sum of nuance and inference to create the plausibility for the singular application of jus soli born citizenship. Which I am not critical of out of hand.
It’s worth mentioning that in a battle of who knows the law, I’m not much of a challenge.
“MvH was explicit in its detail of what constituted A2 natural born.”
Why would you say that? The court says we should look to the common law of the founders which of course means Blackstone. It divides the world into two classes just like Blackstone. Yet it then fails to state Blackstone’s rule only identiying one class and refusing to tell us how the rule applies to the other class. Considering the issue of citizenship was never raised, briefed or argued, I guess it isn’t that surprising that the paragraph contradicts itself. Either the term is defined by the common law or not and there is no dispute what the common law rule is if in fact the court actually looked at the issue.
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 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
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 parents who were its citizens”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
These were (C), or (D), as distinguished from (E) or (F).
Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.
If your purpose is to obfuscate, you would naturally ignore the possibility of being wrong. If your purpose is in good faith, you do not go about insulting those who debate against your argument, and if you do want to insult because it is your nature of who you are, at least you would do it consistently. This very thread is evident of that. Here we have the owner of this thread, who has disagreed with many, yet no name calling is fired his way. Go figure.
Prsmithsr said; “1) ‘natural born citizen’ is not defined beyond the limited definition found in Mv.H and 2.) that persuasive arguments can be made on both sides and that 3.) a SCOTUS decision would likely depend more on the makeup of the panel (politics) rather than the validity of the arguments. Scary.”
Answer:
1) MvH is not a definition. It simply said the equivalent of “it was never doubted that if you wore both suspenders and a belt your pants would stay up.”
Then it said that some authorities went further and argued that just a belt would do. Then it said that it did not have to decide.
Obviously that is not a decision, and the use of pants+belt, while perhaps ideal, is not required. In short, MvH did not give a definition.
2) Persuasive arguments cannot be made because A. Neither the US Constitution nor any of the writings of AMERICANS (Swiss writers do not count) say that two citizen parents are required; B. The Wong Kim Ark ruling says that every child born in the USA (other than the children of foreign diplomats) is Natural Born.
3) A SCOTUS Decision would be unanimously or nearly unanimously against the two-parent theory with all or nearly all of the conservatives likely to vote with the liberals because if they are strict-constructionists they will vote on the basis that “if the Constitution does not say it, the Constitution doe not mean it” (and the Constitution does not say it, nor does any of the writings of Americans at the time). If they are originalists, they will do their research and find that the meaning of Natural Born Citizen in America (not Switizerland) at the time referred to the common law and meant citizenship due to PLACE (not parents, which is a continental European idea and not one that was in use in America or Britain).
The liberals, of course, would all vote against the two-parent theory. Some would make strict-constructionist arguments, others would make originalist arguments. Some would make the point that the American leaders who had written: “We hold these truths to be self-evident, that all men are created equal” would be highly unlikely to consider that the US-born children of foreigners were likely to be less reliable than the US-born children of US citizens WITHOUT TELLING US ABOUT IT.
“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 parents who were its citizens”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
These were (C), or (D), as distinguished from (E) or (F).
Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.”
In other words, thanks for following consistency and completeness.
Mrjr101, I really don’t get how he misses this. I am starting to think it is intentional.
Komfort,
Even Barry Bonds strikes out with bases loaded.
“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 parents who were its citizens”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
These were (C), or (D), as distinguished from (E) or (F).
Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.”
I don’t get your point. How does this impact whether children of aliens are natural born other than by pointing out the court declined to address the issue? Waite only distinguishes natural born citizens form aliens, not any other type of citizen. This is what Blackstone said as everyone was either natural born or alien born. Waite said some thought children of aliens were citizens and didn’t say they were tight or wrong. Saying he was saying they were some type of citizen other than “natural born” is making stuff up. He never says that. There was only one type of citizen at common law.
No one has answered why the court said we should define “natural born” by the common law which means the common law of Blackstone but then doesn’t state the common law rule of Blackstone. Can anyone cite a single authority in history who said there were doubts about whether children of aliens were natural born under the common law? No. Doesn’t seem to exist. Did Justice Waite find such a person we cannot find and not tell us who he was and what doubts he had? Did Justice Waite just not research the issue since citizenship was not contested, briefed or argued and the status of children of aliens was not before the court? Engaging in this type of speculation is useless. When dealing with precedent, the Court does not make us speculate. Simply stated, nothing in Minor can be construed to indicate that children of aliens are not natural born. It simply doesn’t say that. It says it didn’t address the issue but we all know what the Court would have found if it did look at the common law. There never has been any dispute about the common law rule.
Komfy,
Just admit that you don’t understand formal logic–then you can stop embarrassing yourself…
A bigot is someone who is prejudiced against another person or group.
A racist is someone who is prejudiced against people of a particular race.
All birthers are people who are prejudiced against President Obama
No birther can say “shibboleth”
Non-birthers can say “shibboleth”
All birthers are bigots due to their prejudice.
You can’t say “shibboleth”, ergo you are a birther and thus a bigot.
QED
Bdaman,
I wish Orly all the publicity she can whore herself out for–the more public her FAIL is, the better for President Obama…
Komfy,
I don’t have time to address your idea of a formal argument (which is slipshod and half-assed at best) right now, but I will later. However, I would note that: you didn’t address the quote that Squeeky gave (which I addressed at your request) and that you did nothing more than make a few definitions and parrot the quote you chose using those definitions. In other words, you added absolutely nothing of value in your “analysis”.
I don’t care if you address it. Your work cannot be trusted.
Ballentine. Group G can only be part of group B after any doubts are resolved. Do you agree?
“Ballentine. Group G can only be part of group B after any doubts are resolved. Do you agree?”
No, first he has to tell us who had doubts and what the doubts are. You can look all day and will not find any legal authorities saying their are doubts under the common law. Waite’s statements make no sense. It simply looks like a Justice speaking about something that was not argued, briefed or researched which he tells us he will not examine. It means nothing unless he explained why he thinks someone thinks the common law means something everyone else said it didn’t.
But you don’t have to speculate as Wong Kim Ark cited a zillion authorities on the common law none of which had any doubt. I really find it hard to believe that a court saying “natural born” must be defined by the English common law, a court that repeated over and over that someone of WKA’s status was natural born under such common law, that such definition of natural born subject prevailed under the Constitution, that natural born citizen in the Consitution “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,” that “natural boirn subject” meant the same thing as “natural born citizen” leaves any doubt to anybody. Why do people keep citing an option that expressly declined to address the status of children of aliens under the common law when a later decision spend 20 pages discussing the status of children of aliens under the common law?
Slarti:
I am not a birther but I am against Obama’s policies.
S = all birthers
P = people against Obama
Sr = all birthers who are racist
Pr = people against Obama who are racist
Cs = Herman Cain supporters
Sr is a subset of S
P includes the sets S, Cs, Sr and Pr
for your statement to be true no S could be Cs. Since most S are probably republicans, the chances that no Cs are contained in S is highly unlikely.
I think your brush is too wide.
I am picking the exact quote WKA picked.
Based off the quote, and excluding anything not in the quote. Is G in any group other than B after the doubts are resolved?
It’s sad to see all of this mixed with politics, racism, prejudice, instead of mere if A then B. It’s repulsive actually.
Bron,
I’ll address my choice of brush size when I get to Komfy’s laughable pseudo-logic (why do people who don’t understand something think that they can bullshit those that do? I’ve seen it many times grading Calc exams…) By the way, do you think my “work is no longer trusted”?
Komfy,
I think you’ll find, in my response, that the record is not your friend here… Just something for you to ponder as you breathlessly await my response.
mrjr101,
Personally, I find birthers to be a bunch of repulsive, dishonest seditionists and I think I have the right to voice that opinion.
Your opinions are interesting, Ellen, but I don’t find them either credible or convincing as is proved by the length of this blog thread but more importantly, you failed to answer my question, Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?
On a related note, here’s something else that bothers me. . .Why can’t a naturalized citizen be our POTUS? If we’re going to accept an anchor baby that could have close ties to Iran, China, Saudia Arabia, Botswana or the South Pole, wouldn’t a citizen who has consciously chosen to give up foreign citizenship (old rules) and swear allegiance to America be just as ‘qualified’? Which reminds me. . .What idiot decided that dual citizenships was a good idea? (yes, I know is was the SCOTUS – doesn’t change the function of the question.)
“I am picking the exact quote WKA picked.”
WKA only picked that quote to demonstrate that Minor was not committed to a view on children of aliens. They punted on the issue and hence is not authority. Why not look at the multitude of citations from the WKA court that addresses the status of children of aliens under the common law making clear there was no doubt rather than focusing on a quote that says nothing on the issue other than it is not adressing the issue?
“Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?”
Your issue is with the framers. The only thing they discussed was limiting the foreign born from being eligible which was the English rule. No one suggested anything else. Here is the father of our Constitution on the issue from the Convention:
“There was a possible danger, he admitted, that men with foreign predilections might obtain appointments; but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native country, our own people would prefer natives of this country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors, but among the elected, and among natives having full confidence of the people, not among strangers, who would be regarded with a jealous eye.”
Snoti, I would only hold my breath if we met, to avoid your stench. Otherwise I am waiting on nothing else you may say.
Komfort is never friends with a bully
Snoti is a bully
Only a true friend can tell a person something they do not want to hear.
I conclude that you will need to seek out one of your friends to resolve your trust issue, as I do not fit the formulation.
Ballentine, since they picked it to show the lack of commitment, that the court in Minor had, to the view of children of aliens, shouldn’t we see what they did not commit to?
Did they not commit that G would be part of B, or did they not commit that G would be part of A.
To discover truths is the task of all sciences; it falls to logic to discern the laws of truth. … I assign to logic the task of discovering the laws of truth, not of assertion or thought.” – Gottlob Frege (1848-1925)
Of course our issue is with the framers – otherwise we wouldn’t be going through this exercise. The framers notwithstanding, however, my question related to today – not yesterday. Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday? I know that I am and I fail to understand why y’all aren’t. Does Barry really mean all that much to y’all?.
“Ballentine, since they picked it to show the lack of commitment, that the court in Minor had, to the view of children of aliens, shouldn’t we see what they did not commit to?
Did they not commit that G would be part of B, or did they not commit that G would be part of A.”
I think you have it wrong. Look, Justice Miller essentially said Wong Kim Ark would not be a citizen under the 14th Amendment. Obviously this is contrary to Gray’s holding. Accordingly, Gray tells us why we should not listen to Justice Miller. He says his statement is dicta and to show the he and his court were not committed to such dicta by showing the same court in Minor did not take a position on the subject. Gray is not saying he agrees there are doubts. He is saying another court had doubts. Gray decision cites authority after authority on the common law which unambiguously state that children of aliens are included. Why are you focus on another court which said it would not address the issue having doubts where nothing in gray’s opinion said there were doubts. He said natural born was to be defined by the English common law, left no doubt what the English common law meant and told us the definition of natural born subject prevailed under our Constitution. Why don’t you focus on this quote:
“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.”
What does that mean? How about tis quote:
“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 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.”
How many times did Gray tell us WKA would be a natural born subject before telling us natural born citizen meant the same thing?
prsmithsr asked: “Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?”
The simple answer is that we did set a limit, the Natural Born Citizen requirement excludes two categories of foreign and foreign-related people from becoming president.
It excludes non-citizens (you have to be a US citizen to be a Natural Born Citizen), and it excludes naturalized citizens.
Perhaps it should not exclude naturalized citizens. There have been many attempts over the decades to amend this requirement. In the 1950s, I recall, the backers of an amendment used the argument that Irving Berlin, the writer of God Bless America, would not be eligible—which is true, and sad, but the fact is that that is the way that the Constitution reads now. It can be amended, but that is the way that it reads now.
A more complete answer is that all requirements are arbitrary. The eligibility requirement excludes foreigners and naturalized citizens and persons under the age of 35, but it does not exclude US criminals. They are eligible. Why are they eligible? Well, why not?—we are supposed to have a choice in the election. The same thing on the US-born child of a foreigner. Why are they eligible? Because it is up to the voters to decide whether or not they consider such a person to be a security risk.
Moreover, the extent of the writers’ concern about foreign influence is limited. Sure, there is some concern—but how much?
Consider this. To be eligible, a person must be at least 35 and have spent at least 14 years residing in the USA. If they were really concerned about foreign influence, they could have said that only someone who had spent ALL of her or his life in the USA was eligible. Or they could have said 75% of her or his life in the USA before the election. But the 14-year requirement allows someone who is 65 at the time of the election to have spent 51 years or about 78% of their life outside of the USA, under foreign influence. Does that seem like very much concern to you?
prsmithsr also asked: “Why can’t a naturalized citizen be our POTUS? If we’re going to accept an anchor baby that could have close ties to Iran, China, Saudia Arabia, Botswana or the South Pole, wouldn’t a citizen who has consciously chosen to give up foreign citizenship (old rules) and swear allegiance to America be just as ‘qualified’? “
The answer is that that is the meaning of Natural Born. It excludes naturalized citizens. Should it? Probably not, and that is why there has been so many efforts to change it, but it does. Our system allows people to try to change the Constitution through amendments. Some people want to make naturalized citizens eligible. Other want to make anchor babies NOT eligible. If either of these passes, it would become the law, but neither has passed.
Re: “What idiot decided that dual citizenships was a good idea?
Answer. You have something against Thomas Jefferson and James Madison?? BOTH of them were actually dual citizens when they were president (both were made full voting citizens of France by the French National Assembly)—-as opposed to Obama, who was once a dual citizen, but that lapsed many years ago.
However, a fuller answer is that the meaning of the phrase Natural Born Citizen does not exclude dual citizens. If you would like it to do so, you can push for an amendment to the Constitution to that effect, but it doesn’t.
Re: “Your opinions are interesting, Ellen, but I don’t find them either credible or convincing…”
Answer: I am not attempting to convince you. I write for anyone with an open mind who may be reading. The fact is that there are NO articles or letters at the time of the writing of the Constitution that said that the US-born children of foreigners should be considered too risky to trust with the presidency.
There being no such evidence, we can assume that the writers of the Constitution held ‘’these truths to be self-evident, that all men are created equal”—at least as far as the equality of US-born children of foreigners and US-born children of US citizens are concerned.
IF you personally feel that the US-born children of foreigners are likely to be more of a security risk than the US-born children of US citizens, you can push for an amendment.
I am sure Snoti is working on letters to correspond to Miller’s and Gray’s quotes. But for the quote at hand, what group does G fit in after the doubts are resolved?
The Donofrio Challenge: Proving Obama’s Ineligibility Based On Supreme Court Precedents
http://jeffersonsrebels.blogspot.com/2011/11/donofrio-challenge-proving-obamas.html
“Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday?”
That is an interesting question. My interest here comes from a serious paper I have written on the anchor baby question which I need to finish blue booking one day. My research shows that the same arguments concerning immigration have been going on from the beginning of the republic. In the 1790s there were people who wanted unlimited immigration and nativists who worried about foreigners not assimilating and would create a multi-cultural society. The same arguments as today. The debates about the Chinese sounded exactly like the debates on muslims today as many thought non-christians asians would never assimilate. I think the difference may be we don’t have the open territory we used to have and we have a terrorism issue that didn’t exist back then so it probably is a more heated issue today.
“But for the quote at hand, what group does G fit in after the doubts are resolved?”
If Waite had looked at the rule “at common law” he would have found that (b), (c) and (d) all meant the same thing as everyone was either natural born or alien born. (G) would be in the same class as well. From Blackstone:
“The first and most obvious division of the people is into aliens and natural-born subjects.”
Or one could look to Cockburn as cited by Justice Gray as cited by Justice Gray:
“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”
Or Justice Gray’s own words:
“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..The same rule … continued to prevail under the Constitution as originally established.”
@ballantine, it doesn’t say “neither was committed.” It says neither “understood” … two years earlier. It’s not about them NOT being committed. If they weren’t committed, they wouldn’t have voted UNANIMOUSLY in Minor.
What Gray wrote about having “no tendency to deny citizenship” to children of foreign parents is Gray fudging over his earlier decision which did exactly that. I’ve already explained this when he tried to claim and “alien nation” is different than a “foreign state.” Second, Gray ignores his OWN words saying that subject means COMPLETELY subject. He’s nuancing himself over his own previous decision. He knows his position was weak, which is why he spent so much time compiling common-law citations and emphasizing the importance of domicil.
Ballantine answered this question:
““Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday?”
And it was a good answer.
But prsmithsr was really asking whether or not we today consider that the US-born children of foreigners are more likely to be security risks than the US-born children of US citizens than was the case at the time that the Constitution was written.
The answer to that is most likely no, we do not.
We think that children born in American and raised in America are highly likely to be good US citizens. The writers of the US Constitution probably did too, but we do more. We have the actual evidence that the US-born children of foreigners usually turn out to be good citizens and not security risks.
There are three excellent examples on the US Supreme Court: Justices Alito and Scalia and Chief Justice Roberts–whose mother’s maiden name was Podrasky.
“@ballantine, it doesn’t say “neither was committed.” It says neither “understood” … two years earlier. It’s not about them NOT being committed. If they weren’t committed, they wouldn’t have voted UNANIMOUSLY in Minor.”
You simply cannot deny what Gray says in plain English. He says no one on the Slaughterhous court “understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th amendment. No one was committed that children of aliens were excluded becuase the same court refused to take a positition on children of aliens in Minor 2 years later. Really, I think a child could understand that. You are intent to keep saying up is down and black is white. doesn’t change the plain English. The Minor court was committed on children of citizens, they were not committed on children of aliens. Hence the unanimous statement on children of citizens and the failure to make a committed statement on children of aliens.
“What Gray wrote about having “no tendency to deny citizenship” to children of foreign parents is Gray fudging over his earlier decision which did exactly that.”
No, you are claiming Elk says something it does not. Gray equates children of indians with aliens born in a foreign country. Gray knew what he wrote. You are misrepresenting it.
“Second, Gray ignores his OWN words saying that subject means COMPLETELY subject.”
And why would children of aliens not be “completely subject.” Who ever said they were not. Such line comes from Congress when it was being pointed out that we didn’t competely control the territory these indians lived on.
“He knows his position was weak, which is why he spent so much time compiling common-law citations and emphasizing the importance of domicil.”
Sorry but you saying his position is weak means nothing. There is nothing inconsistent between his Elk decision and WKA if you actually read the cases. And he never emphasized the importance of domicile. He said the 14th Amendment included children of resident aliens, the situation of WKA before the court. He never said it was necessary and cited multiple authorities saying it was not. For example from Cockburn:
“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country..”
@ballantine, I’m not denying what Gray said in plain English. I’m explaining it to you because you don’t understand it and you’re inventing ridiculous nonsense that was never said. You’ve inserted a NOT that is NOT there. You’ve ignored the rest of the context. It doesn’t matter what the justices understood or didn’t understand in Slaughterhouse because they were unanimously COMMITTED in the Minor decision that NBCs are EXCLUDED from the citizen clause of the 14th amendment. This is historical fact. Gray is not denying that. That’s what a unanimous decision expresses … commitment. Slaughterhouse, which was NOT unanimous is NOT a commitment. Nevertheless, Gray still accepted part of the finding in Slaugherhouse. The only thing he took exception to was the equivalence of consuls with ministers.
The citation of English common law was ONLY used by Gray to strengthen the 14th amendment. It’s not used to supercede Minor’s definition of NBC. Second, that common law as applied in our country allowed persons born on U.S. soil to be British subjects. Under WKA’s definition, Obama is STILL a British subject and NOT a U.S. citizen, neither as an NBC NOR as a 14th amendment citizen.
Slarti:
“why do people who don’t understand something think that they can bullshit those that do?”
3 reasons in my mind:
1. they dont know what they dont know and dont really have a mastery of a subject themselves to understand the time and effort it takes to develop said level of knowledge.
2. they “know” a lot which isnt so.
3. they are just fucking with you.
To Everybody Who Is Interested:
Apparently, Leo Donofrio is getting out of the two citizen-parent Birther stuff. That is MY take on it. The Kitchen Got Too Hot??? I did a Internet Article on it:
http://birtherthinktank.wordpress.com/2011/11/18/the-paraclete-gives-up-the-ghost/
Peace be unto you, Leo!
Squeeky Fromm
Girl Reporter
According to Jazz’s link, your BFF can still talk to him about it.
This is becoming comical. You really think “neither was committed” means “they were committed?” Some people just can’t admit they are wrong. I keep quoting what Gray actually says and you can’t deal with it. He says he is citing Minor solely to show no one on the Slaughterhouse court was committed to the view that children of foreign subjects were excluded under the 14th amendment. No ambiguity. That is what he said and saying otherwise is lying.
And all the citations to the common law were before the court even addressed th 14th amendment. The court spend the first 22 pages addressing the law of citizenship prior to the amendment stating natural born citizen must be defined by the English common law, telling us what such common law rule was, telling us such common law definition of “natural born” prevailed under our constitution and and that natural born citizen was defined by place of birth and meant the same thing as natural born subject. Have you ever read these parts of the decision? For my edification, can you please explain why Justice Curtis’ and Swayne’s quotations were included relating to natural born citizenship?. How do they support your position? They obviously do not and were not talking about the 14tg amendment.
Komfort:
My BFF Fabia Sheen, Esq., a lawyer, can’t stand this stuff. She says it is all stupid. I have to twist her arm most of the time to even get her to read this stuff. Plus, she would have to give her REAL name and bar information. That is not safe for women to do stuff like that, which is also why I use a nom de plume. (nickname).
For all practical intents and purposes, The Paraclete ain’t gonna git many takers from the Vattle Birther side. Plus, he will lose his wahoo non-lawyer audience. OH, I can just hear the wailing and gnashing of teeth from Danae and her pack if they can’t post comments there.
I am just proud to have played my part in exorcising him. I wonder which Internet Article of mine drove him out??? “The Missing Link” one, or the “Alternate Reality Universe” one??? “The Case of the Sleeping Case???” Maybe it was “What Part of Doubts Don’t You Understand???” I am betting the “Alternate Reality” one.
I do feel sorry for whatever herd of pigs his spirit has inhabited. Poor things will probably turn stupid, and forget how to eat and then starve to death. I hope the Demon leaves them and returns to him soon before that happens. PETA, too.
Squeeky Fromm
Girl Reporter
Ok Squeeky, got it. Gotta have some skills to sense a ghost. It sucks you’re gonna have to bust through a third party .
@ ballantine. The only thing that is comical is how you keep writing something that wasn’t said: Here’s what you wrote:
“This is becoming comical. You really think “neither was committed” means “they were committed?””
The sentence doesn’t say “neither was committed.” This is you paraphrasing and doing so poorly. Here’s what the sentence actually says:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed …”
It’s time for YOU to be intellectually honest. It says neither justice understood the court to be committed. It does NOT say “neither was committed.” Do you understand??? “The court to be committed” is a positive expression, not a negative expression, and this is further borne out (pun intended) in context because Minor was a UNANIMOUS decision. The court was completely committed in Minor because they voted unanimously in Minor.
I admire a good imagination, but in this case, it doesn’t serve you well. That you don’t understand what these decisions say is manifest from your commitment to writing misinterpretations over and over.
It would be quite educational to see a lawyer go head to head with him, don’t you think?
I wonder who will bite on his invitation.
That is not safe for women to do stuff like that, which is also why I use a nom de plume. (nickname).
To do what stuff? To give out her name? Why would she be afraid? Just wondering…
mrjr101:
That is no problem for me. Of course it helps that my REAL nickname REALLY is Squeeky, which is what I have been called since I was a little girl like 3 or 4 years old because of my voice. I was also called “The Mouse” because of that.
Sooo, in one way, I am clobbering Leo Donofrio WITH LOGIC in the first person.
Squeeky Fromm
Girl Reporter
slcraignbc,
So you are just going keep saying you are right over and over without citing any authority to back you up. I pointed out that the Supreme Court stated that our naturalization statutes didn’t change the fact that we followed jus soli birthright citizenship. That the Supreme Court and Congress said people born on US cannot be naturalized. That the Supreme Court said both before and after 1866, native born children of aliens were native born citizens.
So, let’s be clear, you are either saying that the Courts write Law or that the Congress does not have plenary power over naturalization…right…?
I say that because the Laws regarding Citizenship are clear, insofar as concerned immigrants pre 14th,
If the Courts choose not to follow the acts of the Congress, as Judge Gray did in WKA, which led to the Chinese Exclusion Act, the Congress often writs Laws to counter some legal or technical conclusion that the Courts arrive at, just as the 14th was written to overcome the CORRECT decision in Scott v Sandford after the conclusion of the Civil War.
Scott v. Sandford () 100 U.S. 1
It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
By birthright or otherwise, (read naturalized)….because the Congress had no right to establish any other means of acquiring Citizenship.
Birthright was/is a benefit of Citizenship no matter where in the world a Citizen may give birth to a child.
But NO alien foreign national is entitled to Citizenship by any other means than the naturalization process which may includes the making immediate family members also with proper application.
Until you can show me the STATUTORY LAW that provided jus soli prior to the 14th I will continue to cling to the Constitutional Rule of Law as it existed as exists.
The very FACT that the WKA case was necessary argues against your position, notwithstanding the FACTS which Judge Gray ignored which would have led him to a contrary opinion.
Komfort:
I think The Paraclete would have trouble with even a non-lawyer. I mean, all you have to do to bust him out is be able to read and comprehend English. Just little old me, at The Birther Think Tank, has manged to send him scurrying for cover. Where I bet his bottom is sooo sore he still can’t sit down.
mrjr101: Fabia and me both are careful about what we put on line. This stuff is political and some of the Vattle Birthers are like these Sovereign Citizen people. We can take care of ourselves, but plus we like our nicknames. I had to think of Fabia’s for her because she first wanted to be Josie Cottonmouth, because she hates men, but I had to explain to her most people did not know about her favorite song:
Squeeky Fromm
Girl Reporter
“It would be quite educational to see a lawyer go head to head with him, don’t you think?
I wonder who will bite on his invitation.”
Have any lawyers commented on his blog in the past? If they havn’t, why should they now? Do they think it’s all a joke?
There is a famous line from Forrest Gump that says, “Stupid is as stupid does.”
If BFF thinks this birther stuff is all stupid, and Squeeky ask BFF for help on birther stuff, and BFF goes on to research on it anyway, then who is following stupidity, Squeeky or BFF?
mrjr101:
You asked:“It would be quite educational to see a lawyer go head to head with him, don’t you think?
Not really. Leo just wants to do it on his own turf where he can control the dialogue, and what gets thru. Leo had a chance here to debate lawyers, and he bit off part of tongue he said “Peace be with you” sooo fast.
This is typical control freak stuff. Leo Donofrio is scairt of having to back his silliness up. I think he wants off this merry-go-round because he realizes how badly he is messing up his professional reputation. He is trying to salvage it by chasing the Vattle Birther idiots off his website.
After a respectable time has passed, I would not be surprised to see him come out and say he is either a deep-cover Obot who has been punkin’ Birthers to see how crazy they would get, or that this was a just performance art.
Who knows but maybe it is even true. I
Squeeky Fromm
Girl Reporter
Squeeky, before Donofrio was slammed off of this thread, I noticed the author politely engaged him, resulting in the author rewriting his initial post from a comment of Leo. It also seems the author agreed that Lockwood did cite Minor in a meaningful manner. This too as a result of open discussion with Donofrio.
I wonder how far he would get in a non-vulgar setting?
I decided to stick around after Nal determimed that WKA did not define who shall be a natural born citizen. Look how I have been treated for Nal’s preliminary analysis. Think of what could have been accomplished.
Shall we revive the exchange for the sake of saving this thread? I would like to stick around for a final answer on WKA/Minor dicta.
Komfort and mrjr101:
I don’t think the argument would have gotten far if Donofrio had hung around.
As far as the dicta-nondicta argument, it is interesting, but not conclusiive on this stuff. If you will look above, and elsewhere I have never thought the Minor stuff was just dicta. Instead, I have said that it is not precedent for determining NBC. See, for example, my “Precedent Evil – The MHV Virus Spreads Beyond Squirrel City!!!”
http://birtherthinktank.wordpress.com/2011/10/28/precedent-evil-the-mhv-virus-spreads-beyond-squirrel-city/
In that I note again that the Ankeny court said about Minor v. Happersett:
Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
I have mentioned that here on this thread several times, and none of Leo’s Defenders have addressed that. Note that the Ankeny Court did NOT say the language was dicta, they just read it and understood that the Minor Court left the issue open.
As Fabia Sheen, Esq. also points out repeatedly to the thick-headed Mr. Birther in the video way above about Making Swiss Cheese of Vattel.
On the dicta stuff, I have talked Fabia into reading the Internet Article I linked above after we get through moving some stuff this weekend. Plus, I am reading it too. So far, I am working on an “elements” approach to it. But I had to stop to write about Donofrio throwing in the towel.
Squeeky Fromm
Girl Reporter
The dicta/non-dicta stuff is of no importance.
It would appear true that the Ankeny Court did correctly point out that the Minor Court did indeed leave open the issue of children of alien parents being natural born citizens. Since their language was specific to children of alien parents being citizens, I guess we could say they left out a lot of things.
They left out gun rights. They left out anything to do with excessive bail. They seemed to leave a whole bunch of thing open as a result of not discussing them. They also left out anything that says “citizens are synonymous with “natural born citizens”.
I looked at a pdf of Akeney, squeeky. Why do they reference Article 2, section 1, clause 4?
Komfort:
I do not have a copy of the Ankeny Complaint, but I bet it has something to do with the suit being about the Electors for Indiana. Probably, the Vattle Birthers incorrectly or typo-ly cited the qualifications clause when talking about the Electors Clause, and the Court corrected it.
Remember, there was more than one issue in the suit.
Squeeky Fromm
Girl Reporter
Squeeky
You said:
In that I note again that the Ankeny court said about Minor v. Happersett:
Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
I have mentioned that here on this thread several times, and none of Leo’s Defenders have addressed that. Note that the Ankeny Court did NOT say the language was dicta, they just read it and understood that the Minor Court left the issue open.”
I do not want to start another lap over this, but did you read Komfort’s logic post regarding the infamous minor quote of the open question?
If the Ankeny Court followed the context within Minor (forget about WKA) the would have found that the doubts were to include G as B not G as A.
You don’t have a copy of your Holy Grail? That does seem odd.
…of course unless they didn’t forget about WKA when citing Minor preestablishing that B, C, D meant the same thing.
That is exceptional mrjr101.
Komfort:
Was the Holy Grail comment to me??? If so, what are you talking about???
Squeeky Fromm
Girl Reporter
I ment no ill by using “Holy Grail”, squeeky. It was probably the wrong choice of words. I apologize.
You have been so consistent with Ankeny I was taken back that you would not have a copy.
On reread I do see that you said you don’t have the “complaint”. Article 2, section 1, clause 4 is mentioned in the opinion.
I think there are valid points about dicta within Minor, such as the court not touching on the class with doubts and not saying why there are doubts. However, Justice Gray cites Minor on this very issue to develop his argument about the class with doubts, making a whole lot of “dicta soup”.
But as to the natives/NBC class within Minor, including the definition and undoubted inclusion as Citizens pre-14th ammendment, dicta is not so clear cut.
Since Leo has disappeared from this thread, I searched his blog to see what he would have said about Akeny:
June 21, 2011
http://naturalborncitizen.wordpress.com/2011/06/21/us-supreme-court-precedent-states-that-obama-is-not-eligible-to-be-president/
ANKENY V. GOVERNOR OF THE STATE OF INDIANA
The Minor case has been severely misconstrued in the Ankeny opinion issued by the Indiana Court of Appeals. That court quoted Minor’s natural-born citizen language, then stated:
“Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”
False. The Minor Court did not leave that question open. Nowhere in the Minor opinion does it state that the class of persons who are natural-born citizens is an open question. The Ankeny Court has it backwards.
The Supreme Court in Minor stated that the “citizenship” of persons who were not natural born citizens was an open question.
That is the most important sentence I’ve ever written at this blog. So please read it again.
The “citizenship” of those born to non-citizen parents was a question that the Minor Court avoided. But they avoided that question by directly construing Article 2 Section 1. In doing so, the Supreme Court in Minor defined the class of persons who were born in the US to citizen parents as “natural-born citizens”.
Since Minor, no Amendment has been adopted which changes that definition, and no other Supreme Court case has directly construed Article 2 Section 1.
The Supreme Court in Wong Kim Ark only construed the question of who was a “citizen” under the 14th Amendment, it did not construe Article 2 Section 1. Therefore, Minor and Wong Kim Ark do not compete with each other at all. Minor is the standing precedent for construction of the natural-born citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing precedent as to “citizenship” under the 14th Amendment.
Komfort:
I have been trying to find a copy of the Ankeny Complaint, and the Plaintiff’s Briefs. (The “Plaintiffs” are the Vattle Birthers.) Footnote 9 may be a typo by the Court, too. Who knows? But that is a minor point, and I want the Briefs to see how the Plaintiffs filed the thing.
Squeeky Fromm
Girl Reporter
Jazz,
The issue with this is that when you disagree with an opinion of a case, be ready to deflect the arrows that are coming your way regardless of the validity of the courts opinion.
But we all know that this is not a mere disagreement. Everyone here knows that Ankeny court misconstrued Minor big time because the open question is clear as day.
Footnote 9 is a disaster. I agree it is some sort of typo, but when the court is correcting the plaintiffs, you would think they would check a little better.
Jazz, good luck.
I think it was Komfort who mentioned that the concern as to whether the MvH’s court opinion of NbC is dicta is moot.
Is that the consensus of posters on Nal’s blog article?
I for one am curious as to what lawyers and laymen think of the dicta question, especially with regard to Squeeky’s “Defining Dicta” reference.
Most are jumping to whether WKA is definitive as to re-scoping NbC without consideration if it were “scoped” in the first place with MvH.
Portney, would you please rephrase your 1st sentence. It does not read quite right, but I think I am hip to what you are saying.
Thanks.
Wow Footnote 9. I hadn’t notice. And Footnote 12…you can catch the Court’s train of thought, it has an invisible big “Soo” in red over it.
mrjr101:
“You said: But we all know that this is not a mere disagreement. Everyone here knows that Ankeny court misconstrued Minor big time because the open question is clear as day.”
That is precisely why I wrote that Alternate Reality Universe Internet Article. If Minor was as “clear as day” that it took two citizen parents to be a natural born citizen, how come the whole rest of the universe missed it???
http://birtherthinktank.wordpress.com/2011/11/12/the-alternate-reality-universe-of-leo-donofrio-a-white-paper/
This is kind of how you check your interpretation of stuff. If the rest of the civilized universe reads it a whole another way, then you are probably wrong. At the very least, it isn’t “clear as day.”
Squeeky Fromm
Girl Reporter
I would like to point out that the Michael Abramowicz and Maxwell Stearns paper was listed in the reference section of the original post.
Ankeny erred and contradicted itself. It says in one spot that Minor leaves open a question about the children of aliens and elsewhere it says that Minor contemplated scenarios where both parents are aliens. You can’ t leave open a question that was contemplated. And it’s simply wrong anyway. Minor said “These are the natives, or the natural-born citizens, as distinguished from aliens or foreigners.” This is an either/or proposition. Some authorities go farther in defining citizens, Minor says, but with doubts. That’s where the distinction comes in. If you don’t meet the definition of natural born citizen, then your natural condition is that of an alien or foreigner. Any claim to citizenship is dependent on interpretations of statutes or Constitutional clauses, etc. Thus, natural-born means “without doubt.” Obama’s citizenship must be construed per satisfying 14th amendment or statutory citizenship clauses and is therefore “with doubt,” thus he cannot be a natural-born citizen. Even under a common-law interpreation, he is a British subject, not a U.S. citizen.
Squeeky,
You said: “That is precisely why I wrote that Alternate Reality Universe Internet Article. If Minor was as “clear as day” that it took two citizen parents to be a natural born citizen, how come the whole rest of the universe missed it???”
that’s not what I said Squeeky. I said what was clear as day is the “Open Question”, that is to include as citizens those in the class with doubts.
WKA IMHO is a poor argument for defining NbC and should be left alone. The only ones that hold that it defines A2 are the commenters on this blog, the court never stated that their interpretation of 14th “born” was even remotely referential to A2…not even implied. This association is a later affectation by those beholden to selling a weak inference to those even less aware of the law than myself.
MvH, on the other hand, was explicit in its reference and understanding.
If “perhaps” supersedes “doubtless”, well, I will never figure it out.
Nal:
Sorry, I didn’t read that. That is where the “tags” are in a lot of posts so I just sort of skipped over it.
Mea culpa.
Squeeky Fromm
Girl Reporter
Squeeky,
Dont you think I deserve an apology as well for misconstruing what I said?
Nal, sorry I didn’t give credit where it was due. No slight meant. Did you have any reason to believe your article would be a bug lamp for those unhinged regarding NbC? Lord knows I’m a little off.
Portney:
You said: the WKA court never stated that their interpretation of 14th “born” was even remotely referential to A2…not even implied.
OH, I guess Wong Kim Ark was the Green Party Presidential Candidate. Have you ever actually read theWHOLE case???
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. . .
Squeeky Fromm
Girl Reporter
@Portney. WKA cites and affirms Minor’s definition of NBC. If you read it closely, it very clearly says that persons who are citizens under the 14th cannot be natural-born citizens.
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision.”
The “provision” is the birth clause of the 14th amendment. The 14th amendment = “The Constitution.” IOW, when Waite construed the birth clause of the 14th amendment, he said the 14th amendment does NOT say who shall be natural-born citizens. Resort must be had elsewhere. This means that the definition of NBC is found OUTSIDE of the 14th amendment and completely outside of the Constitution or U.S. law.
Gray says Waite proceeded to resort to the common law as an aid in the construction of “this provision.” Again, the “provision” is the birth clause of the 14th amendment. This does NOT say Gray used the common law to define NBC, only to define the birth provision of the 14th amendment, HOWEVER, this isn’t even true. I’ve challenged Obots on this point. Find any citation in the Minor decision that references common law. In WKA, Gray cites Blackstone and Calvin’s Case and Lord Coke, etc., but Minor cites none of this. The definition of NBC, which Waite says is “At common-law” is in fact a match of Vattel’s definition of NBC from Law of Nations. It is nearly verbatim to the point Waite could be sued for plagiarism, as well as Gray who cites and affirms the same definition in WKA.
Gray goes on to cite the holding of the Minor decision:
“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, …”
Obot brains explode on this because they can’t explain why Gray said anything about a woman “born of citizen parents” without admitting he was affirming Minor’s definition of NBC. If the common-law or 14th amendment applied, there’s no reason for Gray to acknolwedge the parents citizenship, but he did because the Minor decision was UNANIMOUS and Gray could not deny the NBC definition in sound law or good conscience.
squinty, what you quote doesn’t say ANYTHING about A2. Second, it says “citizenship by birth” NOT natural-born citizenship. It says this is affirmed by the 14th amendment while elsewhere in the decision, it says the 14th amendment does NOT say who shall be NBCs. These are different terms with different sources that define the terms. Reading is fundamental. You, OTOH, may only be mental.
ksdb,
Justice Waite never construed the 14th A. This is an erroneus assertion. He explicitely said a couple of times in his opinion he did not need to.
Donofrio is going to address other Bar admitted attorneys. He won’t be addressing paid shills and others with no real accreditation – OR Ethical requirement to honestly portray the law, whose mission in life is to obfuscate the law and lie about it… i.e. Squeaky Fromm.
That means, if you don’t have a law license Squeaky et al, you don’t exist enough to him to even recognize. That’s what I got out of his post. More power to him. Only other lawyers and legitimate students of the Law can really have a true discourse. The rest are fluff who THINK they know more than they really do. I am betting it was rather liberating.
in fact, given how poor Jonathan’s blog has been hijacked by so many after-birthers and other insulting little minded fools… I will follow Leo’s lead.
To simplify this for ya Squeeky, you are too stupid to pay any more attention to. Have a great evening, an peace be with you.
REPOSTED:
Per “Defining Dicta”;
“A holding consists of those propositions along the chosen decisional path
or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”
And;
“[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.”
Did the MvH court put the A2 as a necessary proposition for dismissing the political voting rights demanded by Virginia Minor under the 14th?
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”
“But, in our opinion, it did not need this amendment to give them that position.”
With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.
“The “provision” is the birth clause of the 14th amendment. The 14th amendment = “The Constitution.” IOW, when Waite construed the birth clause of the 14th amendment, he said the 14th amendment does NOT say who shall be natural-born citizens. Resort must be had elsewhere. This means that the definition of NBC is found OUTSIDE of the 14th amendment and completely outside of the Constitution or U.S. law.”
ksdb, I agree and consider the court’s opinion “as clear as an unmuddied lake of deepest summer” in comparison to that of WKA. Gray’s court admittedly did its level best to justify jus soli birthright for aliens of a particular nature, but in no way encroached on Waite’s holding.
For those that believe WKA is a NbC definition, I would appreciate a citation by Gray stating such was his purpose. So far, I am unconvinced it was intent to even remotely imply such.
Justice Gray has ample opportunity during the summation of the opinion to clearly reference A2 as pertinent and instead remained solely in the scope of the 14th;
“The fact, therefore, that acts of congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’”
(snip)
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”
WKA and MvH;
“In construing any act of legislation, whether a statute enacted by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same lawmaking power, of which the act in question is an amendment, but also to the condition and to the history of the law as previously existing, and in the light of which the new act must be read and interpreted.
The constitution of the United States, as originally adopted, uses the words ‘citizen of the United States’ and ‘natural-born citizen of the United States.’ By the original constitution, every representative in congress is required to have been ‘seven years a citizen of the United States,’ and every senator to have been ‘nine years a citizen of the United States’; and ‘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.’ Article 2, § 1. The fourteenth article of amendment, besides declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ also declares that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ And the fifteenth article of amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’
The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born r naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U. S. 417, 422, 5 Sup. Ct. 935; Boyd v. U. S., 116 U. S. 616, 624, 625, 6 Sup. Ct. 524; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564. The language of the constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Comm. 336; Bradley, J., in Moore v. U. S., 91 U. S. 270, 274.
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
It’s important to note that in the last paragraph that MvH was not reflecting on the 14th in any capacity but rather solely on A2. I think that is cause for the confusion that has arisen. Justice Gray also looked to the common law but specifically in reference to the 14th.
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
Actually, as I reread the WKA citation it is notable that justice Gray may be in error as to what Waite stipulated.
“And he proceeded to resort to the common law as an aid in the construction of this provision.”
The sentence appears to state that MvH passed judgement as to the meaning of the 14th, which was provably not the case. I wonder of which provision he speaks of?
Need a lawyer! 911! Help!
Portney,
You don’t need a lawyer,
Justice Waite never, not probably, never construed the 14th A. So, yes, Gray was in error in that statement.
.
WKA NbC: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of his birth a citizen of the United States.
MvH NbC: 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.
Who honestly believes the framers of A2 considered the premise of WKA the driving consideration for natural born citizenship?
Danae:
You said: I will follow Leo’s lead.
Oh, I just bet you will! You are sooo lucky! You will never have to think for yourself ever again. Just be careful if he buys you a new pair of sneakers and tells you about the Mother Ship. :;
Squeeky Fromm
Girl Reporter
@mrjr101, No, Waite DID construe the citizen provision of the 14th amendment, because the argument put forth by Minor was based on being a citizen per this provision.
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”
Waite rejected the argument because Minor was an NBC. It’s why he went outside the Constitution to define NBC.
“… in our opinion, it did not need this amendment to give them that position.”
“The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. ”
It should have been simple to accept Minor’s argument if the court thought jus soli was all that was needed to be a citizen, but in order to reject the suffrage argument as a privilege and immunitiy created along with citizenship in the 14th amendment, Waite had to show that women, as a class, had always been citizens, which is true, by virtue of the natural law of natural-born citizenship. The privileges and immunities that went along with citizenship since the founding of the country did not include a right to vote for women, nor was such a right created by the 14th amendment.All the 14th amendment did was create a new type of birth citizenship for persons weren’t inherently recognized as citizens,as long as they were subject to the jurisdiction, which Gray satisfied with a domicil requirement.
@portney: You wrote: “WKA NbC: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of his birth a citizen of the United States.”
That’s not NbC. Gray only referred to NBC from A2 and from Minor, the latter being the last time he referenced the term at all in his decision. From the Minor definition forward, Gray uses a different term, “citizenship by birth” which is based on what he calls a fundamental rule, but this term is exclusively defined by the 14th amendment, at least up until the immigration and nationality acts of the 20th century.
Here are some of references to CBB, not NbC in WKA:
“the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory”
“with our own established rule of citizenship by birth in this country”
“citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution”
“The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.”
“The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.”
Notice how nearly every reference is tied to the 14th amendment. Not one time did Gray use the term NBC in place of CBB. NBC is defined outside the Constitution, and CBB is defined BY the Constitution. Two separate, discreet, distinct and differently defined terms.
ksdb, thanks for the clarification of what Gray was stating in reference to MvH. What you stated make sense to this laymen. Of course you could probably cluck like a chicken and occasionally throw in “ratio decidendi” and I’d nod knowingly.
Y’know, in comparing the jus soli citizenship of MvH and WKA, the latter has no less than four caveats while the former has only one. WKA born citizenship reads like common statute and doesn’t even approach a condition premised on natural law.
Well, given that no one found the inspiration to rebut the points made from the Scott v Sandford citation above I’ll just move on and expose the problem with the premise of this topic, “dicta or precedent”, and say that it really doesn’t matter.
As A. Jackcon said when facing a decision against him by the Court, “Let them enforce it”
And there is the crux of the status of NBC in spite of the fact that the “intent” of Article II Section I Clause V is clear, i.e., being an “prerequisite imperative requirement exclusionary provision” in Statutory Form the is no extension of the law providing for its enforcement.
That is the legal loop-hole that has brought these two camps together in dispute.
It is this circumstance which exposes the weakness of “dicta and precedents” given that the only means of enforcing either position is to return to the Court’s for redress.
I have, in my feeble ways attempted to be acknowledged as an American natural born Citizen by various Guv’mnt Departments and Courts.
If it were that “any person” born on the soil is an NBC then why will not the Guv’mnt acknowledge this person as such…?
The DHS/USCIS determined that I was a “native born U.S. Citizen”.
Why the necessity to modify the term of words if they are truly synonymous…?
If I, born of two citizen parents, am not but a “native born U.S. Citizen” then how can a person born of an alien foreign national British Colonial subject and a minor U.S. Citizen be considered what I am not…?
The “adjudicative fact” that arises from my failures in the Courts is clear;
“There is no acknowledged legal Constitutional definition of the idiom of natural born Citizen and no laws have been promulgated to enforce the Article II Section I Clause V “prerequisite imperative requirement of the exclusionary provision” of being a natural born Citizen”
So, “dicta and precedent” in this instance are paper tigers sans legislation designed to enforce them.
“@slcraignbc. Well, given that no one found the inspiration to rebut the points made from the Scott v Sandford citation above I’ll just move on and expose the problem with the premise of this topic, “dicta or precedent”, and say that it really doesn’t matter.”
Don’t understand what point you are trying to make. The the majority and both dissents said native born persons could not be naturalized. Native born persons have never been made citizens by statute. If you can’t accept that, I can’t help you.
@portney: You wrote: “WKA NbC: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of his birth a citizen of the United States.”
Nonsense. Gray says natural born citizen means the same as natural born subject and cites authority saying so:
“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 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.”
Gray of course defined “natual born subject over and over. For example, Dicey:
“Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Gray never says domicle is required. That was the facts before the court. Domiciled aliens were included. Domicile was not necessary. Dicey states the common law rule. This is the same common law rule that Justice Waite was obviouly talking about as well but we know Waite didn’t examine the rule with respect to children of aliens.
Ksdb,
At are we know everything you say is wrong. So, you are still insisting “neither was committed” doesn mean they were not committed and you simply refuse to believe Gray’s own words on why he cited MInor. Some would call that lying.
“That’s not NbC. Gray only referred to NBC from A2 and from Minor, the latter being the last time he referenced the term at all in his decision. From the Minor definition forward, Gray uses a different term, “citizenship by birth” which is based on what he calls a fundamental rule, but this term is exclusively defined by the 14th amendment, at least up until the immigration and nationality acts of the 20th century.”
No, as I have pointed our over and over, he said natural born citizen was to be defined by the English common law, that the definition of natural born subject prevailed under our original Constitution, that “natural born citizen”:
“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”
and of course an express statement that natural born citizen and natural born subject meant the same thing after defining natural born subject over and over.
“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 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.”
“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.”
“Subject and citizen are, in a degree, convertible terms as applied to natives,..”
Plain english that Ankeny and any real lawyer could not mistake. The court, of course, goes on to say the 14th Amendment was declaratory of pre-existing law and hence was also defined by the English common law definition of natural born subject.
Nal, above Ballentine has posted the same quote twice. Is that quote part of the holding or is it dicta? If it is holding does it specifically define natural born citizen for the purposes of A2?
…Ballantine…
Snoti, I can’t lie to you. I really did want to see your redemptive post.
@ksdb
“@mrjr101, No, Waite DID construe the citizen provision of the 14th amendment, because the argument put forth by Minor was based on being a citizen per this provision.
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”
Waite rejected the argument because Minor was an NBC. It’s why he went outside the Constitution to define NBC.
“… in our opinion, it did not need this amendment to give them that position.”
“The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. ”
The quotes that you used is proof that the court did not construe the 14A. The first quote is what the plaintiff argued and the other quotes tells you exactly that the 14th A was not needed to define Minors citizenship.
kdsb:
Are you just moronic or something??? Here is the dumb thing you said:
“Waite rejected the argument because Minor was an NBC. It’s why he went outside the Constitution to define NBC.
“… in our opinion, it did not need this amendment to give them that position.”
“The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. ”
What frigging part of common law birthright citizenship getting expressy enshrined in the Constitution thru the 14th Amendment do you NOT get????
Virginia Minor was born BEFORE the 14th Amendment was passed. She didn’t need the 14th to give her citizenship. She was born here and was thus a natural born citizen.
Take your stupid theory that the 14th amendment does not apply to people born here of two citizen parents and find one place where that nonsense is expressly stated in any court holding or law review article or anything. PROVE your theory. There are plenty of cases dealing with privileges and immunities, sooo find one of them where the court says, “As is well known, the 14th Amendment does not apply to people born in the U.S. of two citizen parents.”
Look at the 14th Amendment. It says ALL PERSONS. It doesn’t say:
“SOME PERSONS born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Some aren’t.”
Since this is a LEGAL website, I probably should NOT call you a IDIOT, sooo let’s just say you are NON COMPOS MENTIS.
Squeeky Fromm
Girl Reporter
No it is not part of the holding but the rationale for the holding or the ratio decidendi. That is my view. The question asked was whether someone WKA’s status was a citizesn under the 14th Amendment. The holding simply stated he was a citizen. Such is the holding. How did the court there. It says (1) natural born citizen in the original Constitution is defined by the common law, (2) it defines the common law and says natural born subject and citizen mean the same thing, (3) it says the common law rule was the law in the US prior to 1866 (4) it says the 14th Amendment was simply declaratory of the same common law rule. Under this structure, one cannot get to WKA being a 14th Amentment citizen unless one defined pre-existing law under the original Constitution which is why so much of the decision cites the law before 1866.
Chief Justice Fuller’s summary of Gray’s majority opinion is also very clear in showing the structure of the decision:
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;
and
that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.
Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”
Does anyone think the Chief Justice didn’t understand Gray’s decision after arguing the case in chambers for months? kdsb, please tell us what Fuller gor wrong?
ballantine, please forgive my tongue in cheek banter, it was meant to be funny…and failed. I lifted the supposed “NbC” definition from Gray’s decision. I think it ludicrous that anyone truly believes that the WKA court meant anything other than to define “born” in the context of the 14th and only the 14th. That’s my layman opinion and subject to not very much consideration. I thank you very much, though, for your multiple attempts to give me the benefit of your scholarly understanding. I mean no snark and frankly am grateful for your attention in my comments.
WKA “NbC”: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of their birth a citizen of the United States.
“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”
Ballantine, regarding WKA quoting Minor, is that part of the rationale?
Ballantine,
if I may. Justice Fuller begins by reiterating what the argument is. He then goes on to rebutte that argument.
Squeeky, how come your approach to debate is so much different than mrjr101′s? You both have disagreements with the same person, but your counter seems to be written in the same manner you described Donofrio of having used.
ballantine, I do understand your point of the 14th’s reiteration of what is stated in the original constitution, “contemplates two sources of citizenship, and two only,—birth and naturalization.” I just don’t think the court “reached” to include A2 explicitly in their decision. Some, like myself, think it self evident that “born” citizens can, by evidence of WKA, come in separate classes which has nothing to do with the “source”.
“The fourteenth amendment of the constitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by n abling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
“Ballantine, regarding WKA quoting Minor, is that part of the rationale?”
No, he dissing the dicta in Slaughterhouse which he disagreed with. He was saying we shouldn’t put much weight upon it as the Minor court show it was not committed to such view. Gray is not agreeing with anything said in Minor.
Ballantine,
if I may. Justice Fuller begins by reiterating what the argument is. He then goes on to rebutte that argument.”
He is reiterating the argument made by Gray. Half of his reiteration are direct quotes of Gray and the rest is paraphrased from Gray. His summaryy is exactly what the majority says.
ballantine, you’re obviously a lawyer and if not, pretty damn smart regarding the law. Have you ever considered taking Leo up on his recent challenge? I’m not much of a debater and no doubt you would enjoy a level playing field discussing this matter. I’m tracking that he is interested now in only the thoughts of his fellow lawyer. Perhaps. Just a thought. Lord knows I would learn something witnessing such a contest of perspective.
http://naturalborncitizen.wordpress.com/2011/11/18/in-the-spirit-of-truth/
He did not use the quote to justify there being doubts? I think that has been the contention of many of the posters here.
Komfort:
Squeeky, how come your approach to debate is so much different than mrjr101′s?
Because I enjoy the “universe of ideas” and “stupid, moronic, idiotic, etc.” are perfectly good words which expresses perfectly legitimate critiques of kdsb’s screwy legal theories. I mean c’mon, the 14th Amendment does NOT apply to people born here to two citizen parents??? That is just wacky. I would note that even attorneys get frustrated with the level of stupidity exhibited by the Vattle Birthers. I offer as proof, a statement by Mark Levin, Esq.:
I want you to listen to me on my social sites. Marco Rubio was born in Miami, Florida. He is a natural born United States citizen. And if I get any more of this Birther crap up there. . .this is a warning, and I don’t care who you are, you’re going to be banned. Okay? This is a site I put up for rational people. Marco Rubio was born in Miami, Florida in 1940, excuse me, 1971. He’s 40. There’s no debate. So take that Birther crap somewhere else. Just a warning. . .got it? I’m not into all that crap. You can go somewhere else for that.
Mark Levin
Sept. 28, 2011
I am under no legal obligation to pretend that every kooky legal theory that comes down the pike should be treated as a viable interpretation. But you will notice that I usually address the underlying nonsense with some non-name calling information. For example, above when I called kdsb an idiot, I also provided a re-write of the 14th amendment in light of his interpretation so that he might take succor and see the end result of his theory.
Also, some legal arguments are properly classified as Idiot Legal Arguments. See:
Idiot Legal Arguments: A Casebook for Dealing with Extremist Legal Arguments
By Bernard J. Sussman, JD, MLS, CP
http://www.adl.org/mwd/suss1.asp
I do not understand your comment how I am doing what Donofrio is.
Squeeky Fromm
Girl Reporter
“I just don’t think the court “reached” to include A2 explicitly in their decision. Some, like myself, think it self evident that “born” citizens can, by evidence of WKA, come in separate classes which has nothing to do with the “source”.”
What then would be the basis of pre-1866 law? Obviously the original Constituion. There are 22 pages discussing pre-Amendment law being with the defining of the term “natural born citizen” the obvious basis of pre-Amendment law. Do you just refuse to read when it says NBC should be defined by the common law, that the definition of natural born subject prevailed under the Constiution and the quotes of Justices Swayne and Curtis?
ballantine, I’ve read the decision numerous times and researched many of the aspects cited. Did I understand most of it, hardly. What I am aware of is that our history has aggressively debated what NbC meant, as you may know as early as 1811 the courts could not make up their minds as to whether the founders considered English common law or philosophical natural law as our fount, Webster (1891) wrote regarding two state cases and their variance as to the right to expatriate, “By what processes of reasoning these two opinions so diametrically opposed were reached is to be explained by this: that in the first, the common law was believed to be the guide to the declaration of independence and the constitution of the United States, while in the second the reason is from the principles as laid down by the founders of the government and based on the natural law of man. … The first recognized the English common law as the guide to the American form of government, while the second recognized the government to be founded on the natural law of man.”
I would offer that the debate ended with MvH and that WKA never overruled it. MvH defined NbC and a later court did so with “born”. Same “source” of jus soli, just different caveats with regard to the common law understanding.
I don’t see how Mark Levin justifies your response. It seems to justify Leo’s ban, though.
Ballantine, dissing Slaughterhouse was unimportant?
“What I am aware of is that our history has aggressively debated what NbC meant, as you may know as early as 1811 the courts could not make up their minds as to whether the founders considered English common law or philosophical natural law as our fount,..”
Not true. There was a debate on the role of the common law generally, not over the definition of the multitude of common law terms of art in the Constitution. There was debate about allegiance being perpetual, not about birthright citizenship. No one debated the meaning of natural born citizen. Really, can you name a single person in the early republic saying parentage mattered? You can’t because they don’t exist. Minor didn’t decide the issue. It refused to address the status of children of aliens simply saying someone had doubt about the citizenship of such persons. Didn’t say they were talking about a type of citizenship other than natural born and saying that MInor ways such persons are excluded is simly being dishonest. Waite does tell us natural born should be defined by the common law of Blackstone, he just tells us he didn’t need to examine the status of a certain class under that common law. But we can examine the common law and no one in history has said the common law required citizen parents. It didn’t. It is just silly to contend a court that said NBC is defined by the common law means NBC is defined by a rule that was not the common law. Rather, a case that points to the common law but didn’t examine the common law rule for a class of persons not before the court.
“Ballantine, dissing Slaughterhouse was unimportant?”
Wasn’t necessary as it was clearly dicta. The important point is Gray wasn’t agreeing with Minor, just pointing out that was uncommitted.
But not important enough of a point to be considered rationale?
“Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable. Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the
immunities of the people. We are placed in a still better condition — in a
more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire.”- George Mason 1788
“The common law of England is not the common law of these states”
MvH established precedent for our American common law understanding of NbC. The use of ECL is merely a tool, nothing more, to understanding our own law and in no way binding. The Gray court used ECL to frame what would become ACL for “born” in context of the 14th.
“Komfort1, November 19, 2011 at 12:15 pm
But not important enough of a point to be considered rationale?”
To be part of the rationale Gray would have had to say he agreed with something the Minor court said. He didn’t say that. He was pointed out they were uncommitted.
ballantine, try not to get too upset by my refusal to agree with you. If those that firmly believe WKA clarified where the MvH court failed to rule regarding alien parents (who are also not ambassadors and are, in fact, legally domiciled and etc)…well, the Gray court should have been more frank. Up until someone discovered the gift of clarity given by MvH regarding NbC, many folks insisted the courts had never given a opinion as to the eligibility phrase. Well, they did it turns out. If you are upset, it should be with Justice Gray and his narrow focus on the 14th.
Was his point of their lack of commitment rationale?
“The common law of England is not the common law of these states”
MvH established precedent for our American common law understanding of NbC. The use of ECL is merely a tool, nothing more, to understanding our own law and in no way binding. The Gray court used ECL to frame what would become ACL for “born” in context of the 14th.. 643-44 (1901).”
Waite used the common law to come up with a different definition than the common law? Makes no sense. You just keep ignoring two points. first, Minor didn’t address the status of children of aliens and saying it contains a definitive definition of NBC is simply dishonest. It doesn’t address the status of an entire class. Second, you refuse to acknowledge that WKA clearly defines NBC by the English common law leaving no doubt it meant the same thing as natural born subject. I guess you are just going to refuse to read such sections. And Again, can you find a single person in the early republic that didn’t define natural born by the common law. Can you find one?
With respect to the common law, Mason, along with Henry, in such debates was arguing that we should adopted the English common law in the Constitution the way the states did for we had no common law of our own with adopting the English common law. There is no dispute that the states all adopted the common law. Since, the common law was the law of the land, the Supreme Court looks to it to define the multitude of English term in the Constitution. Both Gray and Waite were on this court:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
Here are some more authorities on the common law if you are interested:
“The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol
“The whole structure of our present jurisprudence stands upon the original foundations of the common law.” Justice Joseph Story, Commentaries on the constitution of the United States, pg 65 (1833)
“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).
“By the common law of England, which is in force in this country, and which may be assumed as also the law of all the European states, persons within the jurisdiction of the government, or limits of the territory, are either natives, or aliens. Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent. As a general principle of the English and American law, all native-born, free persons, of whatever age, sex, and parentage, are citizens.” John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865).
“When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.” Thomas McIntyre Cooley, Victor Hugo Lane, A treatise on the constitutional limitations which rest upon the legislative … pg. 53-54 (1903)
JUSTICE SCALIA: I wouldn’t — I don’t use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase “the right to be confronted with witnesses against him” — what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn’t so for every provision of the Constitution. The one you mentioned — what does sovereignty consist of? — that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that’s why I would use English law — not at all because I think we are still very much aligned legally, socially, philosophically with England. That’s not the reason. Cass Sunstein, A Constitution of many minds: why the founding document doesn’t mean what it meant before, pg. 200-01 (2009)
“It is apparent from all this that the traditional English understanding of executive power, or, to be more precise, royal prerogatives, was fairly well known to the founding generation, since they appear repeatedly in the text of the Constitution in formulations very similar to those found in Blackstone.” Justice Antonin Scalia, Originalism, the Lessor Evil, 57 U. Cin. L. Rev. 849 (1989).
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.”
Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
“Up until someone discovered the gift of clarity given by MvH regarding NbC, many folks insisted the courts had never given a opinion as to the eligibility phrase. Well, they did it turns out. If you are upset, it should be with Justice Gray and his narrow focus on the 14th.”
Gray is clear. You just refuse to read what he ssay. Sorry, but Minor simply does not say children of aliens are not natural born. It expresly declined to tell us their status at all. You are being dishonest.
ballantine, I would like to agree on something with you so bear with me;
Would you not agree that despite what the law was intended to mean, or what we hope it means, it is not truly understood until lawyers and judges give us an opinion?
My understanding from reading the congressional debates of the proposed 14th, it was viewed in a multitude of perspectives and explained differently to the respective constituencies. I personally believed that the majority of lawmakers considered the new amendment wholly reflective in meaning as to what was originally ratified (A2).
Doesn’t matter.
The courts told us what the laws mean, regardless of the legislators’ intent. I don’t agree with the WKA decision, but such is immaterial. It is the law (though I think the current birthright citizenship statutes fail to recognize the caveats stipulated in the Gray decision).
Regardless of what we think, we must look to the opinion. WKA did not affirm or reflect on “born” in such a manner to give the remotest credence that such was the court’s INTENT to understand “natural born citizen” similarly.
Ballantine, indeed it did not say if children of aliens are not natural born. It also did not say if the Easter Bunny was natural born.
It is very clear that the express doubts the court felt were not resolved, and elected to not resolve at that moment, was whether a child of alien parents was a citizen.
You are skipping steps to pretend their language says anything different.
ballantine, I’m not the lettered one and only share what I understand to be true (which isn’t much albeit). It is you that finds concrete truths in nuance and inference that only you can see clearly.
Present me an argument that someone of my limited mind can understand. The law is not algebra that requires numerous suppositions and whatnot. If WKA has meant to define born in context of not only the 14th but that which MvH had ruled, it would have.
It didn’t.
I’d appreciate your not insulting my integrity further, thank you.
“Gray is clear. You just refuse to read what he says.”
No, I’ve read his opinion numerous times. He is clear in his lengthy intent at explanation of why jus soli birthright is compatible with the language of the 14th Amendment. That’s it. No inference can be made IN HIS DECISION that he included answering the MvH “doubts” and as such redefine the A2 term of NbC.
“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.”
Even Snoti B. Lie-yote, Mathfauxtician Extraordinarie, has not made the case otherwise. G is only part of B, after the doubts are resolved. Period.
“Ballantine, indeed it did not say if children of aliens are not natural born. It also did not say if the Easter Bunny was natural born.
It is very clear that the express doubts the court felt were not resolved, and elected to not resolve at that moment, was whether a child of alien parents was a citizen.
You are skipping steps to pretend their language says anything different.”
You are making stuff up. It doesn’t say a type of citizen other than natural born and to say so is being dishonest. Waite only called Minor a citizen, not a natural born citizen the latter obviously one type of the former. And what other type of citizen could they be talking about? This paragraph talked of the common law which only had one type of citizen. You can say Minor says children of citizens are natural born. Saying it say children of aliens are not is lying.
@mrjr101: You said: “The quotes that you used is proof that the court did not construe the 14A. The first quote is what the plaintiff argued and the other quotes tells you exactly that the 14th A was not needed to define Minors citizenship.”
Explain how Waite could determine the 14th amendment was not needed without construing the 14th amendment?? He may have not construed it in depth, but he had to construe to the point of making a determination of whether it applies or not.
“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.” “
No, I’ve read his opinion numerous times. He is clear in his lengthy intent at explanation of why jus soli birthright is compatible with the language of the 14th Amendment. That’s it. No inference can be made IN HIS DECISION that he included answering the MvH “doubts” and as such redefine the A2 term of NbC.
“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.”
Then you have reading problems. Gray clearly state NBC is to be defined by the English common law. Do you deny this? Gray clearly definjes natural born subject. Do you deny this? Gray clearly states the definition of natural born subject prevailed under the original Constitution. Do you deny this? Gray quotes authority clearly stating natural born subject and natural born citizen mean the same thing. Do you deny this? Gray clearly states that the English common loaw was thus the basis of our citizenship law prior to 1866. Do you deny this? Gray clearly states that the 14th Amendment is simply declaratory of the same common law rule. Do you deny this. It really is not that hard if you had not already made your mind up.
Do your eyes glaze over when you read this:
“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 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.”
Same definition. Same law here as in England. Who is “born in the allegiance.” Gray tells us:
“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 subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.”
Nal was going to think about the significance of the use “foregoing” in the language of WKA. This theory was presented by Ballentine. If Nal concludes that by saying “foregoing” you have passed the test of rationale, and the foregoing authorities are now holding, does that change the disposition of the Minor?
Or does it only apply to Rhodes, which was mentioned much earlier than Minor?
‘My understanding from reading the congressional debates of the proposed 14th, it was viewed in a multitude of perspectives and explained differently to the respective constituencies. I personally believed that the majority of lawmakers considered the new amendment wholly reflective in meaning as to what was originally ratified (A2). ”
If you think they intended to adopt anuthing other than the common law, you have not read the debates.
ballantine says without thinking;
Native born persons have never been made citizens by statute. If you can’t accept that, I can’t help you……………………………
TITLE 8 > CHAPTER 12 > SUBCHAPTER III
NATIONALITY AND NATURALIZATION
• Part I—Nationality at Birth and Collective Naturalization (§§ 1401—1409)
§ 1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
Now, you can not have it both ways, either the U.S. Codes are the Statutory Laws of the U.S. or not…………….
This codification of Statutory Law emanating from the interpretation of the 14th Amendment is the ONLY instance of jus soli being the exclusive determining factor affective citizenship, however, the collective naturalization of the American black population having occurred upon the adoption of the Amendment its original purpose has expired.
The ONLY persons benefiting from the Statute as it exists is the ‘naturalization at birth’ of the children of alien foreign nationals who would otherwise have no claim to the benefit of citizenship, i.e., jus sanguinis. Hence the allure of anchor babies, once ‘naturalized at birth’ the connection to immediate family members provide the jus sanguinis attachment that may led to naturalization.
Why you, and many Judges, ignore the law is the true controversy arising from the circumstances that has brought this subject to the awareness of the American public.
Another parting shot, puzzle me this; Why all the convoluting rationalization of “domicile and residence’ in WKA when the Ark parents were, in the 1st instant, subject to the terms of the Burlingame Treaty which provided in its Article VI that the naturalization of any covered person was proscribed…? (Expatriation by a Chinese national, in the same time frame was, was a Corporal and Capital offense which extended to family members)
Komfort:
FYI (which means for your information) Minor v. Happersett was the first case mentioned by WKA, for the purpose of heading toward the common aw for a definition.
Also, you have NOT explained your remark that I was acting like Donofrio, which remark I did not understand.
Re: Mark Levin: I added his quote to show that there is some precedent for calling the Vattle Birther nonsense names like stupid, idiotic, and dumb, etc. He called it “crap.” I am sure he spent some time trying to educate the idiots, and finally he just realized that no matter what he said, the Vattle Birthers were not going to exercise any cerebral function and listen or learn. Sooo, he just called it what it is, CRAP.
Linguistically, it is like when that astronaut punched out the Moon Landing Denier. Or, it is like this, where one person really is a nut, and the other person really is right. The Vattle Birthers are “J.Paul Getty.”
Squeeky Fromm
Girl Reporter
“@slcraignbc. This codification of Statutory Law emanating from the interpretation of the 14th Amendment is the ONLY instance of jus soli being the exclusive determining factor affective citizenship, however, the collective naturalization of the American black population having occurred upon the adoption of the Amendment its original purpose has expired.”
More of you are right and everyone else is wrong. The statute you cite just included the 14th Amendment. The source of their citizenship is the amendment not hte statute., Before the statute we still had the amendment and before the amendment the common law rule. No court has ever said a native born person get their citizenship from a statute or was ever naturalized by birth. No one ever said jus sanguinis was our rule other than as provided by statute for the foreign born. Seems like you have invested your own nationality law that has no basis in history. So tell me, a baby born on US soil to citizen parents in 1835 got its citizenship from where? There was no statute.
Adopted the common law? Ballantine continuously makes the mistake of assuming that the common law of England was adopted as the common law of the United States.
For the readers:
“It is attempted, however, to supply the silence of the Constitution and Statutes of the Union, by resorting to the Common law, for a definition and punishment of the offence which has been committed: But, in my opinion, the United States, as a Federal government, have no common law; and, consequently, no indictment can be maintained in their Courts, for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and, yet, it is impossible to trace when, or how, the system was adopted, or introduced. With respect to the individual States, the difficulty does not occur.”
“The United States must possess the common law themselves, before they can communicate it to their Judicial agents: Now, the United States did not bring it with them from England; the Constitution does not create it; and no act of Congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the States; and of the various modifications, which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut? Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction: but Judges cannot remedy political imperfections, nor supply any Legislative omission.” – Justice Chase, United States v. Worrall, 2 U.S. 384, (1798)
Uh, most states actually adopted statutes saying they adopted the English common law. There were minor difference from state to state. Justice Iradell:
“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
“The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol
“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).
Roadkill:
What you said.
versus
Reality:
Reception statutes in the United States
For example, following the American Revolution in 1776, one of the first legislative acts undertaken by each of the newly independent states was to adopt a “reception statute” that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected English law.[49] Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state’s constitution, and some by court decision. British traditions such as the monarchy were rejected by the U.S. Constitution, but many English common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. Significant elements of English common law prior to 1776 still remain in effect in many jurisdictions in the United States, because they have never been rejected by American courts or legislatures.[50]
For example, the New York Constitution of 1777[51] provides that:
[S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.
Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.”[52] Thus, even when reception was effected by a constitution, the common law was still subject to alteration by a legislature’s statute.
One could note a certain irony: one of the first acts of many of the newly independent states was to adopt the law of the foreign sovereign from whom independence had just been gained. But this is one more demonstration of the point mentioned above (Commercial economies), that the newly independent states recognized the importance of a predictable and established body of law to govern the conduct of citizens and businesses, and therefore adopted the richest available source of law.
http://en.wikipedia.org/wiki/Common_law#Propagation_of_the_common_law_to_the_colonies_and_Commonwealth_by_reception_statutes
Squeeky Fromm
Girl Reporter
ksdb,
I was disputing this statement in which you based your argument:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
No , Justice Waite did not proceed in the construction of the 14tth A. He proceeded in the construction of Citizens before the 14th A because, as the Minor court mentioned, and you also agree with this, that it did not apply to Mrs Minor.
Squeeky, you said Leo exhibited typical control freak stuff. Name calling, as a defense strategy, seems control freakish to me. That is my own opinion, of course.
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”
Take notice that the court did not say that some authorities go further and include as natural-born citizens children born within the jurisdiction without reference to the citizenship of their parents.
The Minor Court made it clear that the natural-born citizens were born citizens. The court also acknowledged that it is possible for those who were not natural-born citizens to be born citizens.
Perhaps an analogy would help?
The sum of tires in this country may be added to by plastic or rubber tires. However, only high-speed rated rubber tires can be supplied as OEM equipment on high-performance vehicles.
Everything in that statement is true. Only rubber tires can be used on high-performance vehicles…just as only native-born citizens can be President of Vice-President. However, just as only a particular class of rubber tires (those that have the high-performance rating) can be used on high-performance vehicles, only a particular class of native-born citizens (those native born citizens whose parents were citizens) can become President or Vice-President. To say that only native-born citizens can become Pres. Or VP is the same as saying that only rubber tires can be used on HP vehicles. –The statement is accurate though incomplete.
All tires are taxed as tires. Rubber tires are as much a tire as the plastic tires for the purpose of taxes…just as a naturalized citizen, a native-born citizen, and a natural-born citizen are equal when it comes to the rights and privileges afforded citizens.
Ballantine,
Why the attempts to obfuscate? No one has said that the various states did not adopt the common law of England. It was said that the Federal Government did not adopt the common law of England. Are you disputing that fact?
So squeeky, you disagree with Ballentine as to Minor being part of the rationale of WKA? It appears you say it is. He says it is not. Although I still do not know if he understands Gray’s action of pointing to the citation is rationale, in and of itself.
Komfort:
You are entitled to your opinion. I disagree. I think when your opponent in a debate says something that is totally stupid, then you jump on the fact that it is totally stupid.
Squeeky Fromm
Girl Reporter
“Take notice that the court did not say that some authorities go further and include as natural-born citizens children born within the jurisdiction without reference to the citizenship of their parents.
The Minor Court made it clear that the natural-born citizens were born citizens. The court also acknowledged that it is possible for those who were not natural-born citizens to be born citizens.”
The court does no say it is possible to be born a citizen and not be natural born. The court does not tell us what type of citizenship they are talking about when it is discussing children of aliens. To say it is saying a type other than natural born citizen is lying. The court said there were two types of citizens, natural born and naturalized under the original Constitution. Callingsomeone a citizen thus means they are either natural born or naturalized. Of course this paragraph is talking about the common law and there is only one type of citizen at common law. Notice Waite only distinguishes natural born citizens from aliens not aliens and some other type of citizen. There were no naturalized citizens at common law. And, like I’ve pointed our over and over, “naturalization” was defined by the courts to not apply to the native born. There really is no other type of citizenship they could be talking about. Regardless, the court doesn’t say they are not talking about natural bornb citizenship and claiming it does is dishonest. Minor really doesn’t help anyone inless you pretend it says things it doesn’t.
What is the common law doctrine of allegiance and alienage?
According to the dictates of natural reason, the natives or indigenes of every country, born of parents who were citizens of that country at the time of their birth, are to be considered as citizens. Society can only be perpetuated by the children of its members, who naturally follow the condition of their parents and succeed to their rights. The interests of society, therefore, demand the establishment of this principle as a concessum; and it may fairly be so considered, unless the contrary be expressly declared by the municipal law. In like manner, the interest of the offspring of a citizen justifies the inference of his tacit consent to become a citizen until he renounces that character.
But though a child be born in the country, yet if both his parents were strangers not designing a permanent change of country, it would be sufficiently obvious, that as he must follow the condition and succeed to the rights of his parents, he would on the principles of natural reason be considered as much a stranger to the country as his father. In such case it would be the place of his birth, indeed, not his country.
Moreover, as the nature of our species, and the received principles of civil society, allow, in matters of this description, the mastery to the male, we may go a step further, and advance, that if the father and mother are of different countries, the child born of them in a country to which they are both strangers will, upon principles of natural reason, belong to the country of the father rather than to that of the mother.
But though a child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born, it does not follow that he is in no respect to be considered as a member of its society while he remains in it. Bound by their own and their parents’ residence, the children of foreigners are subject to the laws while that residence continues, and are obliged to defend it (except against their own country) in return for the protection it has afforded.
“Why the attempts to obfuscate? No one has said that the various states did not adopt the common law of England. It was said that the Federal Government did not adopt the common law of England. Are you disputing that fact?”
Oh, I misunderstood. You are right but the court has always looked to the common law to define terms in the Constitution since it was written by common law lawyers and contained a multitude of terms from the common law. Such is why both Waite and Gray look to the common law. They were both on this Court:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
Ballantine: “The court said there were two types of citizens, natural born and naturalized under the original Constitution. Callingsomeone a citizen thus means they are either natural born or naturalized.”
Please provide us with the quote from the Court that leads you to interpret that or admit that it is not what the Court said.
“What is the common law doctrine of allegiance and alienage?”
Why not look at what the Supreme Court said the common law doctrine of allegiance and alienage was?” First, the English rule:
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
Next, the American rule:
“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 subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.”
Ballantine,
The “common law” of the United States is not the “common law of England”. In order to avoid confusion, it would be appreciated if you make sure to distinguish the two.
“Ballantine: “The court said there were two types of citizens, natural born and naturalized under the original Constitution. Callingsomeone a citizen thus means they are either natural born or naturalized.”
Please provide us with the quote from the Court that leads you to interpret that or admit that it is not what the Court said.”
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.”
The Court says two ways to be a citizen. The “Natural born citizenship clause and the Naturalization clause. Also:
“It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Isn’t that your definition of natural born citizen? Calling someone a citizen doesn’t mean they are not natural born. Means they are either natural born or naturalized.
Ballantine,
If you’re going to quote Justice Story, it would help if you brought his thought on the matter to completion. A full picture of Story’s view cannot be reviewed while leaving out
“Birth within the dominions of a sovereign is not always sufficient to create citizenship, if the party at the time does not derive protection from its sovereign in virtue of his actual possession; and on the other hand, birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign.”
“Ballantine,
The “common law” of the United States is not the “common law of England”. In order to avoid confusion, it would be appreciated if you make sure to distinguish the two.”
Look, I already posted up threat that most states actually said they were adopting the English common law. The Justice Iradell quote points out there were slight difference from state to state and from England due to local precedents and the fact that some English statute were not adopted in some of the states such as 12 & 13 Williams III. Fundamentally it was the same and the court refers to the common law they meant the common law we inherited from England. There are a hundred cases where the court says it must look to the common law and always looked to the common law of England. Hence, WKA says to look to the common law and spends 5 pages looking at the English common law. When Waite looked to the common law in Reynolds v. US, 98 U.S. 145 (1879), he looked to the English common las. There was no other common law of the founders.
“The Court says two ways to be a citizen. The “Natural born citizenship clause and the Naturalization clause.”
Your making a rather large leap based on so little.
Let me ask you this: Do you think the Minor Court based its’ determination of natural-born citizen on the writings of Grotius and Vattel?
“Birth within the dominions of a sovereign is not always sufficient to create citizenship, if the party at the time does not derive protection from its sovereign in virtue of his actual possession; and on the other hand, birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign.”
Yes, he lists the exceptions that are born within the dominions and are not under the protection. It does not include children of aliens.
“Look, I already posted up threat that most states actually said they were adopting the English common law.”
Look, I do give a rat’s ass what the various states adopted to be the laws of those individual states. Those state laws did not become the laws of our national government. The laws of Georgia are not binding upon those in Virginia. They sure as heck aren’t binding on the entire nation.
“Let me ask you this: Do you think the Minor Court based its’ determination of natural-born citizen on the writings of Grotius and Vattel?”
It said the common law of the founders. That means Blackstone. The court tells us it didn’t examine the common law’s application to children of aliens. Someone had doubts about the common law and they determined not a address. The common law of the founders is not the law of nations.
Squeeky, I have pointed out that the quote from Minor does not represent a possibility of G being part of A. It only states that G may be part of B.
I hate looking stupid on this stuff. Will you walk me through the process that would put G into A?
Please do not use members of FantasyLand in your formulation, that is reserved for Snoti’s cheatsheet.
Ballantine: It does not include children of aliens.
“birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign.
Who do you think he was talking about? Who is born within the allegiance of a foreign sovereign that would have an allegiance that would be only temporary in nature?
Ballantine: “It said the common law of the founders. That means Blackstone. The court tells us it didn’t examine the common law’s application to children of aliens. Someone had doubts about the common law and they determined not a address. The common law of the founders is not the law of nations.”
Who are you trying to fool? Not only was the Minor Court basing their opinion on the law of nations, the Eighth Circuit recognized it as being such.
“Every person at his birth is presumptively a citizen or subject of the state of his nativity, and where, as in the case at bar, his parents were then both subjects of that state, the presumption is conclusive. To the land of his birth he owes support and allegiance, and from it he is entitled to the civil and political rights and privileges of a citizen or subject. This relation, imposed by birth, is presumed to continue until a change of nationality is proved. Minor v. Happersett, 21 Wall. 162, 167; Vatt . Law Nat. p. 101; Morse, Nat . 61, 125.” -City of Minneapolis v Reum (1893)
And just what dose it say on page 101 of Vattel’s Law of Nations?
http://books.google.com/books?id=z8b8rrzRc7AC&pg=PA101&img=1&zoom=3&hl=en&sig=ACfU3U2pd9DdFKUMCon-KLiq8iCBSBe_Xw&ci=55%2C987%2C800%2C536&edge=0
“Would you not agree that despite what the law was intended to mean, or what we hope it means, it is not truly understood until lawyers and judges give us an opinion?”
Real judges and real lawyers HAVE given an opinion, repeatedly. It is why judges, professors, and experts all say birth within the United States is sufficient for natural-born citizenship.
But since they provide an answer that those here do not want to hear, they are dismissed as wrong.
I am listening Bob. How does G become part of A?
Komfort,
I hate to be lazy, but I am practicing guitar right now. Can you help me out and define G,A,and B again.
Thank you!!!
Squeeky Fromm
Girl Reporter
From 12:48 yesterday, Squeeky.
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/#comment-291835
If you were actually listening, you would be reading what judges, professors, and other experts have said, and not asking pointless psuedo-logic questions in comment threads.
“birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign.”
Talking about aliens. Talking about chlldren of enemies as the next sentence show. Story lists all the common law exceptions does not list children of aliens.
“Birth within the dominions of a sovereign is not always sufficient to create citizenship if the party at the time does not derive protection foreign sovereign in virtue of his actual possession; and on the other hand
birth within the allegiance of a foreign sovereign does not always constitute allegiance if that allegiance be of a temporary nature within the dominions of another sovereign. Thus, the children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens, but the children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth although they were then under the actual sovereignty and allegiance of an enemy.”
Later states:
“If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens.”
Born on US soil before British occupation made him a citizen regardless of status of his parents. The common law.
“Ballantine: “It said the common law of the founders. That means Blackstone. The court tells us it didn’t examine the common law’s application to children of aliens. Someone had doubts about the common law and they determined not a address. The common law of the founders is not the law of nations.”
Who are you trying to fool? Not only was the Minor Court basing their opinion on the law of nations, the Eighth Circuit recognized it as being such.”
Waite said “at common law” that does not mean law of nations. The 8th Circuit doesn’t said different. Just citing different sources for its point. Find me one case where the court said “at common law” and didn’t mean the Englsih common law. Find one case where the common law of the founders was not the English common law. Waite was on this court. What common law are they talking about?
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes….There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority.” Smith v. Alabama, 124 U. S. 465, 478 (1888).
Waite used the term “at common law” in Reynolds v. US, 98 U.S. 145 (1879), in The Harrisburg, 98 U.S. 145 (1886) and in Munn v. Illinois, 94 U.S. 113 (1876) in clear reference to the English common law. One can look all day and will not find the Court using “at common law” or the common law of the founders to mean anything other than the English common law.
Minor itself has been cited repeated for the proposition that the Constitution be defined by the English common law United States v. Wong Kim Ark, 169 U.S. 649, 654, (1898); South Carolina v. United States, 199 US 437, 450 (1905); Schick v. United States, 195 US 65, 69 (1904); Kansas v. Colorado, 206 US 46, 95 (1907).
Sorry, “common law” does not mean law of nations.
I consider Nal an expert. He said no Supreme court case defined “natural born citizen”. Should team WKA feel the same fury of your words?
Ballantine,
Again you are choosing to selective omit relevant portions.
You quoted “If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens.”
Why didn’t you continue the quote?
“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. If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.
I have no idea who “Nal” is, his qualifications, etc. Nor do I think he said what you ascribed to him.
If Nal (or Turley) care to join this conversation, they know how to.
“If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.”
Duh, that is because that was the date England occupied the city. Read his rule for being born under foreign occupation:
“Thus, the children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest are still aliens, but the children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth although they were then under the actual sovereignty and allegiance of an enemy.”
Thus, if his parents adhered to their native allegiance and were British subjects he was a child of enemies born in a place occupied by the enemy. Right out of Calvin’s Case.
The rule from Coke himself:
“But if enemies should come into any of the King’s dominions, and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King’s ligeance or obedience.”
Here you go Bob:
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/#comment-290474
I only posted the link so you can read his words as he wrote them. I was afraid if I did a cut and paste, you might think I was making up stuff, like Snoti.
komfort:
Ok, here is the scenario:
(a) people born of two citizen parents
(b) citizens
(c) natives
(d) natural born citizens
(e) aliens
(f) foreigners
(g) this class (people born of aliens or foreigners)
Here is your question/statement:
—
Squeeky, I have pointed out that the quote from Minor does not represent a possibility of G being part of A. It only states that G may be part of B.
I hate looking stupid on this stuff. Will you walk me through the process that would put G into A?
Please do not use members of FantasyLand in your formulation, that is reserved for Snoti’s cheatsheet.
—
In Minor, it would NOT be possible to do this. However, I fail to see the precedental significance of stating that people cannot be born both of citizens and aliens or foreigners at the same time. Isn’t that kind of like “DUH”??? Try the case of Minor v. Happer-pett
(a) dogs
(d) pets
(g) cats
What Donofrio and his disciples are arguing is this. Dogs are pets. The, there are cats. Some people say cats are pets, too. Some say they aren’t. Since our case is about a dog, it is not necessary to resolve this question.
AHA!!! See this proves cats are NOT pets!!! Only dogs can be Pets!!! Hooray!!! Minor Happer-pet!!! Minor Happer-Pet!!!
This is, of course, an absurdity. While Minor puts (a) into both (c) and (d), it leaves open the question of whether (g) is also in (c) or (d).
In other words, Minor does not resolve the issue as I have said all along. Therefore, Minor is not precedent for defining (c) or (d), since they state that some authorities DO add (g) and some don’t.
Thank goodness Wong Kim Ark resolved it for sure 23 years later, right!!!
Squeeky Fromm
Girl Reporter
Again, I have no idea who Nal is, his qualifications to speak on the matter, etc. And Nal does not explain how he arrived at his conclusion.
And, notably, Nal has not expressed any disagreement with the judges, professors, and other experts that have concluded that birth in the United States is sufficient for natural-born citizenship.
Wouldn’t pets be “b”.
The reason it is important is that anyone who touts Minor as expressing doubts about children of alien parents being “natural born citizens” are in err. You now see this. Bob does not.
If one went further and claimed that WKA resolved the doubts in Minor, by your analysis of Minor, the most they could have done is create another group of citizens. They did not create another group of natural born citizens.
This is why ballantine is having trouble specifying if Gray’s use of Minor is rationale. As near as I can tell Minor is not part of the rationale, but Gray’s comments on Minor are. That is inconsistent.
“This is, of course, an absurdity. While Minor puts (a) into both (c) and (d), it leaves open the question of whether (g) is also in (c) or (d). ”
Uh, noo,
c and d is the definition of a.
Minor includeeees, the a class into b…but does not includeee, the g class into b.
Try again.
What I see if faulty pseudo-logic, and avoidance of the actual judges, professors, and other experts who have concluded that birth within the United States is sufficient for natural-born citizenship.
“The reason it is important is that anyone who touts Minor as expressing doubts about children of alien parents being “natural born citizens” are in err.”
Again, it is simply dishonest to say Minor was talking about a different type of citizen.
“This is why ballantine is having trouble specifying if Gray’s use of Minor is rationale.”
I am having no problem. Gray did not say he agreed with anything in Minor. He didn’t say he was citing it to define who was natural born. He cited it solely to show the court was not committed. This really shouldn’t be that hard. Gray says exactly why he was citing Minor and it is dishonest that it has any other purpose than Gray say. If the quote strongly supports gray’s purpose is another story.
Now, why not look to the part of Gray’s opinion where he is telling us who is natural born not dismissing prior dicta that had nothing to do with who was natural born.
Bob, because a lot of judges, professors, and other experts agreed on certain gun rights issues, should Heller have never proceeded forward? Should no one have ever thought in the same terms of Heller until after an opinion was rendered from the court?
Proving the court was not committed allowed Gray to move forward. Rationale.
To simplify the Minor quote:
(a) people born of two citizen parents
(b) citizens
(c) natives
(d) natural born citizens
(e) aliens
(f) foreigners
(g) this class (people born of aliens or foreigners)
Facts:
-A is the definition of c and d
-Minor includes as B, the A class
-Minor leaves the question open to include as B, the G class
The purpose of this thread is to analyse the following:
After WKA resolves the open question, if Minor is binding on the NBC definition, does the holding overturn the definition or does it only include as B (citizens) the G(poeple born of aliens or foreigners) class?
“Proving the court was not committed allowed Gray to move forward. Rationale.”
No. He didn’t have to distinguish previous dicta at all. It is not precedent. Say a previous court was not committed mean we give what it said no weight.
There was legitimate debate in the legal community in how to interpret the 2nd Amendment. No such debate exists concerning the sufficiency of birth in United States for natural-born citizenship.
komfort:
(a) people born of two citizen parents
(b) citizens
(c) natives
(d) natural born citizens
(e) aliens
(f) foreigners
(g) this class (people born of aliens or foreigners)
YOU asked, wouldn’t pets be (b)?
NO. (b) Citizens is the LARGEST class. It contains both natural born citizens and naturalized citizens.
Natural born citizens are a subset of that class. Since 1898, and Wong Kim Ark, you have been put on notice that children born here of aliens are also natural born citizens. (That is why Vattle Birthers avoid Wong Kim Ark.)
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 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.
If that wasn’t good enough for you, then you can read Ankeny, where that Court clearly states that there isn’t some special class of citizen as you and others claim. As the Ankeny Vattle Birthers claimed:
“[c]ontrary to the thinking of most People on the subject, there’s a very clear distinction between a “citizen of the United States” and a “natural born Citizen,” and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance.” Appellants’ Brief at 23. With regard to President Barack Obama, the Plaintiffs posit that because his father was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the Office of the President.
Nope. There is NOT a distinction. In fact, the Ankeny Court said:
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.”15
Gee, the only people who have doubts about this are people who just don’t want to move beyond 1875, legally speaking.
Squeeky Fromm
Girl Reporter
(PLUS: Have you noticed how all us anti-Vattle Birther people are citing cases and stuff which clears the issue up, while all the Vattle Birthers are playing semantic, sophistry games trying to confuse things???)
…When I said the “purpose of this thread”, i meant the “current” analysis. I didn’t mean it was originally intended by Nal ….
“NO. (b) Citizens is the LARGEST class.”
Nope. Stick to the context. This quote does not say that citizens is a class. The only classes are A and G.
mrjr101:
You said: Nope. Stick to the context. This quote does not say that citizens is a class. The only classes are A and G.
Nope right back at you. Remember that the Minor Court also discussed naturalized citizens and said:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new CITIZENS may be born or they may be created by naturalization.
You can not try to logically restrict the word “citizen” in one paragraph of the decision just to suit your theory.
Squeeky Fromm
Girl Reporter
Komfy said:
“Snoti, I can’t lie to you. I really did want to see your redemptive post.”
Redemption? I don’t need no stinkin’ redemption! But you should be careful what you wish for…
Komfy said,
“Even Snoti B. Lie-yote, Mathfauxtician Extraordinarie, has not made the case otherwise. G is only part of B, after the doubts are resolved. Period.”
Wow! Your patience is impressive! Do you really think that your “analysis” will hold up if I call your bluff? Aww… what do you have to worry about–I’m probably just bluffing myself… right?
Well, this is another straw man of sorts, but you did it formally, so it is easy to address–thank you.
I wish I could just draw a Venn diagram, but I’ll muddle through… You seem to be saying that no birther could be a Herman Cain supporter because no racist would support Herman Cain* (yeah, and when people say, “some of my best friends are black…” they really mean it
). This would be true (assuming no racist would support Cain) if I had said that all birthers were racists, but I didn’t do that. I said that all birthers are bigots i.e. they are prejudiced against President Obama. This neither says nor implies anything about the reason for that prejudice (racism is just one reason out of many). I’m pretty fussy about making my brush strokes precise…
*There may well be some racists using Herman Cain as a beard.
Komfy said:
Wow–this is some serious fail here. This isn’t just the kind of thing that gets a zero (maybe a 1/15 for the half-assed definitions from a kind grader), this is the sort of thing that gets passed around the department mass-grading session and laughed at! Thanks, it’s been several years since I’ve seen this sort of thing.
So, let’s start with your definitions:
A=jus soli, jus sanguins children
B=citizens (or, more accurately, a class of citizens)
C=native citizens (or, implicitly, native born citizens)
D=natural-born citizens
E=aliens (terrestrial or non)
F=furriners
G=jus soli children
Now, you completely ignored the first sentence–what does it say? “The framers of the Constitution (H=the Founding Fathers–we don’t need to use this, but it is a group…) were conversant with the common law which undoubtably said the following:” I dare say that there are some implications to this statement that Komfy and his Birfer Khorus don’t want to pursue–I wonder why Komfy ignored it…
So what is undoubtedly true by the common law? (and implicitly in the US–i.e. the common law applies in interpreting the Constitution [is that right Ballantine and Nal?])
First we have:
T1. A=B=C=D
“=” in this sense means that they are all the same class of citizen, not that the groups are congruent.
T2. A#E#F (note: it is not implied that E=F [or that E#F])
Then it says:
T3. G?=B,
T1 (repeated). A=B (this can be excised as it is already known–there is no emphasis in standard logic, something is either true or false [although it is known that you can't always prove it one way or the other {because of Godel's theorem}]).
and:
T4. Neither G=B, nor G#B is a theorem
So, birthers, why do you think that G#B when it is clearly stated that neither G=B nor G#B need be established?
Well Komfy, you totally booted that one, but I’ll give you an extra credit problem to try and make up for it: What classes of citizenship were represented in H?
Yes. Two types of citizens. And we know they were not saying native born children of aliens were naturalized. There never was a naturalization statute that applied to them and the members of such Court would have know that native born people cannot be naturalized. Everyone in the period would have know that one of the reasons we have a 14th Amendment was that many in Congress pointed out Congress had no stautory power to make native born blacks citizens because naturalization could not apply to the native born. A member of the Minor Court explained as well:
“But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.” Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
There was universal agreement. Then what type of citizen other than natural born could they be talking about?
Naturalized citizens is a factor from FantasyLand. Can’t create it within the equation, unless you are a cheater like Snoti.
Komfy,
You said:
I wonder where you do your thinking–it’s obviously not in your head…
By Squeeky’s quote (in bold below), I assumed you meant the one I picked (which was in one of Squeeky’s comments):
I chose to equate the term “citizen” in the quote with “natural born citizen” as the only “citizen” in question was Virginia Minor who we know to have been natural born. In other words, in the greater context of the opinion, we know that “citizen” refers to a natural born citizen. I believe that this is a sufficient justification for my definition of “C”. By the way, I’m assuming that a this point you have no intention of saying “shibboleth” and are comfortable identifying yourself as a birther.
Squeeky said:
Me too.
“Naturalized citizens is a factor from FantasyLand. Can’t create it within the equation, unless you are a cheater like Snoti.”
The equation stuff is silly. What other type of citizen could they be referring to when discussing chldren of aliens? Only two types of citizens. Which is it? And why does Waite only distinguish natural born citizens from aliens and not some other for of citizen as well if there was more than one type of citizen at common law?
Ok, B(citizen) is the Largest class.
–Minor distinguishes the A class from the G class
-Is the A class a subset of the B class? Yes
-Is the G class a subset of the B class? There are doubts.
The doubts are not the distinction of A and G, that is already established above, but whether the G class could ever be a subset of the B class.
WKA comes and resolved Minor’s doubts, or does it?
If it does, then it resolves that G is a subset of B. (This was the question before the Court in WKA)
Komfort:
You said: Naturalized citizens is a factor from FantasyLand. Can’t create it within the equation, unless you are a cheater like Snoti.
But you can NOT eliminate it when analyzing Minor unless you wish to create the Vattle Birther Fantasy Land. You guys want to use a strict parsing of language where necessary to prove your theory and then disregard strict parsing in the next clause or paragraph. It is the Vattle Birthers who are creating a Fantasy Land.
I did an Internet Article on this semantic sophistry stuff which Donofrio would find appropriate where a Vattle Birther proposes that if you believe in Jesus, you are going to die and not get to go to Heaven.
http://birtherthinktank.wordpress.com/2011/09/25/a-vattle-birther-tackles-john-316/
Squeeky Fromm
Girl Reporter
Squeeky,
I think that there are a lot of people who profess to be Christians who should be taking a very serious look at camels and eyes of needles if you catch my drift…
“B=citizens (or, more accurately, a class of citizens)”
Now citizens are a class of citizens? Explain that Slarti
mrjr101,
There is nothing in the quote to indicate that these (natural born and equivalents–”citizens” [or B] in terms of the quote) are the only classes of citizens–naturalized citizens are not mentioned, but we assume that the judges were aware of them, right?
Slarti:
True. Plus there is this from Proverbs:
Proverbs 26:18-19 ESV
Like a madman who throws firebrands, arrows, and death is the man who deceives his neighbor and says, “I am only joking!”
Because to me, Donofrio and Apuzzo both have just been playing people by sending them off on this two citizen-parent wild goose chase. They are lawyers, and know what they have been advocating is nonsense.
Squeeky Fromm
Girl Reporter
Squeeky,
It’s sort of hard to see them any other way, isn’t it? I want to get my hands on the version of the gospels by Thomas Jefferson–he took out all reference to the divinity of Jesus. I want nothing to do with Christ*, but I think Jesus was a cool guy…
* although I do venerate the Flying Spaghetti Monster (may her noodlely appendage embrace us all), just in case the theists know something I don’t…
rAmen.
Slarti,
I was curious as to why you gave B a “class” classification. If citizens can also be naturalized, as you repeatedly mentioned, and If you know that naturalized citizens are also citizens,you cannot make this assumption:
““=” in this sense means that they are all the same class of citizen, not that the groups are congruent.”
Isn’t that being dishonest?
I don’t see where all confusion comes from. Waite is talking about the original Constitution here and says it contains two ways to become a citizen, the natural born citizenship clause and the naturalization clause. Two types of citizens, natural born and naturalized. Calling someone a citizen means they are either one or the other.
“Thus new CITIZENS may be born or they may be created by naturalization”
Yes, they are both CITIZENS. Two classes of citizens. Is this really so hard. No court has ever said there is a thrid class.
In the paragraph at issue, Waite is talking about the common law of the founders which is Blackstone. According to Blackstone:
“The first and most obvious division of the people is into aliens and natural-born subjects.”
Two classes of persons at common law. There were no naturalized citizens at common law. What does Waite say:
“These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
Same two classes. Blackstone conflated native and natural born as well. If there was another type of citizenship to distinguish from natural born citizen, it would have said so. It would have said “as distinguished from plain citizens and aliens or foreigners.” But they are talking about the common law where there was no other class of person. And, as I pointed out repeatedly, they couldn’t be talking about naturalized citizens since by definition, naturalization couldn’t apply to such persons and there has never been a naturalization statute that would made such persons citizens at birth. What other type of citizenship could they be talking about? The 14th Amendment? This whole section is talking about the original Constitution. Natural born citizenship is the only thing that makes sense. However, I would not claim the court is saying that. A lawyer has to say what the court acstually says. When the court does not specify something and says it is not addressing the issue one should not engage in endless parsing and speculation to claim it is saying something it does not expressly state. That is not ethical and it is not ethical to say the court was talking about a different type of citizenship. One has to wait until the court addresses the issue, say one that also says natural born citizen is defined by the common law and spends 20 pages telling us who is covered under such common law.
mrjr101,
You’re an idiot. Being explicit about what the symbols I’m using mean is the foundation of formalism. In other words, it’s the basis for a discussion in good faith–something you are clearly uninterested in or unable to participate in.
In the context of the quote, “B” is the class of citizen being referred to which includes children of citizens born on the soil, natives, and natural born citizens (or at least the overlap of all three groups–as we know there are exceptions [e.g. native-born children of diplomats]) and possibly those born jus soli.
Did I say anything else wasn’t a class?
Your assumption was invalid, moronic at best, since it is a pre established fact that naturalized citizens are also citizens, making this formulation invalid. Naturalized citizens are not in the same class as A,C, or D.
That’s two strike outs, are you going for the hat trick?
mrjr101,
Wow, you really are special aren’t you? As I said, since the greater context applied to Virginia Minor, “citizen” in this context* is synonymous with “natural born citizen”.
*meaning within the quote. They are defining terms–it’s what you do in order to make you argument clear to rational people. There is no known way to make an argument clear to dishonest people like you and your fellow birthers.
That’s two strikes for you (bad faith comments)–one more and I don’t answer you (though I may insult you).
Come on Slarti, if you keep calling people idiot, why can’t I point out your lack of skills, e.g. striking out? What’s more bad faith?
Snoti, I am glad you found more that four lights. You were so certain before. Look what a little rest will do for you. Why don’t you catch a few more zzzz, and work on Squeeky’s platapussess* theory. You just don’t follow so well when you are tired.
Anything misspelled is strictly for Otay Scribble to point out when his nose is freed from your arse.
Squeeky desperately wants naturalized citizens to be oncluded, Snoti.
A=B=C=D=naturalized citizens?
Oh wait. The fauxmatician made citizen=class citizen despite having no reference to that claim.
You may win this one. Your class of Christian can make up more garbage than mine.
Uh oh! Make that “included” and “class of citizen”. Otay may not be ready to leave his special place to criticize my spelling. You may not be ready for him to leave that place either.
Here is something for you to ponder, Snoti.
If citizen=”class of citizen” and A are children born in this country of parents who are its citizens. What would happen if the parent was a naturalized citizen?
Did you just blow your “class” warfare?
After some though it is hard not to admit that ballantine is right about many aspects of our early history. Many try to make the born citizenship aspect cut and dry, where in fact it never was. WKA reflected on the truth that many states adhered to the ECL of those born to immigrants, who had every intent to permanently domicile and work in their adoptive country, were considered natural born regardless of the naturalization status of the parents. History does not always fit the hopeful argument.
With that, the paradigm changed with what some would argue as the precedent of NbC found in MvH and the doubts expressed.
I understand ballantine’s forthright belief that WKA answered the doubts of the earlier court, with all the prerequisite caveats fully fleshed, the NbC phrase was made to include the reality of what constituted natural born as previously mentioned. I think the challenge is proving the point that Gray had the intent to define not only 14th “born” but also that of A2.
The WKA court never made the argument that citizen at birth could come in only one class,
Needless to say, I’m still not convinced.
Komfort,
Still can’t believe how he missed it again. Naturalized citizens are in the same class as NBC? and citizens are a class of citizens? You can’t make up your own rules to construct a formula. If it was intentional, who is Slarti trying to fool?
Komfy,
I’m no kind of Christian–I’m an atheist who believes that the teachings of Jesus are a successful moral and ethical framework and who worships the Flying Spaghetti Monster just in case (plus I like the term “noodlely appendage” and theism is better for cursing [it's hard to take the name of a non-existent deity in vain]). Just call me a Jesuit Pastafarian…
Since you don’t seem to understand how to conduct a formal argument, let me educate you:
1. Agree to the same logical framework
Since this is something that you are apparently unwilling do* (go ahead, prove me wrong), there’s really no reason to go on, but I will say that contesting a definition and crowing as if that is a major victory (or a victory of any sort) is the action of a juvenile idiot–just sayin’…
*which is one way to tell that all of your arguments are made in bad faith…
If you really want to engage, you must not only say which of my definitions, axioms, and theorems you disagree with, but you must offer versions which you believe are correct (and reasoning as to why). If you do that, I’ll answer you (politely), if not, then you’ll get the response that a piece of birther scum deserves…
Slarti, I would very much enjoy a polite discourse. How does your definition of citizen not get confounded by the the possibility of a parent being naturalized?
mrjr101,
You are a stupid birther troll. What do you think a “class” is?
Here’s a hint: we’re dealing with set theory.
If I had done something wrong and you had recognized it, you could explain what I had done wrong, how it should have been done, and what the implications of that would be. You apparently are incapable of doing this–or just dishonest enough not to.
Ballantine brings the best arguments I’ve seen about the English Common Law, that is true. However, the question is what was dicta on both cases and what is precedent.
In the greater context, “citizen” (=B which is equated to “NBC”, etc. in the quote) is clearly a set to which Ms. Minor belongs. The term “citizen” in what has been labeled “A” (referring to the nature of the parents) would seem, to me, to include both natural born and naturalized citizens, but it could be argued that it, too, referred to natural born citizens–however, I believe that the implications of that assumption lead to contradictions with established law. In either case, it would not imply that G#B is a theorem (the conclusion you wish to draw). Does that answer your question?
It gives me something to think about. Thank you.
Was the greater context to determine if ms Minor was a citizen, or was it to determine if she was a natural born citizen?
If there were no greater context would G only go into B after doubts are resolved?
Does anyone have thoughts as to the effect of the 14th in its naturalization of 19th century blacks? I can’t help but think that when the colonies became the United States it was of the same effect and had to be captured in A2 as a grandfather clause qualifier.
In this vein, those Americans naturalized could never be considered “natural born” or “born” citizens for at the time of their birth the amendment was not existent to be applicable.
Or do some believe that natural born or born status can be retroactively attributed?
This might be the true rub. Born can be retroactive but not natural born.
You misunderstand–from the rest of the case, we know that the term “citizen” as used in B included Ms. Minor. In that larger context, we know that they found her to be a natural born citizen although all that was necessary was that they establish that she was a citizen (for the purposes of the ruling).
Either G=B or G#B is true*–the quote (and the ruling) merely says that neither is a theorem (meaning neither has been proven). Resolving the doubts would merely reveal what had already been the case (which was done by the court in WKA).
* Whether or not something is true is distinct from whether or not we can prove something true or false.
Portney,
Would a person born a slave have been eligible for POTUS (mod 14/35) after the 14th Amendment was passed?
Ballantine suggests WKA was not trying to resolve those doubts, instead Minor was used as dicta to refute dicta from Slaughterhouse.
Prove she was a citizen or prove she was a “class” of citizen?
I should have said establish instead of prove.
“Would a person born a slave have been eligible for POTUS (mod 14/35) after the 14th Amendment was passed?”
I think not. Perhaps they can somehow be retroactively be considered “born” but never “natural born”.
The likely answer is that they were naturalized citizens and not eligible for the presidency.
You stated that in the larger context, they determined she was a Natural born citizen but all that was necessary was to determine if she was a citizen(for the purposes of the ruling). That is two paths of which she fit the more specific of the two.
That would mean that the larger context distinguished between citizen and natural born citizen.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I see nowhere in the language of this amendment where prior to the law the consideration of their citizenship at birth changes retroactively. The former slaves were born non-citizens and later recognized as entitled to their birthright (naturalized) by being born in the United States.
In other words, in 1867 how would someone characterize a former slaves birth circumstance? Certainly not “natural born” citizens.
Slarti,
You should have defined citizens as a different type of class from the other class (perhaps a proper class, is that the right term?), for the fact that it would contradict its own definition. (e.g. naturalized citizen can never be equal to natural born citizens.)
I’m not sure what the answer is on the 14th and whether those former non-citizens were in fact born citizens at the time of their birth. In consideration of this question, I can see some of the thoughts that the Waite court might have had with identifying that which was without doubt and thus not having to make any opinions rendered result in retroactive effect.
They determined Ms. Minor fit a path that leads to “natural born citizen” which was distinguished from a path for which there are doubts (or were at the time) as to its destination. They did not say that it was the only path that led to that destination.
I see nowhere where it says “except for people born before this Amendment”–remember, this was about freeing the slaves, not freeing their progeny. Your interpretation assumes that the 14th Amendment changed the law (rather than just extending the existing law to former slaves and their descendants). There is no evidence that the 14th Amendment affected any white person (i.e. two cases [ante-14th and post-14th] which involved people in the same birth circumstances which were decided differently [with the more recent citing the 14th in its reasoning]), and so no reason to give your interpretation merit. I think Thomas Jefferson died a natural born citizen of Virginia and a natural born citizen of the United States (and a citizen of France) and that a person born a slave on a Virginia plantation who died after the 14th died the same way (although they probably weren’t French citizens…).
Your view would seem to imply that there were no natural born US citizens immediately after the Declaration of Independence (until the first baby was born)–something that is patently ludicrous.
mrjr101,
You have yet to say anything whatsoever that is worth replying to.
Nitwit.
I believe (see above comment) that the 14th did, in fact, retroactively make all of the former slaves into natural born citizens (provided they had jus soli allegiance), just as the declaration made the natural born subjects of the colonies into natural born citizens of the United States (and the several states). If you think I’m wrong, you should provide case law to back your assertion up–I don’t think any exists. The 14th Amendment was necessary to reverse the Dred Scott decision (which, by the way, cited Vattel on citizenship–the only time the SCOTUS has done so), but I see no evidence that it changed the law for whites.
“I’m not sure what the answer is on the 14th and whether those former non-citizens were in fact born citizens at the time of their birth. In consideration of this question, I can see some of the thoughts that the Waite court might have had with identifying that which was without doubt and thus not having to make any opinions rendered result in retroactive effect.”
Should the classification of slaves as “property” have any effect whether they were born citizens or not?
I just got an email from BarackObama.com fundraising (with the LFBC coffee mug) based on Orly’s stunt. I wonder how much money she raised for the president? Mmmm… irony.
mrjr101,
I believe that your classification as reality, honesty, and intelligence impaired should affect everyone’s judgement as to what weight your words should be given.
“If I had done something wrong and you had recognized it, you could explain what I had done wrong, how it should have been done, and what the implications of that would be.”
That’s exactly what my last comment showed. Nor was I expecting a response. The evidence is there as to who was engaging in good faith, nitwit.
“I believe that your classification as reality, honesty, and intelligence impaired should affect everyone’s judgement as to what weight your words should be given.”
Maybe you should think twice before you call yourself an educator. Obfuscator suits better. Your first logic work was a fake, it did not even include all the elements, and your second, well ,let’s just say that it assumed that crap doesn’t stink. You must scrub your teacher evaluations at the end of the semester.
Interesting point from MvH.
If the court stipulated that “[t]he fourteenth amendment did not affect the citizenship of women any more than it did of men”, what is the impact of the WKA definition of “born” on the MvH understanding of A2 if in fact citizenship changed significantly with the Gray ruling? None as far as I can determine. The 14th did not change any previous understood privileges and immunities. The burden of proof is to prove that the WKA court had that effect with their interpretation of “born”. It is one thing to state someone is a born citizen and entirely another to find them undoubtedly natural born. The court cites numerous instances where the distinction is made and therefore is obligated to state where those considered of one class belong to the other.
Waite court = acknowledges 2 types of citizens with no opinion as to permissible number of classes within a type; no change in privileges and immunities for citizens with advent of 14th.
Gray court= acknowledges 2 types of citizens with no opinion as to permissible number of classes within a type; definition of “born” changes those eligible for citizenship but does not address privileges and immunities (A2).
“The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption.”
“Your view would seem to imply that there were no natural born US citizens immediately after the Declaration of Independence (until the first baby was born)–something that is patently ludicrous.”
Slarti, the verbiage of A2 proves the point of those US citizens considered eligible for presidential office. It would appear that it was understood that there were no UNITED STATES citizens until they had declared themselves so. Were they natural born as Americans, I would tend to agree with you if the measure is born of Americans within the American colonies.
I know its dumb semantics.
“I believe (see above comment) that the 14th did, in fact, retroactively make all of the former slaves into natural born citizens (provided they had jus soli allegiance), just as the declaration made the natural born subjects of the colonies into natural born citizens of the United States (and the several states).”
Yes, the majority view was that they were already natural born citizens due to their native birth. James Kent, the most cited souce in such Congress, said slaves were natural born citizens under the disability of clavery. When such disability was removed, they were natural born citizens. A few members of such Congress thought Dred Scott needed to be over-ruled. The majority clearly thought was they were simply clarifying pre-existing law not making any new citizens. This is what Wong Kim Ark says and one memeber of the judiary committeee wrote him after the decision and said he got it right. Accordingly, a person who was a citizen before the Amendment was still a citizen obviously. Persons born afterwards are covered under both provision as, as justice Gray says, they are both defined by the English common law.
“Slarti, the verbiage of A2 proves the point of those US citizens considered eligible for presidential office. It would appear that it was understood that there were no UNITED STATES citizens until they had declared themselves so. Were they natural born as Americans, I would tend to agree with you if the measure is born of Americans within the American colonies.”
The early legal authorities make clear that people born in the states before the declaration that had adhered to the American cause were natural born citizens or natives, as they were called in the Convention. It is well understood that the grandfather clause was for foreign born persons. When some argued that foreign born persosns should be excluded from office, James Wilson was deeply offended as he was a foreign born citizen. It was then suggested that they have a grandfather provision.
“Gray court= acknowledges 2 types of citizens with no opinion as to permissible number of classes within a type; definition of “born” changes those eligible for citizenship but does not address privileges and immunities (A2).”
This makes no sense. Justice Gray in Elk v. Wilkins states there are 2 types of citizens under the original Constitution, by birth and by naturalization point to the natural born citizenship clause for the “by birth.” He later says the 14th Amendment also has two types of citizens, by birth and by naturalization. In WKA, he tells us they are defined by the same rule. You didn’t answer my question yesterday, on what point do you think Gray is unclear:
Does he say natural born citizen should be defined by the English common law? Yes, he says all undefined terms in the Constitution should.
Does he say children of aliens are natural born subjects? Yes, multiple times.
Does he say the definition of natural born subject prevailed under our original Constitution? Yes.
Did he say natural born subject and natural born citizen meant the same thing? Yes, the same dfinition and repeating the rule is the same in the US as in England, the same as before the revolution as after.
Did he say “all persons born in the allegiance of the United States are natural-born citizens?” Yes.
Did he say native children of aliens are “born in the allegiance?’ Yes, multiple times.
Did he say “natural born citizen” “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.” Yes. Sounds like jus soli does it not.
Did he say the 14th Amendment was merely declaratory of the same English common law rule and hence meant the same thing as “natural born subject?” Yes. Multiple times.
Is there anyway anyone can read this as saying the 14th Amendment and the NBC clause do not mean the same thing? No. And no subsequent legal authority has said so.
So, which point do you think is unclear presuming you have actually read the case.
The larger context as you interpret it suggests something circular. The court went about proving a natural born citizen was a natural born citizen. They proved it by using a formula where all of the factors are equal.
Essentially the court had a person they needed to prove was B but they already knew she was B because they knew she was D. They knew she was D because the larger context left no other option for her to be anything else, so proving citizenship was necessary for the purposes of the case but actually unnecessary because it was proven prior to proving it.
If it were necessary for Minor to be a citizen, for the purposes of the case, and they found her to be naturalized, would they have to go back and rewrite the larger context? If we recognise that citizen is distinct from natural born citizen, as you did in your 12:27 AM post, it becomes clear that the larger context was satisfied with proof of citizenship. They were not searching for proof of natural born citizenship.
The larger context is consistent with the infamous quote. After doubts are resolved G can only be part of B. All members of B are not always members of A,C, or D.
Ballantine, besides Minor, what other “foregoing” authorities were dicta, in WKA?
There’s nothing circular about it–the court went about proving that Ms. Minor was a natural born citizen (although all they needed to know was that she was a citizen–hence their use of the term “citizen” for a class to which Ms. Minor clearly belonged.
I was working on an answer to the rest of your comment and I stumbled on a marvelous proof that the margin of this blog is too small to contain…
Aw, hell, no one is going to believe me…
Consider the following quote (labeled by Komfort):
Giving us the following definitions:
A=jus soli, jus sanguins children
B=citizens
C=native citizens (we will ignore, e.g., the children of diplomats, as they are not at issue here)
D=natural-born citizens
E=aliens (terrestrial or non)
F=furriners
G=jus soli children
H=the Founding Fathers
Theorem1. A is contained in B
T2. A is contained in C and in D (which are both implicitly contained in B)
T3. The intersection of (B and [the union of E and F]) is empty
Claim1. G is contained in B is a theorem
C2. C1 is false
T4. C1 and C2 were neither established or disproved by the quote
BirtherClaim. G is not contained in D is a theorem
Argument: A is equal to D (T2 is used to justify this)
A is not equal to G (Marco Rubio and Bobby Jindal are in G but not A)
A is contained in G (by definition)
Therefore G is not contained in D
q.e..d…?
Claim: BC has not been established (the argument is invalid)
Proof:
Assume that A=D via T2
A=C (T2)
but C=G (by definition)
therefore A=G # (Contradicted by the existence of Marco Rubio and Bobby Jindal)
This means that the assumption that T2 implies A=D is invalid and hence the argument for BC is invalid.
quod erat demonstrandum
Komfort,
I know that the Rubio-Jindal existential contradiction has to sting (although there is some poetic justice in disproving a birther argument by reductio ad absurdum…), but can you find fault with my interpretation of the passage or my reasoning? Or can you admit that the passage doesn’t say what you want it to?
Portnoy,
I don’t believe that the grandfather clause was ever used–every president (including the current one) has been a natural born citizen.
I am more glad that you are calling me Komfort again.
Is “birtherclaim”=C2?
If not, can we call it C3? I am not a birther.
I will scratch this down on paper and reply respectfully to you later.
Lastly, when Rubio was asked if he was eligible to be president he replied he was eligible to be in the senate. Make sense of that.
Oops. Bitherclaim is not the same as C2. I need to put this to paper. I misread what your wrote.
Komfort,
You’re welcome.
C3 is fine. I believe it is correct as stated, though (it is similar to but not exactly the same as C1).
Rubio was running for the Senate–his eligibility for the presidency was irrelevant. I assume he was trying to pivot to the issues that he wished to talk about. Which makes perfect sense to me…
SB: “same as C2″
What stops a person from claiming they are Natural born citizens? Until Jindal is president this element will never be tested to be true or false. His claim does not make him natural born. Natural born has never been decided in the Supreme court. I think the use of an untested definition is invalid.
Credible experts who know what the definition of natural born citizen is… You know, anyone who paid attention in their US Government class or read the book (they all say jus soli -> natural born).
Then how did Roger Calero get on several states 2008 ballots?
http://en.m.wikipedia.org/wiki/R%C3%B3ger_Calero
“Then how did Roger Calero get on several states 2008 ballots?”
No one challenged him.
I pressed post to soon.
Calero was on official ballots and actually garnered votes for the office of President. This is more than Jindal has accomplished.( I won’t refer to Rubio, because he personally has not claimed to be natural born)
I would now think that there is a better argument, while still not a good one, that naturalized citizens are members of D.
“Theorem1. A is contained in B
T2. A is contained in C and in D (which are both implicitly contained in B)
T3. The intersection of (B and [the union of E and F]) is empty
Claim1. G is contained in B is a theorem
C2. C1 is false
T4. C1 and C2 were neither established or disproved by the quote
BirtherClaim. G is not contained in D is a theorem
Argument: A is equal to D (T2 is used to justify this)
A is not equal to G (Marco Rubio and Bobby Jindal are in G but not A)
A is contained in G (by definition)
Therefore G is not contained in D
q.e..d…?
Claim: BC has not been established (the argument is invalid)
Proof:
Assume that A=D via T2
A=C (T2)
but C=G (by definition)
therefore A=G # (Contradicted by the existence of Marco Rubio and Bobby Jindal)
This means that the assumption that T2 implies A=D is invalid and hence the argument for BC is invalid.”
The assumption that Slarti made is invalid, again. C does not equal G by definition of the case.
Slarti forgot that the BC argument is also that A is equal to C, and the birther claims is also that G is not contained in C (in this context, Natives are synonymous with NBC)
If you think there is an argument, make it.
There was no reason to challenge Calero as his candidacy wasn’t hurting anyone’s electoral chances. If he had been polling at 10% I guarantee he would have been challenged.
mrjr101,
Once again you show yourself to be an idiot.
If you are polling low, the people responsible for accuracy of the ballot( Secretaries of State) need not recall anything they learned their US government class.
Bob, did you know Donofrio, in 2008, prior to the election, challenged the validity of Calero in New Jersey?
Slarti’s defense is name calling. Dream on dude. Keep making invalid assumptions. Hint to avoid the “Golden Sombrero”: Don’t assume Rubio is a “Native” in the context of Minor.
“Bob, did you know Donofrio, in 2008, prior to the election, challenged the validity of Calero in New Jersey?”
Yes, and he lost. Because he lacked standing.
And you know what case Donofrio never cited: [i]Minor v. Happersett[/i].
mrjr101,
You might notice that you are the only one that I am insulting right now–do you understand why? Because nothing you say is worth replying to.
Komfort,
The system is designed to be an adversarial one–if no one is injured, there is no potential adversary…
Slarti, I will soon be home to put this on paper. It just seems circular again. We are working on the equation that would make Jindal natural born. Yet you say Jindal already is natural born. This was accomplished by an equation that is supposed to influence his situation. Instead, his situation influences the equation that influences his situation. Do you see my confusion?
Ya. The fact that you hate to admit that you change the formulation to adjust your proof is a reflection of your insults. Good try anyway. I will keep exposing your lies though when is due.
Oh, so somebody did challenge. Bob was wrong again.
Let us know what you make of it Komfort. Don’t disagree too much with him though. He gets very irritated.
mrjr101,
Well, at least you’re competent in your delusions… Hopefully you are not dependent on your intellect for anything important.
Komfort,
I claim to have proved that the quote from Minor does not justify the claim that children born on the soil of alien parents are not natural born citizens. Nothing about Bobby Jindal there, so nothing circular is created by applying it to him–my proof says that Minor doesn’t help you make the case that he isn’t NBC and he is or is not NBC regardless of any arguments made until a court decides to rule on his status (as the court in Ankeny has in President Obama’s case).
The only way Jindal and Rubio are used in the proof is as examples of people with jus soli allegiance without citizen parents (which avoids the problem of Dr. Dunham’s unquestioned citizenship–no example exists of a child born on US soil of a US citizen who was not natural born). This is unquestionably true (they were both born in the US and neither had citizen parents).
Don’t try to add irrelevancies to the discussion to obfuscate the issue (does Minor mean what Leo says it does?)–that’s a straw man argument. (I don’t react well to logical fallacies)
You seem to be under the mistaken assumption that no one is natural born until they are proven to be. Not only is this at odds with the concept of “innocent until proven guilty”, but it means that President Obama and Ms. Minor are the only natural born citizens–something I assume you are unwilling to concede.
I’ve been reading the two landmark cases and can certainly see ballantine’s argument.
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,’—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.”
The interesting quote being, “but were predicable of aliens in amity”.
The entire WKA case is premised on this idea whether you agree with the decision or not. Which I don’t.
The court goes to significant length to illustrate how ECL gives credence to the notion that mere birth on our soil is sufficient for birthright (with caveats) while ignoring the ACL “dicta” of MvH and what was considered without doubt. In fact, it is notable that the court did not reflect on this MvH Vattel reference at all. I would contend that if WKA redefined A2, it was a responsibility of the court to specifically reference the citizenship requirement for the presidency in their decision. They did not and remained wholly within the confines of what the 14th construed.
At the very least, the court should have made the clearest argument that born subject to the jurisdiction means exactly A2 natural born. I can’t find it if they did.
Still unconvinced.
I do not follow how A is contained in G. If it is a result of A=B=C=D, I do not see it.
Since B now equals “citizen” and US Government class tells us Jindal is a Natural Born citizen and I believe you are saying B=D, that means that since US Government class tells us Schwarzenegger is a citizen we have a problem.
Do you need to make B=class of citizen again? Do we need to create I and have I=”Class of citizenship of parents of A so there is no conflict if parent is naturalized.”
Bob:
That is interesting that Donofrio did NOT cite Minor. I will have to try to find that and do a Internet Article about it. Plus, I found another famous legal thing which did NOT cite Minor. It was the article by George Collins in 1884 (just 9 years after Minor) which was called:
Are persons born within the United States Ipso Facto Citizens thereof ?
Not even a little whiffy poo of Minor in it. Sooo, I did an Internet Article about it, and the putative reporter where I found out about it, Dianna Cotter, who is with the Portland Examiner:
http://birtherthinktank.wordpress.com/2011/11/20/the-800-pound-gorilla-in-the-room/
Another anomaly for Donofrio and all the two citizen-parent Birthers to ignore. OH, I bet the Paraclete is just fuming at all this stuff I am writing!!!
Tee Hee! Tee Hee!
Squeeky Fromm
Girl Reporter
I did not see your most recent post. It may have answered what I just posted. Give me a moment.
I did not know Obama was “proven” to be Natural Born. Leo was mentioned because Bob’s vagina hurt. Was there a “Leo” strawman I posited specific to our conversation? Please show me.
A white guy parades around campus telling everyone he is a full blooded Native American Indian. Understanding that he is innocent until proven guilty he was never bothered by anybody who had no interest in his claim. The white guy decides to apply for a grant based on his presumed race. He is now asked to verify his claim.
Claiming you are natural born is of no concern until you need to prove it on your application.
Slarti, I need to get some sleep. What I see so far is B still has to be a class of citizen for it to work the way you presented it. If not, the parents citizenship as part of A act like a wrecking ball.
Slarti,
“Hopefully you are not dependent on your intellect for anything important.”
Fortunately for some people, the medulla oblongata and the autonomic functions it regulates don’t require conscious thought to operate. Who says evolution doesn’t have a sense of humor?
Mrjr101, I think Slarti and I are making progress as a result of each of us respecting that the other is a bully. I may be wrong on that. At the risk of being called Komfy again, I agree with your analysis. That could change by the morning. I will rest on it.
Goodnight all.
The court in Ankeny ruled President Obama to be natural born It is telling that this ruling was never appealed–it could have presented the question of the obot definition of “natural born” to the SCOTUS… and ended the issue when it denied cert. Thus the birthers either didn’t understand this or didn’t want to force the SCOTUS to decide on the issue.
I’ll assume what you said about circular arguments was a misunderstanding on your part rather than a straw man–there aren’t any circular arguments and you can’t raise the issue (in good faith) unless you can prove that there are.
To help you out: we are not dealing with “an equation” here. We are dealing with formal logic (definitions/axioms, claims, theorems, and proofs, not equations). I am claiming that Leo is full of shit–i.e. Minor does not say that citizen parents are required for natural born citizenship. I’ve given you a formal proof–I expect any objections to be formal and specific (tell me what you are disputing, what you think it should be, and why you believe that I was incorrect and you are right–or accept my argument).
Remember, if we obots are correct then every knowledgeable person understands that President Obama and Jindal and Rubio are natural born citizens. And that the only president who has been proven to be natural born is the current one.
Gene,
I’m worried that mrjr101 may be capable of forgetting to breathe…
“The entire WKA case is premised on this idea whether you agree with the decision or not. Which I don’t.”
People can agree or not based upon their own opinions. But that is not history or the law. The historical argument is so one-sided no honest person could question it. Gray cited most of the legal giants in the early republic but he could have cited hundreds of authorities. Only a handful of authorities could be cited questioning the English rule, almost all following the Civil War who problems with indians and chinese. Seriously, Gray didn’t bother citing Madison, Rawle, Tucker, Dane, Bouvier, Burrell, Townsend, Swift, Duer, Bayard, Hurd, White, Pomertoy, Pashal, Wheaton and on and on and dozens of court cases and Congressmen that all support the common law interpretation. He could have filled 50 pages with citations if he had wanted to. I’ll be happy to provide citations if you would like. Simply put, every legal treatise, court case, attorney general opinon and state department statement in the ante bellum period supported the common law rule. Some people can’t seem to deal with that. In addition, anyone who thinks WKA didn’t conform to the intent of the framers of the Amendment have not read the debates on such Amendment. Nothing could be clearer than they wanted to re-affirm the common law rule.
“The court goes to significant length to illustrate how ECL gives credence to the notion that mere birth on our soil is sufficient for birthright (with caveats) while ignoring the ACL “dicta” of MvH and what was considered without doubt. In fact, it is notable that the court did not reflect on this MvH Vattel reference at all. I would contend that if WKA redefined A2, it was a responsibility of the court to specifically reference the citizenship requirement for the presidency in their decision. They did not and remained wholly within the confines of what the 14th construed.”
Sigh. MvH said it was using the common law of the founders. That is not Vattel. The common law of the founder is Blackstone,not Vattel, and you can not show the Court ever saying otherwise. Portney, you seem fairly reasonable, but if you contend that Minor says that children of aliens are not natural born your are dishonest. It does not. No lawyer would put any weight on dicta that states some unknown person has some unknown doubt that the court neither tells us about or examines. Such is not legal authority. To speculate that some unknown person had doubt (i.e., was uncertain) is not legal argument as we cannot determine if such doubts have merit. Such is why no one in Wong Kim Ark, majoarity, dissent or government, when they discussed natural born citizenship mentioned Minor other than to point out it did not address the issue. Don’t you think Fuller’s dissent, which argued the Vattel position, would have cited Minor if anyone thought it was authority? Has anyone in history ever citied on authority for who is natural born? Of course not. The facts are Minor said look to Blackstone’s common law and we know if he had looked at the status of children of aliens, would have found they natural born. He told us he didn’t look as the issue was not briefed or argued. We know that no one can find any early authority that says parentage is relevant to natural born citizenship or relevant under the common law. Have you found a single authority yet? Maybe one of you can find Waite’s unknown doubter. I can cite hundreds of people that say he is wrong.
I notice you can’t repsond to my point by point summary of WKA’s decision and point out anything I say is wrong. Sorry, it is precedent and Minor is simply dicta that expressly declines to take a position on children of aliens.
Slarti’s capabilities have been proven more than once in this forum. The dude has been told about the circular arguments and his inability to avoid invalid assumptions constructing contradictory logic. How many more chances should we give him. It’s enough, coach, give him some bench time.
Ballantine, what “foregoing” authorities in WKA will you label as dicta? We know Minor is out.
Donofrio admits to not citing Minor here:
http://naturalborncitizen.wordpress.com/2011/10/26/justiagate-ceo-tim-stanley-claims-innocense-after-blocking-access-to-wayback-machine-snapshots-of-all-supreme-court-cases-published-by-justia/#comment-19367
I gave Komfort the benefit the doubt and assumed the question about the Calero challenge only referred to a challenge by a state or another candidate. Of course Donofrio challenged Calero, which was promptly bounced. (And to say I was “wrong again” implied I was wrong before.) Because some here are a little slow: The reason Calero appeared on six states’ ballots because there was no challenge in those states by an entity with the authority to challenge.
mrjr101 said:
“Slarti’s capabilities have been proven more than once in this forum.”
You know, I actually agree with that. As for your allegations of circular arguments–I call bullshit. If you’ve found a circular argument, prove it. If you can’t then you should just shut up about things which you do not understand. It’s too late to avoid looking like a fool, but you could at least stop looking like a pathetic fool…
It is noteworthy to state the primary theme in the WKA dissent regards that though our jurisprudence is predicated on ECL, it is not so in the political sense. We are not subjects consigned to permanent allegiance and all the other baggage cast off in our revolution.
Regardless, WKA is binding precedent until overruled.
I wonder what the consensus may be if WKA does in fact define A2; are those that are born to aliens (amity or not, permanently domiciled or not, etc.) eligible to the presidency while those born abroad to citizens abroad, not? If born subject to jurisdiction jus soli is the prime reason for natural born per WKA, are not those born abroad to citizens really a product of naturalization and thus ineligible per the 14th?
If so, that is a travesty.
Oh Slarti, talking about pathetic,
There is no reason for me to keep proving why your work is invalid as you have attempted to made ridicule of anything I had to point out. Your attempt to change a horse for a mule (Obama for Rubio) wont fly. Good try though. Keep swinging.
Slarti:
“I said that all birthers are bigots i.e. they are prejudiced against President Obama.”
So anyone with a philosophical disagreement with Obama is a bigot? What kind of crap are you selling?
You may be right about the beard, which I hadnt thought about. That is a possibility. Although why would you bother? When you could just as easily say you are against 9-9-9 and avoid the issue.
“So anyone with a philosophical disagreement with Obama is a bigot?”
Straw man.
A philosophical difference is not the same thing as questioning eligibility for office based on specious reasoning and improper legal sources, specious reasoning and improper reliance laid to rest now with evidence of a quality admissible and sustainable in any court of the United States. Reasoning so thin that it leaves only one option: their objection must be something impolitic to say in public like racism. There are plenty of really valid criticisms against Obama. His citizenship status is not one of them.
What kind of crap are you selling?
“I wonder what the consensus may be if WKA does in fact define A2; are those that are born to aliens (amity or not, permanently domiciled or not, etc.) eligible to the presidency while those born abroad to citizens abroad, not? If born subject to jurisdiction jus soli is the prime reason for natural born per WKA, are not those born abroad to citizens really a product of naturalization and thus ineligible per the 14th?
If so, that is a travesty.”
I thinkt he consensus of scholars is that anyone who is a citizen at birth is elgibile. I don’t think many people have gone through the case law to see how one gets to such rule. When professors or Senators are asked about Obama the answer is of course anyone born on US soil is eligible for that is what everyone was taught, what is on the bar exam, what their legal dictionaries and treatises say. Most preobably have little recollection what WKA actually said. Unless one was writing or litigating the subject, one generally would not look further. I am quite surprised how shallow most of the law review articles that touch on the subject are. But the authority supporting native birth is overwelming. Someone claimed to me that old civics books all had the two parent theory. I spend about 20 minutes on google book search and came up with nearly 400 civics books, treatises, dictionaries and enclyclopedias saying all one needs is native birth which you can see at the link below. Such is why so few have thought about the issue. One can argue the foreign born jus sanguinis issue all day if one wants as it is not a simple issue from an academic point of view. It is simply from a practical point of view as no court was ever going to find McCain in eligible.
Forgot the link:
http://naturalborncitizenshipresearch.blogspot.com/2010/10/view-of-constitution-of-united-states.html
Gene H, I see you are pointing out straw men. That may help. As Slarti and I agree on definitions, I am hung up on B. I am using the definitions Slarti provided at 8:18. We are trying to be very specific to the quote, of Minor, that Slarti also included at 8:18.
If it were you were resolving this specific quote with formal logic, would you replace “citizen” with “B” at every occurrence of the word? If “citizen” needs to be identified with more letters than the “B”, which Slarti and I are agreeing to, will you show me how you reached that conclusion without going outside of the quote?
Also, At 10:35, Slarti asserted that Jindal and Rubio are members of G. I would like to still call that group G, and make no reference to persons. is that fair play?
Thanks.
@Portney, the dissent in WKA argued that the U.S. was bound by its treaty with China which prohibited its subjects from becoming U.S. citizens This is why Gray spent so much time arguing ECL, because he had to establish something that appeared to be bigger and broader than the Constitution itself, which places itself on the same standing as treaties with other countries. The Constitution does NOT inherently have supremacy, especially in terms of anything that might involved international law.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land …”
This is why Gray went on and on about a so-called “fundamental” rule/principle of “citizenship by birth” (note: he did not say natural-born citizenship. He quoted and affirmed NBC as defined in Minor.). He was trying to justify overriding the treaty with China by virtue of this “rule” being ancient and fundamental and by being part of a shared common-law with other countries. He was also a little less than honest:
“always bearing in mind that statutes enacted by Congress, as well as treaties made by the President and Senate, must yield to the paramount and supreme law of the Constitution.”
I just showed where “all treaties made” are included in the Constitution AS the “supreme law of the land.” Certainly Gray knew this, but by using an overwhelming amount of common law citations, he was going to push this inconvenient fact aside. Nevertheless, he still preserved and upheld the exclusive NBC definition used in Minor: “all children born in the coutnry to parents who were its citizens.”
@Slartibartfast: You err. Ankeny does NOT declare Obama to be a natural-born citizen. It’s simply not there. Even if we were to accept the phantom “guidance” they divined from WKA, they had no proof of where Obama was born and couldn’t declare him to be natural-born.
Ballantine, you are clear that you believe Minor is dicta, as used in WKA, so I won’t bother you about that. What other “foregoing” authorities, in WKA are dicta?
Clarification: Slarti and I are agreeing to the use of “B”. I am not saying we are agreeing to multiple letters to represent “citizen”.
“Ballantine, what “foregoing” authorities in WKA will you label as dicta? We know Minor is out.”
Not sure such matters that much. If their was a prior holding of the Supreme Court, then Gary would not have to cite all this authority, just the prior holding. There was no such holding, so he cited what he probably thought was the authority that would carry the most weight to support his point. Hence, the quote of Marshall is dicta. But is is Marshall. He cites 3 cases of Story and quotes a great length from a concurring opinion. But is Story and hence entitled to great weight. He cites at length from Kent’s treatise. Again, Kent and Story’s treatises were THE treatises on American law and were always given great weight by the Court. Justice Curtis’ opinion was the dissent. However, it was acknowledged as the correct decision in Dred Scott and was always given grat weight. I have not done analysis on the state and lower court cases but many were influentuial jurists as well. The problem with the Minor quote is not that it is dicta, but Gary is not saying he agrees with anything such court says.
It is generally not enough to simply assert a holding. If someone writes a long dissent saying you are wrong you generally need to offer compelling evidence that your majority view is well supported or it is unlikely to survive, whether it be overturned or distinguished into oblivion. Hence, Justice Miller’s assertion about the 14th Amendment would be a very uncompelling holding as it says something no one in the Congress said and he offers no authority to support it. If he wasn’t dicta, he would have had to make an argument why such was true as Justice Field and Swayne would have cited plenty of authority in their dissents saying he was wrong as we know they believed in jus soli. Justice Waite’s assertions without authority are equally uncompelling. And Justices Field and Swayne, clear proponanats of jus soli, were on such court.
“You err. Ankeny does NOT declare Obama to be a natural-born citizen. It’s simply not there. Even if we were to accept the phantom “guidance” they divined from WKA, they had no proof of where Obama was born and couldn’t declare him to be natural-born.”
The burden is on the plaintiff in a lawsuit. Hence, the court does not need to declare him a natural born citizen. It said plaintiff’s argument that he was not a natural born citizen becuase his father was not a citizen had no merit and hence did not state a claim upon which relief can be granted. Such is the holding of the case. Law school 101. The court said the pro se plaintiff did not argue he was not born in the US on appeal. Issue waived, case dismissed. Still precedent in Indiana. Could have been appealed to the Supreme Court. Lost your chance.
“I just showed where “all treaties made” are included in the Constitution AS the “supreme law of the land.” Certainly Gray knew this, but by using an overwhelming amount of common law citations, he was going to push this inconvenient fact aside.”
The Constitution cannot be altered by treaty. Law school 102. Do you ever say anthing that is right?
“Nevertheless, he still preserved and upheld the exclusive NBC definition used in Minor: “all children born in the coutnry to parents who were its citizens.”
Still haven’t figured out what “neither was committd means? How very sad.
@ballantine, Instead of embarrassing yourself, you need to read the decision so you actually know what it says. It didn’t say anything about whether an argument about Obama’s father was a citizen had merit. Second, the court contradicted itself because the plaintiffs also challenged that Obama was not born on U.S. soil. Evidently stupidity is an Indiana thing:
“… Plaintiffs appear to argue that the Governor did not comply with this duty because … B) neither President Barack Obama nor Senator John McCain were eligible to hold the office of President because neither were “born naturally within any Article IV State of the 50 United States of America . . . .””
Most of what they did was mischaracterize the plaintiffs arguments to the point they said:
“… we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true …”
That’s not the same thing as saying their argument does not have merit, which they were more specific about in part A concerning the governor’s responsibility to vet condidates.
“In essence, Plaintiffs argue that because President Barack Obama and Senator John McCain were United States Senators on November 4, 2008, they were constitutionally ineligible to be appointed as presidential elector (or, as Plaintiffs put it, “Elector in Chief”).
“Plaintiffs do not state a meritorious claim. Notwithstanding the fact that it is unclear what Plaintiffs are referring to by the phrase “Elector in Chief,” Plaintiffs‟ characterization of the electoral process in the State of Indiana simply is not consistent with the applicable laws.”
There are a variety of problems with the decision in Ankeny that better fall under their own description of “conclusory, non-factual assertions or legal conclusions” than what the plaintiffs proposed, such as how Minor somehow left a question open that this court says it contemplated. Or how a court decision that does NOT declare a child of alien parents to be a natural-born citizen provides guidance that a person born of alien parents is a natural-born citizen. I can go on and on about the many problems with this laughable decision.
@ballantine: You stupidly said: “The Constitution cannot be altered by treaty. Law school 102. Do you ever say anthing that is right?”
I didn’t say ANYTHING about altering the Constitution by treaty. What a stupid, stupid thing for you to say. I quoted the Constitution verbatim. Here it is again:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;”
It says the Constitution and the laws and ALL TREATIES MADE shall be the supreme law of the land. Where do you see anything about it the Constitution being altered???????????
And again, why do you insist on using this phrase “neither was committed”
when it was never used by the court in WKA??? Quotation marks are supposed to be used for the words that are used, not the words YOU invent. Learn to read.
Nal agrees that Lockwood quoted Minor to affirm “citizenship”. He argues that since Lockwood did not have a question of “natural born” citizenship in front of them, Minor’s references to “natural born” would only be dicta in the Lockwood opinion, yet the “citizenship” element met the requirements to be considered rationale.
WKA did not have a question of “natural born” citizenship before them, did they?
@Ksdb. you simply do not know how to read case law as you are citing irrelevant provisions of the case. It makes clear that the plaintiff did not argue that Obama was not born in the US on appeal:
“As to President Obama’s status, the most common argument has been waged by members of the so-called “birther” movement who suggest that the President was not born in the United States; they support their argument by pointing to “the President’s alleged refusal to disclose publicly an „official birth certificate” that is satisfactory to [the birthers].” Rhodes v. MacDonald, No. 4:09-CV-106, 2009 WL 2997605, at *1 (M.D. Ga. Sept. 16, 2009), reconsideration denied by 2009 WL 3111834 (M.D. Ga. Sept. 18, 2009). The Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.”
Pro se palintiff argued it below, but not on appeal unless you think the court is lying. The Court might have dismissed the case on state law grounds but decided not to:
“The Plaintiffs do not cite to authority, nor do they develop a cogent legal argument stating that a certificate of ascertainment has any relation to the eligibility of the candidates. However, we note that even if the Governor does have such a duty, for the reasons below we cannot say that President Barack Obama or Senator John McCain was not eligible to become President. We will handle each of Plaintiffs’ arguments in turn.”
With respect to the claim that Obama is not an NBC due to his father’s citizernship to caout says “[f]or the reasons stated below, we hold that the Plaintiffs‟ arguments fail to state a claim upon which relief can be granted…”
The reason below is they concluded “that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
Not that hard. They said they held plaintiff did not state a claim upon relief can be granted becuase anyhone born on US soil is a natural born citizen. Accordingly, Plaintiff’s Vattel claim had not merit. Law school 101. Court does not need to prove Obama is an NBC. The plaintiff needs to provide a legal theory and facts that he is not. The reason for the dismissal is precedent. I suggest you ask an actual attorney.
“Nal agrees that Lockwood quoted Minor to affirm “citizenship”. He argues that since Lockwood did not have a question of “natural born” citizenship in front of them, Minor’s references to “natural born” would only be dicta in the Lockwood opinion, yet the “citizenship” element met the requirements to be considered rationale.
WKA did not have a question of “natural born” citizenship before them, did they?”
I haven’ analyzed Lockwood but it doesn’t say children of aliens are not citizens. I will look at whether it is dicta or not but it is, at most, authority that person’s of Minor status were citizens, not that anyone else was not and it doesn’t say that. I think I have stated clearly that the issue of natural born citizen does not need to be before the Court in order for it to be part of the rationale. The issue of citizenship clearly was not before the Minor court as such was never raised or contested and was irrelevant to the holding which is why the Court below never even mentioned her citizenship.
@ksrd.And again, why do you insist on using this phrase “neither was committed” when it was never used by the court in WKA??? Quotation marks are supposed to be used for the words that are used, not the words YOU invent. Learn to read.”
Gee, I didn’t think I needed to quote the same thing to make my point. So do you still think that “neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th means they thought they were excluded as you keep repeating. You are the one with the English problems.
And Gray says under the Constitution children of Chinese aliens were citizens. He says that such was the rule under the original Constitution. Such was the consensus of members of the 14th Amendment Congress as well. No treaty could change that. Pretty simple.
I agree balantine. A person of Minors “status” is a citizen. I also conclude that a person of WKA’s “status” is a citizen. Minor’s status was described as a “natural born citizen” by her birth on this soil to her citizen parents. WKA’s status was described as a “citizen” born on this soil to non-citizen parents who were permanently domiciled and employed here.
Bob hadn’t butted again. I will mention Leo and see what happens.
Balantine, when you do your analysis of Lockwood would you pay particular attention to the language that Leo pointed out to Nal? The Lockwood court stated that the Minor court “held” something. What holding did they refer to.
…hasn’t…, don’t know if I can handle Otay butting in too.
“WKA’s status was described as a “citizen” born on this soil to non-citizen parents who were permanently domiciled and employed here.”
Yes, but the rationale is how you get there. One does not need to call WKA a natural born citizen to define the term and make clear he would be. Since the 14th Amendment was solely declaratory the court had to tell us what it was declaratory of. The court does by telling the original Constitution incorprated the definition of natural born subject into the NBC clause the the 14th reaffirmed the same rule. Can’t get to that conclusion without defining the term and leaves no doubt that someone of WKA’s status would be included. “[a]ll persons born in the allegiance of the United States are natural-born citizens.” The Court clearly states children of aliens are born in the allegiance, even non-domiciled ones. Sometimes cases are not that easy to read. The nature of the beast.
With respec to In Re Lockwood, why was her citizenship before the Court? I don’t see the court even saying she is a citizen or what the status of her parents were. The citation to Minor seems to be about the limiations of the privileges and immunities clause. Clearly not a citizenship case.
fuller use of the term “held” in Lockwood doesn’t transform dicta into holding. The holding was “the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment did not add to these privileges and immunities.” That is what answered the question presented to the case and disposed of it. And, of course, anything said about children of aliens is without dispute dicta as their status was not before the court.
The commentary from the WKA dissent is disturbing for it reinforces the claim of ballantine and others. The dissenting members of the court appeared to be of the opinion that Gray’s interpreting 14th born was a direct reflection of A2. Their alarm at the possibility that the offspring of aliens and raised foreign yet born in the US are, in fact, eligible for the presidency whereas those born to Americans abroad clearly not due specifically gray’s narrowing through jus soli of NbC.
“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth imendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized ‘in the United States.’”
“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 fear that ballantine may be right; that the connotations of the 14th and the presidency are dark and terrible. For a nation begun with the People recognized as sovereign and to have such rebuked by WKA is stunning. We are back to the king’s land and serfdom. Amazing.
I get completely lost on this stuff.
To determine if a petitioner(of an undefined class) is a citizen the rationale is quite expansive.
To determine if a petitioner(of an unidentified class) has the rights invoked by the privileges and immunities clause, any mention of resolving the petitioner to be a citizen is strictly dicta.
Was the citizenship class that women belong to ever identified prior to Minor, in SCOTUS?
“And, of course, anything said about children of aliens is without dispute dicta as their status was not before the court.”
Ballantine: why can’t the same be said about WKA like this?
And of course, anything said about children of citizens is without dispute dicta as their status was not before the court.
What is the breaking point in a summary? Sorry if you already contributed to this question in your previous replies.
Komfort,
I’m going to reply as I read things, so if things are addressed later, I don’t know that yet.
“Citizens” should only be replaced by “B” where it refers to the same object (the same group of people) that it does in the initial (defining) occurrence. While I have been perfectly clear that I think the larger context implies that this class includes, at a minimum, Ms. Minor, I have nowhere used this fact in my proof (so any objections on that score are irrelevant to my assertion).
Regarding Jindal and Rubio, if you have two sets and want to prove that they are not equal, the simplest way is to exhibit that is to find an element that is a member of one and not the other–I gave you two. The only conclusion that rests on the existence of R&J is that the set A is not equal to the set G (because R&J are in G, but not in A). I suggest that you drop this right now (my use of R&J), as there is nothing in this that you can disagree with in good faith.
mrjr101,
I’ll give you a substantive answer to this one because it might clarify things for other people, I doubt you are smart enough to understand…
I switched from President Obama to R&J because it is not clear which class President Obama belongs in, A and G or just G. He unquestionably has blood allegiance to the United States through Dr. Duhman so what does that make him? For the purposes of this argument it is not necessary to settle which of these classes President Obama belongs to–on the other hand, R&J clearly belong in class G but not class A, which establishes that class G exists and that it is not equal to class A. I’m guessing that everyone else understands this, did you?
As for my suggestion as to how you can respond to me in good faith, the implicit assumption is that if you respond in good faith I will treat your comments seriously and respectfully (like I’m doing with Komfort)–otherwise I’ll just ridicule you. I would point out, however, that your assertions of my bad faith and lack of expertise because I’m taunting you rather than answering you are extremely weak since I’m demonstrating both expertise and good faith with others.
Bron,
What Gene said.
Gene is an example of a person who is not bigoted against President Obama yet is in violent disagreement with him philosophically.
Gene,
Thanks for your comment and being a counterexample.
Lockwood is saying Minor held that voting was not necessarily one of the privileges or immunities of citizenship before the adoption of the 14th Amendment, and that amendment did not add to these privileges and immunities.
If you want to say Lockwood also held (or affirmed) that a person born within the United States to citizen parents has always been considered a citizen, knock yourself out because no one is disputing that.
But neither Lockwood nor Minor held that only those born in the United States to citizen parents were citizens. Classic denying the antecedent.
Consider myself knocked out. Bob says Lockwood held and affirmed what Minor said. This may not agree with balantine’s take. He disputes that, Bob.
“Consider myself knocked out. Bob says Lockwood held and affirmed what Minor said. This may not agree with balantine’s take. He disputes that, Bob.”
Lockwood didn’t say what plaintiff’s status was and didn’t say she was a citizen. In addittion, the Court says that citizenship was not relevant to having a law license. How is it reaffirming anything about citizenship when the Court did not address here citizen andths issue was clearly not before this Court.
Portney:
Re: your statement about the dissent in WKA and the presidency, this was also stated in Lynch v. Clarke, 1844. You can find it in section 5:
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. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
Squeeky Fromm
Girl Reporter
How have you defined the group of people that are “B citizens”? If you are not using “class of citizen” as the definition in the proof, even though you believe the larger context suggests otherwise, I am assuming you are staying within the confines of the quote.
All mentions of B must now stay consistent, correct?
ksdb,
From Ankeny:
As there is iron clad evidence (at least as far as the courts are concerned) that President Obama was born in the State of Hawai’i* and the entire discussion that led to this conclusion was in the context of President Obama’s eligibility for POTUS, I think it is fair to say that Ankeny is a precedent that can be cited to affirm the president’s natural born status.
* The opinions of cretinous birthers like yourself on the issue are irrelevant to any reasonable discussion.
I also found the following–so now we know that the court in Ankeny rejects Claim 3 as well.
I also found this little tidbit in the Ankeny decision:
This also seems to blow another hole the size of a dwarf planet in your argument…
“Ballantine: why can’t the same be said about WKA like this?
And of course, anything said about children of citizens is without dispute dicta as their status was not before the court.”
The difference in my view is that WKA needed to address the issue to reach its holdings as the court gives us its rationale for the decision. I don’t see how you can say any statements about children of aliens was necessary to reach the holding of Minor. First, my view is that the holding relates solely tothe rights of sufferage and one does not need to determine her citizenship to get there. However, even if we say the holding included the determination that Minor was natural born the court does no give us the rationale and hence we cannot determine what was necessary to get there. The court only says it is looking to the common law and then fails to state the common law rule leaving us only to speculate. Such is often the case with dicta.
Balantine, is the Supreme Court obligated to cite anything? What rule have they broken to say they looked to common law, without showing citations?
I believe this would fall into innocent until proven guilty, as used by Slarti.
“Bob says Lockwood held and affirmed what Minor said.”
Uhhh, no. Reread and try again.
No one is disputing that Lockwood held or affirmed…
If you want to rewrite with clarity, knock yourself out.
“Balantine, is the Supreme Court obligated to cite anything? What rule have they broken to say they looked to common law, without showing citations?”
No. But mere assertion is pretty weak argument and merely citing the common law does not indicate what his rationale was for under the common law children of aliens were natural born. Can you find anyone who ever said otherwise? Hence we can only speculate on his rationale. Either he didn’t really mean the common law, he found some unknown authority under the common law or he or another member of such court had some doubts about what they thought the common law meant with respect to aliens but had to reason to research such issue. speculating what the court meant but did not say is not citing precedent.
I’ve asked this before, has anyone found a single legal authority that said native born children of aliens were not natural born prior to Minor?
Everyone please consider this statement by ksdb:
“…how [the Ankeny] decision that does NOT declare a child of alien parents to be a natural-born citizen…”
and this quote from Ankeny:
ksdb is clearly nothing but a stupid, ignorant, lying troll and I suggest that everyone should avoid feeding the troll in his case. For my part, if you agree with it at all I will assume that your comment is in bad faith and respond accordingly. I will regard any post by it or in agreement with its points as completely lacking in credibility of any sort (and therefore unnecessary to address and possibly necessary to ridicule). I don’t control what anyone else does, but I choose not to be a party to a discussion that it is a part of.
I’ll give mrjr101 two posts after I post this and if he doesn’t change his ways the preceding will apply to him as well.
“he or another member of such court had some doubts about what they thought the common law meant with respect to aliens but had to reason to research such issue.”
I meant “had no reason to research such issue.” That is my guess.
“No one is disputing that Lockwood held or affirmed…”
Words I never wrote in that order.
Lockwood says because voting was not necessarily one of the privileges or immunities of citizenship before the adoption of the 14th Amendment (and that amendment did not add to these privileges and immunities) (see Minor), it follows that obtaining a law license similarly was not necessarily one of the privileges or immunities of citizenship before the adoption of the 14th Amendment (and that amendment did not add to these privileges and immunities).
“ksdb is clearly nothing but a stupid, ignorant, lying troll and I suggest that everyone should avoid feeding the troll in his case.”
I am trying to be nicer, so I won’t comment on that, but he actually appears to be a Mario Apuzzo sock puppet as he is making arguments I have only seen Mario make. Of course, maybe he is just a big fan.
I apologize, Bob. The sentence flowed differently, when read aloud. Thanks for the clarification. I do find your explanation of Lockwood unnecessary for the purposes resolving the intent of that sentence.
I am pretty sure I have debated ksdb on another website, and have told him all the same stuff he has been told here. Either he is intentionally lying, or he is very very NOT smart. He believes the 14th Amendment does not apply to people born in the United States, to two-citizen parents, and yet can never back up his theories. I have asked him numerous times to provide a brief recap of Wong Kim Ark, section by section, with one quote and his idea of what each section is about. Because a person who has a theory has the obligation to address anomalies between their theory and reality.
He refused every request. He will simply cut and paste the same stuff for days on end, and will not ever attempt to logically address the problems with his interpretations. Once I said to him, it was like somebody gave a monkey some index cards with parts of sentences on them, and all the monkey had to to do was hold up two index cards at the same time. They would be sentences, but they would not make any sense. Like:
I love my Grandmothers house – - -where all the airplanes land on it.
Oh, and if he is the same person, he has the nickname at the other website of “The Quote Butcher.”
Squeeky Fromm
Girl Reporter
@ballantine, Ankeny, even in its abject ignorance and willful contradiction, was not quite stupid enough to claim their decision in regard to NBC was based on “precedent.” They called it “guidance,” because the cited decision did NOT set a precedent for ANY child of an alien to be a natural-born citizen, which they admitted. Second, this court makes stupid comment after stupid comment. Below is from the footnote where they admit WKA was not a natural-boron citizen.
“For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant.”
Read this closely as it is an incredibly stupid statement. The NBC requirement in the Constitution is NOT there for the benefit of the president. To say that it is only relevant to the people who are elected president is complete ignorance. Further, this statement even lacks historical awareness because for the first 17 presidents, there was no fourteenth amendment to even consider. NBC is NOT defined by the 14th amendment and the Ankeny decision actually cites the passage from WKA that explicitly says so. The decision is not based on precedent; it is the toothless ramblings of a court bent on demonstrating its own incompetence, but who in the process avoided declaring Obama to be born in Hawaii, avoided declaring his alleged birth certificate to be authentic and avoided declaring Obama to be a natural-born citizen.
“@ksdb Ankeny, even in its abject ignorance and willful contradiction, was not quite stupid enough to claim their decision in regard to NBC was based on “precedent.” They called it “guidance,” because the cited decision did NOT set a precedent for ANY child of an alien to be a natural-born citizen, which they admitted.”
True, they didn’t do the analysis of what was the ratio decidendi was. I have. However, the Ankeny didn’t have trouble understand what WKA said natural born meant.
“Second, this court makes stupid comment after stupid comment. Below is from the footnote where they admit WKA was not a natural-boron citizen.
“For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant.”
To birthers, every court that says they are wrong is stupid. Above is a true statement. It is only relevant to Presidential eligibility. Ankeny quotes all the provisions of WKA defining who is natural born, it does not quote what WKA says about the 14th Amendment.
“Further, this statement even lacks historical awareness because for the first 17 presidents, there was no fourteenth amendment to even consider.”
Quibbling.
“NBC is NOT defined by the 14th amendment and the Ankeny decision actually cites the passage from WKA that explicitly says so.”
For those who can read, WKA says they mean the same thing. In anything, most scholars and those who wrote the Amendment saw it as clarifying what was meant in the original Constitution.
“The decision is not based on precedent; it is the toothless ramblings of a court bent on demonstrating its own incompetence, but who in the process avoided declaring Obama to be born in Hawaii, avoided declaring his alleged birth certificate to be authentic and avoided declaring Obama to be a natural-born citizen.”
Translation: real judges who say we birthers are wrong are incompetent. Of course. You are all such a bunch of scholars.
And, you clearly don’t understand how courts work. As I explained, the court said that plaintiff did not argue the President was not native born on appeal. Issue waived. Again, plain English. And if you ever went to law school you will find out that unless someone passes a law that would be contrued to impose the burden of proof on Obama, the court is never going to declare Obama natural born. It will either rule that plaintiff has met his burden in proving Obama not to be natural born or it will rule the plaintiff has failed to met such burden in which case the case is dismissed without going further. Defendant does not need to provide himself eligible. Plaintiff has to prove them ineligible. Law school 101.
@ballantine, you have this knack for tossing dynamite, only to have me light it and throw it back in your face where it blows up. There’s no “iron-clad” evidence Obama was born in Hawaii. If so, he would have shown it in court. That’s why COLBs say “prima facie” evidence when shown “in any court proceeding.” Obama’s alleged COLB has never been shown in any court. It certainly wasn’t presented in the Ankney case.
And again, Ankeny is NOT precedent. It did not declare Obama to be a natural-born citizen. The court contradicted itself and admitted that the case from which it divined guidance did NOT declare WKA to be a natural-born citizen. It tried to claim this was irrelevant and immaterial because it only mattered to 44 people.
Also, I laugh at you citing Ankeny’s quote of Diaz-Salazar. That court took a claim at face value, and then it denied the petitioners request to avoid to deportation, saying he could take it his “natural-born citizen” children back to Mexico with him. Is that the precedent you want to follow?? I won’t argue against that. Let’s send Obama back to his home country.
@squeegy; You’re right. I chased you off of the other other website because you were embarrassing yourself with your ignorance on this issue. I provide a recap of WKA which you’ve been unable to dispute. You ran off. But it’s okay. I’m here to educate you and your little friends.
“There’s no “iron-clad” evidence Obama was born in Hawaii. If so, he would have shown it in court.”
Again you don’t understand how a court works. The case was dismissed before discovery. Obama actually wouldn’t have to produce any evidnece. That’s why COLBs say “prima facie” evidence when shown “in any court proceeding.” If plaintiff did not produce some admissible evidence that he was born elsewhere the case is dismissed before trial on summary judgement. Only if some admissible evidence was submitted would Obama have to produce any evidence. Sorry, you don’t understand.
“And again, Ankeny is NOT precedent. It did not declare Obama to be a natural-born citizen. The court contradicted itself and admitted that the case from which it divined guidance did NOT declare WKA to be a natural-born citizen. It tried to claim this was irrelevant and immaterial because it only mattered to 44 people.”
Again, you don’t understnad. It is precedent, just only in Indiana. The holding was based upon natural born citizen not requiring citizen parents. That is the holding. The court did not need to call Obama natural born for it to be holding. You simply have no idea what you are talking about. And, as i have explained over and over, just because WKA did not declare WKA to be natural born does not mean that the Court did not clearly define the term and be guidance for alower court. As I have argued, it doesn’t mean it is not precedent whether or not Ankeny did such anaysis.
I suggest you really consult an actual attorney who can explain to you who has the burden of proof in a trial and when a court would actually have to declare someone natural born in order to answer the question presented. You really are embarrassing yourself.
KSDB said: “There’s no “iron-clad” evidence Obama was born in Hawaii. If so, he would have shown it in court.”
There is no “iron-clad” evidence that ANY president before Obama was born in the USA, since none presented any evidence at all, much less showing it to a court.
However, the logical and factual evidence that Obama was born in Hawaii is overwhelming. The first evidence is that there is NO documents showing that Obama was outside of the USA in 1961.
People seem to forget that if you were born outside of the USA, you must have BEEN outside of the USA, and if you were outside of the USA, you would have had to travel to the USA and show a travel document and be checked into the USA by the US INS. No such document has been found for Obama–neither a State Department document nor an INS document. So there is not a shred of evidence that Obama was outside of the USA in 1961.
In addition, there is enormous evidence that he was born inside the USA, in Hawaii—namely the official birth certificate of Hawaii, which is legal evidence, and the confirmation of the facts on it by the three Republican officials in Hawaii (and several Democrats) and the birth notices in the newspapers in Hawaii, and the teacher who wrote home about the birth, and the grandmother saying that the first that her family in Kenya had heard of Obama’s birth was in a letter from Hawaii.
This is about as iron-clad as any evidence can get.
It starts out as a set* you identified in the text (which from context includes Ms. Minor), i.e. “the group of people referred to by “citizen” at point ‘B’ in the text”. The theorems that we abstract from the text can then be applied to this set in order to find or deduce its properties. You can argue that my translation from the quote to a theorem is incorrect (I don’t think that you’ll get any traction, but feel free to try…) or that my reasoning is incorrect (in which case you should specify the error precisely as well as an argument as to why I am in error) or that my definitions** should be different (but seeing as I used your definitions…
). If you aren’t doing one of these things (or admitting my point) then you are most likely acting in bad faith.
* Conceptualization tip: try to think of all of these sets as being in an evolving Venn diagram–we start by throwing a set into the diagram and then work on figuring out how it intersects (or doesn’t) with the other sets that we’ve put there. The quote (logically speaking) gives us a picture (map) of what the Venn diagram looks like (or, more accurately, the actual sets [the territory] which are shown in the diagram [another map]). All that diagraming the logic of the quote and applying reasoning to that abstraction can do is tell us about the logical implications of the quote (which is exactly what I’m addressing–I say that the quote does not logically imply what Leo says it does).
** To the juvenile birther trolls who have no understanding of this process: when you crow about a definition needing to be adjusted or changed all it does is to show you ignorance–the important thing is how the changed definitions affect the conclusions, something that your brains are incapable of understanding. You would be much better served by waiting for others to explain the ramifications to you than by making fools of yourselves.
LMAO @ballantine. You have a predictable tactic of rephrasing inconventient material. Where is your intellectual honesty?? Trying making a point without changing the words to suit your agenda.
The Ankeny quote does NOT say “It is only relevant to Presidential eligibility.” It would have been smarter if they did say this, but they didn’t. They said, “For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant.” If this were true, why did the framers put it in the Constitution?? Why did Congress pass a resolution for McCain if it’s not relevant to anyone but the 44 presidents?? You’re smarter than that, ballantine. Do YOU honestly think this provision is irrelevant to everyone but the presidents?? If so, why would you be here so vehemently arguing about it??
You wrote: “Quibbling.
Translated: You’re right, ksdb.
You wrote: “For those who can read, WKA says they mean the same thing.”
No, actually it says they do not:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens.”
The 14th amendment is part of the Constitution. IOW, the 14th amendment does NOT say who shall be NBCs.
You said, ” As I explained, the court said that plaintiff did not argue the President was not native born on appeal.”
I’ve already cited the part of the appeal decision that contradicts this. It was quoted from the Appellants’ Appendix. The Indiana Appeals Court dismissed this saying:
“Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we therefore do not address Plaintiffs argument as it relates to Senator McCain.”
By the time they got further in section B on NBC, the court forgot that it said the Plaintiffs argued Obama was not born in an Article IV State of the 50 United States of America. Hell, Ankeny doesn’t even mention Hawaii as the birthplace.
And I apologize for spoiling your preaching on “Law School 101,” but this isn’t a criminal trial. The burden of proof is limited here. The plaintiff can simply show a preponderance of evidence that Obama was not born in the U.S. This court accepted the plaintiff’s argument, but then changed the argument to citizen parents and punted the place of birth argument without explaining a solid basis for doing so (except for McCain).
kdsb:
you said: “@squeegy; You’re right. I chased you off of the other other website because you were embarrassing yourself with your ignorance on this issue. I provide a recap of WKA which you’ve been unable to dispute. You ran off. But it’s okay. I’m here to educate you and your little friends.”
In your wildest dreams, Quote Butcher!!! Your thought processes were sooo screwed up, I invented a whole new category at The Birther Think Tank called “Pooperscooping The Vattel Birthers” just for some of your theories. Here is one place where I beat you like a carpet over a clothesline WITH LOGIC:
http://birtherthinktank.wordpress.com/2011/10/13/pooperscooping-the-vattel-birthers-no-2-the-doctor-who-thingy/
Squeeky Fromm
Girl Reporter
@Slartibartfast ,
You’re supporting my argument for me. You quote Ankney but it says NOTHING about Obama in that quote. They’ve already cited the plaintiffs saying neither McCain nor Obama was born in an “Article IV State of the 50 United States of America.” There’s NOTHING in the decision that refutes this. It certainly does not do so in what you quoted. Your tantrums and name-calling don’t change this fact. My point stands. Thanks for proving it for me.
Re: “The plaintiff can simply show a preponderance of evidence that Obama was not born in the U.S.”
How could the plaintiff do that if there is no evidence that Obama traveled to the USA from outside of the USA in 1961?
Squeeky,
I have no doubt that it is double plus unsmart and I wouldn’t be too surprised if Ballantine is right about it being Mario. Either way it is pathetic and dishonest and it has no place in any discussion being conducted in good faith.
Ballantine,
I greatly respect your civility–I just feel it necessary to shout down those who try to refute what you say in bad faith. No one in this discussion should be under the impression that the ignorant and dishonest opinion of an idiot troll is equal in any sense to the learned responses of people like yourself or Nal. I would, however, be interested to know what you think of my proof that the quote doesn’t say what Leo thinks it does.
Thanks,
Kevin
squeezey, always pimping your blog that no one reads. Sad, really. And the guy who yelled “quote butcher” was also chased off. Funny thing how facts make people like you and him run away.
Squeeky,
The troll seems to be blustering quite a bit*–I think we might have given it a sadz. Remember, if nothing else, I (and several other Fogbow members as well) have read and enjoyed your blog. I would also note that you explicitly didn’t put links to your blog on this page until I asked you to–so if anyone is responsible for you pimping your blog here, it’s me.
* it’s still a tale told by an idiot, full of sound and fury, signifying nothing, though…
ksdb:
I wasn’t chased off. I asked you repeatedly to do something positive about proving your theory and briefly analyze WKA by section, in your own words, with a quote from each section.
I also asked you repeatedly to do something besides call the Ankeny Court “Hillbilly Hoosiers” and analyze where that Court did anything wrong besides just disagreeing with you. The Ankeny Court pretty much just cited WKA and if you think they erred, then you should be able to clearly and cogently explain where and how they deviated from established case law.
I also asked you to find some basis in the law for your belief that the 14th Amendment does not apply to people born here of two citizen parents. Something beyond your tortured reading of the case. Something beyond the rantings and ravings of Sovereign Citizen pretend Internet lawyers.
You repeatedly refused to do this. Instead, you engaged in sophistic quibbling, quote butchering, and law mangling.
Therefore, just as you have found out here, when REAL lawyers weigh into you, they conclude just like this humble little Girl Reporter, that you are an IDIOT. And that you have nothing of value to add to the discussion.
So There!!!
Squeeky Fromm
Girl Reporter
“For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant.”
Don’t get your point really. The only difference between “natural born” and “naturalized” is Presidential eligilbity. WKA clearly tells us the definition of natural born is the same as the first section of the 14th Amendment so i don’t see your point. You are quibbling as you want to ignore ignore Ankeny’s clear definition of “natural born citizen” just like you WKA’s clear definition or NBC.
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens.”
The 14th amendment is part of the Constitution. IOW, the 14th amendment does NOT say who shall be NBCs.”
Don’t get your point here at all. Gray says “natural born citizen” and “citizen” are not defined in the Constitution other than the 14th Amendment (which only defines “citizen”) and hence must be defined by the common law. He cites Minor to reinforce this as Minor said NBC should be defined by the common law. He cites Smith v. Alabama to even more clearly make the point that ALL undefined terms in the Constitution should be defined by the english common law:
“The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
He then goes on to define “natural born” under the common law. Plain Englsih again.
“I’ve already cited the part of the appeal decision that contradicts this. It was quoted from the Appellants’ Appendix. The Indiana Appeals Court dismissed this saying:
“Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we therefore do not address Plaintiffs argument as it relates to Senator McCain.”
Duh. That is referring to McCain. With respect to Obama the Court said:
“As to President Obama’s status, the most common argument has been waged by members of the so-called “birther” movement who suggest that the President was not born in the United States; they support their argument by pointing to “the President’s alleged refusal to disclose publicly an „official birth certificate” that is satisfactory to [the birthers].” Rhodes v. MacDonald, No. 4:09-CV-106, 2009 WL 2997605, at *1 (M.D. Ga. Sept. 16, 2009), reconsideration denied by 2009 WL 3111834 (M.D. Ga. Sept. 18, 2009). The Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.”
Do you really not understand the Court when it said “[t]he Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.” Translation: This was the only argument they made on appeal or the only argument not deemed waived by the pro se litigant who did not know how to preserve an argument on appeal.
“And I apologize for spoiling your preaching on “Law School 101,” but this isn’t a criminal trial. The burden of proof is limited here. The plaintiff can simply show a preponderance of evidence that Obama was not born in the U.S. This court accepted the plaintiff’s argument, but then changed the argument to citizen parents and punted the place of birth argument without explaining a solid basis for doing so (except for McCain).”
Sorry, Law School 101 applies. The preponderance of evidence standard only apllies if the court reaches the trial stage. This case was dismissed before discovery. If they got to discovery, plaintiff would have had to produce some admissible evidence that, if true, would prove Obama was ineligible. If they could not, the case would be dismissed without Obama raising a finger or submitting any evidence. No evidence the birthers have would be considered admissible evidence in a court of law. However, in this case they never got that far.
Let’s engage in fantasy and dream that Apuzzo’s standing arguments were not laughed out of court and the case was remanded. It would be dismissed on summary judgement unless the court either agreed with the Vattel BS argument or Apuzzo presented some admissible evidence that he was born outside the US. If not, the case would be dismissed. If he appealed the Vattel ruling the the US Supreme Court and they said that a natural born citizen did not need citizen parents, that ruling would be binding precedent. The court would not say that Obama was a natural born citizen, they would have said Apuzzo’s theory that he was not was without merit and hence Apuzzo failed to satisfy his burden of proof. Law School 101.
Slarti:
Thank you! I will have to visit the Fogbow and see what people there are saying about me. ksdb does not bother me. Actually, I got a half dozen or so Internet Articles out of his flawed methods of thinking, and silly interpretations.
ksdb is a GREAT example of how not to think. Probably, the best bad example I have ever come across. Thankfully, he is not shy about spouting off his foolishness. He will just jump right out there and boldly make a fool of himself. He is very funny, but like Jerry Lewis he begins to get stale after a while. Unless you are French.
Squeeky Fromm
Girl Reporter
Squeeky,
I never really understood the French thing with Jerry Lewis…
Ballantine,
You really need to start charging the trolls for the impromptu law classes you’re giving them–otherwise they’ll never appreciate the value of it…
I like to think of them as our definitions, Slarti. You created H and added substantial text to C.
I am using an old text book for my venn diagrams. How is it that B intersects the union of E and F? I do not see them touching at all.
squealyer said: “I wasn’t chased off. I asked you repeatedly to do something positive about proving your theory and briefly analyze WKA by section, in your own words, with a quote from each section.”
A) I don’t have a theory, just the actual words of the court, B) I did analyze WKA and gave you the post number when you asked for it after ignoring that I had analyzed it. It’s still there #572 in Obama should have been deported with Barak Sr.
C) I’ve analyzed Ankeny here and there, showing several contradictions and outright errors. Read post #333 at Obama should have been deported with Barak Sr.
And D: You say: “I also asked you to find some basis in the law for your belief that the 14th Amendment does not apply to people born here of two citizen parents.”
Ms. Quote Butcher, I didn’t say the 14th amendment doesn’t apply to persons born here of two citizen parents. Justice Gray said in WKA the CITIZEN CLAUSE of the 14th Amendment EXCLUDES NBCs, which he based on Minor, which said women did not need this amendment to be citizens. This has been posted several times, yet you insist on misconstruing what was said. Shame on you, ms quote butcher, shame on you. And one more time, since you say aren’t intellectually honest:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens.”
Do you understand that yet??? The 14th amendment does NOT say who shall be natural-born citizens. It’s not “theory” … it’s what Gray said in black and white (play on words intended).
“No evidence the birthers have would be considered admissible evidence in a court of law.”
I shouldn’t say this. I have not analyzed what their evidence is and whether it could be authenticated or admissible. We have not gotten to that point in any case. I should say I have not seen any evidence presented by birthers that would seem able to withstand summary judgement but I have not analzed their evidence. What actual evidence do they contend that they have that proves foreign birth that they could authenticate? My point is the burden is on the plaintiff and Obama doesn’t have to do anything if this burden is not met. He would not need to produce a birth certificate until this burden is met. At trial, Obama would not need to prove his native birth, the petitioners would have to prove his foreign birth. How exactly would they do that?
Komfort,
That’s fine, I just wanted to make it clear that it wasn’t solely my work.
You should really use a clean sheet of paper for your Venn diagrams, but if an old textbook is all that you have…
I said: “T3. The intersection of (B and [the union of E and F]) is empty”
When I am speaking “in math”, so to speak, I’m always speaking in a perfectly precise manner. I’m sure it makes me seem dry and technical to most of you, but another mathematician would understand exactly what my words mean–and you can, too. In this case (and whenever you see grouping symbols) work from the inside, out. So in the chewy center, we’ve got aliens and furriners and we are taking that set and our “citizens” class (whatever that means) and intersecting them after which we are declaring the intersection empty (just as you suspected). In other words, there are no alien-citizens nor are there furriner-citizens (which is what the quote means when it says the two classes are “distinct”). Hope that helps.
@ksdb. squealyer said: “I wasn’t chased off. I asked you repeatedly to do something positive about proving your theory and briefly analyze WKA by section, in your own words, with a quote from each section.”
I have broken down WKA in great detail here over and over and you have made no contrary argument other than to re-write what the court has said. I am trying to be nice, but you are simply dishonest or ignorant. At some point the non-lawyer birthers who have no understanding of law need to be ignored.
“Justice Gray said in WKA the CITIZEN CLAUSE of the 14th Amendment EXCLUDES NBCs, which he based on Minor, which said women did not need this amendment to be citizens.”
This is simply a lie or someone who has no ability to understand case law. How many times on this thread have i pointd out his is wrong. Have you figured out what a 12d-6 motion or summary judgement means? Why do you claim to be a legal expert when you dont’ even understand why Ankeny did not declaer Obama a natural born citizen. Any first year law student would understand. Do you even know what dicta or holding mean? You show no evidence of that and make no attempt to counter my arguments because you cannot.
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens.”
Do you understand that yet??? The 14th amendment does NOT say who shall be natural-born citizens. It’s not “theory” … it’s what Gray said in black and white (play on words intended).”
Again you fail the reading comprehention test. Gray was not saying that 14th amendment did not construe NBC. Minor was one, and only one, authority cited for the proposition that undefined terms in the Constitution, such as “naturla born citizen,” should be defined by the English common law. He points out that Minor also said “natural born citizen” was to be defined by the common law which Gray makes clear beyond all doubt was the english common law. But he cites other authorities making clear this is the rule for all undefined terms as I quoted above. Duh!!!
Squeeky is right, you are a “quote butcher,” but beyond that you have shown an ignorance of the most basic of legal issues. It is clear you have no idea what summary judgement or burden or proof mean and clearly have no understadning of law. Do you go on medical threads and pretend to be a doctor?
Ksdb:
YOU said, above:
ksdb 1, November 17, 2011 at 2:39 am
@ballantine
You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this.
- – -
I said above:
Squeeky Fromm, Girl Reporter 1, November 17, 2011 at 3:00 am
KSDB:
Uh, I think you are excluding about everybody born here in the country with your analysis. I am trying to think of people who either don’t have citizen parents or foreign parents, and I am coming up short. With what Danae said earlier it kind of sounds like movie night here, sooo are you maybe referring to the mutant X-Men???
Have I missed something???
Squeeky Fromm
Girl Reporter
- – -
YOU, ksdb replied:
ksdb 1, November 17, 2011 at 3:14 am
The birth clause in the 14th amendment was written to grant citizenship to a select minority of persons born in this country. It wasn’t designed to grant birth citizenship who were already citizens by virtue of being natural-born citizens. All others were expected to naturalize.
- – -
So yeah, YOU did say it. Same with the stuff at the other website. You made a pronouncement, failed to analyze the sections of WKA, and went merrily on your way. Worse, in your “Obama should have been deported” analysis of WKA, you cited a federal case where the judge clearly said the kid born of the two illegal aliens was a natural born citizen.
Yep, you are a regular Perry Mason, aren’t you???
Squeeky Fromm
Girl Reporter
Squeeky,
You really seem to have hit one of the troll’s nerves–congratulations!
Ballantine,
You correcting your comment about evidence and every single birther pretending ignorance or actually being ignorant about the concept of “burden of proof” is a great example of the difference between good faith and bad faith.
@ballantine: You said “Don’t get your point really.” Right. How convenient.
You said: “WKA clearly tells us the definition of natural born is the same as the first section of the 14th Amendment so i don’t see your point.”
It doesn’t say this at all. In FACT, it says the opposite: When construing the first section of the 14th amendment, it does NOT say who shall be the natural-born citizens. This is why it says resort must be had “elsewhere.”
You said: “Don’t get your point here at all. Gray says “natural born citizen” and “citizen” are not defined in the Constitution other than the 14th Amendment (which only defines “citizen”) and hence must be defined by the common law”
It doesn’t say it MUST be defined by the common law. Why do you insist on making things up like that?? In “light of” its history does not = must be defined by common law. The NBC definition in Minor is NOT from English Common Law. Are you honest enough to admit that??
You said: “Do you really not understand the Court when it said “[t]he Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.””
What part of “this was contradicted” do you NOT understand? The court says the plaintiffs laid out nine arguments.
“Plaintiffs raise nine issues, which we revise and restate as whether the trial court erred by granting the motion to dismiss under Ind. Trial Rule 12(B)(6).1 ”
This court then boils this down to TWO issues:
“Specifically, Plaintiffs appear to argue that the Governor did not comply with this duty because: (A) neither President Barack Obama nor Senator John McCain were eligible “to be appointed „Elector in Chief‟ in violation of Article II, Section 1, Clause 2‟s prohibition that no United States Senator currently holding that office shall be appointed Elector for any State,” and (B) neither President Barack Obama nor Senator John McCain were eligible to hold the office of President because neither were “born naturally within any Article IV State of the 50 United States of America . . . .” Appellants‟ Appendix at 11-12, 16-18.
“… However, we note that even if the Governor does have such a duty, for the reasons below we cannot say that President Barack Obama or Senator John McCain was not eligible to become President. We will handle each of Plaintiffs‟ arguments in turn.”
So, these two arguments are handled as A) Sitting Senator and B) Natural-Born Citizen. By the time this court gets to part B) they dismiss McCain from the arugment and ignore that place of birth was part of the argument that they admitted earlier was part of the nine issues raised on appeal. Do you know what a “bait-and-switch” is??
You said: “The preponderance of evidence standard only apllies if the court reaches the trial stage.” You’re arguing against yourself. I was responding to YOUR argument about burden of proof, and explaining the difference. If you’re going to argue about trial stage, then you’re destroying your original point. What a dumbass.
And why are you talking about Apuzzo?? Focus on the points in front of you. Your obot talking points about Apuzzo are irrelevant. You need to go back to your law school 101. You’re getting pwned(and badly) by a civilian.
@ my funny ballantine: You wrote: ‘I have broken down WKA in great detail here over and over and you have made no contrary argument other than to re-write what the court has said.’
The decision speaks for itself: all children born in the country to parents who were its citizens. These are the natural born citizens. It’s an EXCLUSIVE characterization as distinguished from those who didn’t meet the COMBINED jus soli and jus sanguinis conditions, which are aliens or foreigners who must depend on OTHER means of citizenship in which doubts must be resolved, such as how to satisfy the subject clause of the 14th amendment.
The rest of what you post is irrelevant posturing, face-saving, mischaracterizations and a lot of outright dishonesty. You would be better served finding a hobby like ditch-digging where you might have some competence.
Squeezy, ONE MORE TIME; Go read #572 at Obama should have been deported. I’ve analyzed WKA more than you and your BFF could dream about. And thanks for reposting my commments. The SCOTUS is clear about NBCs being excluded from the citizen clause of the 14th amendment.Our country recognized such citizens for 92 years without that clause … and the court said it was true as much SINCE the adoption of the amendment as it was before it was adopted.
The lying troll said:
First off, it’s interesting to note that it doesn’t understand that the arguments it is using originate with Apuzzo (or it is Apuzzo trying to deflect suspicion by playing dumb… really, really dumb). But what I’m really interested in is its perception that Ballantine is getting pwned. Does anyone besides the incompetent birther troll believe this? …anyone? …anyone? …Bueller?
I see nothing in our problem or our definitions that would give us cause to intersect the sets. The union of E and F makes sense. They are a union because they share the characteristic of not being citizens. They are specifically not part of B. I have them drawn a set outside of any other set.
Slarti:
Well, I don’t. All I see is a pretend Internet lawyer (ksdb) ignoring what a real lawyer (ballantine) is telling him, while offering no reasonable argument why the lawyer is wrong.
ksdb: If you are sooo proud of your alleged analysis of WKA, then you go to post 572 and bring it here for everybody to see how wonderful it is!
It would certainly be relevant. And funny, IIRC.
Squeeky Fromm
Girl Reporter
I assume we both are treating B as a set. Otherwise, how could it intersect?
Slarti:
Let me add something to my last reply. I am NOT implying that lawyers are always right and non-lawyers are always wrong. But I think that when you debate a lawyer, you had better have your ducks in a row, or the lawyer is going to clobber you WITH LOGIC. Because this stuff is what a lawyer does for a living.
Sooo, for example, before I lit into Leo Donofrio, I read the two or three cases multiple times, understood them, and double-checked my interpretations wherever I could. Then, when I took the step of saying he was wrong, I also proved it as best as I could with reference to third party stuff, like other cases, or legal articles. Because I do not wish either to be stupid or to look stupid. Plus, it is my responsibility to back up my own position.
One of my biggest complaints with ksdb is that he does none of that. He just lays an interpretation out there, and does NONE of the homework. He reads cases in ways that lead to totally goofy and outrageous results, and when you point that out to him, he doesn’t go off and read some more and try to figure out if he is wrong. Nope. He just keeps on stating his interpretation like he knows what he is doing.
To everyone else, outside the Vattle Birther echo chamber, he just looks like a nut or a liar. But, that is his own fault for being sooo lazy.
Squeeky Fromm
Girl Reporter
Komfort,
When I think that you are not understanding, I’m going to address you in a pedantic mode–like below. I’m just trying to be clear that when I’m doing this I’m trying to explain something (that I understand very clearly), not trying to defend my analysis… (which I also understand clearly, but you are free to dispute in good faith)
We are considering the intersection and finding it to be empty. In other words, the sets do not intersect.
We may consider the union or intersection of any two sets–for instance we can consider the intersection of the set of all birthers and the set of all Obama supporters. Like pro-Obama birthers there are no citizen-furriners (which is what I’ve said in formal language). I’ve given you the justification for drawing E union F as outside of B (empty intersection=”outside” of each other).
Here’s an exercise for you: What is the intersection of H and F? (please show your work
)
Puzzler (extra credit): I can think of a group of people who are definitely in F and are also unquestionably US citizens and some of whom are possibly natural born citizens–do you know who I mean? (this is most definitely a “trick” question)
Squeeky,
Your way is the best way to do it, but, personally, if I had wanted to read case law, I could have become a lawyer… (I think that math is a lot more fun–yeah, I’m demented…
) Instead, I listened to what people on both sides were saying–I ran across Texas Darlin’s blog before the 2008 election and was concerned that the allegations might be true (I didn’t know for sure…) so I looked for someone arguing the other side and found this blog and Vince Treacy doing basically the same thing as Ballantine (only with a starship Enterprise (old school) gravatar…) on threads that make this one seem short. I’ve never found a single birther that could measure up to Vince’s knowledge of the law nor have I found any of his claims to be less than impeccably supported by references of fact and law. After 3 years and zero meritorious birther arguments, I’ve decided that no birther deserves the benefit of the doubt any longer.
Pre Declaration of Independence:
H is outside of F
Post Declaration of Independence:
H is outide of F
Slarti,
Hope you respond to this one without engaging in name calling. Spell this out in your proof:
“but C=G (by definition) therefore…”
What do you mean “by definition”? How did you arrive to this conclusion?
Also, you stated one birther claim that A is contained in G (by definition). Again, which definition? Can you spell it out?
“Also, you stated one birther claim that A is contained in G (by definition). Again, which definition? Can you spell it out?”
I meant “one birther argument”
@Slartibartfast. My comments didn’t originate with Apuzzo. You need to quit making excuses for why you can’t refute what I’ve posted.
squeezy, you would better serve yourself by learning a few words and then repeating them often, “ksdb, you’re right.” I’ve challenged you on several things and you’ve punted more often than the Indianapolis Colts.You’re not going to get anywhere on this issue when you only seek validation of your ignorance from other Obots.
mrjr101,
You did what I asked, so I’ll answer your question:
When I say “by definition” I mean that only the definition of the terms is necessary to justify the assertion. In this case the definitions are:
C=natives (people born in a country)
and
G=jus soli children (people born on the soil–i.e. people born in a country)
Since these two terms mean the same thing, they are equivalent by definition.
Similarly,
A=jus soli, jus sanguins children
so, by definition, anyone in A must also belong to G.
Hope that helps.
“I’ve decided that no birther deserves the benefit of the doubt any longer.”
Slarti,
I can appreciate your sentiment, but I think the matter still deserves discussion. It is unfortunate that process cannot be more civil. IMHO the matter is not left or right, lib vs cons, but rather what does the constitution intend.
I see both sides and can understand the concerns. I agree that some arguments are without any measurable substance and deserving of little response.
I think that most Americans would find fascinating the questions that arise;
1. What is the import of common law vs natural law. Squeeky provided reference to the Lynch v. Clarke decision which is especially pertinent. We can see the court considering both ECL and Vattel’s philosophy and finding the former with greater claim. I truly understand that though this matter has been in controversy for two centuries, we must look to the court for clarity as to what our constitution and laws import.
2. John Jay’s comment to the committee president that put NbC in the constitution is telling. If the LvC court recognized dual citizenship existed how is that in line with the original intent of its use?
3. Speaking of LvC, is it not interesting the illogic of the court stating that dual citizenship is a reasonable reality while never reflecting on those that become naturalized citizens? Last I checked, those naturalized are obligated to renounce their old allegiance and swear fealty to the new.
4. Per the WKA dissent, the Fuller decision is catastrophic to those that insist Gray did not have an impact on our understanding of A2. In fact, the ugliness of the decision canceled previously understood truths that those born abroad to Americans could be natural born. If those born subject to the jurisdiction (purely jus soli) are natural born, those born without must be naturalized.
5. The historical fact that all presidents born after 1787 are the product of birth in this country to citizen parents save two is remarkable. What understanding was there in this lopsided fact? Did an earlier 19th century president obfuscate his birth story?
I have learned much from witnessing your back and forth.
Hi Slarti … having a good time I see …
Portney, you seem like the voice of reason on this thread, although you give way too much credit to the Obots.
1). Read Lynch v. Clarke. It contains some strong commentary that would probably be compelling if it wasn’t a lower court case colored by local statutes and misinterpretation of SCOTUS precedent. The judge (or chancellor) actually opines outright that he can’t imagine that any person born on the soil would not inherently be eligible to run for president. But, Gray wisely avoided citing dicta from Lynch v. Clarke. Of the decision he says:
“Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.”
Of course, Gray fails to mention that these authorities were following local statutes and some statutes DO assert the citizenship of native-born children of foreign parents, such as in New York, where Lynch was argued. Second, these decisions are outweighed by the Minor decision.
2 & 3) I don’t recall Lynch acknowledging dual citizenship. Would have to review it.
4) The dissent in WKA is not catastrophic at all. Fuller is responding to claims made in the lower courts where I believe Yick Wo claimed to be a natural-born citizen. WKA cited this decision (although not the NBC claim per se) and the government’s counsel objected to this citation, noting on appeal that accepting Ark’s citizenship claim would put the country at risk of accepting the children of foreigners as NBCs. Fuller is basically pshawing this notion in his dissent. The real argument in the dissent is that the U.S. has no business overriding the treat with China:
“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.
– - -
“I am of opinion that the President and Senate by treaty, and the Congress by naturalization, have the power, notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship upon children born to them while in this country under such consent, in spite of treaty and statute.
“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; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”
Gray deftly avoided the ramifications of the 14th amendment creating or redefining NBC per A2 by using a separate class of citizenship that he called “citizenship by birth.”
5) The other exception is said to be Chester Alan Arthur, whose father evidently did not naturalize until Arthur was 14 or something like that. The difference is, that under a common-law interpretation, he had a better claim to natural-born citizenship than Obama. Under common-law, the parents must have actual obedience and ADHERE to the jurisdiction of the United States. Obama’s father remained a foreign national and was basically deported when his passport was denied an extension. Had Obama’s mama not divorced his father, they would have been deported with him.
ksdb:
Lookit. If people think you got your ideas from Mario Apuzzo, then run with it is my advice. People will think he is the crazy one, not you. This is your chance to pass the blame to somebody else. For the Love of God, take it!!!
Sincerely,
Squeeky Fromm
Girl Reporter
squeely, you misspelled, “ksdb, you’re right.” Again, this is your best option. Use it often.
ksdb,
You have failed to meet your burden of proof–no one needs to refute what you’ve said (and it would never survive a motion to dismiss in court). Also, I wasn’t the first to imply you are serving up badly re-heated Apuzzo…
Squeeky,
Wow–did you get its panties in a bunch or what?
Komfort,
You didn’t show your work. I will, however, give you a hint and the solution to the extra credit problem.
Hint: consider Alex Hamilton pre/post-DoI
The class of people who are both undoubtedly foreigners while simultaneously citizens are the male descendants of the Marquis de Lafayette. Granted citizenship by the Maryland Legislature (both the marquis and all of his male descendants were made US citizens), Rene de Chambrun, successfully argued his US citizenship in court and won admittance to the New York bar. He was also born in Paris (and obviously of French ancestry) and a French citizen all of his life. It seems to me that the children of Lafayette’s male descendants would be natural born citizens if John McCain is (though they might be proven not to be in court–something that would never have happened to McCain…). Anyway, just an interesting bit of our history…
Blouise,
Hi! I’m trying to larn them some to sheau of mie edumacation.
Slarti:
I think I did. I bet I get CDR. Kerchner’s undies in a wad, too. He is also pushing the MvH “swill again”:
http://birtherthinktank.wordpress.com/2011/11/22/swilligans-island-or-how-the-skipper-marooned-the-vattel-birthers/
Squeeky Fromm
Girl Reporter
@ksdb Your ignorance grows tiresome.
“It doesn’t say this at all. In FACT, it says the opposite: When construing the first section of the 14th amendment, it does NOT say who shall be the natural-born citizens. This is why it says resort must be had “elsewhere.”
Yes, it says the definition of natural born subject prevailed under our original Constitution and cited authority saying natural born subject and citizen mean the same thing. Plain English. It then defines the 14th by the definition of natural born subject saying such amendment was simply declaratory. After you have shown us that you don’t understand the most basic legal concepts like burden of proof not surprising you can’t understand what WKA said.
@ksdb It doesn’t say it MUST be defined by the common law. Why do you insist on making things up like that?? In “light of” its history does not = must be defined by common law. The NBC definition in Minor is NOT from English Common Law. Are you honest enough to admit that?? ”
Sigh, the court says that “[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States’” and that “[t]he Constitution nowhere defines the meaning of these words.” Accordingly, “[i]n this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution….’[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.’
“Must be interpreted in the light of the common law..the Constitution must be read in light of its history.” What do you think that means? The Court then goes on to define “natural born” under the English common law before saying such rule prevailed under our oroginal Constitution. To try to say “in light” means it is not saying to look to the common law is desperate. Yes, it must mean to ignore the common law. Is there any provision you don’t try to twist and distort? And sorry, Justice Waite said he was looking to the common law as well. And it is true that there is no doubt that native children of citizens are citizens under the common law. He didn’t say native children of aliens were not. He tells us he didn’t examine the issue for such persons. We know what he would have found it he did.
“You said: “Do you really not understand the Court when it said “[t]he Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation.””
Sorry, the court clearly states he was not making the normal birther argument here even if he did below. Again, plain English.
“You said: “The preponderance of evidence standard only apllies if the court reaches the trial stage.” You’re arguing against yourself. I was responding to YOUR argument about burden of proof, and explaining the difference. If you’re going to argue about trial stage, then you’re destroying your original point. What a dumbass.”
No, you are the one who brought up the preponerance of evidance, something that does not exist at summary judgement or upon a motion to dismiss for failure to state a claim. You keep showing you have no understanding of how a civil case works and keep showing how dumb you are saying that the Court did not declare Obama a natural born citizen when the court would never make such a determination in this kind of suit. You have demonstrated you know nothing about law yet seem intent on playing legal expert on the internet. Sad.
squeeky fromm:
I am just curious why you would take the name [even if spelled incorrectly] of an evil, crazy racist bitch from a deranged cult?
Manson, the Aryan Brotherhood, murder, attempted assasination, etc.
http://en.wikipedia.org/wiki/Lynette_Fromme
It is sort of like Nike coming up with the name Zyklon for a pair of shoes and then realized whoops that was the gas the Nazis used. They pulled the name, if I remember correctly, once they realized the connection.
@ksbd 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.”
WKA cites Lynch as one of the many authorities supporting his view that we adopted the English common law.
“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.”
“The dissent in WKA is not catastrophic at all. Fuller is responding to claims made in the lower courts where I believe Yick Wo claimed to be a natural-born citizen.”
Of course it is. Fuller summarizes the majority opinion quite clearly before saying he disagrees. Fuller says the majority says what I say. In, fact, most of his summary are direct quotes of Justice Gray. So, ksdb, what part of Fuller’s summary is wrong:
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;” and “that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.” Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”
Natural born citizen “must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality. See, Fuller had no problem understanding what Gray meant. Nor would any compentant lawyer.
@ ballantine, It’s time for you to quit making things up. You said, “Yes, it says the definition of natural born subject prevailed under our original Constitution and cited authority saying natural born subject and citizen mean the same thing.” It doesn’t says they mean the same thing. And the part about the definition of NBS “prevailing” under our original Constitution meant that you could be born on U.S. soil and NOT be a U.S. citizen, but instead a British subject (like Obama). You need to think these things through before you post them.
Slarti, you did not ask about any intersections with D (Hamilton’s problem).
You are correct, I did not show my work. I apologize.
Prior to the D.o.I, H were subjects to the crown, West Indies included. They would not be considered F.
Post D.o.I, H were citizens of the United States. Hamilton included. They would not be considered F.
Congratulations on breaking the 1,000 comments line, David.
@ my funny ballantine: You wrote: “WKA cites Lynch as one of the many authorities supporting his view that we adopted the English common law.”
Yes, I’ve talked about this. You do understand that Gray did NOT stop at this citation. The chancellor in Lynch made some fatal mistakes that Gray could not rely on, and as you know full well, the Minor decision trumps Lynch in defining NBC. Gray was trying to build a strong enough argument to apply common law to the 14th amendment in spite of an international treaty to the contrary.
You wrote: “Of course it is. Fuller summarizes the majority opinion quite clearly before saying he disagrees. Fuller says the majority says what I say. In, fact, most of his summary are direct quotes of Justice Gray. So, ksdb, what part of Fuller’s summary is wrong:”
No part is “wrong.” It says what I’ve been saying. Gray tried to use common law to give power to the 14th amendment. Yes, it acknowledges that the Constitution must be interpreted “in light of” English common law. It does NOT say the interpretation of the Constitution must follow or adhere to English common law. I’ve already pointed this out (yesterday at 6:45). If it did say the interpretation must adhere to English common law, then Gray contradicted himself when he affirmed Minor’s definition of NBC. Do you think Minor’s NBC definition is from English common law??
@ksdb “And the part about the definition of NBS “prevailing” under our original Constitution meant that you could be born on U.S. soil and NOT be a U.S. citizen, but instead a British subject (like Obama). You need to think these things through before you post them.”
Spin, twist, lie, that is all you have. The entire diswcussion of British law dealt with people born on Britishj soil under the common law. People born on US soil are not natural born subjects under such rule and nothing in the previous discussion of Brith law says so. Rather, the court says the rule that made children of aliens born in England natural born subjects “continued to prevail under the Constitution as originally established.” Plain english again. No way such could be read to talk about children born outside of England being subjects. Let me simplify it for you;
(1) The court says natural born citizen must be read in light of the English common law.
(2) The court follows this by telling us native born children of aliens were natural born subjects under the English common law.
(3) The court follows this by saying the rule that made them natural born subjects prevailed under the Constitution.
For people who are really slow he goes on to cites a mountain of authority saying we adopted the English rule since the beginning of our republic such as:
“natural born citizen …. 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.”
“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.”
“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.”
Do you not understand the clear definition “all persons born in the allegiance of the United States are natural-born citizens.” He clearly tells us who was born in the allegiance in both the United State and England. Since you can’t seem to understand something so basic as the burden of proof in a civil case, I suggest you read Fuller’s simple summary of the majority opinion. I think you might even be able to understand it.
“@ksdbThe chancellor in Lynch made some fatal mistakes that Gray could not rely on, and as you know full well, the Minor decision trumps Lynch in defining NBC.”
Your saying he made mistakes mean nothing. Gray didn’t say Lynch made mistakes. he cited to support his conclusion as Lynch says the same thing. Minor doesn’t trump Lnych as Minor expressly declined to address children of aliens.
@ksdbGray was trying to build a strong enough argument to apply common law to the 14th amendment in spite of an international treaty to the contrary.”
Gibberish. Gray spends 22 pages telling us the common law was the law prior to 1866. an International treaty has no effect on the common law rule in the original Constitution as clarified by the 14th Amendment. Again, you have no understanding of basic law.
@ksdbYes, it acknowledges that the Constitution must be interpreted “in light of” English common law. It does NOT say the interpretation of the Constitution must follow or adhere to English common law. I’ve already pointed this out (yesterday at 6:45).”
You are simply in denial. “Natural born citizen.. must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality” means NBC was defined by place of birth as such is the rule it is being interpreted in light of. You simply refuse to admit what plain english dicates. In addition, why does he follow saying prior to 1866, “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States?” Why was the common law rule in efffect prior to 1866? Why does he say the 14th Amendment was simply declaratory of the same common law rule? Fuller goes on to describe the common law rule and then says:
“And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, …”
He is saying he disagrees with Gray opinion that both NBC and the 14th Amendment are defined by the common law. I guess you don’t understand what declaratory means.
@ksdb”then Gray contradicted himself when he affirmed Minor’s definition of NBC”
Good grief, you still don’t understand thaat Gray quoted Minor to show the court was not committed. Oh, I forgot your English problems.You don’t understand that saying neither Miller nor the court “understood the court to be committed” means they were not committed. Duh.
@ my funny ballantine: You said, “Spin, twist, lie, that is all you have.” Nonsense. This is you projecting and trying to bully your way out of yet another losing argument.
You wrote: “Rather, the court says the rule that made children of aliens born in England natural born subjects “continued to prevail under the Constitution as originally established.” Plain english again. No way such could be read to talk about children born outside of England being subjects.”
Dumbass, that’s exactly what it says. It cited previous court decisions that affirmed this:
“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.”
The citation from US. v Rhodes is talking about the Shanks v. Dupont decision (mentioned in the paragraph immediately prior in U.S. v Rhodes). Both circumstances are related to person born on U.S. soil.
Here’s that paragraph:
“In Shanks v. Dupont, 3 Pet. [28 U.S.] 247, the supreme court of the United States said:
“During the war each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The Americans insisted upon the allegiance of all born within the states, respectively; and Great Britain asserted an equally exclusive claim. The treaty of 1783 acted upon the state of things as it existed at that period. [**17] It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from their allegiance to the British crown, and those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article, it was a ‘firm and perpetual peace between his Britannic majesty and the said states, and between the subjects of one and the citizens of the other.’ Who then were subjects or citizens was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her and were claimed by her as subject, the treaty deemed them such; if they were originally British subjects, but then adhering to the states, the treaty deemed them citizens.”
Do you see the part that says “whether natives or otherwise”?? This means including persons born on U.S. soil (“natives of the colonies”). All those persons, whether native or otherwise, who adhered to the British crown were deemed and held to be subjects of the crown. This is following the treaty of 1783, which “continued to prevail under the Constitution as originally established.” Do you understand this??
The “common law” meant you could be a EITHER a natural-born subject or a natural-born citizen if born on U.S. soil. Under this rule, Obama is a natural-born subject (which explains why his own campaign website said his citizenship at birth was governed by a British nationality act) because his father adhered to the British government via Kenya.
And I asked you a question that you’ve punted. Do you think the NBC definition in Minor (all children born in the country to parents who were its citizens) is from English commmon law??
@ funny ballantine: “Your saying he made mistakes mean nothing. Gray didn’t say Lynch made mistakes.”
No shit. Really??? Read the Lynch decision. It’s quite verbose. There were definitely passages Gray could have cited, but he didn’t. What Gray did write about Lynch is a very generic and abbreviated flyover. Second, he puts Lynch into a group of decisions. There’s no way in hell that the Supreme Court is going to cite a municipal court decision over another SCOTUS decision, especially when that latter decision was unanimous.
“Minor doesn’t trump Lnych as Minor expressly declined to address children of aliens.”
No, I was talking about Minor’s definition of NBC as opposed to the Chancellor’s baseless opining on NBC in Lynch. As I said, a municipal court decision is not going to outweigh a unanimous SCOTUS decision. You’re a complete and utter fool if you think otherwise.
“Gibberish. Gray spends 22 pages telling us the common law was the law prior to 1866. an International treaty has no effect on the common law rule in the original Constitution as clarified by the 14th Amendment. Again, you have no understanding of basic law.”
Dumbass, I cited the Constitution which places itself, statutory law and treaties on the same legal footing, all three described as the Supreme Law of the Land. Musings about English common law don’t trump that. Don’t be an idiot. If the English common law argument was compelling and authoritative, it wouldn’t take 22 pages to support the view.
“Good grief, you still don’t understand thaat Gray quoted Minor to show the court was not committed.”
Sorry, but this is simply an outright falsehood. You talked about “spin, twist, lie” … this is what you’re doing by misquoting Gray. “To be committed” does NOT mean “not committed.” Wrap your tiny mind around that and start being honest.
The Minor court voted UNANIMOUSLY to reject Minor’s argument citizenship via the 14th amendment. That unanimous decision means the court was definitely, decisively and completely COMMITTED to the view that NBCs are EXCLUDED from the birth clause of the 14th amendment. It’s the inconvenient fact that destroys any claim Obama MIGHT have to natural-born citizenship.
@ksdbDumbass, that’s exactly what it says.
Sorry, it is perfectly clear what the language prevailed under the Constitution means. There is no rule under the Constitution about people born in england being English, there is a rule about people born in American being American.
@ksdbThe citation from US. v Rhodes is talking about the Shanks v. Dupont decision (mentioned in the paragraph immediately prior in U.S. v Rhodes). Both circumstances are related to person born on U.S. soil.
Your delusion continues. It has nothing to do with Shanks. It followed Jutice Curtis’ defining of natural born. They are both among the multitude of authority cited to show we adopted the English common law. Rhodes, however clearly tells us that natural born subject and natural born citizen mean the same and the rule is the same in England and the United States. It says both are defined by who is “born in the allegaince” of each respective country. And, the court clearly defined what born in the allegiance meant in each country. No way you can spin Rhodes.
@ksdbDo you see the part that says “whether natives or otherwise”?? This means including persons born on U.S. soil (“natives of the colonies”). All those persons, whether native or otherwise, who adhered to the British crown were deemed and held to be subjects of the crown. This is following the treaty of 1783, which “continued to prevail under the Constitution as originally established.” Do you understand this??
Spin, twist, lie. Gray only cited to point out an argument the goernment made that he rejects:
“Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States;”
The language you cite was not cited by Gray and Gray does not say he is agreement with anything such case. Simply dishonest to say he even agrees with anything said in such case unless he says so. And he in no way says such is the rule prevailing under the Constitution. Shanks only deals with persons born before the revolution and said nothing about our citizenship law generally and Gray only cites it to point out the government’s argument he rejects. The right to election was not in the constitution. It came along much later and no one said it was the common law. In fact, Story said the common law had no answer for persons born before the declaration and hence they looked to the law of nations. No one ever said such was the common law rule. Again, you are just making stuff.
@ksdbAnd I asked you a question that you’ve punted. Do you think the NBC definition in Minor (all children born in the country to parents who were its citizens) is from English commmon law??
For people who can read, the dicta in Minor does not have a definition of natural born citizen. It points out there is no doubt about a certain class under the common law and it refused to address the status of another class under the common law. Saying Minor say children of aliens are not natural born is simply lying. At most one can say it says native children of citizens are natural born and leaves the question of children of aliens open exactly like the real judges in Ankeny said. I know, I know, real judges are stupid. They understand things like who has the burden of proof.
@ksdbNo shit. Really??? Read the Lynch decision. It’s quite verbose. There were definitely passages Gray could have cited, but he didn’t”
He could have cited a lot more authority. He didn’t need to as he made his point to everyone but birthers. 22 pages was enough.
@ksdbDon’t be an idiot. If the English common law argument was compelling and authoritative, it wouldn’t take 22 pages to support the view.
LOL. Now he cited too much authority. It is the volume that makes the case compelling. shows there was no dispute. He could have cited authority for 20 more pages if he wanted to as he left out a multitude of authority that cites the common law.
@ksdb“To be committed” does NOT mean “not committed.” Wrap your tiny mind around that and start being honest.
Yes, “[t]hat neither Mr. Justice Miller nor any of the justices … understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th Amendment must mean they were committed. Gray says exactly why he cited Minor and it was solely to show none of the Justices were committted to the dicta in Slaughterhouse. Period. Saying Gray said he agreed with any part of such quote is lying because he doesn’t say that. Almost as dishonest as your claim Gray agreed with anything said in Shanks which he cited solely to dismiss the Government’s claim about such case. Dhu.
Bron:
Check your spelling.
Squeeky Fromm
Girl Reporter
Ballantine:
It could be worse. ksdb, the Quote Butcher, could have brought his friend over, the guy who uses Shakespeare’s Henry V to try to prove something. I haven’t figured out what, just yet.
Neither one of them has any desire, and probably any ability, to engage in honest debate. All you get are silly rhetorical sophistry games. Very juvenile.
Squeeky Fromm
Girl Reporter
@ funny ballantine: “Sorry, it is perfectly clear what the language prevailed under the Constitution means. There is no rule under the Constitution about people born in england being English, there is a rule about people born in American being American.”
I’ll stop you right here. No one said there is a rule under the Constitution about people born in England being English. This is yet another one of your dumbass moments.
“It has nothing to do with Shanks.”
And another dumbass moment. I just cited the EXACT language from U.S. v Rhodes where it quoted Shanks.
” It followed Jutice Curtis’ defining of natural born.”
And dumbass moment No. 3. Curtis was dissenting from the majority in Dred Scott, so his opinion carries little weight. Nevertheless Curtis argued MY point:
“all such persons ceased to be subjects, and became citizens of the several States, EXCEPT so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest”
“the Constitution itself has described what native-born persons shall or SHALL NOT be citizens of the United States …”
Further, the majority in the Dred Scott decision resorted to Vattel:
“By this same writer [Vattel] it is also said:
“The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens.”
You wrote: “No way you can spin Rhodes.”
I didn’t “spin” Rhodes, I gave the full context and PROVED that it acknowledges that persons born in the U.S. can be born in the allegiance of the Crown, and therefore be British subjects, NOT U.S. citizens. It doesn’t say what you want it to say.
Now, for ballantine’s dumbass moment #4.You’ve cited a passage in which Gray contradicts himself with the Story quote. Read it:
“Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States;”
Story respected the Treaties of 1783 and 1794. That’s why he said those natives or otherwise who adhered to the crown were held to be British subjects. Funny that Gray uses such citations to avoid respecting a treaty.
Story said in the same decision:
“The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.”
IOW, national character is NOT controlled by common law, but the general principles of the law of nations. It’s where Waite got his defintiion of NBC.
Dumbass moment #5: “Shanks only deals with persons born before the revolution and said nothing about our citizenship law generally and Gray only cites it to point out the government’s argument he rejects.”
Sorry, this is nonsense. Shanks said,”The Treaty of Peace of 1783 acted upon the state of things as it existed at that period.” “At that period” is not only about persons born before the revolution. The Shanks decision also invokes the Treaty of 1794 (well after the revolution that said):
“And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining subjects of His Britannic Majesty, shall be considered as having elected to become citizens of the United States.”
This jibes with the Shanks section about adhering to the crown (native or otherwise) and being British subjects, NOT U.S. citizens.
Ballatine’s dumbass moment #6: “For people who can read, the dicta in Minor does not have a definition of natural born citizen.”
Bwah?????? Here’s what it says:
“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 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.”
“These were natives, or natural-born citizens” is a positive declaration and characterization of all persons fitting a specific criteria. The elements of the definition are a verbatim match of the law of nations: “The natives or natural-born citizens are those born in the country of parents who are citizens.” Only in dumbass world is that not a definition.
Komfort,
Apology and answer accepted (at least I can’t find a counter-example to your argument–which is what I would need to refute it–and I didn’t have an answer in mind when I asked the question [it's about the journey, not the destination]).
I’ve lost track–is there an outstanding question that I haven’t answered? If so, please ask again (or feel free to ask something else)–that goes for you, too mrjr101–ksdb-troll can just keep stewing in its own juices.
Ballantine,
Your discussion with ksdb is reminiscent of the encounter with the Black Knight in Monty Python and the Holy Grail. I’m thinking that it’s about time that you concede and ride over the bridge (or trot over the bridge with a footman banging coconut shells behind you…) and leave it standing on its stumps threatening to gnaw your legs off… Just my $0.02.
ksdb;
You know, maybe you are right. Perhaps Vattel and Minor do say the same thing, just not how you mean it.
From Minor: 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 parents.
From Vattel: The natives, or natural-born citizens, are those born in the country, of parents who are citizens. [And] Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
So, yeah. Both of them leave open the possibility that kids born here of foreigners can be natural born citizens! Good thing Wong Kim Ark answered those doubts!
Squeeky Fromm
Girl Reporter
@ksdbI’ll stop you right here. No one said there is a rule under the Constitution about people born in England being English. This is yet another one of your dumbass moments.
Sorry your comments make no sense.
@ksdb I just cited the EXACT language from U.S. v Rhodes where it quoted Shanks.
Sorr,y I thought you were saying Gray cited Shanks. But your argument still makes no sense. Instead of addressing the clear definition of natural born subject and citizen from Swayne, you are trying to argue that such has something to do with the right to election discussed in Shanks. Pretty desperate. Swayne was talking about who was born in the allegiance of the United States and who is born in the Allegiance of England and saying the law was the same in America and England. He was not talking about those who was born before the revolution where there was a dispute about allegiance and that thus had a right to election as to their allegiance. Apples and oranges. Again, you refuse to admit what basic English says. You ignore what Gray’s quote clearly says and run back to the underlying case and try to point to a discussion on a different class of persons somehow changes the meaning. Swayne goes on to make clear we adopted the common law saying “‘ Citizens’ under our Constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress.”
@ksdbIOW, national character is NOT controlled by common law, but the general principles of the law of nations. It’s where Waite got his defintiion of NBC.
National character is not citizeship. Story on the same day as Shanks wrote a long decision saying we adopted the English law of citizenship. The difference between national character and citizenship is way over your head and not worth wasting my breath but as a matter of the law of nations, citizenship was matter of municipal law, not public law. In addition, in the United States, jus soli was viewed as the rule of public law as well as municipal law.
@ksdbSorry, this is nonsense. Shanks said,”The Treaty of Peace of 1783 acted upon the state of things as it existed at that period.” “At that period” is not only about persons born before the revolution. The Shanks decision also invokes the Treaty of 1794 (well after the revolution that said):
Sorry, Shanks did not say anything about persons born on US soil after the Revolution and those treaties only dealt with people born before or during the revolution as England and the US disagreed when the election needed to take place. The english thought it was upon the treaty of Paris, we thought on the Declaration. No one ever suggest that persons born after the treaty of Paris had a right to election. And again, Gray only cites Shanks to dismiss the citation to it by the government. Nothing in Shanks is part of this decision other than your deparate attempt to ignore Swayne’s clear language as Gray does not say he agrees with anything in Shanks. Pathetic.
@ksdbStory respected the Treaties of 1783 and 1794. That’s why he said those natives or otherwise who adhered to the crown were held to be British subjects. Funny that Gray uses such citations to avoid respecting a treaty.
Such treaties had nothing to do with people born after the revolution
@ksdbThe elements of the definition are a verbatim match of the law of nations: “The natives or natural-born citizens are those born in the country of parents who are citizens.” Only in dumbass world is that not a definition.
Sorry, the reading problem is yours. The “common law” does not mean the “law of nations.” If they meant “law of nations” they would have said so. The Court has never referred to the common law of the founders as the law of nations as such would be gibberish. You can see Waite himself using the same “at common law” in numerous cases to refer to the English common law. You cannot find the Court ever using such language to refer to anything other than the English common law. And, you leave out the part of Minor where the court expressly declines to address the status of children of aliens. It does not say they are not citizens. It does not say they are talking about a type of citizen other than natural born. Minor clearly tells us that a natural born citizen is also a citizen so saying that refering to children of aliens as citizens means they are not natural born is contrary to Minor itself. For example, the court only calls Virginia Minor a “citizen” not a “natural born citizen.” Saying the court says that children of aliens are not natural born is lying. Of course, you seem to be used to that. Still waiting for you to say one thing that is correcct.
Squeezy, are you feeling left out of the dumbass moments?? You said, “So, yeah. Both of them leave open the possibility that kids born here of foreigners can be natural born citizens!” You quoted Vattel saying English law NATURALIZES the children of a foreigner. IOW, you contradicted your own point. Neither of these citations leaves open the possibility that the children of foreigners can be natural-born citizens. That characterization is only applied to those persons born in the country of citizen parents. Once a threshhold is crossed into statuory citizenship at birth, it’s not longer natural law and natural citizenship. That’s why there are doubts.”Natural-born” in this context means “without doubts.” So using this lesson, we have learned that you are a natural-born dumbass.Congratulations!
ksdb:
Slarti would be proud of you, because you are keeping your streak of always being WRONG alive.
Here is what you don’t seem to see above:
“England, where the single circumstance of being born in the country”
“naturalizes the children of a foreigner.”
See! No naturalization statute is necessary. Just birth IN THE COUNTRY. Just by being born in the country, they are citizens! OH, where have we seen that before???
Hmmm. Oh, I know! Wong Kim Ark:
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.
Gee. It looks like all your “two citizen-parent” stuff is just BeeEss. Spucatum Tauri.
Congrats! It must be hard to be wrong all the time. But YOU make it look sooo easy!
Squeeky Fromm
Girl Reporter
@ballantine, “Sorry your comments make no sense.” No, what doesn’t make sense is how YOU go from this:
“No way such could be read to talk about children born outside of England being subjects”
To this: “There is no rule under the Constitution about people born in england being English …”
Do you see your mistake?? You changed the term from “born outside of England” to “born IN England.” You can’t seem to keep things straight. A true dumbass move on your part.
“Sorr,y I thought you were saying Gray cited Shanks.”
Really??? This is what I wrote: “The citation from US. v Rhodes is talking about the Shanks v. Dupont decision.” Where does that say anything about Gray?? Granted, Gray did cite the Shanks decision separately, but he mysteriously left out the part I quoted which gives the context of the comments on allegiance, AND this was not what I was referring to above.
You wrote: “National character is not citizeship”
Bwah?????? This is beyond stupid. The context of the term in Shanks is in reference to losing or acquiring Birtish vs. U.S. citizenship. Thomas Paine, one of the founding fathers, was clear on what this means: “Our citizenship in the United States is our national character.”
You wrote: “Such treaties had nothing to do with people born after the revolution.”
You’ve shown nothing to prove that the citizenship circumstances established under these treaties expired after the revolution. The second treaty was post-revolutionary and apparently perpetual, as the court in Shanks references heirs (which would be those born AFTER the Revolution). It said, “the question arose whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794. It appears to us that they plainly are.”
You wrote: “Sorry, the reading problem is yours. The “common law” does not mean the “law of nations.””
I didn’t say that it does. I said the NBC definition that is used in Minor is NOT common law, but from the Law of Nations. It is verbatim which I showed.
But just to show that your comment is yet another dumbass comment, read some Blackstone.
“… since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of it’s jurisdiction) is here adopted in it’s full extent by the common law …”
Ooops, ballantine comes up with a few more dumbass moments: “And, you leave out the part of Minor where the court expressly declines to address the status of children of aliens.”
Minor didn’t declines to address the status of children of aliens. He covers their status in a paragraph on the Naturalization Act of 1790:
“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided “that any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States …”
The characterization of natural-born children in Minor is exclusive as it is distingusished from foreigners and aliens; it is directly applied to only ONE set of criteria ( acombination of jus soli and jus sanguinis) and it
is given specifically to satisfy the term as used in A2. It is also repeated and affirmed in Wong Kim Ark under the same combined criteria of jus soli and jus sanguinis. Gray goes farther and says the 14th amendment does NOT say who shall be natural-born citizens, further establishing this as an exclusive definition.
“Squeezy, are you feeling left out of the dumbass moments??”
Don’t worry Squeeky. Being call a dumbass by this idiot is a badge of honor. This discussion highlights that one can never convince a birther of anything as, when cornered, they simply refuse to accept the rules of English. One can always say up means down and black means white. Justice Gray cites Justice Swayne restating Lord Coke’s defintion of natural born subject verbatim that, without dispute, was the basis of English law: “All persons born in the allegiance of the King are natural-born subjects…” Gray previously had told us us exactly what born in the allegiance meant in the United States and England. Gray then quotes Swayne saying that “natural born citizen” was defined by the same definition from Coke and hence states that the law of natural born status at birth was the same in England and the United States. Gray is citing this with approval and hence incorporating this into his opinion. Faced with this, birthers normally try to twist and distort the quote to their advantage. But that is really not possible here. Rather, ksdb goes back to Swayne’s opinion and cites a prior paragraph that Gray does not cite that points out that certain natural born British subjects were given the right to election per treaty from the revolution. Such rights by treaty ceased after 1795 and the right of election to change one’s original allegiance, of course, is a different issue than one’s original allegiance, the topic of the quote gray included in his opinion. Nothing in the quote of Swayne indicates it has anything to do with persons given the right of election to change their native allegiance and such right of election did not change the fact that persons born in the allegiance of the crown were natural born subjects. But, I guess if you suspend the laws of English and say a paragraph saying nothing about a right to election really is about a right to election when, in fact, it only talks about one’s status at birth, you can be a birther too.
@ksdbDo you see your mistake?? You changed the term from “born outside of England” to “born IN England.” You can’t seem to keep things straight. A true dumbass move on your part.
Again you make no sense. Saying the English rule making children of aliens born in England natural born subjects “prevailed” under our Constitution does not mean our Constitution recognized people born in England were natural born subjects. It means our Constitution contained the same rule for persons born in the United states. Such is the clear meaning for honest people as everyone else understands that saying “natural born citizen” must be read and interpreted in light of the English common law means we should defined it by the English common law.
@ksdbGranted, Gray did cite the Shanks decision separately, but he mysteriously left out the part I quoted which gives the context of the comments on allegiance, AND this was not what I was referring to above.
Your quotation only deals with people born before the revolution. Has nothihng to do with our law generally which is why gray didn’t cite During the war, everyone was given the choice to pick one side or the other. By teraty, all such rights ceased after 1795. Not relevant to citizenship or allegaince after that.
@ksdbYou wrote: “National character is not citizeship” Bwah?????? This is beyond stupid. The context of the term in Shanks is in reference to losing or acquiring Birtish vs. U.S. citizenship. Thomas Paine, one of the founding fathers, was clear on what this means: “Our citizenship in the United States is our national character.”
Paine was not writed on public law and you have no understadning of what it is. Gray points out that Story clearly defined citizenship by the common law on the same day as Shanks. The Shanks quote is not talking about citizenship. As a mater of municipal law, a nation can make anyone a citizen that it wants. However, one’s political status according to the writers on public law should be governed by public law. No legal authority of significance said the rule of public law was other than jus soli. The position of the state department was that public law was jus soli. And even persons whose political status made them a nationale of another nation were still citizens of the US inside the US. For example. we made children of our citizens born oversees citizens byour statutes. However, as Secretary of State Marcy said, this just made then citizens inside the US for municipal purposes and hence we cannot claim their political allegiance against the country of their birth. Tehy were fully citiznes, but we could not claim their political status under our notions of public law. I know, way over your head.
@ksdbThe second treaty was post-revolutionary and apparently perpetual, as the court in Shanks references heirs (which would be those born AFTER the Revolution). It said, “the question arose whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794. It appears to us that they plainly are.”
The ninth article was about the right to hold lands, not about citizenship. The treaty provided for a one year right of electuion for British subjects who were still on territory that was conceded to the US. Has nothing to do with one’s native allegiance. Rather provided for a limited right of election.
@ksdb“… since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of it’s jurisdiction) is here adopted in it’s full extent by the common law …”
Yes, Blackstone said the law of nations part of the common law but also made clear its application was limited to international issue. Again, you cannot find a single instance where the court said the “common law” when it meant the “law of nations.” Being part of the common law is not “at common law” and no one in england or the United States said otherwise.
@ksdb Minor didn’t declines to address the status of children of aliens. He covers their status in a paragraph on the Naturalization Act of 1790:
After saying children of citizens are natural born, Waite says “Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents.” Thus, there is a disagreement about the status of children of aliens at birth that the court will not address. They are not talking about derivative citizenship which depends upon the status of the parent and is not relevant at birth. In addition, no authority in history ever said derivative naturalization applied to persons born on our soil. None. No court, no treatise, no one. Again, you just make up your own law. Do you not know that all early authority, including the Supreme Court, said native born persons cannot be naturalized? Do you know Justice Swayne, who joined in the Minor opinin said that? Minor cleaerly states there is a dispute about the status of children of aliens under the common law that it does not address. Accordingly, it is simply a lie to say such court says they are not natural born. It left open the issue just like the real lawyers on the Ankeny court said.
@ksdbIt is also repeated and affirmed in Wong Kim Ark under the same combined criteria of jus soli and jus sanguinis.
Still have figured out what neither were committed means. Getting sadder all the time.
@ksdbGray goes farther and says the 14th amendment does NOT say who shall be natural-born citizens, further establishing this as an exclusive definition.
No, he says the 14th Amendment is declaratory of the rule in the original Constitution and hence means the same thing. Try and pay attention.
@squealer: You’re taking your dumbass moment to new levels of dumbassiness. You wrote: “Here is what you don’t seem to see above:
“England, where the single circumstance of being born in the country”
“naturalizes the children of a foreigner.” See! No naturalization statute is necessary. Just birth IN THE COUNTRY. Just by being born in the country, they are citizens! OH, where have we seen that before???”
What you failed to point out is that this citation comes from a passage with this title: “§ 214. Naturalization.” You also fail to grasp the verb in that sentence: “naturalizes.” Do you not think these things through before you post???
The circumstance Vattel is referring to in the Naturalization passage is the unification act as covered in “Calvin’s Case.” This an example of a collective naturalization act, but it requires “actual obedience” to the crown. There’s no “common law” for this in the United States except in a few states, such as New York, which was the statutory basis for Lynch v. Clarke. At a national level, nothing is similar until the passage of the 14th amendment, where the subject clause replaces “actual obedience,” and Gray applied this clause through the permanent residence and domicil criteria (ignoring his earlier ruling in Elk that said persons must be COMPLETELY subject to the jurisdiction of the United States).
As for whether the same “rule” was in effect for the British colonies, this isn’t specifically disputed, although each colony generally had its own particular set of citizenship or subject laws as defined by colonial charter or state Constitution. These laws generally reserved subject status for themselves and their children (“ourselves and our heires”) as if born in England. The earliest SCOTUS rulings still follow the Law of Nations in recognizing that the citizenship of the child naturally follows the citizenship of the father, up until Minor, which specifically defined the term NBC as found in the Constitution as “all children born in the country to parents who were its citizens.”
Reading is fundamental, and squeekers, you’re still just mental.
@ my funny ballantine: “After saying children of citizens are natural born, Waite says “Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents.”
The key phrase here is “include as citizens.” This is your problem. It doesn’t say “includes as natural-born citizens.” That characterization was reserved exclusively for those born in the country to parents who were its citizens.
At some point, you need to exercise some common sense. What practical effect is facilitated in having a citizen requirement for office between Congress and President when the ONLY distinction under your interpreation is the place of birth?? A person born on the soil to non-immigrant aliens has no more natural allegiance to the U.S. than a naturalized citizen. When you consider the terms of the treaties of 1783 and 1794 that allowed persons born on U.S. soil to be British subjects by adhering to the crown, such a person clearly has NO allegiance to the United States and is lesser than a naturalized citizen. The purpose of the NBC requirement is to limit foreign entanglements, but that purpose is not served when place of birth is the only criteria. The founders wouldn’t have been this cavalier. This is exactly why Waite and the unanimous Minor court said that in the nomenclature of the founders, NBCs were those born in the country to citizen parents. It’s also why Gray affirmed the Minor definition and opted to create a separate, distinct category of birth citizenship under the 14th amendment for people like Wong Kim Ark.
There is no evidence anyone is the US looked to Vattel’s concept of naturalization. No one cited Vattel at all in the early republic except with respect to the right of election for persons changing nationality during the revolution. In the US, naturalization meant:
“But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.” United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
@ksdbThere’s no “common law” for this in the United States except in a few states, such as New York, which was the statutory basis for Lynch v. Clarke.
All the states adopted the common law rule and the early state case law without excpetion followed it for persons born after the revolution. Some early authority thought the states had the power to define native citizenship. Later authority argued insisted that the common law was incorporated into the NBC clause. This was the view of Lynch v. Clark and Ludlam v. Ludlam. This debate continued until the 14th Amendment where it was resolved.
@ksdbalthough each colony generally had its own particular set of citizenship or subject laws as defined by colonial charter or state Constitution.
Nonsense, persons born in the colonies were natural born subjects of England.
@The earliest SCOTUS rulings still follow the Law of Nations in recognizing that the citizenship of the child naturally follows the citizenship of the father, up until Minor, which specifically defined the term NBC as found in the Constitution as “all children born in the country to parents who were its citizens
No early Supreme Court case said that. Lying again. They only looked to the law of nations for persons born before or during the war for which the common law did not provide an answer to which country they were a citizen of. Determination of which side one is on during war is clearly within the law of nations. The court never looked to the law of nations for someone born after the war.
@ksdbThe key phrase here is “include as citizens.” This is your problem. It doesn’t say “includes as natural-born citizens.” That characterization was reserved exclusively for those born in the country to parents who were its citizens.
Nonsense. Minor tells us over and over that citizens can also be natural born citizens. It only calls Minor a “citizen.” It does not say native children of citizens are the exclusive set. Rather, the previsous sentence only distinguishes natural born citizens from aliens or foreigners, not some other type of citizen. Why? At common law, which the court is clearly talking about, everyone was either natural born or aliens born. Only one type of citizen at common law. Naturalization is a modification of the common law. Blackstone 101. And, as I have pointed out, our courts had made clear that native born persons cannot be naturalized including a member of the Minor court. Do you really not do any research? Insisting that Minor is talking about some other type of citizenship is simply making things up. These quotes were brought up in the 39th Congress as to why they couldn’t naturalize blacks which is one reason they went ahead with an Amendment.
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
@ksdbThe purpose of the NBC requirement is to limit foreign entanglements, but that purpose is not served when place of birth is the only criteria. The founders wouldn’t have been this cavalier.
Who said that was the purpose? In the Convention, a few people were worried about foreign born persons’ attachements to their native nation. And they were talking about members of Congress, not the President. The only thing discussed in such debates was a native birth requirement which was the English rule. Jay suggested a “strong check” against admission of foreigners would be a natural born citizenship requirement but didn’t tell us what such term meant or what he thought a storng check would be. “Foreigners” in the Convention clearly meant the “foreing born” as in the debates the foreign born like Wilson were referred to as “foreigners” and were contrasted with “natives.” The bottom line is no one talked about parentage or Vattel. Only the English rule.
ksdb:
You said: “The circumstance Vattel is referring to in the Naturalization passage is the unification act as covered in “Calvin’s Case.” This an example of a collective naturalization act, but it requires “actual obedience” to the crown. ”
Prove it. Find the links. Define the terms . Provide the links. Interpret what the cases say. Provide examples. Prove that is what Vattel is talking about. Show the application to what we are talking about.
In the meantime, that little blurb from Vattel just backs up what everybody here has been telling you. England did things differently than France. All it took was birth in the country to make one a citizen, even if his parents were foreigners..
America follows English law, just like it says in Wong Kim Ark.
Sooo, try doing some REAL legal legwork for a change. I know it is harder work than just butchering quotes. Or, maybe you just can’t do it??? Maybe butchering quotes is all you are capable of???
Squeeky Fromm
Girl Reporter
Komfort and mrjr101,
So do you understand my reasoning? Do you agree or disagree with my conclusion? The way the formal process goes is that you are free to attack any piece of my reasoning on its merits, but you need to identify which part is bad and why (you can’t attack my conclusion directly–it stands or falls on the reasoning behind it). If you would like we could go through the proof step by step (although we might have to send rafflaw away first…). Or do you accept my claim that Leo is full of crap?
Slarti,
You said: “You did what I asked, so I’ll answer your question:
When I say “by definition” I mean that only the definition of the terms is necessary to justify the assertion. In this case the definitions are:
C=natives (people born in a country)
and
G=jus soli children (people born on the soil–i.e. people born in a country)
Since these two terms mean the same thing, they are equivalent by definition.
Similarly,
A=jus soli, jus sanguins children
so, by definition, anyone in A must also belong to G.
Hope that helps.”
It does help tremendously, but I disagree with it. In the context of Minor, and when I say in the context I mean within the quote, it is not justifiable to define “natives” or C that is equal to D as “people born in the country”. That’s an invalid assumption because you are defining the term outside of Minor’s context assuming that it is sufficient to equal the word “natives” that Minor used.You are throwing in an assumed sufficient definition to make an assertion and disprove a necessary argument. Its like throwing an assumed definition of salt to a pot mixed with salt and sugar to disprove that the solution taste sweet. Even if you wish to navigate outside of Minor, the definition of natives then must be the exact same definition that is found for natural born citizens to make this definition necessary to justify the assertions and arrive at your conclusion. “by definition” is a very dishonest trick because it would always be an assumed definition outside of the context of the quote. You may find a ton of synonyms for one word that could represent multiple meanings throughout history. For these reasons you cannot make C=G.
mrjr101,
Sorry, but this isn’t logic 101 and I’m not an idiot–you may disagree with my definitions (in which case you are obliged to present alternate definitions), but to say that I am being dishonest because I defined my terms or to call this a trick is both stupid and dishonest yourself. Productive discussion cannot occur unless parties agree on a logical framework and you can’t have the same logical framework if you have differing definitions. I said that you had two chances–I think it’s fair to say that you only have one left.
Squeeky,
Some more discussion about you on the Fogbow:
http://www.thefogbow.com/forum/viewtopic.php?f=53&t=5476&p=309319#p309156
Are your ears burning?
You really should stop by and comment…
Slarti:
Well, they were saying nice things about my stuff. I really appreciate that because I work really hard on it to make it interesting. But they think I am either a Obot, or two people. My goodness. I saw somewhere last year where I was a performance artist. Now I am the Bad Fiction person. Oh, I hope he doesn’t get mad at the one who said it.
I may have to sign up there, but to tell you the truth, I heard about the “meat truck”, which PJFogey explained, but who knows for sure??? Sooo, it will probably be under a different name just to be careful.
But, I am glad they like the stuff. Plus, I saw where somebody discovered all the little thingies I hid in “The Case of The Sleeping Case” Internet Article. I didn’t think anybody would ever find that stuff, sooo I am very impressed. They even found the White Russian and “even the French don’t speak French anymore” stuff.
Tell them congratulations, because that was pretty deep. Most people would just read right over all that.
Squeeky Fromm
Girl Reporter
Slarti,
The whole point is that neither you or I are obliged to construct a definition outside of the context of the quote whether that definition perfectly fits the Minor definition of “Natives” or not. It would be an invalid assumptions for the reasons that I stated above.
I said: “by definition” is a very dishonest trick because it would always be an assumed definition outside of the context of the quote. ” I said what it was, simple. If I would have contructed a definition that would be different from yours it would be a dishonest trick as well.
I was fair on my entire previous statement and I presented an argument as to why you can’t construct a definition outside of the quote. That is an honest disagreement. Yet, you still play the “101″ card and your” I’ll give you another chance” bullshit.
I did not say that you were an idiot, idiot. That’s right. Take that other chance and shove it you know where.
mrjr101,
Sorry, but terms must be defined. The term “natives” appears in the text and thus we need to define it–what do you suggest the definition of “native” is and why? If you insist that the terms in the quote can’t or don’t have meanings, then my assertion is trivially true as it can’t possibly mean what Leo says it does either. You are completely ignorant of how logic works if you think that explicitly making a definition is deceitful.
@funny ballantine: I’m not sure why you’re arguing about “Vattel’s concept of naturalization.” I didn’t say this was a particular principle that was debated or cited, although the Naturalization Act of 1790 is certainly compatible with Vattel’s concepts.
That you think Vattel was only cited in terms of changing election of nationality during the revolution is nothing but colossal ignorance. Vattel was cited several times by the Continental Congress:
June 27, 1787: “In order to prove that individuals in a State of nature are equally free & independent he read passages from Locke, Vattel, Lord Summers–Priestly. To prove that the case is the same with States till they surrender their equal sovereignty, he read other passages in Locke & Vattel,”
October 17, 1780: “”An innocent passage (says Vattel) is due to all nations with whom a state is at peace; and this duty comprehends troops equally with “individuals.”"
August 29, 1786: “To evince the contrary let us recur to the writers on the laws of Nations on the subject.] (Vattel, vol. i. p. 105. book 1. chap. 21. sec. 260. “The Prince or Superiour of the Society, whatever he is, being naturally no more than the Administrator, and not the proprietor of the State, his Authority, as Sovereign or Head of the Nation, does not of itself give him a right to alienate or dispose of the publick property.”
The last comment appears to be from John Jay, who gave us the letter to George Washington recommending a natural-born citizen as commander-in-chief to provide a strong check to the admission of foreigners into the government.
But wait, there’s more. Let’s look at the Law of Nations:
June 18, 1788: “I beg leave to tell him that the United States are entering into a particular law of nations now. I do not deny the existence of a general law of nations; but I contend that, in different nations, there are certain laws or customs, regulating their conduct towards other nations, which are as permanently and immutably observed as the general law of nations.”
Also of note from June 18, 1788: “The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire. … The indiscriminate admission of all foreigners to the first rights of citizenship, without any permanent security for their attachment to the country, is repugnant to every principle of prudence and good policy.”
Wow, ballantine, just wow! Here we have, during the debates of the adoption of the U.S. Constitution, a rejection of common law, recognition of the law of nations, AND an outright rejection of the carte blanche acceptance of foreigners to the “first rights” of citizenship as would be suggested under the common-law that supposably prevailed under the Constitution as originally established.
You cite the circuit court decision, U.S.v Rhodes that says, “To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power.”
The problem is that the English common-law for which Gray relied, says otherwise: ” [A]ll those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away …” Do you see that?? Naturalization due and vested by birthright. IOW, the birthright of natural-born subjects is a process of naturalization. If you don’t believe this, here it is from Lord Coke, written in another way: “Calvin the plaintiff was naturalized by procreation and birth-right.”
You wrote in yet another dumbass moment: “No early Supreme Court case said that.”
Wrong. They did in Inglis v Sailor’s Snug Harbor. The opinion of the court said: “If born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question.”
Concurring, Justice Story wrote: ” It appears to me, that upon principles of public law as well as of the common law, he must if born a British subject, be deemed to adhere to, and retain the national allegiance of his parents, at the time of the treaty. Vattel considers the general doctrine to be, that children generally acquire the national character of their parents (Vattel, B. 1, ch. 19. sec. 212, 219); and it is certain, both by the common law and the statute law of England, that the demandant would be deemed a British subject.”
See? Retains the national allegiance of the parents. Cites Vattel on acquiring the natural character of the parents. Would be deemed a British subject (and this is for somebody born in Massachusetts).
The same thing is written in The Venus by Justice Marshall who quotes Vattel: “Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
I can’t wait for the next dumbass response about how all these direct quotes must be spin and/or lies. Bring it on, obots.
ksdb:
Oh, have YOU nothing better to add than to RECYCLE 167 year old LOSING arguments??? Your arguments did not fly in 1844, and they won’t fly any better today. From the 1844 case of Lynch v. Clarke, Section 7:
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
The case of Inglis v. The Sailors’ Snug Harbor, (3 Peters, 99, &c.,) was cited as having been decided on the principle of public law, that the national character of an infant followed the condition of his father. I do not so understand the decision. The infant in that case, was born in the city of New-York, before the 4th July, 1776. He remained there with his father, (who was a royalist,) while the British held possession of the city. When they evacuated it, the father left the country, taking the infant with him. The latter never returned to the United States ; and in process of time, became a bishop in the established church, in England, and was domiciled in Nova Scotia. The decision of the Supreme Court of the United States was, that he was born a British subject, and that he continued to be an alien in regard to this country. This, and the case next cited, together with several in the courts of the States, and some in England, hereafter mentioned, were decided upon the novel and peculiar circumstances growing out of the American revolution, and the dismemberment of the British empire thereby.
The doctrine settled by these authorities is, that on the separation of the Colonies, the United States and Great Britain became respectively entitled, as against each other, to the allegiance of all persons who were at that time adhering to the governments respectively ; and that those persons became aliens in respect to the government to which they did not adhere.
In our decisions, the time fixed for the application of the rule, is the Declaration of Independence. In the British authorities, it is applied at the date of the treaty of peace in 1783.(a)
On this principle, it is manifest that Bishop Inglis, who at his birth was a British subject, who never adhered to this country, and never, after he became old enough to exercise a discretion, manifested any intention to return here, was an alien in 1783, and continued to be an alien thereafter. He never owed allegiance to this state, or to the confederation. He was not a person abiding within this state on the 16th July, 1776, within the meaning of the ordinance of the convention of this state. (Jackson v. White, 20 Johns. 313, 326.) If Bishop Inglis had been born after July 4,1776, and before the 15th of September, when the British army took possession of the city of New York, (which was one aspect in which that case was considered,) he would have either owed an allegiance to this state, or, being an infant, and the country in a state of revolution, his status would have been indeterminate until the treaty of peace, and then controlled by the principle of his adherence to the one country or the other. Assuming that he owed allegiance to New-York, then the events of the revolution having rendered the application of a new principle necessary to his and the like cases in both countries, it would be reasonable for the courts to hold that on his attaining a suitable age to decide, he might determine for himself as to his future citizenship, and in the mean time, that his father’s election should be considered as his own; Such a decision would not be an adoption of the entire doctrine of the civil law as to alienage, nor an abandonment of any of the well settled rules of the common law. It would be merely the resort to first principles in a new case. No case has gone to this extent, if, as I understand the report of the facts in Inglis v. The Snug Harbor, the plaintiff was born before the Declaration of Independence. In Trimbles v. Harrison, (IB. Monroe’s Law and Eq. Rep. 140,146, Kentucky,) the decision was like that in Bishop Inglis’ case, on the alienage of one born here before the Revolution.
In Shanks v. Dupont, (3 Peters, 242,) a lady born in South Carolina, (whose father adhered to the United States and died in 1782,) married a British officer in Charleston, in 1781, that city being then in possession of the enemy. In 1782 she went with her husband to England, and lived there till her death, in 1801. It was held that at the Treaty of Peace in 1783. she was a British subject, within the meaning of the provision of the treaty. That her removal was a voluntary dissolution of her allegiance, and it became fixed to the British Crown by the
Treaty of Peace. Judge Story, in his opinion, rested upon the grounds that she was not incapacitated by coverture from determining her allegiance on the Revolution in the government, and her removal and the Treaty, effected a dissolution of the allegiance to the state of South Carolina. Mr. Justice Johnson dissented, on the ground that the common law disallowed of expatriation, and it was in that respect the law of South Carolina.
These cases growing out of the anomalous state of allegiance produced by the Revolution, cannot with propriety, be deemed authorities against well established principles, as applicable to the ordinary questions of alienage and allegiance. In the one, the new principle applied to an unprecedented case, happens to be analagous to principles which the civil law applied to all the children of foreigners. It does not, therefore, follow that the Supreme Court of the United States thought the civil law to be right, and the common law wrong, in respect to the citizenship of such children. In the other case, the common law rule as to expatriation was departed from, because the separation of the countries by a revolution, and the construction of the treaty, were supposed to require it. It does not follow that the rule of the common law was therefore abandoned in all cases of expatriation, much less in its application to citizenship by the place of nativity.
- – -
It puts the dunce cap on its head, it sits in the corner. . .
Squeeky Fromm
Girl Reporter
Slarti, G would be a “native born citizen” not a “native”.
Ballantine, as far a dicta is concerned in WKA, is anything from Marshall dicta? More specifically “The Exchange”?
@ksdbThat you think Vattel was only cited in terms of changing election of nationality during the revolution is nothing but colossal ignorance. Vattel was cited several times by the Continental Congress
I was talking citizenship cases. He wasn’t cited in the early citizeship except in the cases of persons born before or during the revolution. No one cited him as relevant ot citizenship laws. Sorry. No early authority defined natural born by Vattel’s definition. No one. No one said that any native born persons could be naturalized. Your citations on the law of nations hav nothing to do with citizenship which is amatter of municipal law.
@ksdbAlso of note from June 18, 1788: “The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire. … The indiscriminate admission of all foreigners to the first rights of citizenship, without any permanent security for their attachment to the country, is repugnant to every principle of prudence and good policy.”
Again, you get everything wrong You are citing the Virginia convention where Henry and Mason were arguing that we needed to adopt the English common law in the Constitution because if we didn’t, se had no common law of our own for federal purposes and hence they would not have all the protections of the common law. They pointed out Virgina had expressly adopted the english common law in 1776, as did nearly every state. Most of these statutes expressly referance the English common law as I pointed out upthread. However, Randolph and others were against adopting the current common law into the Constitution and be frozen thereafter. RAther Madison promised to create a bill of rights that would incorporate most of the common law protections. Ever notice most of the bill of rights comes from the English common law. And here is Madison in such debates:
“I will refer you to a book which is in every man’s hand–Blackstone’s Commentaries.” James Madison, Debate in Virginia Ratifying Convention18–19 June 1788Elliot 3:499–515
YOu seem to miss the point. Read this quote from a court both Gray and Waite sat on:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
See, there is no federal common law like the English common law adopted by the states. However, the Court looks to the English common law to interpret the Constitution which was written by common law lawyers that came from states that all had adopted the common law. this really should be so hard.
@ksdbWrong. They did in Inglis v Sailor’s Snug Harbor.
Sorry. Your record is perfect. Story said he was only born a British subject if born before the Declaration or when the Birtish occupied the city. Common law 101. If born after the declaration on US soil, the common law rule he spsent many pages explaining requires:
“That if he was born after the 4th of July, 1776, and before the 15th of September, 1776, he was born an American citizen; and that it makes no difference in this respect, whether or not his parents had at the time of his birth, elected to become citizens of the State of New York, by manifesting an intention of becoming permanently members thereof, in the sense which I have endeavored to explain”
The majority disagreed whether he was born in the allegiance of New York saying such was doubtful. Accordingly, they adopteed a right of election for birth during 3 month period in 1776 that had no application after that. The majority makes clear it is talking about a sitution that occurs in a revolution, not the law of allegaince generally and hence is not precedent for persons born after the revolution and nothing in such case says the common law wasn’t the rule outside the context of revolution. Much of Story’s long explanation of citizenship in the United States being defined by the common law in Inglis, of course, was incorporated into WKA by Gray.
@ksdbThe same thing is written in The Venus by Justice Marshall who quotes Vattel: “Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
This is getting sad. You really don’t understand the most basic concepts of law. If you actually went to law school one of the first things you would learn is that a citatition in a case is only relevant to the context and purpose of the citation. Marshall cited Vattel solely on the issue of domicle of a citizen in a time of war and only the parts of such quote relating to such issue is relevant to the case and could one say Marshall agreed with. A citation to an authority on a point of tax law is only relevant to the point on tax law and anything else the quote says on an unrelated topic, say ERISA law, is simply extraneous material. One cannot say a court agrees with something in a quote unless the court is saying it is agreement with it. Of course, the Vattel quote does not even contain the words “natural born citizen.” Marshall did tell us who he thought were citizens in his own words:
“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 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.” Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804)
So now we know why you can’t understand why Gray cited Minor. You just don’t understand that you need to understand the context of a citation.
“Ballantine, as far a dicta is concerned in WKA, is anything from Marshall dicta? More specifically “The Exchange”?”
I would have to look at it. He cites “The Exchange” because the case is about what aliens subject themselves to, or are unde,r our jurisdiction and hence show how the term jurisdiction was understood to mean. I am not sure Gray waas interested in the actual holding, but i will look at it.
Ballantine and Slarti:
This may help explain ksdb’s tendency to obscure meaning and butcher quotes. It has to do with Surrealism and Tristan Tzara and stuff:
http://birtherthinktank.wordpress.com/2011/11/23/happy-dodo-day/
Squeeky Fromm
Girl Reporter
Squeeky,
I was just reading that (found a link on the Fogbow…)–great article!
Slarti:
Thank you!!! Does this part here describe the Vattle Birthers or what:
“a world in which conversation is hardly ever serving a purpose other than distortion and confusion.”
Squeeky Fromm
Girl Reporter
I want thank the lawyers on this site for discussing in depth the matter of natural born citizenship. As a layman and fellow citizen, I find it fascinating the points of view those that are learned in the law have regarding the reasonableness of the question. It is with reluctance that I admit that both parties are suspect in their motivation to prove the relevant case law and it is hoped that someday a higher body weighs in.
My take is that it nears the level of quantum mechanics, that theory states one proposition but is never truly known until observed. So what is observed?
1. Common law and natural law. I believe there is no doubt that the ECL was the premise of our own law. But in what sense? Civil and political? I think the latter is a hard sell what with our history of revolution, citizen sovereignty, renouncement of perpetual allegiance, the 1812 war regarding the right to expatriate, and the numerous instances of natural law philosopher Vattel cited by the courts. The significant difference between subjects and citizens is clear and mentionable. How is common law that speaks of subject birthright (born subject to the sovereign crown due the king‘s land) in any way remotely related to those persons sovereign in themselves and passing on to their progeny that birthright so stated in our Declaration of Independence?
2. Elected Presidents who were born after 1787. Is it not odd that our history of VPs and Presidents is IAW “born within the jurisdiction to citizen parents” save for two? Some argue that those born statutory citizens are undoubtedly natural born. I think the evidence of continued controversy speaks otherwise.
3. What is the common sense of believing that 14th born citizens are eligible for the presidency whereas those born abroad to citizens parents are not. This defies the reasoned inclusion of the phrase by John Jay and our own State Department’s view of dual citizens. No discussion of eligibility is far from the matter of allegiance at birth and the inherent truths found in the naturalization oath. On one hand we give no quarter to those who are born subject to another sovereign and insist that they renounce such to become an American and then, without apparent consideration, find no issue with those that just happen to be born beholden to a foreign power as well as the United States. What incredible nonsense.
Thanks, again, for the benefit of your discussions. I think in some regards that this is not solely a matter of the law but of the philosophical foundation of our constitutional republic. I look forward to your continued debate.
Squeeky,
Hardly ever? You’re too kind…
Pourtney…
1. You cite that there are many instances of Vattel being cited by the founders. If you take a look, you’ll notice that almost all of those cites did not have anything to do with municipal law (which is the area where citizenship would be defined) but in International Law. Nobody is arguing that Vattel was not influential in International Law. He simply wasn’t quoted on citizenship law by anybody. Furthermore, if you take a look at the number of quotes from the founders, you’ll find out the two top quoted things were the Bible and Blackstone. Vattel ranks about #30 or so. It is undoubtably that Blackstone, who wrote about English Common Law, and citizenship directly, was much more influential for citizenship than what Vattel was.
2. We’ve actually had multiple Presidents who don’t fit the Birther’s definition, and the birther definition changes depending upon who you ask, or what the time of day is. I’ve heard birther definitions ranking from “Born on U.S. Soil to Citizen Parents”, and I can name 2 Presidents (Arthur and Obama) and 1 Vice President (Charles Curtis) who do not fit this definition. Another main definition I’ve heard is no dual citizenship at birth. I can name about 8 different Presidents alone who do not fit this definition. Charles Curtis was born outside of one of the States of the United States, and no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned, or there would not need to be seperate codes to have citizenship for Puerto Rico, Guam, and the Virgin Islands.
But that doesn’t mean that there aren’t more. And I can come up with dozens if I just look at the major party nominees. For instance, the first Republican to run for President was a U.S. Senator by the name of John Charles Fremont. He was born to an indentured servent and the lady of the house who fell in love and ran away together. There are tons of other people who were born to U.S. immigrants.
3. I’m not suggesting it. Most poeple actually believe that a “Natural Born Citizen” means anybody who is born a citizen. Even the Ankeny Decision acknowledged this fact by putting that their decision should not be construed as to say that people born abroad do not fit the definition of Natural Born Citizen. In fact, I’d say that if this ever hit the Supreme Court, it would be a 9-0 decision for the fact that Natural Born means the same as Citizen by birth. I do know for a fact that it would be a 9-0 decision to incorporate anybody born within one of the 50 states and DC as part of this definition, even if born to 2 foreigners.
But to turn it around on you, here are two people…
PERSON 1. Parents get their citizenship 1 day after they have child. They raise child within the United States, and teach them to love the adopted country.
PERSON 2: Parents take child away from United States 1 day after they have child and raise within foreign land. They give up their U.S. Citizenship, and gain foreign citizenship for themselves and the child. The child returns to the United States on their 21st birthday, and then on their 35th birthday runs for the Presidency.
According to the birthers, PERSON 1 has too much foreign influence, but PERSON 2 is completely okay. Do you really believe that this is what John Jay meant?
dunstvangeet, good points I’m sure, thank you. I wasn’t making an argument but rather my point of view. that though fellow citizens, like yourself, are convinced it is a non-issue it was worth stating my qualms.
This thread has been incredibly interesting due the depth of knowledge from both sides (even Squeeky at times). Though the original purpose of whether the juicy parts of MvH are dicta fell to the wayside. Perhaps it will be revisited.
Per your comment on the parents and birthplace of previous officeholders, I’d be very interested if you had a link or would reply with the particulars. My earlier statement was honest in that I was tracking all except two were born to citizens, born or naturalized, subject to the jurisdiction.
Thanks for your response.
RE VP Charles Curtis (31st VPOTUS 1929-1933). I cannot find, so far, the federal law that governs the then territories or court decisions that ruled. Thanks very much for the info.
30APR1803 – Louisiana Purchase; The United States concluded a “deal” when it signed an agreement to purchase the entire Louisiana Territory From France. This brought forth the exploration of a new American territory. Kansas became part of U.S. Territory.
30MAY1854, President Pierce signs bill, Kansas Nebraska Act, creating two Territories, divided on the 40th parallel of latitude, opens territory to settlers. Kansas is organized as a territory, including the eastern half of present-day Colorado. Fort Leavenworth is the first territorial capital.
FEB1859, Orren Arms (Captain Jack) Curtis and Ellen Pappan married (both American citizens).
25JAN1860, Charles Curtis was born in Eugene (today known as North Topeka) Kansas to Orren Arms (Captain Jack) Curtis and Ellen Pappan Curtis.
29JAN1861. Kansas statehood.
http://www.vlib.us/amdocs/texts/kanneb.html
Interesting.
@portneyCommon law and natural law. I believe there is no doubt that the ECL was the premise of our own law. But in what sense? Civil and political? I think the latter is a hard sell what with our history of revolution, citizen sovereignty, renouncement of perpetual allegiance, the 1812 war regarding the right to expatriate,…
Both civil and political. England and United States both clearly thought jus soli of the rule of Public Law as well. Our state department and England’s foeign office were consitent in the jus sanguinis conferred citizenship for municipal purposes only and did no confer political allegiance. American writers in the early republic agreed. In the 14th Amendment Congress, by my count 9 members thought jus soli to be the universal rule. Anglo-centric view of the world. They didn’t cite Vattel on this isue. Perpetual allegiance was debated in this country and with England for 80 years before both nations abandoned in in 1688 and 1870 respectively.
@potneyWhat is the common sense of believing that 14th born citizens are eligible for the presidency whereas those born abroad to citizens parents are not. This defies the reasoned inclusion of the phrase by John Jay and our own State Department’s view of dual citizens. No discussion of eligibility is far from the matter of allegiance at birth and the inherent truths found in the naturalization oath. On one hand we give no quarter to those who are born subject to another sovereign and insist that they renounce such to become an American and then, without apparent consideration, find no issue with those that just happen to be born beholden to a foreign power as well as the United States. What incredible nonsense.
Common sense is different than history. The Constitution was written by Englishmen taught the law of Coke and Blackstone. In thier world, foreign born citizens were citizens for municipal purposes only and couldn’t hold offices anywhere in England. That was their world and no one seemed to question it. In the Convention the only fear expressed was with respect to the foreign born. Jay spoke of not admitting “foreigners” but “foreigners” in those days meant “foreign born.” One can see that from the Convention where the foreign born were referred to as “foreigners.” You could look all day and not find anyone called a native born person a “foreigner.” A court has never ruled that the foreign born are ineligible. However, the Court has said over and over and over that the foreign born can only be made a citizen by statute:
“Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” Miller v. Allbright (1998)
If the statute was repealed such persons would not be citizens. Such is the law whether it makes sense or not.
One more thing. My suggestion is that Congress pass a law stating that chldren of citizens born oversees are “natural born citizens” as I think a good argument can be made that Congress has the power to expand the class of persons who are natural born citizens if in fact the original intent was ever deemed to be narrower. Congress does not have the power to make the class smaller. I think the clause is silly as neither place of birth or parentage means very much about on’e actual allegiance to the United States. Madison agreed.
As I was screwing around earlier, I discovered something the lawyers of the thread can make sense of- this portion of the Rogers v. Belle case that clearly indicates that those born abroad to American citizens are, in fact, naturalized due solely the WKA decision. This is mentioned to reinforce my confusion as to why it seemed reasonable to have the citizens of aliens eligible to the presidency where Americans born abroad to our citizens are not.
Rogers v. Bellei, 401 U.S. 815 (1971)
Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
“[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . . .”
This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “[a]ll persons born or naturalized in the United States. . . .” As has been noted above, the amendment’s “undeniable purpose” was “to make citizenship of Negroes permanent and secure,” and not subject to change by mere statute. Afroyim v. Rusk, 387 U.S. at 387 U. S. 263. See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908).
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing
Page 401 U. S. 830
rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S. at 169 U. S. 688. Then follows a most significant sentence:
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
State Department v 1971 USSC
This is really confusing. I’m reading what the state department considers naturalized and it is hard to measure against what the court said in Rogers v. Bellei.
7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-349; 12-13-2010)
Section 201(g) NA and section 301(g) INA (8 U.S.C. 1401(g)) (formerly section 301(a)(7) INA) both specify that naturalization is “the conferring of nationality of a state upon a person after birth.” Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act.
http://www.state.gov/documents/organization/86757.pdf
Ballantine, have you had a chance to read “the exchange” as cited in WKA?
Ballantine said: “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.”
I disagree.
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
And Rawle knew many of the writers of the Constitution personally.
I got it wrong, sorry. It was not Balantine who said “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.” . it was dunstvangeet.
“Ballantine said: “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.”
I disagree.”
I didn’t mean all US territories. Under the common law the 14th Amendment territories cleary should be included. Half the debates on the 14th Amendment were on whether indians in the territories became citizens. However, after Wong Kim Ark the Court excluded what they called unincorporated territories that we didn’t intend to make part of our nation and these included the Phillipines, Cuba and the Canal Zone. Hence persons born in these territories were not 14th Amendment citizens though they shold have been under the common law.
ballantine, best I can figure that regardless of the WKA decision that someone born of two citizen parents in the territories was a naturalized citizen. Am I missing something?
VP Curtis is certainly an exception to the “birfer” rule of born in the jurisdiction etc. Personally, I lean with the Fuller WKA dissent and think the NbC consideration should ultimately rest with citizenship of the parents. I can see, though, how this might have been thought dangerous in the early 19th century. He was a naturalized citizen and defies the “birfer” rule. Hence the change from 1790 to 1795 with regard to consideration and semantic use of “natural born”.
If subject to the jurisdiction included the territories then why are eligibility questions posed regarding PR, Guam, etc?
I think the dude was naturalized.
http://books.google.com/books?id=90XbprybS-kC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
“Ballantine, have you had a chance to read “the exchange” as cited in WKA?”
I think the holding of “The Exchange” related solely to a public ship of war from a friendly nation not being under our jurisdiction as a matter of pulbic law. So, much of the quoted provisions are probably dicta. However, some might be part of the Marshall’s rationale as Marshall’s opinion states the basic maxims of public law about national sovereignty and the rule that aliens are generally subject to the jurisdiction of the nation. But he explains why foreign sovereigns, ambassadors, invading enemies and public ships of war allowed to use one’s ports are except from this general rule of jurisdiction. This discussion might be part of Gray rationale as his argument was that the history of the times and the language of the Amendment made clear it was declaratory. Here, he was showing what persons were not subject to our jurisdicition under previous law at least in the view of Marshall.
@portneyballantine, best I can figure that regardless of the WKA decision that someone born of two citizen parents in the territories was a naturalized citizen. Am I missing something?
VP Curtis is certainly an exception to the “birfer” rule of born in the jurisdiction etc. Personally, I lean with the Fuller WKA dissent and think the NbC consideration should ultimately rest with citizenship of the parents. I can see, though, how this might have been thought dangerous in the early 19th century. He was a naturalized citizen and defies the “birfer” rule. Hence the change from 1790 to 1795 with regard to consideration and semantic use of “natural born”.
If subject to the jurisdiction included the territories then why are eligibility questions posed regarding PR, Guam, etc?
I think the dude was naturalized.”
Does something in that book say people born in the territories were naturalized and not natural born? Under English law that was clearly not the case and I am not aware of anyone saying that persons born in the western territories while the were part of United States were aliens that needed naturalization. Such territories were clearly “in the United States.” It is absolutely clear the framers of the 14th Amendment thought people born in our territories were citizens ar birth. As I just said, the Insular cases excluded unincorporated territories like PR, Guam, Phillipines etc from operation of the 14th Amendment. The logic of such cases is highly questionable but didn’t apply to our western territories. People born in our territories when they were owned by France or Mexico is a different story and generally were deemed to become a citizen by treaty and it was not clear what type of citizen they were. John Q. Adams thought persons born in the Louisiana Territory prior our purchase were natural born. Others in Congress thought them naturalized. The notion of citizenship by treaty isn’t in the Constitution.
“7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-349; 12-13-2010)
Section 201(g) NA and section 301(g) INA (8 U.S.C. 1401(g)) (formerly section 301(a)(7) INA) both specify that naturalization is “the conferring of nationality of a state upon a person after birth.” Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act.”
I agree this a confused area. However, Congress only has the power of naturalization. It has no power to pass a different type of statute. It is a matter of semantics other than with respect to Presidential eligibility which has never been before the Court. Justice Scalia on the issue:
“The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Id., at 702—703; see also Rogers v. Bellei, 401 U.S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed to–its power under Art. I, §8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.”
ballantine, per the Rogers v. Bellei court point of view of Gray’s decision, “Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.”
Either you’re born in the US or you are not. If within, the 14th considers you a born citizen (or some would hazard natural born), if not, your birth is subject to the Congress and naturalization statute. The NAs of 1802 and 1855 cover those born without to citizen parents. The Acts naturalized the children of citizen parent born abroad (outside the United States).
Or at least that’s what I can make of it.
@portney”Either you’re born in the US or you are not. If within, the 14th considers you a born citizen (or some would hazard natural born), if not, your birth is subject to the Congress and naturalization statute. The NAs of 1802 and 1855 cover those born without to citizen parents. The Acts naturalized the children of citizen parent born abroad (outside the United States).”
That is the current state of law but the history has been a bit more complicated. I think Rogers is an over technical reading of the 14th Amendment. No one in such Congress would have excluded children naturized at birth outside of the United States from the Amendment. It was sloppy drafting. But it is true that no one in such Congress even mentioned children of citizens born oversees.
There were some in England who thought the common law included a rule or descent as well as jus soli and hence English statutes going back to 1350 that made such persons natural born subjects were simply declaratory. This view was rejected by most English authorities including Blackstone. The 1802 naturlaization act for some reason by its terms seemed only to apply to children of persons who were citizens in 1802. By the time Kent wrote his Commentaries, he pointed out that there was effectively no statute for such persons and hence such children were aliens. Kent pointed out that there was some old dicta in English case law suggesting a rule of descent but Kent called them “dormant and doubtful.” However, it was almost 30 years until Congress addressed the issue after Horace Binney wrote his famous paper saying Kent was wrong and there was no rule of descent even in dicta. Congress amended the naturalization statute specifically citing Binney’s paper:
“By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place….I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney…He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house.” Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)
Eight years later, Ludlam v. Ludlam in the New York court of appeals disagreed with Binney and said England did have citizenship by descent. 35 years later, Wong Kim Ark said Binney was right and Ludlam was wrong however such part of Wong Kim Ark is clearly dicta. There has been a whole body a case law since WKA about whether the statutes making certain children of citizens born oversees violated equal protection when they didn’t make other foreign born children of citizens citizens as well. These cases presume that there is no right of citizenship outside of statute and often cite the dicta in Wong Kim Ark. Last year in one of these equal protection cases, petitioner tried to argue the traiditon of jus sanguinis in Anglo-American law going back to 1350 and his suggestion was dismissed out of hand.
However, we really don’t know if any founders thought the common law had a rule of descent and the Court has never really explored the issue.
ballantine, I appreciate your patience but this is odd;
1. Some, like yourself, contend that WKA affirmed rightly ECL over natural law and as such defined NbC for all intents and purposes.
2. Then we become acquainted with the unintended consequences stated in Rogers v. Bellei as that which was originally noted in the WKA dissent; “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. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court[,]”
3. Regardless of the ECL understanding prior to WKA, those not meeting the three criteria noted by the Rogers v. Bellei court are subject to the naturalization statutes of the congress and hence considered naturalized citizens (despite what the state department thinks). Has something changed and those naturalized become eligible for POTUS?
4. Children born in the United States to aliens are eligible to the office of the presidency, children born abroad to citizen parents are not.
Of course, this is only true if WKA is the actual arbiter of NbC (such as you believe). Perhaps its better to live in a world where kids born to Americans are eligible and those born to foreigners are not.
This is a law blog. So what does the law currently state regarding this issue?
Portney and Ballantine,
Thanks for bringing substance to these discussions. Happy Thanksgiving everyone.
Happy Thanksgiving to all of you, also. Cheers and blessings.
ballantine, please don’t take too much offense at my ranting. Your opinion is valuable and appreciated. With our discussion I find my footing less than solid but my urge to be willfully wrong if need be warranted. The matter is clear, insist beyond reason that MvH has purpose and precedent or suffer the consequences of WKA. I think the doubtless criteria of 1875 suits our republican purposes without upsetting the later landmark decision. Perhaps we can suggest that born a citizen and natural born are similar yet not enough to be the same. Let the two courts state something profound without one overruling the other regarding NbC. I think it in our national interest to push the perhaps lesser truth as supreme.
Thanks, ballantine, for your intellect, historical understanding, patience, and knowledge of our law.
@portney Some, like yourself, contend that WKA affirmed rightly ECL over natural law and as such defined NbC for all intents and purposes.
Who in the United States said jus soli was not the principle of natural law. Coke said it was. Coke was a bigger influence on the framers that Vattel. They learned law from reading Coke as most predated Blackstone becoming popular. Numerous members of the 39th Amendment Congress, including the author of the citizenship clause, said jus soli was natural law.
@portney Has something changed and those naturalized become eligible for POTUS?
No court has directly addressed the issue. However, I think you see the difficulty and why some law professors raised McCain’s eligibility as an academic issue. Professor Chin’s argument was stronger than most gave him credit for. He pointed out that McCain was not even a citizen at birth, much less a natural born citizen, under the controlling precedents at the time. However, his article was countered by numerous professors who make the counter case better than I can. I predict the Court would find an argument to make such persons eligible probably pointing out that under English law in 1787 being “natural born” and “naturalized” were not mutually exclusive as Parliament had the ability to make one “natural born” pursuant to a naturalization statute. Such is why I suggested Congress pass a clear statute to such effect.
“No court has directly addressed the issue.”
I thought you said that WKA defined NbC. Last I checked he was not born per the 14th in the United States and cannot, in light of the decision, ever be considered eligible.
The court doesn’t have to address the McCain issue if WKA is the litmus. He’s clearly ineligible according to Gray. Am I correct?
ballantine, I suppose you can see why WKA as the final word on NbC rubs folks wrong. On one hand you have someone that is born abroad to an Admiral and his wife on official business of the government and on the other the product of an alien and American Marxists, but albeit born in the United States. Of course the politics are irrelevant in the eyes of the court, But some wonder if MvH would have kept both children from consideration for the office. I wish we had discussed this as a nation previously without the baggage of race or ideology. I think it important, maybe you do too.
“No court has directly addressed the issue.”
I thought you said that WKA defined NbC. Last I checked he was not born per the 14th in the United States and cannot, in light of the decision, ever be considered eligible.
The court doesn’t have to address the McCain issue if WKA is the litmus. He’s clearly ineligible according to Gray. Am I correct?”
I don’t think so. The status of children of aliens was not before the court.
The Court could still look to the common law to define the status of the native born without addressing whether foreign born children of citizens are natural born under the common law or the common law modified by statute as some English and American authorities asserted. WKA address the class of such persons in cursory fashion, but it didn’t need to talk about them at all. Seems to me such discussion is dicta.
“ballantine, I suppose you can see why WKA as the final word on NbC rubs folks wrong. On one hand you have someone that is born abroad to an Admiral and his wife on official business of the government and on the other the product of an alien and American Marxists, but albeit born in the United States.”
Cases and history may rub people the wrong way but such brings us back to whether we should interpret the Constitution solely by history defining words by their meaning in a world that no longer exists. I don’t think WKA is precedent that says McCain is ineligible but its dicta doesn’t help him a great deal and subsequent courts seem to generally agree with it.
If I was deciding the case of McCain, I would have said McCain was eligible following the logic of Calvin’s Case which simply required one to be born in the allegiance of England. The court today does not necessarily need to limit the exceptions from jus soli to Coke’s 16th century exceptions. They were exceptions then because such persons, though born outstide England, were still understood to be born in the allegiance of England and not the nation of their birth. While limiting the exception for solders in foreign lands to territory occupied by the English army made sense in the 16th century, such makes little sense today. Ovbiously our solders oversees today owe no foreign allegiance and are under the protection of the United States and hence seem to clearly fall under the English concept of being born in allegiance. There may be additional circumstances today of persons being born in the Allegiance of the United States under circumstances that didn’t exist in the 16th century but exist today. Such persons could be deemed “natural born” in accordance with the logic of Calvin’s Case without changing the fundamental law..
ballantine, thanks for humoring my layman’s painful ignorance of the law. Probably on the level of teaching a child to tie his shoes or read an analog clock.
Is my logic sound regarding present law as understood by you?
If WKA is NbC precedent and only those born in the US are natural born, regardless of the citizenship of the parents..
Then McCain, and those of his circumstance of American parents, born outside the US are naturalized and ineligible for office.
Is that not the present paradigm of WKA notwithstanding another case before the court using ECL Coke as the premise? What would be the impact of that case on WKA or the 14th? In other words, how does the language of the 14th reconciled with jus soli natural born with those born beyond the limits of the United States?
Hope your holiday was pleasant.
ballantine, here’s another odd thought;
Why is the allegiance of the parents an important consideration in one context and not in the other? This seems an important question and, as an American, at the heart of why sovereign citizens is bantered about.
The WKA court put the eggs in one basket with ECL natural born jus soli. I think it very odd that the consideration can change in light of our 14th. WKA was clear according to some that those born outside the US are citizens at the naturalization determination of the congress.
I think we’ve beaten this particular thought to death.
“If WKA is NbC precedent and only those born in the US are natural born, regardless of the citizenship of the parents..”
I don’t think you have to read it to say only persons born in the US are natural born. A case can be NBC precedent for one class of persons without being precedent for other classes. Minor could say look to the common law and conclude native children of citizens are natural born under the common law. WKA could look to the common law and say native children of aliens are included. A future court could say Minor and WKA were correct to look to the common law but that foreign born children of citizens were understood to be natural born under the common law of 1787. Dicta in WKA throws doubt on such conclusion but did not address all the arguments that such persons would have been understood to be natural born without throwing doubt on the common law being the basis of the law. Of course, one might also argue the common law was not the basis but that is a much more difficult argument considering the mountain of authority supporting the common law. Whatever is precedent in WKA, the discussion of foreign born children is clearly dicta as their status was not before the court and addressing their status was in no way necessary to address the status of the native born. There is no way the court would have found McCain ineligible, just not clear how they would have gotten there. .
“A future court could say Minor and WKA were correct to look to the common law but that foreign born children of citizens were understood to be natural born under the common law of 1787.”
My point and query was that PRESENT law, to include the 1971 USSC, deems those born outside the United States and the 14th as clearly subject to congress’ naturalization laws. I think it is safe to say that McCain was a naturalized citizen (if the Gray decision is applicable to NbC) and would have to seek the court’s opinion to be eligible. He didn’t so he isn’t.
Interesting, if McCain considered WKA inapplicable he could fall back on notions that NbC was open to foreign born citizens of American parents in the vein of the dicta per the Fuller dissent. But if, and only if, he considered WKA inapplicable legal precedence for NbC.
Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?
@my funny ballatine: You said: “Again, you get everything wrong You are citing the Virginia convention where Henry and Mason were arguing that we needed to adopt the English common law in the Constitution because if we didn’t, se had no common law of our own for federal purposes and hence they would not have all the protections of the common law. They pointed out Virgina had expressly adopted the english common law in 1776, as did nearly every state.”
You’re proving my point for me. You had claimed earlier that all states adopted the common law (now you say “nearly every state”) … the quote I provided show from 1788 (most of the original state Constitutions were adopted between 1776 and 1787) that the common law was NOT adopted by the states. If you don’t want to take my word for it, then you take it from the case that prompted your quote from WKA about being no common law in the sense of a national customary law. This originally came from Wheaton v. Peters in 1834 (before being cited in Smith v. Alabama and then WKA):
“No one will contend that the common law, as it existed in England, has ever been in force in all its provisions in any state in this Union. It was adopted only so far as its principles were suited to the condition of the colonies, and from this circumstance we see what is the common law in one state is not so considered in another.”
I’ve already explained this to show the flaw in the Lynch v. Clarke decision, which is why Gray did NOT cite actual passages from that decision. Gray is fudging, but he never fudged to what you want to believe WKA says about NBC. It just isn’t there.
As for the other part you quoted about reading the Constitution “in light of” English common law, here’s what the original Supreme Court case said on this issue (Moore v. United States, 1875):
‘The question is, by what law is the Court of Claims to be governed in this respect? May it adopt its own rules of evidence, or is it to be governed by some system of law? In our opinion, it must be governed by law, and we know of no system of law by which it should be governed other than the common law. That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law. The great majority of contracts and transactions which come before the Court of Claims for adjudication are permeated and are to be adjudged by the principles of the common law. Cases involving the principles of the civil law are the exceptions.”
This passage is talking about evidentiary procedures for a court of claims. It’s not a case about citizenship, nor is it talking about citizenship. NOR was Smith v. Alabama, the case that was directly quoted. In fact, the exception that was brought up about common law in the dicta of that case was not even used. The court said:
“The statute of Alabama the validity of which is drawn in question in this case does not fall within this exception.”
It’s funny how you object to a citation of Marshall from the Venus not being a citizenship case, yet it actually and directly addresses the subject of citizenship unlike the quote you rely on to stretch a common law into defining NBC. What you want to believe requires the connecting of unrelated dots.
As for Inglis v. Sailor’s Snug Harbor, you’re wrong in your citation of Story. His was a concurring opinion, but it was NOT the majority opinion. That opinion was delivered by Smith Thompson, which I’ve cited. But, let’s look at Story who also said:
“still his national character was derivative from his parents”
In the scenarios Story uses, jus soli is NOT the deciding factor. Whomever controls the soil, thus controls the allegiance of the parents, which THEN determines the allegiance of the child. In the situation where the child becomes a U.S. citizen regardless of whether the parents are subjects or aliens, the determination is dependent on this deciding factor, which you quoted but apparently didn’t bother to read:
“it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof …”
Story explains that the intention of becoming permanent members is part of an applicable ordinance:
“We must then give a rational interpretation to the word, consistent with the rights of parties, and the accompanying language of the ordinance. By ‘abiding’ in the ordinance is meant not merely present inhabitants, but present inhabitancy coupled with an intention of permanent residence.”
From this we see a “common law” precedent for why Gray included the permanent residence and domicil criteria to make Wong Kim Ark a 14th amendment citizen. Gray did NOT declare Ark to be a Natural Born Citizen. He could NOT because Gray was “abiding” by Minor’s definition of NBC: all children born in the country to parents who were its citizens.”
Sorry to smack you down again, but this is what the Supreme Court said. At best, if we’re to call a 14th amendment birth citizen an NBC, it requires that the parents had expressed an intention to become permanent members of the United States and had present inhabitancy. This STILL excludes Obama, the son of a foreign national who was sent back to Kenya. The only reason Obama did not go back is because his white mother (who also had NO intention of being a permanent resident) divorced his deadbeat dad.
@Ksdb king of sad you’re really not learning anything.
The common law was adopted in each state. Most enacted statutes specifically saying so:
“The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law.
In the few states that did not expressly adopt it, it was sitll considered the law of the land:
“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).
It was not exatly the same due to differences in statutes:
“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
With respect to citizenship, only Virginia changed the common law by statute which after 1783 expressly said anyone born in Virginia was a citizen. Sorry those are the facts.
@ksdbThis passage is talking about evidentiary procedures for a court of claims. It’s not a case about citizenship, nor is it talking about citizenship. NOR was Smith v. Alabama, the case that was directly quoted.
How sad. You really don’t understand. I was pointing out that the court has said over and over that the Constitution must be interpreted in light of the common law, including in Minor and WKA, as well as a multitude of other cases. Didn’t mean we adopted the common law as federal law, it meant we were to look to the English common law to define terms like Smight v. Alabama and WKA expressly stated. Here is the same point by Chief Justice Taft:
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
Understand why Gray says it must be interpreted in light of the English common law yet. I guess that really means ignore the English common law. Duh.
@ksdbI’ve already explained this to show the flaw in the Lynch v. Clarke decision, which is why Gray did NOT cite actual passages from that decision. Gray is fudging, but he never fudged to what you want to believe WKA says about NBC.
You are making no sense. Gray does not need to cite actual passages from a decision to cite it as support of his decision. He already cited plenty of authority defining natural born for those who can read.
@ksdbIt’s funny how you object to a citation of Marshall from the Venus not being a citizenship case, yet it actually and directly addresses the subject of citizenship unlike the quote you rely on to stretch a common law into defining NBC.
It was prize case and you are citing a dissenting opinion, not the majority, that quotes Vattel solely on the issue of domicile. Neither the quote nor the case has anything to do with who was born a citizen or who was natural born. My paralegal would know that.
@ksdbAs for Inglis v. Sailor’s Snug Harbor, you’re wrong in your citation of Story. His was a concurring opinion, but it was NOT the majority opinion.
The majority didn’t discuss the topic of citizenship generally. Made a special rule that it made clear did not generally apply.
@ksdb“still his national character was derivative from his parents”
He said was relevant “if born a British subject.” Not otherwise. Whether one born a British subject swiches nationality in war is a matter of public law.
“It appears to me that upon principles of public law as well as of the common law, he must if born a British subject, be deemed to adhere to, and retain the national allegiance of his parents at the time of the treaty.”
@ksdb“it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof …”
Again, you have trouble reading. It says if born on US soil it doesn’t matter if his parent manifested “an intention of becoming permanently members.” Sotry says if born before the Declaration or during British occupation, the election of the parents mattered as only then could he become an American citizen. His parent were either British subjects or American citizens at his birth depending upon whether they evidenced an intention of becoming permanently members of America. Such was the test. However, if born un US controlled territory, it did no matter if they were British subjects or citizens. It doesn’t matter what intent they manifested His father’s citizenship did not matter. Plain English. Do you know Story explains these rules is great detail earlier in the case?
@ksdbStory explains that the intention of becoming permanent members is part of an applicable ordinance”
Yes, and that is relevant only to determine if his father had elected to become a US citizen and hence whether his father was a British Subject or American citizen at birth. Not relevant if born on US controlled soil.
@ksdlFrom this we see a “common law” precedent for why Gray included the permanent residence and domicil criteria to make Wong Kim Ark a 14th amendment citizen.
Wrong Again. Gray never said permanent residence and domicile are required. Said the rule includes, is not limited to, a child of resident aliens and quotes Coke that temporary allegiance is all athat is required. Again, in English, Story said it made no diffferenece whether his parent had manisfested ” an intention of becoming permanently members..” if born on US controlled soil. Is there any quote you don’t screw up?
@ksdbHe could NOT because Gray was “abiding” by Minor’s definition of NBC: all children born in the country to parents who were its citizens.”
Still can’t understand what it means to say no one on the court was committed. Very sad indeed. Even sadder you think you are smacking anyone down when you can’t get a single thing right.
@portneyMy point and query was that PRESENT law, to include the 1971 USSC, deems those born outside the United States and the 14th as clearly subject to congress’ naturalization laws.
Yes, under current law, McCain would not be a citizen except by statute. As I have stated, I don’t think that means he cannot be natural born.
@ksdbInteresting, if McCain considered WKA inapplicable he could fall back on notions that NbC was open to foreign born citizens of American parents in the vein of the dicta per the Fuller dissent. But if, and only if, he considered WKA inapplicable legal precedence for NbC.
Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?
Fuller was simply wrong that the allegiance of the parents were ever the rule of American law. We made citizens of children born oversees by statute fully realizing they may owe their political allegiance to the nation of their birth, not us. Such was the poisition of our early state department. At the same time, in the early republic we never acknowledged that a person born on our soil owed a foreign allegiance due to his or her parents. As far as I know, no nation even tried to make such claims. Certainly, England, the place where most of our immigrants cam from, did not.
@ my funny ballantine: “king of sad you’re really not learning anything.”
“king of sad”??? I’ve learned that you’ve posted several dumbass comments and that it’s pretty easy to debunk nearly everything you come up with.
You’re still flailing away trying to salvage your common-law was adopted in all the states, no nearly all, no just a list of whatever you can come up with since they didn’t all adopt the common law. I showed how the SCOTUS stated that the common law was adopted in very limited ways and in differing ways in different states. I’ve also shown that interpreting the Constitution in “light of” common law does not mean that the Constitution is defined BY the common law.
You said: “With respect to citizenship, only Virginia changed the common law by statute which after 1783 expressly said anyone born in Virginia was a citizen. Sorry those are the facts.”
What facts?? You’re making a claim lacking factual support. If the common law prevailed on citizenship, then why was the citizenship clause in the 14th amendment included?? Why would they go to the trouble to amend the Constitution for something that is supposedly part of the law in all the states??? Think, man, think!
You said: “I was pointing out that the court has said over and over that the Constitution must be interpreted in light of the common law, including in Minor and WKA, as well as a multitude of other cases. Didn’t mean we adopted the common law as federal law, it meant we were to look to the English common law to define terms like Smight v. Alabama and WKA expressly stated.”
Did you not read my reply??? I went to the original case where this principle was introduced. It had nothing to do with citizenship. You objected to me quoting Marshall who quoted Vattel specifically about citizenship because YOU said, the decision itself wasn’t about citizenship. Now you want to apply something that is even further removed … which is you being a hypocrite with a double standard. The original principles had limited application and never said the common law should be used to literally define every term found in the Constitution. It doesn’t matter if Justice Taft quoted this again. It’s a generalization that is specifically undermined because the Minor decision did NOT use English common law to define NBC. They used the law of nations definition verbatim, minus credit for where it came from.
You said: “I guess that really means ignore the English common law.”
Sorry, this is a ridiculous overreaction. I never said that English common law needs to be ignore. Instead I’ve pointed out that Minor’s definition of NBC is not from the English common law. I challenged Squeezy and I’ll challenge you. Find citations of English common law in the Minor decision and share them here. Let’s see them.
You said: “The majority didn’t discuss the topic of citizenship generally. Made a special rule that it made clear did not generally apply.”
Sorry, but this is false. There was general rule that was applied. It’s called descent and I quoted it directly from the majority opinion.
You said: “He said was relevant “if born a British subject.” Not otherwise. Whether one born a British subject swiches nationality in war is a matter of public law.”
Do you think before you post?? You’re arguing against yourself again. You’ve been claiming that the common law was the guide, now you’re saying it’s “public law.” Thanks for conceding another point.
You said: “It was prize case and you are citing a dissenting opinion, not the majority, that quotes Vattel solely on the issue of domicile.”
You’re not helping yourself. This still shows the court relying on Law of Nations, plus, the citation from the majority that speaks of domicile is related specifically to citizenship.
“Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens,” Marshall helps define what is meant by “native citizens” which is all persons born in the country to citizen parents.
You said: “His parent were either British subjects or American citizens at his birth depending upon whether they evidenced an intention of becoming permanently members of America.”
You’re making my point for me. The intention of permanent membership creates the allegiance to the political unit. If they didn’t express that intention, then they remained British subjects. The only thing that changed in September 1776 in this case was the parents joined the British troops in New York, and remained under the protection of the British arms during the war. Regardless, Story cites Vattel in helping to make his decision:
“Vattel considers the general doctrine to be, that children generally acquire the national character of their parents (Vattel, B. 1, ch. 19. sec. 212, 219); and it is certain, both by the common law and the statute law of England, that the demandant would be deemed a British subject.”
It makes no sense for Story to quote Vattel here unless he’s agreeing that children acquire the national character of the parents (which is regardless of the place of birth). The only way this doctrine can be established and make the child in Inglis an American citizen is a) if the parents elected to become U.S. citizens or b) if they became members of the state by expressing the intention of permanent residence.
Vattel says in section 219: “a man’s country is the place where, at the time of his birth, his parents had their settlement” … this jibes with Story’s mention of the New York and Massachusetts statutes on “abiding” as a permanent resident in become a member of the state.
Note too: We have a statute in this decision that does NOT incorporate English common law. That statute rejects those who were only temporarily in the state as being members of the state. Here’s the quote:
“such persons who were resident here without any intention of permanent residence, were not to be regarded as members of the state”
You wrote: “Again, in English, Story said it made no diffferenece whether his parent had manisfested ” an intention of becoming permanently members..”
Wrong. He said it made no difference whether they elected to become citizens, by manifesting an intention to become permanent residents. There’s no reason for Story to talk about this ordinance at all if simple birth within the soil is all that is necessary to become a citizen. He clearly says it is NOT sufficient:
“To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin’s Case, 7 Co. 6, a. 18, a. b.(k) Now in no just sense can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance.”
These are combined critieria … within the territory AND within the ligeance of the government. Story has already said the family “joined the British troops.” This put them in the ligeance of the British government. Had they been captives of the British troops, they would have been enemies of the British and thus the child could NOT be born a British subject after September 1776. Story, however, says the child if born after that time is a British subject.
Gray ignored several parts of this decision that are inconvenient to his interpretation of common law. He ignores the majority opinion and he ignores that Story cited Vattel. It doesn’t matter, however, because Gray still cited and affirmed Minor’s definition of NBC.
You wrote: “Still can’t understand what it means to say no one on the court was committed.”
No, I still can’t understand why you say repeat this phrase that was not used in the decision. You know full well that’s NOT was Gray wrote. Try being honest. A unanimous decision that says all children born of citizen parents are NBCs is one hell of a commitment. Gray was not going to overrule that definition. No way. So he didn’t.
You wrote: “Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?”
Yes, because the Constitution was established for “ourselves and our posterity” meaning that citizenship is a birthright of parentage, not location. The Constitution doesn’t say for “ourselves and the occasional foreigner who happens to visit and knock up a local girl.” Second, because the allegiance of the parents is consistent with natural law and the law of nations.
You wrote: “We made citizens of children born oversees by statute fully realizing they may owe their political allegiance to the nation of their birth, not us.”
Yes, and this completely undermines the idea that our country inherently adopted English common law. It was ALREADY part of the common law that children born abroad of English fathers were considered natural-born subjects. Why would this have to be written into a naturalization act if the common law was adopted??
You wrote: “At the same time, in the early republic we never acknowledged that a person born on our soil owed a foreign allegiance due to his or her parents.”
Nonsense. That’s exactly what the treaties of 1783 and 1794 did according to the SCOTUS. It’s what the treaty with China was presumed to have done up until Wong Kim Ark created the ancient and fundamental rule of “citizenship by birth” for those who had permanent residence and domicil.
@ksdbYou’re still flailing away trying to salvage your common-law was adopted in all the states, no nearly all, no just a list of whatever you can come up with since they didn’t all adopt the common law. I showed how the SCOTUS stated that the common law was adopted in very limited ways and in differing ways in different states.
And I cited the Supreme Court saying the common law was in place in all ths states and cited the most influential treatise to point out most states actually said they adopted the English common law and that the common law in was still in place in the few states that did expressly adopt it. There is no dispute about this. Your citation does not say it was in place in limited ways. As Justice Iradell points out:
“and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different.”
Differs in some respect. Not all the English statutes were in place.
@ksdbI’ve also shown that interpreting the Constitution in “light of” common law does not mean that the Constitution is defined BY the common law.
Nonsense. You are just playing your word games. Saying undefined terms are interpreted and read in light of the common law means exactly that.
“The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.”
In english that means you must go to the comon law to understood what the terms mean.
@ksdbIf the common law prevailed on citizenship, then why was the citizenship clause in the 14th amendment included?? Why would they go to the trouble to amend the Constitution for something that is supposedly part of the law in all the states??? Think, man, think!
Try studying history. Everyone in the citizenship debate of the 14th Amendment said they were simply restating pre-existing law priora to Dred Scott with the sole purpose of the 14th Amendment being to make clear Dred Scott was no longer the law. Pretty much everyone in such Congress said they were re-stating the common law rule. Such is why Justice Gray said the 14th Amendment was simply declaratory of pre-existing law the sole purpose of which was to remove the doubt created by Dred Scott.
@ksdbThe original principles had limited application and never said the common law should be used to literally define every term found in the Constitution.
Sorry, in real life the Court has looked to the common law over and over and over. No one has done this more than Justice Scalia who nearly always looks to the English common law. Doesn’t matter if they are citizenship cases or not, it has been the general principle of the Court.
@ksdb It’s a generalization that is specifically undermined because the Minor decision did NOT use English common law to define NBC.
Of course it did. There was no other common law of the founders. The dicta in Minor simply didn’t examine the common law with respect to children of aliens.
@ksdbSorry, but this is false. There was general rule that was applied. It’s called descent and I quoted it directly from the majority opinion.
Wrong again. The majority specificall6y said it was not talking about a general rule of citizenship. They created a rule of following the condition of the father with a right to election at majority for persons for during 3 months in 1776 and said such rule ended 9/15/1776. A right to election at majority was obviously not the rule after the war except for the limited right of election provided by treaty. The majority said nothing about what the rule was after 1776.
@ksdbThere’s no reason for Story to talk about this ordinance at all if simple birth within the soil is all that is necessary to become a citizen.
Wrong again. You don’t see that the rules about his citizenship differ depending upon who was in control of the soil he was born on. If born prior to 7/4/76, he was born on British soil and the status of his parents mattered as he only could become a citizen through their right of election. If born between 7/4/776 and 9/15/76 when the US Army controlled the city, it doesn’t matter if his parents elected to become US citizens or remained British subjects. Coke 101. Of born after 9/15/76 he was born on soil occupied by a foreign army and again the status of his parents matter. Again, Coke 101.
@ksdb“To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin’s Case, 7 Co. 6, a. 18, a. b.(k) Now in no just sense can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance.”
Wrong. This whole section is about being born after 9/15/76 on territory under occupation by a foreign army. See “occupied by her enemies” in your quote and “if he was born after the British took possession of the City of New York in September, 1776.” Story earlier explain the rule for being born under foreign occupation and parentage did matter in such situation. Have to read more carefully.
@ksdb Gray ignored several parts of this decision that are inconvenient to his interpretation of common law
The citations to Vattel were not about people American citizens under the common law. The opinion is as clear as can be on such point.
@ksdbNo, I still can’t understand why you say repeat this phrase that was not used in the decision. You know full well that’s NOT was Gray wrote. Try being honest. A unanimous decision that says all children born of citizen parents are NBCs is one hell of a commitment. Gray was not going to overrule that definition. No way. So he didn’t.
Just try admitting you are wrong. There is no ambiguity as to what Gray said: “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th Amendment. You simply think denying what plain English says is legal argument. Gray didn’t overrule anything. Minor was dicta that expressly declined to address the status of children of aliens.
@ksdb Second, because the allegiance of the parents is consistent with natural law and the law of nations.
After the right to election through treaty expired, no early legal authority said a person born on US soil after the revolution was governed by the allegiance of his parents. What you think about natural law or the law of nations is irrelevant. The right to such election was not the general rule and no one had such right after 1795 and the 1794 treaty only applied to persons living in certain disputed areas. The treaty with China said nothing about native born Chinese. It related only to naturalization which by definition did not apply to the native born. In the debates in Congress in 1870 leading up to the treaty, there was a long debates about the status of Chinese and the anomaly of preventing Chinese immigrants from becoming citizens while making their children citizens under the Amendment was discusssed. The many members of 14th Amendment Congress a few years earlier clearly stated that children of the Chines would be citizens. This would include Senator Trumbull, Williams, Johnson and Conness off the top of my head. Time to do more research.
@ksdb Yes, and this completely undermines the idea that our country inherently adopted English common law. It was ALREADY part of the common law that children born abroad of English fathers were considered natural-born subjects. Why would this have to be written into a naturalization act if the common law was adopted??
The English followed the same rule as us. In fact, our naturalization debates make clear we were copying them. The common law controlled people born in England. The prevailing view in England was that persons born outside of England could only be made subjects by naturalization statutes. These statutes provided that persons born to English subjects outside of England were natural born subjects for all intents and purposes, but the English did not treat them as British subjects outside of England and didn’t claim their allegiance against their native nation if such native nation. There were essentially subjects for municipal purposes only and did not owe their political allegiance to England, at least unless they moved back to England. That was the state of public law. For example, during the Civil War, the English tried to protect British born aliens in the United States from the draft. They didn’t try to protect their children born on US soil recognizing that they were US citizens and owed their allegiance to the United States.
New CRS Report:
http://www.obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/
Observer,
From Mr. Maskell’s new CRS report:
Squeeky,
Do you think the Vattle birthers will understand how badly they’ve been spanked or continue to revel in their stupidity and willful ignorance? I’m betting on the latter…
“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” –John Jay (July 25, 1787)
I’m not exactly certain how fuzzy the interpretation of “to provide a strong check to the admission of Foreigners” can possibly be in light of those that insist 14th born citizens, that are dual citizens at birth, can be considered eligible. I think in light of admitting that current legal opinion (Rogers v. Bellei, 401 U.S. 815) prevents naturalized citizens from holding presidential office, especially those born to American citizens abroad, is telling if the 14th is applicable to NbC.
I think an important point to reconcile is the injustice incurred by accepting 14th NbC as acceptable also directly impacts those Americans not born in the United States and subject to the jurisdiction are, in fact, naturalized at the discretion of the congress. This is true until the court deems otherwise.
Portnoy,
Since you cannot provide any instance where John Jay (or any other Founding Father) considered a person born in the United States* a foreigner, all your comment demonstrates is your own ignorance.
*diplomat, enemy, yada yada yada…
Hi Slarti:
I was surprised to see this thread was still going on. You asked:
“Squeeky,
Do you think the Vattle birthers will understand how badly they’ve been spanked or continue to revel in their stupidity and willful ignorance? I’m betting on the latter…”
I think they will continue on, for LO, it is written in The Birther Bible. The Book of Rhetorics, Chapter 2, Verses 1-8:
Chapter 2
1. But if thou canst not hold thy tongue, then it is better to contend with words than to stew in silence, for such will busteth thy gut and cause fits.
2. And yea, here is the manner in which thou shouldst confront the Anti-Vattelites, if thou art feeling lucky.
3. Avoideth all talk of the Wong Kim Ark legal case, for here there be many dragons. Sayeth simply that Wong Kim Ark was not running for the Presidency, and prayeth earnestly that the Anti-Vattelite knoweth not the case well.
4. If however, the Anti-Vattelite knoweth well the case, then shouldst thou falsely remember thou hast an appointment with a physician, or some other pressing errand, and promise to return on the morrow. But, returneth not.
5. Doeth likewise with the case of Ankeny v. Governor, although thou mayst also calleth these judges by foul names, they being but judges of the state.
6. Some Birthers doth meet with success by copying and pasting large numbers of words from previous arguments without care that these words pertaineth not to the argument at hand.
7. Likewise mayst thou distracteth from the argument by the calling of names, limning the Anti-Vattelites as Minions of the Usurper.
8. All such artfulness mayst be avoided if thou simply stays among the chambers of like-minded Birthers, where thou canst be comforted with the sound of echos.
http://birtherthinktank.wordpress.com/2011/11/27/the-birther-bible/
Squeeky Fromm
Girl Reporter
ksdb:
You stupid twit! Are you still trying to act like you don’t know this???:
“@ksdbIf the common law prevailed on citizenship, then why was the citizenship clause in the 14th amendment included?? Why would they go to the trouble to amend the Constitution for something that is supposedly part of the law in all the states??? Think, man, think!”
I have given you the explanation for this over and over. Plus, if you would get off your lazy hind end, and read Wong Kim Ark you would have found it for yourself, right in the first few paragraphs of Section V:
“The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.”
Take my advice, and quit trying to practice law without a license. You can’t even manage to read the cases. Do you have short term memory loss or are you just really very dumb???
Geeesh.
Squeeky Fromm
Girl Reporter
Slarti, admittedly I’m ignorant hence the discourse with the hope of understanding. What is your opinion of the discussion ballantine and I have had regarding the impact of Rogers v. Bellei, 401 U.S. 815? Do you not find it interesting that if 14th born is applicable to NbC then it is required to acknowledge all those born outside the United States as naturalized? The legal dynamic is clearly that children born to illegal immigrants are eligible and those born to American citizens abroad are not if the 14th is the metric for NbC. My comment to ballantine was that some of us were willing to be willfully obtuse regarding WKA as a NbC definition if such unintended consequences were the result.
Squeeky,
The Birther Bible is great–I left a comment over there, too… and ksdb is unquestionably stupid and willfully ignorant.
Portney,
I’m interested in birther delusions and the lengths they will go to in order to protect those delusions, not abstruse points of settled law. In other words, I’m studying the behavior of you and your fellow birtherstani, not Ballantine’s legal tutorials. There is no indication that the Founders ever thought about your “unintended consequence” or would have been in any way concerned about it if they did. I would also note that the only reason to be willfully obtuse is if your arguments cannot withstand logical scrutiny. Something all birthers prove beyond all doubt every time they make a comment…
Slarti, I see no reason for any of us to be unpleasant. I wanted your opinion of the USSC case relevant to my point involving the 14th as a NbC litmus. If accepted, naturalized folks like McCain are ineligible unless they have sought the court’s opinion. Ballantine admitted that some sort of reconciliation is required by the court in light of WKA and RvB.
Rogers v. Bellei, 401 U.S. 815 (1971)
Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
“[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . . .”
This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “[a]ll persons born or naturalized in the United States. . . .” As has been noted above, the amendment’s “undeniable purpose” was “to make citizenship of Negroes permanent and secure,” and not subject to change by mere statute. Afroyim v. Rusk, 387 U.S. at 387 U. S. 263. See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908).
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing
Page 401 U. S. 830
rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S. at 169 U. S. 688. Then follows a most significant sentence:
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
Portnoy,
What do I get out of being pleasant to someone who admits to being willfully ignorant? Should I fail to note that birthers, in general*, are stupid and dishonest as well? Or that every single birther is a bigot? Sorry, but the birthers all left reasonable behind way back and have no claim on my civility now. Why don’t you just admit President Obama is a natural born citizen? We all know it. And for all you like to bring up children of citizens born abroad, no court is ever going to rule against the eligibility of such a child (which would explain why Senators Clinton and Obama sponsored a Senate resolution which made it clear they wouldn’t be taking the matter to court). Say the shibboleth and I’ll treat you with courtesy and respect, but until then you deserve nothing but contempt.
* Everyone can decide for themselves whether or not these labels apply to you. I certainly think they do.
p.s. You said, “folks like McCain are ineligible unless they have sought the court’s opinion”. As I understand it, the courts cannot give an opinion absent a case and controversy–therefore your entire statement is an impossibility. Yet another shining example of your substandard intelligence–or is it just your dishonesty?
Portney,
Actually, their general consent is that any person that is considered to be a U.S. citizen at birth, whether this interpretation is made in light of the English common law, or statutory British law, or both. subject to the jurisdiction, or not, with no citizen parents, or with, with dual allegiance, or single ones, with strong ckecks (whatever that means), in statutes, or in naturalization definitions of the 18th century that would make a person a U.S. citizen at birth, or perhaps a future naturalization amendement that would make one a U.S. citizen at birth, born in the limits, or outside of the limits, born to illegal immigrants in the territory, are also considered to be a Natural Born Citizen under Article II Section I.
Slarti, you failed to recognize a request for good manners and honest discourse. You insist on being unpleasant and rudely condescending. As to to the request for your thoughts on RvB, please disregard. I don’t see the point of your commentary other than to incite and inflame. You do understand that this is a law blog and not Fogbow?
“a request for good manners and honest discourse.”
OMG, I had to Heimlich myself. This statement is coming from people who supposedly can not string two sentences together or bring themselves to even read the cases they are discussing. At which point there would be no question.
What frigging part of understanding natural born citizenship is hard??? It’s being born here, and not the kid of an invader or diplomat.
It’s being born outside the country to American parent or parents as legislated by Congress as sufficient to constitute natural born citizenship.
“honest discourse”would have grasped this simple concept a thousand comments earlier.
What some people are here to do, is the opposite of “honest discourse” – - -they are here to obfuscate and play stupidly ignorant word games and be
“willfully ignorant.”
I am with Slarti on this one. The discussion got to the point of being ludicrous a long long time ago.
Sooo, Portney: Quit pretending you have questions.
Squeeky Fromm
Girl Reporter
mrjr101,
In light of RvB, my point was supposedly simple…if the 14th is the definition of NbC then those born outside the US are naturalized and thus ineligible;
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
***
If you are subject to the congress for your citizenship, you are ineligible if, and only if, the 14th is the litmus. The only other option is denying the 14th is the NbC definition for folks born abroad to American parents and hoping that the thoughts expressed in the WKA Fuller dissent are applicable.
Squeeky, why are you being unpleasant? Have I been rude to you and had not realized?
Is this something that is considered acceptable in your circle of “friends”? Well, I would suggest to remind that you are not amongst them and should hold yourself to a higher standard than you are familiar. It would be appreciated if you would make the effort. I am not asking that you agree with anything I have stated, only that your response be civil and toned to the blog you have joined.
Portnoy,
On the contrary, I clearly explained how any birther can get civility and substantive answers out of me (by saying shibboleth) and no one seems able to do it. I was even willing to be civil without that provided my comments were argued in good faith–I even offered mrjr101 another chance when he violated that with his stupid assertion that I was being dishonest by defining my terms (if you don’t understand why this is moronic then you have no place speaking in a discussion about logical reasoning). It’s not my fault that all of you are arguing points that have no merit whatsoever. Regarding your question about being rude to Squeeky–yes, you and your fellow hatrioits have been rude to her as well as the rest of us (and incredibly rude and disrespectful to Ballantine) by your unwillingness to engage in debate in good faith. Which makes you a pathetic birther fuckwit and nothing more.
Portney,
Their entire argument revolves around the central point of who is a citizen at birth. That is their determining factor and the common denominator. McCain is not a citizen at birth by the 14th, that is clear, but he was declared a citizen at birth by statute. Do you find this simple, or rather, an ambiguous concept?
The 14th is not all inclusive of NBC,
No one can lie to you and say the WKA holding (if it is an Nbc holding) is all inclusive of NBC.
No one can lie to you and say that the Minor holding (if it is an NBC holding) is all inclusive of NBC.
Portney:
I am not being unpleasant. I am simply pointing out simple observations on this stuff. This is a legal blog, and one expects a certain degree of HONEST DISCOURSE from people, and when they have been repeatedly provided backup from legal cases and repeatedly rebutted WITH EVIDENCE, then it is time for them to make some concessions. That is if they are truly seeking HONEST DISCOURSE.
I don’t see much of that going on, on your part and others, so I made my Heimlich remark. Slarti has put forth the Shibboleth Test, and I can see why a person might not want to speak certain words at another’s insistence.
So let me put it my way, as a question. Do you believe that Obama is a natural born citizen. If so, why. If not, why.
Squeeky Fromm
Girl Reporter
mrjr101, I would ask that you read the RvB opinion; “That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.” Constitutionally, naturalization is the province of the congress. RvB, if the 14th is applicable to NbC, prevents any consideration for eligibility to children born abroad to American citizens.
Those that hold the common law as the rule are failing to recognize the impact of WKA on those foreign born without further adjudication. The WKA decision holds that the only born citizens are those that occurred within the United States, those that acquire their citizenship at birth abroad are naturalized.
I understand and appreciate both points of view. It was just hoped that the scope and clear impact of the WKA decision was understood.
Squeeky Fromm Girl Reporter,
I must say I like the cut of your jib. I do hope you decide to hang around once the birther nonsense has passed – which should be shortly after the election given the current lot of ridiculous candidates running against Obama (not that I’m a fan, because I’m most decidedly not). I would hope that the 22nd Amendment would once and for all end their beating a dead horse.
“Which makes you a pathetic birther fuckwit and nothing more.”
I beg your leave when I state humbly that you appear unhinged and unworthy of attention. Are you generally in the habit of expressing yourself in such a manner? I take it no one has ever confused you with a gentleman.
Gene,
I don’t think the birthers will stop tilting at windmills (or filing Quixotic and frivolous lawsuits) until President Obama actually leaves office, but I think Squeeky has a fine spinnaker as well…
Portney,
I highly doubt that I’m unhinged (available evidence tends to indicate otherwise) and I just want to make clear the utter loathsomeness of birthers like yourselves. There can be no conversation between gentlemen (or ladies) when birthers are involved as any gentleman would conduct themselves in good faith and no birther is able to meet that standard without admitting President Obama’s eligibility (and thus denying they are a birther). Do you think that willfully ignorant, idiotic liars deserve the same sort of treatment as gentlemen do? Grow the fuck up and admit that you are full of shit and I’ll treat you like an adult, otherwise I’ll continue to see you as both less endearing and less useful than a slime mold.
@ Portney:
Have you read Maskell’s new report? Pages 36-38 may be of particular interest to you.
Portney,
I will read the RvB opinion.
As far as this goes “Do you think that willfully ignorant, idiotic liars deserve the same sort of treatment as gentlemen do? Grow the fuck up and admit that you are full of shit and I’ll treat you like an adult, otherwise I’ll continue to see you as both less endearing and less useful than a slime mold.”
Do you really think you will get treated as an adult if you admit that you are full of shit? Hmm…
@Bob,
Have you read pages 36-38 and found the answers that Portney is looking for?
“I take it no one has ever confused you with a gentleman.”
I take it no one has ever confused your birther nonsense with relevance either. The issue has been reviewed and decided: Obama is an NbC jus sanguinus and jus soli with evidence sufficient to satisfy any court in the land under local rules or the FRE. Personally I have no issue with your lot wasting your time improperly arguing irrelevant arcana over a matter that is res judicata, but if your goal is to be rid of Obama? Your tactic is about as effective as a dog chasing its own tail. There was once a poster on here who referred to birthers as the political and legal equivalent of a superfluous nipple: mildly entertaining, sometimes annoying and ultimately useless. Given that the issue of Obama’s citizenship and hence his eligibility are legally and factually moot at this point in time, the birther movement is at best useless and at worst dishonest and a thin cover for less politic reasons for disliking the man than the actually legitimate concerns over his Constitutional abuses while in office that might also draw attention to the high crimes and treason of the previous administration. Is the birther motivation solely racism? No, there is undoubtedly a certain percentage of you fighting this futile battle out of other political motivation although a great many of you are simply racists just marginally smart enough to realize saying “get rid of the nigger” is an ajax of impolitic speech that would get you discounted and dismissed by serious people immediately. However, you all are a bunch of useless nitwits nonetheless who take up bandwidth that could be used for discussing legitimate legal criticisms of Obama and other politicians. A circus sideshow distraction devoid of meaningful content. One ongoing example of the fallacies of argumentum verbosium, contextomy, and argumentum ad nauseam. An admonishment of “unhinged and unworthy of attention” coming from a birther is simply and ironically funny.
Slarti, it is evident that you have issues far afield from that of whether “birthers” are being reasonable. Seek help from a behavioral health practitioner before you find yourself in a bell tower, high powered rifle in hand. Do you not have any idea as to your apparent utter lack of the minimum decorum as witnessed by those that suffer the bizarre ranting?
ballantine holds the vast majority of what I consider interesting as nonsense, yet I have never heard him use such coarse abusive epithets. Perhaps you should take his example and try to be civil.
Gene:
Thank you!!! I will hang around. This blog has a lot of interesting Internet Articles, some of which I have posted on.
But I don’t see the Birthers ever going away. They get too many psychological rewards from all this. Plus, I think there is an independent cause for much of this, that being the Sovereign Citizen Movement.
Squeeky Fromm
Girl Reporter
Portney,
Lying and willful ignorance are much more flagrant violations of decorum than, for example, calling you a worthless asshat and while your stupidity isn’t your fault, neither is it something to be proud of. My ranting isn’t bizzare–I’ve explained exactly what is behind it: to be a birther is to admit to bigotry and some combination of willful ignorance, stupidity, and dishonesty (usually liberal helpings of all three). Who raised you to believe such behavior to be acceptable? Whoever it was did you a grave disservice. I don’t care about whatever opinions you may hold (although I’m guessing that they are of the same low quality that is clearly endemic to your mental landscape), but you demand your own facts and that invites ridicule and contempt. Known liars don’t get the benefit of the doubt–if you don’t like it, tough shit. You should have thought of that before you started lying so poorly and obviously. People like you try to engender false equivalences through faux civility (being polite while acting in bad faith) and you’re not even self-aware enough to feel shame for your despicable actions. You seem to think that I’m mad or upset–in fact, just the opposite is true, I find people like you to be amusing and useful idiots. By your very existence you eloquently argue that the wingnuts on the lunatic fringe have too much influence with the right in American politics these days, so feel free to keep spewing your lies, but don’t expect me to stop pointing out that your credibility is nearly zero, your integrity is lower, and your intelligence is an infinitesimal fraction of that…
Useful information and discussion:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement
Slarti, from your recent comments the only thing that others may take as a given is your lack of good character. Though you consider others the object of deserved malice, it is you who is pathetic and awful. As Leo has mentioned earlier, “Peace be with you.” You are in desperate need of such and should seek it without pause.
I’ll check back later to see if ballantine or someone of his maturity is interested in conversation.
Portney,
Did you read the Maskell Congessional Research Service opinion linked to above? It is the best paper I have seen on the subject. Here it the link again:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement?secret_password=&autodown=pdf
Maskell gets WKA and Minor right. He also makes the case starting on page 14 that foreign born children of citizens are generally viewed to be natural born depsite the dicta in and concludes they should be considered natural born as well.
On John Jay, I don’t know why you think his quote means very much. He doesn’t define “natural born,” doesn’t say what a storng check would be or who he considered foreigners. Why would you think that a native birth requirement would not be considereed a strong enough check? It was the only check in the laws of England and the only check discussed in the Convention? If anyone wanted a stronger check, they didn’t say so. And why would you think anyone born on US soil was a “foreigner.” Again in the Convention, the term “foreigner” was used to differentiate from “natives.” You could look all day and would not find any legal authority in such period calling a “native” a “foreigner.”
“Ambitious foreigners”
ballantine, no doubt you appreciate the depth of the CRS memo as a lawyer whereas I do more readily in the matter of its history. I think it interesting that it reads much in the way the WKA opinion does, harking on that which is undeniable in that our history is undeniably interjoined with English law. Where my skim of the memo discovered odd is the lapse of mentioning other influences that may have had effect on the framers. I think our appreciation of Vattel and natural law philosophy is worthy of note, though the courts for 100 years afterwards were of varying opinions as to the significance of such.
I think one interesting path of interest might be what the WKA court actually decided and what we have as citizenship law. The court recognized lawful immigrants who were not citizens as being able to give birth to American children in the United States. I can see the courts understanding that this was acceptable and in line with our history. But our history was not one of merely showing within a particular state, though the laws varied, and give birth to a citizen of that state. Caveats were applied in most cases that disallowed mere sojourning aliens from giving birth to a citizen. This is, of course, particularly true for the period after the revolution.
Perhaps one perspective to hold important is the immigrant’s intent and purpose within our jurisdiction. Someone that displayed aptitude for new allegiance and want to become a member of the civil society was granted the benefit of the doubt, to include the citizenship of their children.
ballantine, do you believe that the children of those illegally in our country should be afforded greater claim to the presidency than those born abroad to American parents? I find it hard to accept that Justice Gray would have considered that fair or a desired consequence of his decision. Rogers v. Bellei is an interesting reflection on the scope of NbC, the 14th is limited, perhaps more than we admit (i.e. children of illegal immigrants). It is worth discussing in what light we see those that come to our shores and their submission to our way of life, both civil and political, by respecting our laws and constitution. To come and not be a part is antithetical, in my estimation, of those that should be considered eligible.
John Jay may have only thought of “ambitious foreigners” when recommending the phrase…we live, though, in a day when persons born here are, at times, of two allegiances. My understanding is that at the time of the framing such was unheard of and still is not accepted in our statute (State Department and naturalization laws). And if the infants two allegiances is a poor argument, then what of those born Americans and yet raised by the trespassing foreigner in our midst?
You really should try reading the CRS memo in depth. Vattel is expressly discussed — and rejected — as being a significant influence on the framer’s beliefs regarding citizenship.
It also discusses Rogers v. Bellei.
ballantine, on the subject of the MvH “dicta” when Waite spoke of what was without doubt and that which had…how is this reconciled with the certitude of courts before and after? What doubts did he still think unresolved in 1875 that were worth noting? I think WKA landmark if indeed it resolved NbC, yet the ruling on the 14th would prove binding in ways that left little wiggle for those born outside the United States.
bob, I will but have to print it to read properly and make notes. My laptop is not terribly helpful. The cursory comments are not fair to the depth of the CRS and are only said in passing of what was not noted. It appears well thought and documented.
What I look forward to is examining how broad a consideration is made by the author and on what grounds he considered some considerations minor or inconsequential.
It will be a significant challenge to state all those that hit our shores and pop a child were considered subjects-citizens from mere birth on our soil after the revolution. i believe there had to be leave on our part and intent on theirs as far as social compact.
@portney I think our appreciation of Vattel and natural law philosophy is worthy of note, though the courts for 100 years afterwards were of varying opinions as to the significance of such.
The memo does an excellent job of dismissing Vattel. The birthers have greatly exaggerated his influence and no cite cited him on who was natural born. And everyone wrote on natural law back then including Coke and Blackstone and there is no evidence that anyone thought jus soli was not the rule of natural law like Coke said. A number of members of the 14th Amendment Congress including the author of hte citizenship clause saw ju soli as the law of nature.
@portney Caveats were applied in most cases that disallowed mere sojourning aliens from giving birth to a citizen. This is, of course, particularly true for the period after the revolution.
Don’t think that is true. The states all followed the common law in their early citizenship cases. One state adopted such a rule much later.
@portney ballantine, do you believe that the children of those illegally in our country should be afforded greater claim to the presidency than those born abroad to American parents?
What I think should be the law and what the law are two separate things. Our founders never thought about illegal aliens. Madison didn’t think we had the authority to deport aliens from nations were not at war with.
@portney I find it hard to accept that Justice Gray would have considered that fair or a desired consequence of his decision. Rogers v. Bellei is an interesting reflection on the scope of NbC, the 14th is limited, perhaps more than we admit (i.e. children of illegal immigrants).
Again, read Maskell’s memo as he doesn’t think WKA or Rogers preclude the foreign born from being President and cites numerous scholars saying the same thing.
@portney we live, though, in a day when persons born here are, at times, of two allegiances. My understanding is that at the time of the framing such was unheard of and still is not accepted in our statute (State Department and naturalization laws).
At the time of the framing dual citizenship was common. The naturalization law of both England and the United States clearly reconized they were making dual citizens of people. Nations fought all the time over claims of allegiance to their citizens and we had one war over it. We argued with England over the status of British born American citizens and domiciled aliens living in the United States for years. In theory, public law was to solve these disputes, but they rarely did. By the Civil War the position of the United States was that we would protect both our native born and naturalized citizens from any claims of foreign allegiance both inside and outside of the United States. However, our position had always been that we would not recognize any claims of foreign allegiance on our native born citizens which was a position England never challenged.
@portney ballantine, on the subject of the MvH “dicta” when Waite spoke of what was without doubt and that which had…how is this reconciled with the certitude of courts before and after? What doubts did he still think unresolved in 1875 that were worth noting.
A good question as I am aware of no one who had doubts about children of aliens under the common law. There were a few people by that time arguing that the common law should not be the rule, but no one questioned what the common law rule was. My guess would be he was talking about members of his court. For example, we know Justice Miller was not on board with defining the 14th Amendment by the common law rule. Perhaps he viewed the NBC clause similarly. We know Justice Swayne did define natural born by the common law and Justice Field also appeared to endorse the common law rule at least with respect to the 14th Amendment. So, on an issue that was not briefed or argued, I would guess there was some disagreement or doubts expressed in chambers that the Justices had no need to resolve.
Pourtney, let me give you a couple of examples, and then ask you one question…
SITUATION 1: A person is born to 2 parents who obtain their citizenship 1 day after they were born. They always lived in this country afterwords, and the person was raised in America, never left it.
SITUATION 2: A person is born to 2 parents who are citizens. 1 day after he is born, they move to a foreign country. He is raised there, and naturalized there. On his 21st birthday, he returns to the United States, and lives there for the next 14 years.
On their 35th birthday (when they become eligible for the Presidency), which one has more foreign influence? The person who’s parents were foreigners, but naturalized and raised that person in America? Or the person who was raised outside of this country, but was born to 2 Citizen Parents? It seems to me that the latter would have more “foreign influence”. However, the birthers say that the first has an unreasonable amount of foreign influence, while they’re perfectly fine with the second.
Seems to me that having Jus Saguinus is a lousy way of getting rid of foreign influence. It seems to me that the requirement of having them live within the United States their entire life is a much better way, but obviously the Founding Fathers thought it was fine to have them live outside of the United States for all but 14 years…
As far as Dual Citizenship, the suggestion that merely having dual citizenship would be a disqualifier is basically suggesting that every country has a veto over who is eligible to be President and who is not eligible to be President. Do you really think that the founders would have allowed the United States to have this loss of National Sovereignity?
Dunst,
I’ve never found a birther who understood that they were advocating the surrender of US sovereignty–once again showing them to be either stupid or dishonest.
Portney,
I have been following the seditious scum that comprise the birther movement for more than 3 years now and have heard them tell lies about, use vile and frequently racist slurs regarding, and/or make baseless and fallacious allegations against:
President Obama–Some birthers can’t even bring themselves to say his name so they make up fake ones and no birther can bring themselves to show the respect due the office and use his title–talk about childish…
Michelle Obama–some truely disgusting and racist bile has been spewed at the First Lady by birther trash like Lame Cherry, drk(H)ate, and their ilk
Sasha and Malia–attacks against minor children of any POTUS show the attacker to be filth–birther scum are no exception…
Dr. Dunham–who I believe to be a truly extraordinary woman, but attacking anyone’s mother in the way that birthers have tried to smear this great woman is beyond the pale–obviously no birther had a mother with a fraction of Dr. Dunham’s quality or they would know to be ashamed of their behavior (or, more likely, not done it in the first place)
Madeline and Stanley Dunham–anyone who would stoop to attacking someone through his grandparents is a scumbag in my book…
Governor Lingle
Governor Abercrombie
Dr. Fukino
Dr. (name escapes me–Dr. Fukino’s successor)
Dr. Onaka
Hillary Clinton
John McCain
and many more. The number of lies the birthers have told is countless, but the next admission of an error by a birther that I see will be the first. Additionally, anyone arguing the birther Vattel fantasy (that means you) is implicitly supporting the majority in the Dred Scott decision–which uses the exact same completely fallacious reasoning–and you wonder why people call birthers racist…
Sorry, but the notion that any birther is capable of conducting a mature discussion is a load of horse crap and if you’re not aware of that then you’re an idiot (and if you are aware of that then you’re a liar). Why should someone who is tacitly supporting all of the above crap and more be given any benefit of the doubt whatsoever? Would you care to repudiate any of the above or explain which of the birther talking points you believe to be out-and-out lies? Your near-certain refusal to answer these questions is just further evidence (as if more was needed…) that you are a verminous slug who takes pride in the shameful behavior described above–in other words, you’re a birther.
Portney,
Regarding your “peace be with you” comment–you seem to be under the mistaken impression that I’m upset or emotional… I’m not. I’ve made a rational decision that the proper course of action is to publicly ridicule seditious birther fools (like you) and I’m embracing that decision with gusto. All you have to do to get me to stop is to engage in a discussion in good faith–something I believe you are incapable of… bet you can’t prove me wrong
Portney,
You’ll have to excuse Kevin Kesseler (aka Slartibartfast).
He lacks the emotional maturity to engage in civil discourse. This is further exemplified by his repeated insistence that you agree with his position or suffer his ridicule.
He is the definition of a bigot. If you look at Webster’s, you’ll see his picture under “bigot” (painted blue head and all).
My best advice is to share his comments with every university you can email. ~~~Until Kevin admits that Obama is not a natural-born citizen.
Slarti:
I would just ignore ED. Being hated by the Birthers is a GOOD thing to put on your C.V.
Plus, maybe you can do some research on the Birthers??? Permit me to inquire if these topics might suffice:
Birthers and Kooky Action At A Distance – A Study of Group Think On The Internet
The Schrodinger’s Monkey Paradox – If A Birther Were Placed in a Box, Would Anyone Ever Open it???
Low Rents Transformations – How Life In A Trailer Park Creates Constitutional Scholars
Squeeky Fromm
Girl Reporter
@ Squeeky esque
In light of the latest CRS memo, Is this legal opinion entered into the congressional record still valid in your opinion?
Was George Romney eligible afterall ?
Thanks!
“Dr C at Obama Conspiracy writes:
In 1967, an essay entitled “Natural Born Citizen,” by the Hon. Pinckney G. McElwee of the Bar of the District of Columbia, was entered into the Congressional Record by Mr. Dowdy. This is an extensive and scholarly treatment of the history and the cases related to the term “natural born citizen”. It was written in the context of a possible candidacy of Governor George Romney (born in Mexico) for president.”
[To summarize; a natural-born citizen of the United States, as that term is used in the Constitution of the United States, means a citizen born within the territorial limits of the United States and subject to the laws of the United States at the time of such birth. This does not Include children born within the territorial limits of the United States to alien parents who, although present with the consent of the United States, enjoy diplomatic immunity from the laws of the United States, and, as a consequence are not subject to the laws of the United States. Nor would this include children born within the territorial limits of the United States to alien enemy parents in time of War as a part of a hostile military force, and, as a consequence not present with the consent of the United States, and not subject to the laws of the United States. But, this does Include children born to alien parents who are present within the territorial limits of the United States “In amity” t.e. with the consent of the United States, and subject to its laws at the time of birth. U.S. v. Wong Kim Ark 169 US 649, Luria v. U.S., 231 US 9, Minor v. Happersett 88 US 162.
I find no proper legal or historical basis on which to conclude that a person born outside of the United States could ever be eligible to occupy the Office of the President of the United States. In other words, In my opinion, Mr. George Romney of Michigan Is Ineligible to become President of the United States because he was born In Mexico and is, therefore, not a natural-born citizen as required by the United States Constitution.]
http://nativeborncitizen.wordpress.com/2010/07/14/natural-born-congressional-record-house-june-14-1967/
Squeeky,
It takes a truly pathetic loser to threaten a person using their name (especially when that person freely disclosed their own name) from an anonymous identity. Also, what makes you think I’m not doing research on birthers already? If you’d like to know more, send me an email at:
(first name)@(last name).net
(you can get my name from ED’s comment above–I wouldn’t want to deny him the satisfaction of thinking that he’s accomplishing something by revealing my name… birthers are a pretty frustrated bunch. After all, it can’t be much fun to root for the Washington Generals…)
ED,
I’ve proven myself capable of civil discourse on this site many times. I assume that when I go off on my rants the regulars just tune me out which is fine–they aren’t my audience. You and your fellow birthers are my audience. I want you to know that there are people–highly educated people–that think of birthers as unpatriotic scum and yet another example that the lunatic right-wing fringe has been given way to much credence. I want you to know this because somewhere, deep down (or maybe not so deep), it hurts any human being to know that another human being thinks of them as worthless parasites. I do this not out of malice but in the hopes that one day my words will plant a seed of doubt in someone’s mind which will eventually grow into a cure for their delusion. Failing that, getting birthers riled up is good–I want birthers to get as much publicity in as wide a forum as possible to present their arguments on their merits (or lack of same). The more birthers talk, the more they drive a wedge between independents and the right–so keep up the good work and by this time next year President Obama will have won re-election.
Bill,
As Ballantine has suggested, I doubt that any court would rule against someone in John McCain’s circumstances…
Hey birthers–they’re making fun of you in Thailand! (good article on confirmation bias)
http://www.bangkokpost.com/news/local/268326/bias-by-any-other-name-still-blinds-you-to-the-facts
Squeeky……yer funnee. I especially like the suggestion on researching low rent trailer parks as the transformative place to find Constitutional scholars.
Bill,
I do not agree with that 1967 thingie. From reading Wong Kim Ark, and from understanding the history of the term, I think natural born citizenship status can be legislated by Congress for people born outside the United States.
Squeeky Fromm
Girl Reporter
Otteray Scribe:
Thank you!!! Plus, I am impressed that you got it. That was a pun and not many people would have gotten the Lorentz Transformations part of it.
Squeeky Fromm
Girl Reporter
ballantine, I still haven’t read the CRS in it entirety and must admit that most of it will take some time to digest (who am I kidding, much will be lost on me). One thought that leaps out is the author’s insistence that the 14th is the base for born citizenship and that congress can statutorily create other born citizens. This seem nonsense. Per WKA and RvB, such is not within the criteria of court’s understanding of the 14th. If I understand that this is not the case and congress is not naturalizing but in fact has the power to create other instances of NbC…is it plausible that it could create an NbC that is born abroad but one of the grand-parents was an American citizen irrespective of the non-American citizenship of the parents? I think the memo has holes, I’m just not sure how to frame the counter argument as of yet.
Portney,
Your doubts are pretty solid evidence that the CRS report is an impeccable piece of legal scholarship that only an idiot would disagree with.
Seeing that Congress has made statutory natural born citizens in the past (in 1790–the law may have been repealed, but it was never challenged as not within the power of the Congress), I think it’s clear that when you say “nonsense” we should take it to mean “unquestionably true”.
slarti, my reading of the NA of 1790 recalls the phrase “considered as” and not that they in fact were. Why do you insist on addressing me if you hate my guts to such an extent? Would it not be easier to ignore me and live your life in peace? I have no personal animosity with those that are as certain as to the question as yourself. In fact, I have learned much from those of your mindset.
slarti, I am not judging you as to the manner of your commentary in light of being an educator. You are not solely defined by your calling. I just find it surprising that your profession requires you to be tolerant and patient with those that are less knowledgeable than yourself. I can’t imagine that you would ever treat a student that has paid for instruction in the ways that you have treated me. Social media is wonderful in many ways but certainly allows for liberties towards strangers that we would never contemplate in person. I realize that this is not your first conversation with those that do not agree with your worldview and it is easy to be rude and dismissive with the assumption that I deserve no less. I would ask that you try to be more civil and pleasant in any further conversations that we might enjoy. It would be appreciated.
Portney,
I have no personal animosity towards you, I just believe that people such as yourself add no value to discussions (in fact, I think you preclude the possibility of substantive discussion). Take your comment (11:17pm)–you would have us believe that “considered as” means “considered as except for the only difference between natural born and naturalized citizen. Of all of the examples of your dishonesty and inanity, this is the most recent. I’m curious what you learned from my mindset–especially considering you have no idea what my mindset is based on. I will admit that I no longer have an open mind on birthers–for essentially the same reasons that I no longer have an open mind regarding creationism vs. evolution, whether or not we landed on the moon, or if the World Trade Center collapse was caused by controlled demolition. I’ve looked at both sides critically and found that all of the merits lie on one side of each of these issues and not the other.
Where did you ever get the idea that I’m an educator? I’m a scientist–I’m not trying to teach you anything, I’m experimenting on you and observing your behavior. I provide stimuli and you respond to them (or don’t, which is also a result). I don’t really have any more emotional attachment to you than a biologist does to a virus she’s studying. My profession requires me to be as dispassionate and objective as possible as well as being my own worst critic (if there’s a mistake in my work, I’d better be the first one to find it…). Sorry if it also means that I don’t suffer fools gladly.
No, I’m not.
slarti, I beg your pardon regarding the reflection on being an educator…you’re a “dispassionate” scientist. Thank you for the clarification and further confusion.
From Leo’s blog:
he calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…
“Put it all together and you get the following monstrosity:
…the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….’
But the Supreme Court never said that. Here’s what they actually said:
‘It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649 , 18 Sup. Ct. 456.” Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920).”
I have yet read page 48 of this memo, but is this really an impecable piece of legal scholarship? I’ll keep reading.
…I have yet to read…
@portney One thought that leaps out is the author’s insistence that the 14th is the base for born citizenship and that congress can statutorily create other born citizens. This seem nonsense. Per WKA and RvB, such is not within the criteria of court’s understanding of the 14th. If I understand that this is not the case and congress is not naturalizing but in fact has the power to create other instances of NbC…is it plausible that it could create an NbC that is born abroad but one of the grand-parents was an American citizen irrespective of the non-American citizenship of the parents?
The memo is certainly much stronger on the topic of persons born in the US as there is so much authority to cite. Howver, when talking about the foreign born being President he is suggesting plausible theories that have been suggested by scholars but not really fully vetted by the Court. I think one can debate how such theories could prevail without re-visiting some of these prior rulings. I suggested up-thread somewhere that it is plausible that the founders thought of the term “natural born” to be defined under the common law as modified by statute. I also thought that one could plausibly argue that Congress could make new natural born citizens per naturalization statute. If Paliament could make new natural born subjects, why couldn’t Congress. Maskell makes these same points and is more bullish on them than I am. Howver, I believe the Court would constue the meaning of “natural born” quite broadly as there is little definative evidencence to construe it narrowly and the Court is not going to disqualify people based upon speculation.
mrjr101,
Since I have proved that Leo’s interpretation of Minor is either dishonest or incompetent and considering the undeniable fact that the Vattelist argument, in addition to being completely unsupported in law, is also racist (as it was the reasoning used by the majority in Dred Scott–an unquestionably racist ruling), I’d like to know if you are a racist, have racist sympathies, or if you are so lacking in intelligence and integrity that you will seize on any argument you can find no matter how specious in your seditious quest to overthrow the Constitution and the legitimate POTUS?
“From Leo’s blog:
he calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…”
So all Leo can do is quibble over things like this rather than ackowledge his analysis is wrong. Kwok Jan Fat was about someone who was declared a natural born American citizen by the department of immigration, a determination that was later reversed after a determination that they had been decieved about his birth being in the United States. This later judgement was reversed by the Supreme Court and the issue remanded to trial on where he was actually born the Court saying “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” It was obviously talking about Kwok Jan Fat.
It is curious how people think Donofrio is some kind of legal guru. His birther and carco cases were jokes. Has he done anything else in law? Sorry to say, he pretty much gets nothing right on this subject and ran away from here as soon as people starting challenging his nonsense.
ballantine, for a lawyer you appear much like myself in the delightful intellectual marvel of having such a topic to ponder.
“I also thought that one could plausibly argue that Congress could make new natural born citizens per naturalization statute. If Paliament could make new natural born subjects, why couldn’t Congress.”
You wonder at reasonable questions in light of our history and the method of our government (past and present). Perhaps you are right that such is possible.
I am at a loss as to why there are such histrionics on both sides of the debate, or worse, insistence that due solely in the fact they believe something so it absolutely must be. John Jay, congressional debates, Vattel, a particular legal tome that might have been on someone’s desk, or whatever are of little worth unless granted more by a court of law.
I’m not a lawyer but I do enjoy reading the decisions. The justices understand something that most of us lack, that the voice of that particular day may be heard for centuries. Quite a responsibility! It is just amazing their careful work to be fair to the statute. I digress…
Anyway, wanted to say thanks for your candid legal opinion and quiet approach to a topic folks get rather animated about.
On another note, I did see the above comment regarding Leo’s find. Any thoughts? Have you considered visiting his den and converse with him on his blog? I would certainly love to witness such a discussion.
Ballantine,
It’s too bad that Leo is too much of a coward to defend his theories. As a scientist, I would never endorse a hypothesis who’s author was unwilling (and clearly unable as well) to defend it in an unmoderated forum–let alone one that could clearly be falsified.
Portney,
Ballantine would never be allowed to post on Leo’s blog because Leo is a gutless coward and birthers are the only ones it is debate that insist that something absolutely must be due solely to the fact that they believe it–obots have both the law and the facts backing them up on every particular. Why are you surprised that your decision to display bad character provokes people to point out your lack of integrity?
“it is debate”
SB
“in this debate”
@portney I am at a loss as to why there are such histrionics on both sides of the debate, or worse, insistence that due solely in the fact they believe something so it absolutely must be.
Part of it is partisan politics. Most of it on the anti-birther side is outrage at people mischaractorizing settled law with bs arguments. I don’t think you understand the mountain of authority over the past 220 years that supports the jus soli interpretation. Maskell could have cited 100 more auathorities had he wanted to. There are few issues under the Constitution that are more settled.
@portney On another note, I did see the above comment regarding Leo’s find. Any thoughts? Have you considered visiting his den and converse with him on his blog? I would certainly love to witness such a discussion.
Leo was here and ran away to his moderated blog when challenged. I don’t argue on moderated blogs. He can come here or to Fobow or Doc C’s site where there is no moderation. As I said on his big point, he is quibbling about a minor point. The case was about the determination of whether Kwok Jan Fat was natural orn and clearly was referring to him when talking about excluding a natural born citizen from the country as that was why they were remanding. However, Maskell could have explained that better. A minor point in a 50 page decision citing a ton of authority.
@mrjr101
It took me all of two minutes to figure out how Donofrio misread Kwock Jan Fat. Maskell accurately quoted SCOTUS because Kwock Jan Fat’s parents were domiciles (and not U.S. citizens) at the time of his birth.
Bob,
I think that “average time to debunk” is a good metric on the frivolity of birther arguments.
Here’s what SCOTUS wrote:
It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark[]. But while it is conceded that he is certainly the same person who, upon full investigation was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the calim is that that Commissioner was deceived and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909, as a son of a Chinese merchant, Lew Wing Tong, of Oakland, Cal.
Here’s Maskell’s accurate paraphrase:
In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[it] is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”
mrjr101 omits how Donofrio ends his article:
The timing of the memo’s appearance is alarming. I have been saying for quite awhile now that Obama doesn’t really have to worry about the natural-born issue coming back to haunt him in court unless he attempts to suspend the Constitution. I know that sounds paranoid. And nothing would please me more than to be wrong on that prophecy. If my fears don’t come to pass, I will gladly wear the tin foil hat of shame. But the appearance of the updated CRS memo at this particular moment portends a Constitutional disaster.
If Obama attempts to suspend the US Constitution and/or declare martial law and/or suspend the 2012 election… chances of the natural-born citizen issue finding its way to the Supreme Court on the merits increase exponentially.
…that is not the writing of a serious scholar.
bob,
You’re absolutely right–it does, however, sound pretty Paraclete-y to me… I wonder if any of the birthers here have the integrity to claim the tinfoil hat of shame that is Leo’s destiny (he, of course, is far too big a coward to actually follow through on his words–just my opinion). The birthers here (and everywhere) just want to try and lend support to the ravings of racists and whackjobs by hoping people will mistake politeness for substance and arguing about the minutia to distract from the absurdity of the overall argument.
I left this comment on Donofrio’s site:
“Where did SCOTUS say that Kwock Jan Fat’s father was born in the United States?”
Donofrio deleted that comment.
If Donofrio is unwilling to answer that simple question, then perhaps mrjr101 can do so on his behalf.
Other than Bob and Slartibartfast, does anyone else here think that Ah Tuck Lee and Kwock Tuck Lee were not the same person?
I ask this because the Court stated that “[Kwock Tuck Fat] claimed that he was eighteen years of age, was born at Monterey, California, was the son of Ah Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years; that his mother at the time was living at Monterey; and that there were five children in the family — three girls and two boys.”
If Ah Tuck Lee was born in America, he was an American citizen per the 14th Amendment. IAW the Court’s holding in Ark. (Everyone agree?)
If Ah Tuck Lee and Kwock Tuck Lee are the same person (which is the only logical conclusion -unless Kwock Tuck Fat had two fathers that he was born to) the Courts statement “It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country” is not one that is contrary to the established citizenship of his father.
In other words, Kwock Tuck Fat was not alleged to be born of permanently domiciled aliens, but of permanently domiciled citizens.
Should be Kwock Jan Fat not Kwock Tuck Fat. It’s easy to see how the Court screwed up Ah Tuck Lee; accidentally referring to him as Kwock Tuck Lee.
@bob,
“It took me all of two minutes to figure out how Donofrio misread Kwock Jan Fat. Maskell accurately quoted SCOTUS because Kwock Jan Fat’s parents were domiciles (and not U.S. citizens) at the time of his birth.”
wow, ok, cookie
Kwock Jan Fat claimed he was the son of Kwock Tuck Lee. SCOTUS never mentions “Ah Tuck Lee” (or “Kwock Tuck Fat”).
Kwock Jan Fat (and, therefore, Kwock Tuck Lee) were born before SCOTUS decided Wong Kim Ark. Kwock Jan Fat was born while the Chinese Exclusion Act was valid and in force.
SCOTUS at no point mentions where (or when) Kwock Tuck Lee was born, other than to refer to him as “Chinese” and a “Chinaman.”
bob,
Do you know how to read? If so, I suggest you read the second paragraph of Justice Clarke’s opinion and get back to us.
I cannot understand how someone with a working knowledge of the English language could read “He claimed that he was eighteen years of age, was born at Monterey, California, was the son of Ah Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years…” and then have the audacity to say “SCOTUS never mentions ‘Ah Tuck Lee’”.
Jordan,
A cookie does wonders…
bob,
I think I found the source of confusion. Here is a link to the SCOTUS opinion that I was reading.
http://scholar.google.com/scholar_case?case=1401629321922330337&q=Kwock+Jan+Fat&hl=en&as_sdt=2,26
Look at the second paragraph of Justice Clarke’s opinion.
“In other words, Kwock Tuck Fat was not alleged to be born of permanently domiciled aliens, but of permanently domiciled citizens.”
The Court didn’t say that. It never mentioned the citizenship status of his parents at all. Regardless, Maskell said they were Chinese national citizens. He didn’t say they were not American citizens in that case. Read the WKA dissent, as one of his primary arguments was that the Chinese born on US soil would be Chinese nationals. Focusing on one line in a 50 page memo is a little silly.
@Jordan
Now that you clarified that your source reported Kwock Tuck Lee as “Ah Tuck Lee,” that still does not make a difference, as Kwock Jan Fat was born before Wong Kim Ark was decided; as SCOTUS noted, his parents were domiciles at the time of his birth.
Either way, the Court described Kwock Jan Fat’s father as “then deceased, who was born in America of Chinese parents and had resided at Monterey for many years”. That is not the description of an alien, but one who, though born of Chinese parents, was a U.S. citizen due to being born in America.
Ballantine,
“Maskell said they were Chinese national citizens.”
I don’t care what Maskell said they were. The Court went out of their way to note that his father “then deceased, who was born in America”. That would make his father a citizen.
Birth on American soil is prima facie evidence of citizenship.
@Jordon
SCOTUS never described Kwock Tuck Lee as a U.S. citizen. The inference that he was one is wrong because (1) SCOTUS specifically referred to him as a domicile (which means he was not a citizen); and (2) Kwock Tuck Lee was born before Wong Kim Ark had been decided.
bob,
Is it your position that the Court’s holding in Ark only applies to those born after Ark?
bob,
Can a U.S. Citizen not be domiciled in the U.S.?
Wouldn’t your position be easily defeated by citing a case in which the Court referred to a U.S. Citizen as having been domiciled somewhere in the U.S.?
bob,
I think Jordan’s inference* here is correct. After the WKA ruling, it would be applicable to anyone’s birth–after all, it applied to Mr. Wong himself (who was clearly born before the decision).
* Jordan–if you have a point, why don’t you make it?
“Petitioners, Chang Chan and three others, claiming to be native born citizens of the United States permanently domiciled therein”
Chang Chan v. Nagle (1925)
““Maskell said they were Chinese national citizens.”
I don’t care what Maskell said they were. The Court went out of their way to note that his father “then deceased, who was born in America”. That would make his father a citizen.
Birth on American soil is prima facie evidence of citizenship.”
Sorry, don’t get your point. Maskell didn’t say his father was not US citizens. So why do you have a problem with what he said? Being a US citizen does not preclude one from being a Chinese national.
Of course Kwock Jan Fat (and Kwock Tuck Lee, if he weren’t already dead) would benefit from Wong Kim Ark.
SCOTUS is simply making the point that, at the time of Kwock Jan Fat’s birth, his parents weren’t citizens (because Wong Kim Ark had not yet been decided; the Chinese Exclusion Act was still in force). “Domiciles” in the context SCOTUS is using it, refers to people who are not citizens.
Jordan,
Since you seem to see some significance to this, could you please explain what it is–or if you can’t do that, could you please explain why you want to waste people’s time with your meaningless minutia? I ask because an obsessive focus on “anomalies” which, upon closer inspection, are unremarkable is a hallmark of birther “research”.
“Can a U.S. Citizen not be domiciled in the U.S.?
Wouldn’t your position be easily defeated by citing a case in which the Court referred to a U.S. Citizen as having been domiciled somewhere in the U.S.?”
This makes no sense at all. You really don’t understand that citizenship and domicile are two separate things? A US citizen can establish their domicile oversees and an alien can establish their domicile here. Public law 101.
bob,
The Chinese Exclusion Act prevented Chinamen from becoming naturalized U.S. citizens It said nothing about those who were native born (as it was established by testimony that Kwock Jan Fat’s father was).
Birth on U.S. soil is prima facie evidence of citizenship.
question: Where did you come up with the word “domiciles”? It does not exist in the Court’s opinion. Yet, you have used it repeatedly.
Ballantine,
“This makes no sense at all. You really don’t understand that citizenship and domicile are two separate things? A US citizen can establish their domicile oversees and an alien can establish their domicile here.”
You should be directing your analysis to bob. He is the one claiming that anyone domiciled in the U.S. must be an alien. I don’t agree with him and he has not provided any support for the proposition.
He is the one claiming that anyone domiciled in the U.S. must be an alien.
*sigh*
I never made such a claim. That SCOTUS later described other petitioners as “native-born citizens of the United States permanently domiciled therein” does not imply that Kwock Jan Fat’s father was a citizen.
If anything, the absence of a mention of citizenship further implies he was not. E.g,, SCOTUS described Wong Kim Ark’s parents as “domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein…” They, obviously, were not citizens.
Wong Kim Ark had to take a case to SCOTUS to establish he was U.S. citizen, despite being born in the United States. Kwock Jan Fat — and his father — did not enjoy that presumption at the time of their births.
bob,
Birth on U.S. soil is prima facie evidence of U.S. citizenship.
Do you understand what that means?
I started reading the CRS memo last night and after reading Leo’s latest post this morning I had to skip over to page 48 and read the SCOTUS case of Kwock Jan Fat v. White:
“He [the petitioner] claimed that he was eighteen years of age, was born at Monterey, California, was the son of Ah Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years; that his mother at the time was living at Monterey; and that there were five children in the family — three girls and two boys….”
“…Ernest Michaelis, for twenty-six years a Justice of the Peace and for many years the official collector of fish licenses, testified, making reference, for purpose of identification, to a photograph of the petitioner. He said he had known the parents of the boy since shortly after he himself went to live at Monterey in 1879; that there were two boys and three girls in the family; that he had seen the petitioner frequently as a little fellow when he went to collect fish licenses (the boy’s father was a fisherman); and had known him ever since; and, referring to the photograph, he declared positively that he was sure of his identity and that he was born in Monterey. He added that the father of the boy was native born and was a voter in that community….”
“…He [the Government Inspector] concluded with the statement that in his mind there was no doubt that the Chinaman named Kwock Tuck Lee (claimed by applicant to be his father) had lived in Pacific Grove (the Chinatown of Monterey), and was a registered voter there; that he was married and had several children and that the testimony seemed to prove that the petitioner was a member of his family….”
None of the above claims were rejected by SCOTUS by reversing the judgment that the petitioner was not who he is. Those claims clearly established that the petitioner’s father was born in the U.S and accepted as such by SCOTUS.
The Court concludes:
“It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country”
From Leo’s Blog:
He calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…
“Put it all together and you get the following monstrosity:
…the Supreme Court of the United States explained that ‘[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….’
But the Supreme Court never said that. Here’s what they actually said:
‘It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649 , 18 Sup. Ct. 456.” Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920).”
The court does not acknowledge that the petitioner is the son of two Chinese national citizens; the court does acknowledge that he is the son born to an American father.
So, I reflect on the following: Is Maskell’s work really an impeccable piece of legal scholarship?
mrjr101,
Yes, Mr. Maskell’s (for people so worried about politeness, you sure can’t seem to afford anyone you disagree with any titles of respect–which reminds me that I should add “hypocrite” to your list of epithets…) work is really an impeccable piece of legal scholarship (which is backed by the entire CRS, by the way). In addition, Leo aka “The Paraclete” is an incompetent, lying coward and you are doing nothing more than parroting the utter bullshit that he doesn’t have the courage to defend himself.
“The court does not acknowledge that the petitioner is the son of two Chinese national citizens; the court does acknowledge that he is the son born to an American father.”
The court does not call his parents citizens. Leo is inferring that from the facts presented and from Wong Kim Ark. At the same time, the dissent’s argument in WKA was that Chinese natives could not become citizens of the US under chinese law, something the majority never disputed. So, just as one could infer his father was a citizen, one could infer his father was a Chinese national from WKA. In addition, the fact that the court does not mention his father’s citizenship status implies such is not important to its determination of his status. If this is all you have to dismiss a 50 page memo, it is pretty pathetic. What is not legal scholarship is the typle of parsing and spinning of case law that Leo engages in.
If I do not refer to someone as Mr. and question the accuracy of something it means I am not being polite or respecful? Someone needs to take a chill pill and learn about human behavior.
Ballantine,
What I find to be pretty pathetic is the refusal to accept birth on U.S. soil to be prima facie evidence of citizenship while, at the same time, adhering to a belief that it makes one a natural-born citizen.
Is it your position that Kwock Jan Fat’s father belonged to one of the classes in which citizenship under the Fourteenth Amendment would not apply? If so, which one?
mrjr101,
You are conflating two different issues in order to make a straw man of my argument–how classy of you.
When you don’t refer to someone by their appropriate title (like President Obama) that is, in fact, impolite and disrespectful (apparently your mother failed to teach you about such matters). As it was a parenthetical comment (something endemic in my writing), I hardly feel I was making a big deal about it, but you seem to have no understanding of what it means to be polite and respectful while at the same time complaining that I’m being rude to you. That seems more than a bit hypocritical to me. Once again you illustrate that anything you write is just a waste of electrons…
Ballantine explained why the “question” of Leo’s that you were parroting was bullshit–apparently you weren’t paying attention, or you are incapable or unwilling to understand. Thus you are either being very impolite to Ballantine or you’re a moron–which is it?
Jordan,
How can “Birth on US soil” be prima facie evidence of anything? How does one tell that a person was born on the soil from “their face”? My position is that you are just another pathetic birther troll (or maybe you’re just a sock puppet…) that is incapable of making its point and doubly incapable of defending any of its arguments. But maybe that’s just me.
Well, I already did my Donofrio debunking Internet Article:
http://birtherthinktank.wordpress.com/2011/12/01/the-paraclete-jumps-to-another-wrong-conclusion/
Here is what I said:
Sooo, the Kwock Jan Fat Court itself said:
[I]f he was born here, when [his parents] were permanently domiciled in the United States, he is a citizen, and that it was better to err on the side of a natural born citizen when they released him from imprisonment.
Maskell cited the Kwock Jan Fat Court as EXPLAINING:
the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….
Sorry Paraclete, but I don’t see any big difference. The Court does not go into the citizenship of the parents. By noting they were permanently domiciled here, their citizenship is certainly left open to the implication they were indeed Chinese nationals. While the fact the father was native born would have made him a natural born citizen also, there is no other information provided to the court on that point. The Court does not go into it in their analysis.
That was an accurate summing up of the case.
Squeeky Fromm
Girl Reporter
“The court does not call his parents citizens. Leo is inferring that from the facts presented and from Wong Kim Ark.”
Ballantine, but the Court does acknowledge all the facts and the claims that the petitioner made about his father being born in the U.S. There was no claim from the petitioner’s side that his father was born in China.
“At the same time, the dissent’s argument in WKA was that Chinese natives could not become citizens of the US under chinese law, something the majority never disputed. So, just as one could infer his father was a citizen, one could infer his father was a Chinese national from WKA”
The petitioner never claimed that his father was a Chinese Native, at the contrary, the testimonies on his favor made his father a native born of the US. The WKA dissent that you are referring to does not apply to his father. It would apply to his father if his father was claimed to be a Chinese Native. In here the memo does not make an accurate representation by using the Chinese National inference of the petitioner’s parents. That does not go in line with the facts presented.
The memo before citing this case says:
“Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”
The exclusion law did not apply to the petitioner’s father because the petitioner’s father was not claimed to be naturalized. That is not impeccable Ballantine.
Ballantine
What a coincidence. I just updated my Internet Article to add the Chinese Exclusion Act stuff, and dress it up some, but not the same stuff as from the memo.
“That was an accurate summing up of the case. I would not have phrased it the same way as Maskell, but his statement is far from being deceptive. Unless of course one doesn’t like the natural born citizen language. Maybe this is just proof of what I have said all along. Two citizen-parent Birthers are reading comprehension challenged.
Now, let us deal with Donofrio’s second major error, his analysis of Kwock Jan Fat’s parents’ citizenship status. Donofrio waxes pompously:
Having been born in the US of parents who were citizens, petitioner was indeed a natural-born citizen. But Maskell’s frightening quotation surgery makes it appear as if the petitioner was born of alien parents. The Supreme Court rejected that contention. And Maskell’s ruse highlights the depravity of lies being shoved down the nation’s throat on this issue. I can imagine Mini-Me sitting on his lap while this was being prepared.
Well first, from above, the Kwock Jan Fat Court characterized the parents simply as permanently domiciled in the United States. The Court does not go into any kind of analysis of their citizenship status. Several statements were made by white citizens prior to Kwock’s year long trip to China. None expressly called Kwock’s father a citizen, although they did note he was born in America and registered to vote. No documents were presented, and this would have simply been hearsay evidence. But this was offered simply to prove that Kwock had been born in America, not to prove the citizenship of his father. As a legal matter, no one on the Court knew or cared what citizenship the father adhered to. No evidence was submitted that the Father was either a diplomat or invading soldier. And that is additional evidence that the two citizen-parent stuff is nonsense.
Further, at the time of Kwock Jan Fat case, the Chinese Exclusion Act was in effect. Wiki says:
[skip some stuff]
Between 1882 and 1905, about 10,000 Chinese appealed against negative immigration decisions to federal court, usually via a petition for habeas corpus. In most of these cases, the courts ruled in favor of the petitioner.Except in cases of bias or negligence, these petitions were barred by an act that passed Congress in 1894 and was upheld by the U.S. Supreme Court in U.S. vs Lem Moon Sing (1895). In U.S. vs Ju Toy (1905), the U.S. Supreme Court reaffirmed that the port inspectors and the Secretary of Commerce had final authority on who could be admitted. Ju Toy’s petition was thus barred despite the fact that the district court found that he was an American citizen. The Supreme Court determined that refusing entry at a port does not require due process and is legally equivalent to refusing entry at a land crossing. This ruling triggered a brief boycott of U.S. goods in China.
The Chinese Exclusion Act was repealed by the 1943 Magnuson Act, which permitted Chinese nationals already residing in the country to become naturalized citizens and stop hiding from the threat of deportation. It also allowed a national quota of 105 Chinese immigrants per year. Large scale Chinese immigration did not occur until the passage of the Immigration Act of 1965. Despite the fact that the exclusion act was repealed in 1943, the law in California that Chinese people were not allowed to marry whites was not repealed until 1948.
Even today, although all its constituent sections have long been repealed, Chapter 7 of Title 8 of the United States Code is headed, “Exclusion of Chinese.” It is the only chapter of the 15 chapters in Title 8 (Aliens and Nationality) that is completely focused on a specific nationality or ethnic group.
In 2011, the US Senate passed a resolution apologising for past discriminatory actions such as this act.
http://en.wikipedia.org/wiki/Chinese_Exclusion_Act
The is no evidence that Kwock’s father ever applied for certification for re-entry, something required for Chinese born here even 22 years after Wong Kim Ark. And after reference to the Chinese Exclusion Act above, it was far from certain that Kwock’s father would have automatically been presumed to be a citizen without proof of his birth place, which would default him being deemed a Chinese national a reasonable characterization.
And, another thing that Donofrio misses, is that the dog didn’t bark. Similarly, the Kwock Jan Fat Court didn’t engage in an analysis of the parent’s citizenship. The Court’s characterization is simply that they were permanently domiciled in the United States. And it stopped there. Because the two citizen-parent stuff is just imaginary Birther law. Looking back at the facts, we can engage in that analysis, but that court didn’t. Real courts don’t do imaginary law very well. There was no reason to inquire into their citizenship status anymore than there was to in Wong Kim Ark.
It is important to keep in mind where we are in this discussion. A 53 page memo was written which devastates the two citizen-parent theory. In response, Leo Donofrio picks out one sentence of that memo to try to destroy its credibility. That in itself is a silly enterprise, but entirely predictable. The Birthers have a history of ignoring Reality to maintain their theory. It is not surprising that they would attempt to ignore 52+ pages of well documented legal memo to keep up their delusions.
Squeeky Fromm
Girl Reporter
@Squeeky,
“the Kwock Jan Fat Court didn’t engage in an analysis of the parent’s citizenship’
Then why did the author of the memo engage in that analysis by infering his parent’s status as “Chinese nationals’ to make this point?
“Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”
Mr101:
My GUESS is that he read the “permanently domiciled stuff” along with the fact of The Chinese Exclusion Act and thought that was the best way to describe them.
I would not have said it that way. But, the case is defintiey focusing on the PLACE of Kwock’s birth, sooo I see this a minor bo-bo if even a bo-bo at all.
What is more interesting to me is how Donofrio, Inventor of The Donofrio Shuffle, gets all incensed about this, while ignoring his own bad acts. Plus, like I said above about PERSPECTIVE:
It is important to keep in mind where we are in this discussion. A 53 page memo was written which devastates the two citizen-parent theory. In response, Leo Donofrio picks out one sentence of that memo to try to destroy its credibility. That in itself is a silly enterprise, but entirely predictable. The Birthers have a history of ignoring Reality to maintain their theory. It is not surprising that they would attempt to ignore 52+ pages of well documented legal memo to keep up their delusions.
Squeeky Fromm
Girl Reporter
“It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.”
“For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts ”
http://supreme.justia.com/us/253/454/case.html
It would appear the CRS memo authored by Maskell does appear disingenuous in this particular instance. The court decision is about positive identity and in the specific instance of Fat, he is a born American citizen, of citizen parents, within the United States. The court comments that if there is to be error it should side with to admittance of those questionable in identity rather than chance of disavowing a NbC. But, in this case it is affirmed that there is sufficient proof of his citizenship.
I agree that one poor reference does NOT bring the entire CRS memo down. Unfortunately, if there is one there may be others.
CRS pg48;
“Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”221 Similarly, in 1919, the United States Court of Appeals for the 5th Circuit ruled that the appellee, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, “is a natural-born citizen of the United States.”222
221 Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920). The Supreme Court also noted there: “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” 253 U.S. at 464.
222 U.S. v. Low Hong, 261 F. 73, 74 (5th Cir. 1919).
***An interesting note found in the Low Hong decision which appears to reaffirm those merely born in the US as natural born per WKA; “The averments of the amended petition show that the appellee is a natural-born citizen of the United States.”
CRS;
“In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen.”
From the case;
“For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.”
This is a poor translation of the decision in light of the facts presented to the court for consideration.
Portney,
I will gladly admit that Mr. Maskell was not completely clear and correct in this instance as soon as you admit that the other 52+ pages provide irrefutable evidence that President Obama is a natural born citizen. Since you can’t seem to do anything more than nitpick this trivial point, it is clear that neither you (nor Donofrio who you do little more than parrot) can even begin to refute Mr. Maskell’s argument. What kind of petulant child wont acknowledge the validity of an argument that neither he nor anyone else can debunk?
Still going at it I see. Are their folks here actually arguing that Leo Donofrio is a more learned source on Constitutional law than Jack Maskell and the many other fine attorneys and assistants who contributed to or reviewed the C. R. S. report? What’s next? Quoting Mr. frivolous appeal himself, Mario Apuzzo?
Are there folks …
I wrote to Maskell about Kwock; his response:
“I agree that case cite needs clarification to emphasize that Kwock and one witness did aver that his father was born in the United States. It is important, I think, that the Court only mentioned that the parents were permanently “domiciled” in the United States, and thus did not appear to rely on citizenship status, when they accepted the characterization of the Commissioner of Immigration that he was a natural born citizen.”
Don’t forget to vote, here.
Already done Nal. I see we’ve got a 50-39 lead over the Volokh Conspiracy…
I voted, too!!!
Squeeky Fromm
Girl Reporter
I think an important dynamic that is lost in the conversation is what can be permissible before and after WKA. ballantine has made clear the ECL understanding of birth citizenship, what isn’t matter of fact is the ACL impact of the 1898 landmark case. I’ve come around to the fact that both propositions are true, common law and natural law, with the former granted more significance in the courts.
RvB echoes the WKA Fuller dissent and shows that under present court understanding those born abroad to American parents are not eligible for office. But, the case can be made that those merely born, irrespective of alien or domicile status, are. Oddly, the WKA case stipulated caveats that have been ignored since the decision such as registered aliens that are permanently domiciled. How we got to anchor babies I cannot understand.
Yet, here we are. Birth on our soil, irrespective of the parents nationality, is sufficient for granting of American *ahem* natural-born citizenship per our courts. The overwhelming consensus is that WKA answered the doubts of MvH.
The “birthers” holler for the courts to determine whether parents are important…really the question begs if they are important ENOUGH for those born outside the United States. McCain was ineligible unless he sought leave from the courts if WKA is applicable per the RvB criteria. He didn’t so he wasn’t.
It should be heard for the sole fact that under present court opinion those born of illegals in the United States are eligible where those born abroad to American citizens are ruled otherwise.
A HOUSE DIVIDED
The controversy of NbC is fascinating and illuminating in my humble opinion. One faction unwilling to admit the preponderance of impact of WKA on the reality of born citizenship and the other unmoved on its detrimental and anti-American principles.
On the latter; those that have handily won the ECL-WKA argument fail to answer as to the inherent differences of subjecthood and citizenship and the nature of where the granting of sovereignty should come. It is inarguable the inertia of citizenship understanding our republic had after the revolution, but it is important to recognize the fundamental change that occurred in our new self identity, we were the fount of political power. I think WKA missed an opportunity to establish a truth that set us apart and rather picked the low fruit of what we renounced a century earlier. The notion of perpetual allegiance and expatriation have had adherents on both sides similar to NbC and generally with the same ECL argument. We are a house divided and have been for the life of our republic.
The 14th achieved the goal of citizenship for former slaves, but the unintended consequences are clear. The narrow language of the amendment removed American foreign natural-born citizenship from our lexicon in a single court decision.
Regardless, WKA is precedent. And if affirmed by consensus, Mr. Obama is clearly eligible for his office.
ballantine, I would appreciate your feedback regarding something that has plagued my layman curiosity; is Marbury v. Madison applicable to the comparison of the 14th and A2S1 if it is understood that one reflects the other per born citizens? My question is if 14th born reflects the original natural born then does the addition verbiage of the amendment become superfluous (i.e. born implies within the United States and subject to the jurisdiction which renders the balance of the amendment without specific purpose)?
At one time A2 born could include those born beyond the jurisdiction, but with the acceptance of the WKA understanding of the 14th as a definitive reflection of A2, then such is no longer permissible unless revisited by the court. If WKA is a true reflection of A2, then 14th born has been qualified, perhaps unnecessarily, in light of MvM.
Personally, I’ve believe that the authors’ of the 14th intended one to reflect the other and likely to the degree of synonymous. Though, regardless of their intent it could prevail that they are incapable of being the same due to the MvM decision. I just don’t have the legal competence to figure it out.
The fact that I don’t agree with the WKA opinion has no effect on that said intent if they are not subject to MvM. The court has spoken.
Thanks, I’m looking forward to your response..
Slarti and Ballantine:
I just did a new Internet Article on Donofrio’s feeble attempt to discredit the CRS Memo by Jack Maskell over the Kwock Jan Fat case. I call it:
With A Kwock Kwock Here And A Quack Quack There
http://birtherthinktank.wordpress.com/2011/12/03/with-a-kwock-kwock-here-and-there/
According to what I found out about The Geary Act, there was a legal presumption that a person of Chinese descent was Chinese.
Squeeky Fromm
Girl Report
Squeeky,
I would note an interesting sequence of events here:
1. Mr. Maskell produced a 53-page report detailing the case that President Obama was a natural born citizen.
2. Leo (who has previously been proven to be full of shit) takes one sentence to task where Mr. Maskell (and possibly the historical record) are not very clear on a supporting point. Leo cites this as sufficient to disregard the entire report–very convenient as there is no rational standard by which Leo’s writings have a fraction of the credibility of Mr. Maskell’s.
3. Leo posts his pitiful attempt at rebuttal on his website–which is now moderated to the point of no one but Leo being allowed to post–eloquent testimony as to his cowardice.
4. Leo’s “Greek chorus” of birthers (both here and elsewhere) lap up the Paraclete’s shit like good lickspittles and attempt to parrot it far and wide.
5. Some of the birtherstani go so far as to demand Mr. Maskell’s arrest for writing a 50-page report that they could only refute one sentence of.
6. Portney uses said sentence to try to cast doubt on Mr. Maskell’s credibility and integrity.
7. Bob emails Mr. Maskell asking him to clarify the sentence in question.
8. Mr. Maskell responds to Bob clarifying the sentence (and explaining why he felt his interpretation was valid).
(9. You went Kwocking about in your article… having actually read the pertinent information and done additional research)
After this point (by which time it is easy to see who the good and bad actors are), it’s what doesn’t happen that’s interesting…
No substantive response to Mr. Maskell’s reply or the rest of the 50-page report from Leo, Portney, nor any other birther. What do you think this says about the credibility of Mr. Maskell, the Paraclete, and birthers in general?
@portney On the latter; those that have handily won the ECL-WKA argument fail to answer as to the inherent differences of subjecthood and citizenship and the nature of where the granting of sovereignty should come.
While many simply conflated “citizen” and “subject” in the founding period, technically the terms meant something different. The leading treatise in the early republic explained:
“Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
Citizens and all other inhabitants including aliens are subjects as they are in subjection to the government and the law of the law. Subjection to the law of the land is another way of saying “subject to the jurisdicition” which would up in the 14th Amendment and just another way of saying one owed allegiance. Thus in England and the US, everyone on the soil, even aliens, were subjects as they were bound by at least a temporary subjection. In England, natural born subjects, or persons given the rights of natural born subjects, were granted additional rights under its municipal law. In the US, citizens were granted additional rights under our municipal law which just stop referring to all citizens as natural born like England did.
@portney Personally, I’ve believe that the authors’ of the 14th intended one to reflect the other and likely to the degree of synonymous. Though, regardless of their intent it could prevail that they are incapable of being the same due to the MvM decision. I just don’t have the legal competence to figure it out.
Not sure what Marbary has to do with this. I am not sure WKA explains the relationship between the clauses. I think it tries to avoid that by saying the first part of the 14th means the same thing as the NBC clause, at least with repect to the native born. The natural born subject needed to be born both in the dominions of the crown and in subjection to the crown. The 14th Amendment says one must be born both in the dominions and subject to the jurisdiciton of the sovereign. Different ways of saying the same thing.
Once you start saying the 14th and the NBC clause don’t mean the same thing, it starts to get difficult as contextually it is difficult to have a coherent reading. Whether anyone in the early republic thought the foreign born could be natural born is an open question. I think it is plausible but there is not much evidence. The framers of the 14th didn’t really talk about this and there language could have been clearer. No one in such Congress suggested the foreign born would be citizens without statute. No one talked about them at all. Most framers of the 14th thought the blacks were already citizens due to their native birth. Others thought Dred Scott neeeded to be over-ruled. No one thought they were changing the law other than to remove Dred Scott. They also thought they were clarifying who could be President even when enacting the Civil Rights Act clause. No one really explained how exactly that worked. They seemed to think any native born citizen, even one by the Civil Rights Act would be natural born. Some citations from the 39th Congress:
“The Constitution of the United States provides that no person but a native-born citizen of the United States, with other qualifications as to age and residence, shall be president of the United States…. Is the Congress of the United States prepared at this time to adopt a proposition that negroes and Indians and Chinese and all persons of that description shall be eligible to the office of President…” Senator Williams, Cong. Globe, 39th Cong., lst Sess. 573 (1866).
“Now if you pass this bill you will allow the negroes of this country to compete for the high office of President of the United States, because if they are citizens at all, they come within the meaning and letter of the constitution of the united states, which allows all natural born citizens to become candidates for the Persistency…” Rep. Rogers, Cong. Globe, 39th Cong. 1st Sess. 1122 (1866).
“I want to make another extract from the speech from the gentleman from New Jersey. He said ‘If you pass this bill you will allow negroes to compete for the high office of President of the United States.’ As for the fear which haunts the gentleman from New Jersey, if there is a negro in the country who is so far above all the white men of the country that only four million of his own race can elect him president of the United states over twenty six million of white people, I think we ought to encourage such talent in the country.” Rep. Windham, Cong. Globe, 39th Cong. 1st Sess. 1158 (1866)
“in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“This provision is simply declaratory of what the law now is…Blackstone says ‘The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.’ The principle here laid down applies to this country as well as to England. It makes a man a subject in England, and a citizen here… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1115-16 (1866).
@ballantine
Portney is referring to the seance Donofrio had with Chief Justice Marshall:
http://naturalborncitizen.wordpress.com/2009/03/16/scotus-has-no-original-jurisdiction-to-issue-writs-of-quo-warranto-legal-presumption-in-favor-of-natural-born-citizen-clause-and-effect/
“Not sure what Marbary has to do with this. I am not sure WKA explains the relationship between the clauses. I think it tries to avoid that by saying the first part of the 14th means the same thing as the NBC clause, at least with repect to the native born. The natural born subject needed to be born both in the dominions of the crown and in subjection to the crown. The 14th Amendment says one must be born both in the dominions and subject to the jurisdiciton of the sovereign. Different ways of saying the same thing.”
I think Portney must be referring to the SCOTUS holding “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.”
The argument is that the construction of citizens in the 14th A cannot have the same effect as the construction of NBC in A2S1C5(cannot say the same thing), such construction would be ‘inadmissible’ per SCOTUS.
“I think Portney must be referring to the SCOTUS holding “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.”
The argument is that the construction of citizens in the 14th A cannot have the same effect as the construction of NBC in A2S1C5(cannot say the same thing), such construction would be ‘inadmissible’ per SCOTUS.”
Good grief. Will amatuer hour never end. Donofrio’s post is utter gibberish, something one would expect from a pro se litigant. First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101. I suppose someone should tell the members of the 39th Congress that their Amendment would be without effect. I guess over-ruling Dred Scott and clarifying that the law was color blind meant nothing. I guess they were lying when they said such was their purpose. I guess the Supreme Court was deluded when it said the Amendment had the same effect. If only there was a poker player/lawyer around to tell them their law had no effect. Why do you people think he knows what he is talking about. Why not look at how actual courts have treated his nonsense:
“As to the merits of Appellants’ claims, they are utterly frivolous. We reject these claims on the merits for substantially the same reasons set forth by the district court below.”
“Good grief. Will amatuer hour never end. Donofrio’s post is utter gibberish, something one would expect from a pro se litigant. First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101. I suppose someone should tell the members of the 39th Congress that their Amendment would be without effect.”
ballantine, It is my understanding that that constitution and jurist opinion can be of divergent truths. This situation is similar to the “birther” originalism argument that Vattel and natural law is premise of NbC meaning, maybe it was but the courts really decided the meaning in MvH and WKA. In that vein, the humble question was whether MvM had any relation to the language of the two references to born citizenship. I’m suggesting that perhaps the 14th as interpreted by WKA put the two references at odds in light of the language used in both.
“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. [p175]”
I agree that this is minor point, I was just curious as to your learned perspective. It wasn’t meant to annoy.
MvM;
“If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.
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. [p175]
If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.”
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html
“First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101.”
Ballantine, are you saing that Justice Marshall delivered this opinion in dicta? What do you mean by generic statement?
“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.”
Isn’t this statement precedent on the effect of the clauses regardless of the 14th?
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
“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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
Comparing the semantic values of the two is interesting. It is inarguable that the 14th is intentionally declaratory of that which is stated in the original constitution, but can they mean the same per MvM? I think so. It is not unreasonable for those born in the United States and subject to the jurisdiction to be considered natural born citizens. In fact, if anything, the problem that most folks have with WKA is the poor understanding of the jurisdiction clause.
Natural born citizens are citizens. Not all citizens are natural born citizens. The 14th does not make the A2 natural born without meaning for it never semantically or logically purports to do so. The WKA had leeway which they fully took to illustrate that ECL natural born is relevant to born citizenship.
@mrjr101 Ballantine, are you saing that Justice Marshall delivered this opinion in dicta? What do you mean by generic statement?
The holding of Marbury was that the Court did not have the authority to issue a writ of mandamous since the Judiciary Act was unconstitutional. What you are referring to is a basic canon of statutory construction. There are many such canons. These canon are interpretive tools used to help understand the intent of the legislature or Convention. For example, when something is omitted it is presumed that it omitted on purposes. When something is included, it is presumed it included for a purpose. These canons often conflict with each other. It is often said that for every canon that leads to some conclusion, there is another canon that leads to the opposite conclusion. In addition, the canons may say the opposite of the clear legislative history. The use of one canon in one case does not mean it is precedent that such canon must be used in any future case. At the same time, a case that ignores the canons and looks solely to the legislative history is not precedent that one must always look to the legislative history. Again, these are all just interpretive tools.
“Isn’t this statement precedent on the effect of the clauses regardless of the 14th?”
Such clause is not binding precedent at all. At most it is precedent that such canon can be used. What I don’t understand what such has to do with the NBC clause or the 14th Amendment. Exactly what provision is not supposed to have effect under WKA’s interpretation? It says the NBC cause meant one thing. He said the 14th Amendment reaffrimed the same rule after Dred Scott mischaractorized this. The purpose and effect of the 14th thus being to re-affirm the original meaning by abrogating a bad court decision. Since they mean the same thing, one does not have to say the 14th controls Presidential eligiblity, rather it restates the same rule in the NBC clause. Of course, since Dred Scott said blacks could not be natural born citizens, one has to ask how blacks can be President if the 14th did not affect the NBC clause in some way.
President Obama has a stronger claim to natural born Citizen status than did Wong Kim Ark under birther rationale. Mr. Obama’s mother was a citizen when he was born. Neither of Mr., Wong’s parents was.
In response to this the birthers generally mount a gutter attack on Mrs. Obama’s reputation.
It’s hard for the birthers to keep their animosity for the politics of the current POTUS out of their conversation relating to eligibility. Indeed, they contend President Obama’s politics is an additional reason why he should be disqualified.
@Sterngard Friegen
The domicile of the child is that of the father. The domicile of the wife is that of her husband.
What was the permanent domicile of Obama II’s father? What was the permanent domicile of Wong Kim Ark’s parents at the time of his birth?
Please don’t misunderstand me. I am not of the opinion that Wong Kim Ark was a natural-born citizen. Wong Kim Ark was determined to be a citizen of the United States due to his birth within the territory of the United States, to parents who were permanently domiciled here. He was not a member of some subset of citizens. He was as much a citizen as the natural born child of a citizen. Just as a naturalized citizen is as much a citizen as the natural-born child of a citizen.
Carol,
A naturalized child is not as much a citizen as a natural born one–a naturalized child cannot run for POTUS (that’s what we call a “difference”). Furthermore, the opposition in Wong Kim Ark argued that if the lower court’s ruling were upheld, Mr. Wong would be eligible for the presidency. The SCOTUS agreed and upheld the ruling.
Please don’t misunderstand me, I’ve just shown that you are either ignorant or a liar–which is it?
Hypothetical: A person graduates high school and goes out-of-state to college. For their first year they live in a dorm and pay out-of-state tuition and return to their parent’s house for the summer. Their sophomore year they get a place off campus to establish residency–they still go home for the summer, but they keep the dwelling and at the beginning of their Junior year they start paying in-state tuition. They live there continuously until graduation at which time they move back in with their parents (not a good job market…) until they eventually get a job in another state and move to their own place there.
Where was this person domiciled, when, and why? If your definition of “domiciled” cannot parse this hypothetical, then I assert that it cannot be the accurate legal one (which must routinely parse much more complicated hypotheticals). I admit that I don’t know the answer myself (although I suspect that any of the learned lawyers reading this could answer quite easily if they wished), but I’m not proposing a non-standard interpretation of the term “domiciled”…
“Please don’t misunderstand me, I’ve just shown that you are either ignorant or a liar–which is it?”
Is that how Kevin Kesseler of Bespoke Modeling, Roscommon, Michigan has learned to address those with whom he disagrees?
Above, the readers will see that Kevin adopts a position in which his civility is not subject to blog rules, but instead, based on agreeing with his position.
This person should be considered to be very dangerous to any research.efforts.
@Carol The domicile of the child is that of the father. The domicile of the wife is that of her husband. What was the permanent domicile of Obama II’s father? What was the permanent domicile of Wong Kim Ark’s parents at the time of his birth?
Sigh, again no court has ever said domicile was a requirement. WKA does not say that. The rule includes, is not limited, to comiciled aliens.
@Carol Wong Kim Ark was determined to be a citizen of the United States due to his birth within the territory of the United States, to parents who were permanently domiciled here. He was not a member of some subset of citizens. He was as much a citizen as the natural born child of a citizen. Just as a naturalized citizen is as much a citizen as the natural-born child of a citizen.
Time you actually read the case. There are only two types of citizens, natural born and naturalized. The court says that natural born and a citizen by birth under the 14th Amendment mean the same thing. If one is a citizen by birth under the 14th, one is natural born as again they are both defined by reference to natural born subject. Binney’s language you are referring to has been explained over and over on this thread. Binney clearly defined what natural born meant in accordance with English law. He was not saying children of aliens were a different kind of citizen, but the same type. Amatuer hour continues.
Ballantine,
You can continue to ignore the stipulated facts of the case, and the repeated inclusion of “domicile” contained in the Court’s opinion, all you want. That doesn’t change the fact that it was part of the Court’s holding.
I have read the case. Nowhere in the case does it say “There are only two types of citizens, natural born and naturalized”. That is something you made up. The Court also DOES NOT say “that natural born and a citizen by birth under the 14th Amendment mean the same thing”.
If the truth is on your side, why make up what the Court said instead of quoting the Court? Could it be that the actual quote of the Court doesn’t comply with your conclusions?
@ Carol:
Can you name a case that reads Wong Kim Ark in the manner in which you do, i.e., with the inclusion of “domicile”? Any law review article or other such peer-reviewed scholarly writing?
Ed,
So you are claiming that by pointing out that someone was either intentionally dishonest or didn’t know what they were talking about I was being impolite? That we should let falsehood pass unchallenged and let ignorance fester unabated? Sorry, I don’t feel that way, but you sound very much like a typical birther. Was Carol correct to claim that a naturalized citizen is as much a citizen as a natural born child of citizens”? No, she wasn’t–the two are different in that only one is eligible for POTUS. Ergo either she knew she was incorrect–meaning she intentionally lied–or she didn’t–meaning that she was commenting about something she was ignorant* about. I suppose that it is also possible that she does not understand the concept of equality, but it’s hard for me to believe someone can fail to understand something so basic. How is pointing out an obvious error and using reason regarding its cause not civil? It may be impolite to suggest that someone is lying, but not nearly as impolite as lying (and doing so blatantly) in the first place. Or do you believe that people should be protected from the consequences of their falsehoods?
* There’s nothing wrong with being ignorant, but anyone who has been a birther for any length of time is willfully ignorant, which is another matter altogether…
p.s. I would hope that anyone considering an association with me would consider my actual words and give a pathetic strawman constructed by an anonymous birther troll all of the credence it deserves.
@Carrol You can continue to ignore the stipulated facts of the case, and the repeated inclusion of “domicile” contained in the Court’s opinion, all you want. That doesn’t change the fact that it was part of the Court’s holding.
You clearly are not a lawyer. The stipulated facts and the reference to “domicile” may be relevant to the holding but that does not mean they are part of the ratio decidendi of the case which is the real precedent. I know this is way over your head.
@Carrol I have read the case. Nowhere in the case does it say “There are only two types of citizens, natural born and naturalized”. That is something you made up. The Court also DOES NOT say “that natural born and a citizen by birth under the 14th Amendment mean the same thing”.
Well, perhaps you need to take a class in reading case law as you clearly can’t understand what the Court says. You point to Binney’s quote but don’t understand that Binney said there were two types of citizens, natural born and naturalized. If you can’t understand that the Court defined “natural born” and the 14th Amendment by the same definition, well, you should not be posting on this subject.
The Court’s definiiton of NBC:
“all persons born in the allegiance of the United States are natural-born citizens”
This definition is analogous to the British rule:
“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.”
The Court, of course, tells us what “Born in the allegiance” means.” In England:
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.”
In the US:
“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.”
Of course, the Court goes on to define the 14th Amendment by the same rule:
“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.
Unless you are an idiot, you would understand that these are all the same definition. Hence, the Court’s conculsion that the Amendment was simply declaratory of the law under the original Constitutution. I am pretty sure a child could understand this. Honestly, why do people with no understnading of law pretent to be experts on the internet?
I suggest you go back and read WKA. I suggest you read where it says that “natural born citizenship” should be deinfed by the English common law, how the English common law definition prevailed under our Constitutiton and how “natural born subject” and “natural born citizen” meant the same thing. I then suggest you think about what the court meant by saying such Amenment was declaratory and affirmative of exisitng law under the original Constitution. It really isn’t that hard if one is not a committed birther.
http://www.scribd.com/doc/18450082/Arthur-Hinman-How-a-British-Subject-Became-President-of-the-United-States
President Obama was a natural born citizen at the time of his birth in Hawaii.
I would like to thank everyone (especially ballantine) for sharing their thoughts on what constitutes natural born citizenship. It is important to note where the differences are considerable;
1. Is the WKA decision significant to A2 presidential eligibility (does an opinion on who are considered 14th born have an impact on natural born presidential eligibility)? Yes. The first time a declaratory portion of our constitution states what constitutes a citizen results in affirmation of jus soli natural born citizenship by our highest court 30 years afterward. If you believe that there is a another kind of born citizen that is not natural born, I will listen patiently for that problematic truth. As of 1898, all those born, regardless of the nationality of the parents, in the United States and subject to the jurisdiction are inarguably natural born citizens. Additionally the 14th provides those that are born outside the United States to Americans, or foreigners that come to our country seeking our citizenship, are naturalized. Ask yourselves what naturalization means and you will come to the answer of what a born citizen actually means. It should be fully apparent that those naturalized are, through the criteria and processes established by statute, granted the same responsibilities and privileges of citizenship as those natural born, save one.
“BIRTHER” BURDEN OF PROOF: THERE IS ANOTHER KIND OF BORN CITIZEN OTHER THAN NATURAL BORN IN OUR UNITED STATES CITIZENSHIP UNDERSTANDING.
The MvH doubts were answered. The “birthers” are absolutely right that many influences and perspectives are part of the historical national dialogue as to what constitutes natural born citizenship. The 1875 court recognized such and shied away from the 14th in thankfully not having necessity to either conclude what it fully entailed or having to bother with the question of alien parents. The court rightfully acknowledged that which was without doubt and left the door open for a later court to settle that which there still was.
2. Whatever your personal opinion may be is trumped by the Wong Kim Ark decision. The controversy ends with Justice Gray until another court decision on the matter or an amendment comes along that specifies otherwise. There are plenty of folk that in their dislike of Justice Gray’s opinion insist that the court did not weigh in on NbC per se. I think this is splitting hairs and ignores both MvH and WKA reflecting on the two understood aspects of our citizenship found both in the original and the later 14th, born and naturalized. MvH may be more than dicta and an important inarguable definition of NbC, but it did not affirm if this nation was or was not a purely jus soli natural born Republic. Turns out, by later court opinion, we were.
THE RUB FOR “BIRTHERS” IS THAT OUR CONGRESS (STATUTE) IS NOT IN AGREEMENT WITH THE COURTS. A CITIZEN WHO STATUTORILY NATURALIZED, AS AN ADULT, RENOUNCED AND ABJURED THEIR FORMER ALLEGIANCE TO A FOREIGN POWER WHEREAS THOSE BORN IN THE UNITED STATES WITH COURT RECOGNIZED DUAL HAVE NO SUCH REQUIREMENT. THIS IS AN ENTIRELY SEPARATE CONUNDRUM THAN WHAT CONSTITUTES NATURAL BORN CITIZENSHIP.
3. Reality for those that wish to deal with it regards not the acceptance of dual citizenship presidents but who is NOT eligible in light of the WKA opinion and the language of the 14th (WKA Fuller dissent and RvB). Unfortunately, the present crisis is that naturalized foreign born children of American citizens are not eligible for the presidency whereas those natural born in the United States of illegal aliens are. This will not be rectified unless someone like McCain seeks the court’s judgment. I hope that it is understood that the congress, with the power to naturalize, governs who born abroad are citizens at birth.
The following quotes from a 1904 lawyer’s legal reference helped me wrap my mind around what we affirmed, all admitted and documented controversy aside, as a nation of our “born” understanding in light of various states and countries obeying other natural born criteria. We chose to recognize and obey that which was affirmed in 1898. You don’t have to agree with it for this simple fact to be true. That was my intellectual challenge. I think I’m done.
CITIZENSHIP OF THE UNITED STATES
BY FREDERICK VAN DYNE, LL. M.,
Assistant Solicitor of the Department of State of the United States.
THE LAWYERS’ CO-OPERATIVE PUBLISHING CO.
ROCHESTER, NEW YORK, 1904
PREFACE
Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States. United States v. Wong Kim Ark, 169 U. S. 649
Pg 43-44
The children (born in Mexico) of Henry S. Schreck, a naturalized citizen of the United States, claimed before the United States and Mexican claims commission, convention of 1868 (15 Stat, at L. 679), as his heirs, damages from Mexico for the seizure and sale in that country of certain goods belonging to the estate of their father. The umpire decided: “As children of a naturalized citizen of the United States, they may be considered to be citizens of the United States in the United States and in every other country except the country of their birth; but the fact of their being born in Mexico gives to the government of that country the right to claim them in Mexico as citizens of that Republic. The umpire is, therefore, of opinion that, as against Mexico, the heirs of Henry S. Schreck, being born in that Republic, have no standing before the mixed commission, and cannot claim, as citizens of the United States, against the government of their birth.” Upon motion for rehearing, however, Mr. Ashton, agent and counsel of the United States, showed that by the Mexican law persons born in Mexico are not natural-born Mexicans unless their fathers before them were Mexicans; that the heirs of Schreck, therefore, not being claimed by the municipal law of Mexico as Mexican citizens, must be deemed to possess in that country the national character attributed to them by the law of the United States. The umpire adopted this view, and made an award in favor of the heirs of Schreck. Moore, International Arbitrations, 2450-2453.
@Portney:
1. Is the WKA decision significant to A2 presidential eligibility (does an opinion on who are considered 14th born have an impact on natural born presidential eligibility)?
The answer is No. This decision EXCLUDED natural-born citizens from the birth clause of the 14th amendment.
2. The controversy ends with Justice Gray until another court decision on the matter or an amendment comes along that specifies otherwise.
The controversy ended when Gray used Minor’s definition of NBC. Gray excluded NBCs from the 14th amendment. He affirmed the Minor definition of NBC by quoting and affirming a holding that was based on someone having citizen parents. If Gray was making a conclusion that all birth citizenship was only by virtue of jus soli only, he wouldn’t have included this criteria. He was bound to do because this WAS part of the holding and part of the court’s definition of NBC …. and bcaused it was a unanimous decision he could not justifiably override.
3. 3. Reality for those that wish to deal with it regards not the acceptance of dual citizenship presidents but who is NOT eligible in light of the WKA opinion and the language of the 14th (WKA Fuller dissent and RvB).
Fuller’s lament on NBC in the dissent wasn’t based on anything stated in the majority. Even if was, speculation in a dissenting opinion does not form the basis for establishing a legal precedent. Either there’s a tangible precedent stated in the majority opinion or there’s not. There’s certainly nothing in RvB that undermines the Minor definition of NBC.
The legal precedence in WKA precludes Obama from being either a natural-born citizen OR a 14th amendment citizen. … and that’s IF he could legally prove he was born in Hawaii. To date, he has not. These are the undeniable facts. The only way to arrive at any other conclusion is by connecting dots that were never connected by the Supreme Court.
ksdb,
I take it there are multiple aspects of born citizenship to include NbC? Please illustrate the hierarchy and who says. I’ve gone to the dark side and am pretty convinced that WKA established the jus soli foundation of our natural born citizenship understanding. I don’t argue that it was pretty much up in the air prior to 1898.
Portney said:
“I’ve gone to the dark side and am pretty convinced that WKA established the jus soli foundation of our natural born citizenship understanding. I don’t argue that it was pretty much up in the air prior to 1898.”
Funny how James Madison didn’t think so about a century prior to that… Do you guys really think you are fooling anyone by pretending to know what you are talking about?
“Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States.” -CITIZENSHIP OF THE UNITED STATES, BY FREDERICK VAN DYNE, LL. M.
“a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed”
NbC 1875- Those children born in the United States to citizen parents are citizens of the United States. Acknowledged doubts as to those born to aliens.
NbC 1898- Those children born in the United States, irrespective of the parents nationality, are citizens of the United States. Answered the 1875 doubts.
Portney,
If you consider that Minor is precedent on citizenship and defined NBC per A2S1C5 in 1875, then do you contend that WKA reverted that decision and confirmed Minor as precedent on NBC pre 1898?
@portney “Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States.” -CITIZENSHIP OF THE UNITED STATES, BY FREDERICK VAN DYNE, LL. M.
That his opinion, but history shows otherwise. There are only a hand full of authorities that had questionedthe jus soli rule and as Justice Gray pointed out there were really nojne in the first 50 years.
@portney NbC 1875- Those children born in the United States to citizen parents are citizens of the United States. Acknowledged doubts as to those born to aliens.
I think you are putting to much stock in the Minor dicta. The issue was not brief or argued and in those days the Justices had no clerks, so it was probably not researched. Saying some unknown person or persons had some unknown doubts that the court expresssly declined to examine simply is not precedent at all. It tells us nothing as no one knows if wuch doubts would have been easily dismissed upon examination. how many people can you find prior to 1875 that had doubts about the common law rul? Only a couple exist.
Portney,
Since you seem interested, here is some of what Waite would have found had he looked at the issue. remeber, there are only a handful of personswho had questioned this.
“A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803)
“No man but a native, or who has resided fourteen years in America, can be chosen President.” Elliot’s Debates –DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statments of future Supreme Court Justice James Iredell, July 30, 1788).
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803)
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.” James Madison, The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)
“The people are considered as aliens, born in some foreign country, as inhabitants of some neighbouring state in the union, or natural born subjects, born within the state. It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subjeft to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)
“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 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.” Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804)
“As the President is required to be a native citizen of the United States….” James Kent Commentaries on American Law, Vol. 1, pg. 333 (1826)
“His original idea was adverse to the limitation to natural-born citizens, as superfluous; but, as it stood, the terms upon which Louisiana was acquired had rendered a change necessary, for it appeared to him that there was no alternative, but to admit those born in Louisiana as well as those born in the United States to the right of being chosen for President and Vice President.” John Quincy Adams, 11/23/1803, ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856, Volume III, John Rivers, pg. 21, (1857)
“The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.” Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)
“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.” Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” William Rawle, A View of the Constitution of the United States, pg. 86 (1829)
“From the close of the revolutionary war to the time of the adoption of the constitution of the United States, all persons born in this country became citizens of the respective States within whose jurisdiction they were born, by the rule of the common law, unless where they were prevented from becoming citizens by the constitution or statutes of the place of their birth….The word citizen expresses precisely the same relation to the State which subject does to the king. Indeed for a considerable period after the revolution, the word subject was used as synonymous with citizen. Thus in the declaration of rights in the constitution of Massachusetts, the word subject is several times introduced, where we should now use citizen. So in Mass. St. 1784, c. 72, s. 10, a punishment is enacted for kidnapping “any subject of this Commonwealth, or other person lawfully residing and inhabiting therein.” In this passage the word subject can have no other meaning than that ot citizen. Therefore every person born within the United States, its territories, or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity.” American Jurust and Law Magizene, January, 1834
“That all natural born citizens, or persons born within the limits of the United States, and all aliens subject to the restrictions hereinafter mentioned, may inherit real estate and make their pedigree by descent from any ancestor lineal or collateral…” January 28, 1838, Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838)
“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… The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President… 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. ” Lynch vs. Clarke, pg. 250 (NY 1844)
Q. May any person be chosen President of the United States?
A. Not every person; none may be chosen unless he has been born in the United States, or was a citizenwhen the Constitution was agreed to, nor can such a one be chosen if he is less than thirty-five years old, or if he has not resided within the United States for fourteen years. Arthur Joseph Stansbury, Elementary catechism on the Constitution of the United States, pg. 78 (1828)
“Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president.” Lysander Spooner, The Unconstituionality of Slavery, pg. 119 (1845)
“It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state.” The New Englander, Vol. III, pg. 434 (1845)
“A natural (or native) bom citizen of the United States means a person born within the limits of the American Republic;—a citizen of the United States at the time of the adoption of the Constitution denotes a foreigner who was then an inhabitant of the country.” Joseph Bartlett Burleigh, The American manual: containing a brief outline of the origin and progress of political power and the laws of nations, a commentary on the Constitution of the United States of North America, and a lucid exposition of the duties and responsibilities of voters, jurors, and civil magistrates, pg. 28 (1850)
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 208 (February 1854).
“This is called becoming naturalized; that is, becoming entitled to all the rights and privileges of natural born citizens, or citizens born in this country.” Andrew White Young, First lessons in Civil Government, pg. 82 (1856).
“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.” Justice Curtis, dissenting, Dredd Scott v. Sandford,, 60 U.S. 393 (1857).
“The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. …As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than ” the accident of birth” —the fact that we happened to be born in the United States. And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.” Attorney General Bates, Opinion of Citizenship, (1862)
“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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
“The king of England, according to the rule of modern civilization, claimed as his subjects all persons born within his dominions : in like manner every one who first saw the light on the American soil was a natural-born citizen ; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states.” George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (1866)
“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution…Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it.” …… “It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, ‘founded in reason and the nature of government’ … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward.” Rep. Wilson, 1866 Civil Rights Act debates. 10 Cong. Globe, 39th Cong., lst Sess. 1115, 1117 (1866)
“A Natural Born Citizen.” — Not made by law or otherwise, but born… “Natural Born Citizen” recognizes and reaffirms the universal principle common to all nations, and as old as political society, that the people born to a country do constitute the nation, and, as individual, are natural members of the body politic…Every person born in the country is, at the moment of birth, prima facie a citizen.” George Washington Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED, pg. 168 (1868)
“The children of aliens, born in America or in England, are entitled to all the privileges of natural-born citizens.” William Wetmore Story, Treatise on the Law of Sales of Personal Property, pg. 17 (1871)
The president must, by law, be a native born citizen; so that none need aspire to that high calling, but those who might emphatically be termed natural sons of America.” Joseph Dennie, John Elihu Hall, The Port Folio, pg. 199, (1822)
“By the provisions of the federal constitution, the President and Vice President of the United States are required to be native-born citizens; and the President is required to cause the laws of the Union to be executed. These high places of power, it was then thought, could not, with safety to the American people, be occupied by any but natural-born citizens” Rep. Russel, Congressional Globe, 24th Cong., 1st Sess. pg 4256 (1836)
“It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital [the presidency] to the safety and liberties of the people. But an exception was, from a deep sense of gratitude, made in favor of those distinguished men, who, though not natives, had, with such exalted patriotism, and such personal sacrifices, united their lives and fortunes with ours during the Revolution….” Joseph Story, A Familiar Exposition of the Constitution of the United States, pg. 167 (1840 ed.)
“Citizenship” ….Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president.” Bouvier Law Dictionary pg. 265 (1843)
“No person can be elected president who is less than 35 years of age, who is not a native born citizen of the United States, or was not a citizen at the time of the adoption of the constitution of the United Stales…” John Ramsay McCulloch, Daniel Haskel, M’Culloch’s Universal Gazetteer: A Dictionary, Geographical, Statistical, and Historical, of the Various Countries, Places, and Principal Natural Objects in the World, pg. 994 (1844)
“Afterwards however, in Convention, the words “natural born citizen” were stricken out, and the word ” native” was substituted, as the original words might have left an uncertainty as to the meaning of the Convention, for ” natural born citizen” might have had some reference to the manner of birth, while the word ” native” would refer more particularly to the place of birth. ” Sherman Croswell, R. Sutton, Debates and Proceedings in the New-York State Convention – New York (State) Pg. 148 (1846)
“No person can be President or Vice-president who is not a native-born citizen, of the age of thirty-five years, ….” Richard Swainson Fisher, The progress of the United States of America: from the earliest periods. Geographical, statistical, and historical, pg. 9 (1854)
“The executive power is vested in a president and vice-president; each chosen for a term four years each to be a native born citizen…..Emma Willard, Abridged history of the United States, or, Republic of America, pg. 254 (1856)
“They declared by that solemn compact, that the President of the United States should be a native born citizen, … Samuel Clagett Busey, Immigration: Its Evils and Consequences pg. 10 (1856)
“Your committee is of opinion that no one can be eligible to discharge, for the time being, the functions of President, unless he be thirty-five years old, and a native born citizen. A Speaker of the House, or a President pro tempore, might not have these qualifications —and if so, he could not act as President in compliance with the Constitution.” Sen. Butler, 8/05/1856, Reports of Committees: 30th Congress, 1st Session – 48th Congress, 2nd Session, pg. 4., By United States Congress. Senate, Congress, Published 1856
“One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of tho United States at the time the Constitution was adopted, or he must be a native-born citizen.” Sen. Davis, 2/2/1865 reported in The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877)
“It is a singular fact, however, that to-day, under the Federal Constitution, a negro may be elected President, United States Senator, or a member of the lower branch of Congress. In that instrument no qualification for office is prescribed which rejects the negro. The white man, not native born, may not be President, but the native-born African may be.” Sen. Henderson, William Horatio Barnes, History of the thirty-ninth Congress of the United States, pg. 387 (1868)
“in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Consitutuion, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. (2 Kent’s Com. 3d ed. l ; Calvin’s Case, 7 Coke, 1 ; 1 Black. Com. 366; Lynch v. Clark, 1 Sandf. Ch. Rep. 139.)” Sen. Trumbull (author or the Civil Rights Act of 1866), April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“Mr. HOWARD. I have two objections to this amendment. The first is that it proposes to change the existing Constitution in reference to qualifications of President of the United States. If this amendment shall be adopted, then that clause of the Constitution which requires that the President of the United States shall be a native-born citizen of the United States is repealed, and any person who hasbeen naturalized and then become a citizenof the United States will be eligible to the office of President;” The congressional globe, Volume 61, Part 2. pg. 1013 (1869)
“What is the qualification for the office of President? He must be a native-born citizen of the United States and thirty-five years of age. Nothing more!” Rep. Boutwell, 1/11/69 cited in Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913)
“One of the qualifications of President of the United States is that he must be a native born citizen, and incontestibly were it not for this provision a naturalized citizen might, if elected, hold that high position.” White v. Clements, Georgia Supreme Court, 1870, Reports of Cases in Law and Equity, Argued and Determined in the Supreme Court of the State of Georgia, in the Year , pg. 256-57 (1870)
“The qualifications for president and vice-president by this clause are made the same. They must, therefore, be native born citizens of the United States, or citizens of the United States at the time of the adoption of the federal constitution, and been fourteen years citizens of the United States, and thirty-five years old.” John King, A Commentary on the Law and True Construction of the Federal Constitution, pg. 206, (1871)
“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, 2 Mass. 244 (1805).
“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.
“Our statutes recognize alienage and its effects, but have not defined it. We must therefore look to the common law for its definition. By this law, to make a man an alien, he must be born without the allegiance of the commonwealth ; although persons may be naturalized or expatriated by statute, or have the privileges of subjects conferred or secured by a national compact.” “This claim of the commonwealth to the allegiance of all persons born within its territories, may subject some persons who, adhering to their former sovereign and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when two opposing sovereigns may claim their allegiance. But the inconvenience cannot alter the law of the land. If they return to the country of their birth, they will be protected as subjects.” Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813).
“But the appellant, in this case, was born in Virginia. The laws of the state declare, that every free person born within it, shall be considered a citizen of it, and shall enjoy all the privileges of a citizen, until he relinquishes that character in the manner prescribed by law.” Custis v. Lane, 3 Munf. 579 (Va. 1813),
“The place of birth, it is true, in general, determines the allegiance. But, in this case, there was no independent government of Virginia, to which she could owe allegiance at the time of her birth.” Barzizas v. Hopkins, 2 Randolph, 270 (1824)
“Natural allegiance is the consequence of being born within the jurisdiction of a particular sovereignty : conventional allegiance is implied, when an individual goes within the jurisdiction of a sovereignty, for the purpose of residing a longer or shorter time as suits his convenience : and Conventional allegiance is expressed, when there is a positive contract between the sovereign or subject, made by the intervention of an oath of allegiance.” Willima Charles Jarvis, The Republican: or, a series of essays on the principles and policy of free states, pg. 71 (1820)
“Thus, where A died seized of lands in Maryland, leaving no heirs except B., a brother, who was an alien, and had never been naturalized as a citizen of the United States, and three nieces, the daughters of the said B, who were native citizens of the United States; it was held that they could not claim title by inheritance through B, their father, he being an alien and still living.” McCreery’s Lessee v. Somerville, 22 U.S. 9 Wheat. 354 354 (1824)
“It would, therefore, seem more correct to say, that none except those born in America, or who resided here at the declaration of independence, can be said to owe allegiance to this government.” Trezevant v. Estate of Henry Osborn, 3 Brev. 29 (1812)(Note, J., concurring)
“If he was not born in the country, or if born abroad, if his parents were not citizens of the United States, not having renounced or forfeited their allegiance, he is a foreigner, and he must conform to the laws which regulate naturalization, before he can hold real estate, or exercise the freedom of election, as a citizen of the country.” Commonwealth v. Alger and Hutchinson (1835)
“John, Eve, Chary and Raper, children of the alien John Raper, and natural born citizens ; and Mary and Jane Raper, children of the alien William Raper, and natural born citizens of the U. States…The question was, Whether the whole estate descended to John Jackson, the naturalized brother of the intestate ? or whether the natural born citizens, descendants of his alien sister, Ann Walton, who was yet living, were entitled by descent to one equal Leigh, for the appellants.” Jackson v. Sanders, 2 Leigh’s Hep. 109. (1830)
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land…The better opinion, I should think, was, that negroes or other slaves, born within and under the allegiance of the United States, are natural born subjects, but not citizens. Citizens, under our constitutions nnd laws, mean free inlnbitants, born within the United States, or naturalized, under the laws of Congress.” James Kent, COMMENTARIES ON AMERICAN LAW, pg. 258 (1836)
“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 the father and mother of the demandant were British born subjects is admitted. If he was born before 4 Juy, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. 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.” Justice Story, concurring opinion, Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155,164. (1830)
“First — Persons, who are born in a country, are generally deemed citizens and subjects of that country. A reasonable qualification of this rule would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business. It would be difficult, however, to assert, that in the present state of public law such a qualification is universally established. Secondly — Foreigners, who reside in a country for permanent or indefinite purposes, animo manendi, are treated universally as inhabitants of that country.” Jospeh Story, Commentaries on the conflict of laws, pg. 48 (1933)
“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 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 4 Dev. & Bat. 20, 24-26 (1838)
“Is a human being—a part of the community—born upon your soil, any thing but a citizen ? What else can you make of him ? He is not a slave, he is a freeman born within your jurisdiction—born within the circle of your political privileges. He is a human being. And, I ask, where is the law—where is the principle—where is the standard of motality by which you can determine that he is any thing in the world else than a citizen ? Who is a citizen, if he be not a citizen ? I ask gentlemen in regard to their own rights—how you acquire them ? Do you not take the book and swear that you were born on this soil, or that you weie born on another, but will become a good citizen of this commonwealth? Certainly you do. I ask what else can you make of a human being, but a citizen ? The law is universal—it tells you who is a citizen and who ii not. It tells you that those born in a foreign land, may become eitizens. But, does it not make a difference, between a man born on your soil, and a man admitted to the rights of citizenship ? If it does, tell me how you will establish, that a coloured man is not a citizen, as much so as any body else ? I mean one born in a state of freedom—one born in the United States.” John Agg, Proceedings and debates of the Convention of the commonwealth of Pennsylvania, Volume 10, pg. (1838)(statement of Mr. Chauncey).
“Being born upon that territory, though of parents who are not members of the State, invests the infant with the right of membership. The children of English parents born upon our territory, are citizens of the United States. But would the children of native Africans, immigrants to this country, be citizens by birth? The English immigrant, if a “free white person,” may be naturalized: the African cannot. Can the offspring of those who are incapable of citizenship become citizens? The free white man, when naturalized, is, ipso facto, clothed with all the immunities and privileges which are enjoyed by the native citizens of the Union, and every component part of it: and with all their rights too, eligibility to the Presidency and Vice-Presidency excepted. The free white man, born within the United States, is entitled to all the privileges, immunities and rights of American citizenship, be his parents of whatsoever nation.” State v. Claiborne, , 19 Tenn. 331 (1838).
“Citizen.—A person born within the United States, or who has become naturalized under their laws.” Elisha P. Hurlbut, Civil office and political ethics: with an appendix, containing familiar law, pg. 204 (1840)
“The Constitution contains no definition of the character of a Citizen ; but the term is used in plain reference to the Common Law, which is regarded not only as the means or instrument of exercising the jurisdiction conferred by the Constitution, but in many instances must be resorted to as the interpreter of its meaning. At the time the Constitution was adopted, the Citizens of each State, collectively, constituted the Citizens of the United States ; and were either Native Citizens, or those born within the United States, or naturalized Citizens, or persons born elsewhere, but who, upon assuming the allegiance, had become entitled to the privileges, of native Citizens.” Wiiliam Duer, A course of lectures on the constitutional jurisprudence of the United States, pg. 231, (1845);
“The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States. The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle… Horace Binney, American Law Register, 2 Amer.Law Reg.193, 203, 204, 206 (February 1854)..(cited in U.S. v. Wong Kim Ark,169 U.S. 649, 665 (1898)
“By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place….I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney…He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house.” Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)
“Citizens are either natives or naturalized aliens. Natives are all persons born within the jurisdiction and allegiance of the United States; 2 Kent’s Com. 37. And this, whether born of alien parents or not; Lynch v. Clark, 1 Sandf. Ch. 583. ” John Duer, Benjamin Franklin Butler, John Canfield Spencer, The law of real property of the state of New York, pg. 22 (1855)
“Alligience”: It is natural, acquired, or local. Natural allegiance is such as is due from all men born within the United States; acquired allegiance is that which is due by a naturalized citizen. It has never been decided whether a citizen can, by expatriation, divest himself absolutely of that character. Bouvier Law Dictionary pg. 100 (1843)
NATIVE CITIZEN. A person born in the United States since the declaration of independence, or before, if he has removed here since that event ; or the child of a citizen born abroad, if his parents have ever resided here. 2 Ililliard’s Kcal Prop. 190. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737 (1851)
NATURAL ALLEGIANCE. In English law. That kind of allegiance which is due from all men born within the king’s dominions, immediately upon their birth ; which is intrinsic and perpetual, and cannot be divested by any act of their own. 1 Bl. Com. 370, 371. “2 Kent’s Com. 42. In American law. The allegiance due from citizens of the United States to their native or adopted country, and which, it seems, cannot be renounced without the permission of government, to be declared by law. 2 Kent’s Com. 43 — 49. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 736 (1851)
“Citizens are either natives, or such persons as have become citizens in accordance with the laws which have been enacted by Congress on the subject of naturalization. Native citizens again are, first, all persons who have been born within the jurisdiction of the United States since the declaration of American Independence, on the 4th of July, 1776 ; and secondly, every person who was a native of the territory of the United States previous to that date, provided he remained in the country afterwards.” John Ramsay McCulloch, Vethake, Henry, dictionary, practical, theoretical, and historical, of commerce , Volume 1, pg.27 (1852)
“Citizens are all persons born within the jurisdiction of the United States, or duly naturalized. Aliens are persons born out of the jurisdiction of the United States, and not naturalized.” John Frederick Archbold, John Jervis, William Newland Welsby, Thomas Whitney Waterman, A complete practical treatise on criminal procedure, pleading, and …, Volume 1, pg. 8 (1853)
“Birth binds man by the tie of natural allegiance to his native soil, and such allegiance gives, by the principles of universal law, to the country in which he was born rights unknown to mere voluntary or statutory allegiance.” Tobin v. Walkinshaw, Circuit Court, U. S., July Term, 1856
“The Constitution uses repeatedly the terms, ” citizen of the United States,” but does not define them. Our statute, above referred to, uses the same terms, and also leaves them undefined. It becomes necessary for the court to decide whether the defendant, Maximo M. Ludlam, under the circumstances of his birth and life, is a citizen of the United States within those terms. No case, so far as we are informed, presenting a similar question, has ever been before the courts in this country, state or national, and we are compelled, therefore, to exercise an arbitrary discretion, or to resort for precedents and information to English writers, and the decisions of English courts…….It does not militate against this position, that by the law of England the children of alien parents, born within the kingdom, are hold to be citizens. There are many instances of double allegiance; as for instance, one may owe a natural and permanent allegiance to the country of his birth, and a local and temporary allegiance to the country in which he resides.” Ludlam v. Ludlam, 26 NY 356 (1863).
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 2. The word ” citizen,” as used in this act, shall be construed to mean a person born within this, or some one of the United States, or naturalized agreeably to the Acts of Congress, or a person who has become a freeman of this State, by virtue of the laws in force before June 26th, 1828. ,
Sec. 3. This act shall take effect from its passage.
Acts and resolves passed by the General Assembly of the State of Vermont pg. 31 (1864)
“By the common law of England, which is in force in this country, and which may be assumed as also the law of all the European states, persons within the jurisdiction of the government, or limits of the territory, are either natives, or aliens. Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent. As a general principle of the English and American law, all native-born, free persons, of whatever age, sex, and parentage, are citizens.” John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865)
“As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone…. Every man by his birth, is entitled to citizenship, and upon the general principle that he owes allegiance to the country of his birth” Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
“A native citizen, is one born in the United States since the declaration of independence, or before, if he has removed here since that event; or the child of a citizen, born abroad, if his parents have ever resided here.” Francis Hilliard, An abridgment of the American law of real property, pg. 212 (1869)
“What is a citizen but a human being who, by reason of his being born within the jurisdiction of a government, owes allegiance to that government?” Congressman Broomall, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1262 (1866).
ballantine, the data dump of information relating to jus soli natural born understanding is appreciated…perhaps though it is also understood that many were of another mind before 1898 as to what our national policy might be. i included arbitration quote earlier that showed as example the Mexican version which entailed the citizenship of the father for natural born consideration. I’m sold that mere jus soli is our American natural born understanding per WKA. It would be disingenuous not to concede that considerable controversy existed before the court decision and admittedly still exists in some quarters. I do not agree with the court’s understanding but I realize it has a direct impact on presidential eligibility.
ballantine, speaking of “disingenuous”….my intellectual dishonesty began with confusing a philosophical disagreement with the WKA decision as sound footing that it couldn’t logically be a proper metric of NbC. The qualms I should have are in other areas and not one of settled law. Is there a 12 step program for “birthers”? Perhaps the first step is properly identifying the problem, which in my case was acknowledging the impact of Gray’s decision.
“If you consider that Minor is precedent on citizenship and defined NBC per A2S1C5 in 1875, then do you contend that WKA reverted that decision and confirmed Minor as precedent on NBC pre 1898?”
MvH did not rule out the possibility that our American NbC understanding was purely jus soli. Both Waite and Gray reflected on our common law heritage for citizenship. Again, I do not agree that mere jus soli is appropriate or sound for our Republican citizen sovereign world view. I would have thought that the Mexican ideal better and in line with MvH echoing Vattel as to the proper NbC perspective. Regardless, WKA is the litmus now for NbC.
Don’t hate the player…hate the game.
“Don’t hate the player…hate the game”
Portney,
No hating here. Please, I was trying to identify your dicta/precedent argument when Gray cited Minor.
1. We know Gray first cited Minor to develop the case of the English common law
2. Gray later cited the entire ‘NBC” passage in Minor to point out that there were doubts about children of aliens
3. Minor court did not reach the 14th to make Minor a citizen
4.WKA reached the 14th to make WKA a citizen
Do you think #1 and #2 are dicta or precedent in WKA? In other words, in your opinion, was WKA citing dicta or was WKA citing precedent on #1 and #2?
Portney:
Congratulations on your decision to quit being a Vattel Birther!!! You are the first one I know of to switch over to the side of goodness and light. Ignore ksdb and the others,.They are just trying to tempt you back to bad ways. ksdb couldn’t analyze a Dr. Seuss book.
As far as the doubts about NBC prior to Wong Kim Ark, all of that seemed to be just the Chinese cases. I read that somewhere. But that is not worth getting hung up over.
Squeeky Fromm
Girl Reporter
Squeeky Translation:
“You got my blessing child. May the force be with you. Now, ignore the others who disagree with you, they are the devil.
As far as the doubts about NBC prior to Wong Kim Ark, all of that seemed to be just the Chinese cases. I read that on Wikipedia. But, i’m not gonna bother, that’s not really my job.”
Mrjr101:
That was a very good translation except for the wiki part. I read it somewhere in a case IIRC.
Squeeky Fromm
Girl Reporter
There is no goodness and light. The matter is entirely of what the courts have affirmed. The discussion is not any less interesting or important for my change of opinion. It is notable that the US understanding, as opposed to the Mexican for instance, of NbC was affirmed as mere jus soli by the WKA court. I don’t like it, but I consider it incontrovertible at present.
mrjr101,
I think it reasonable to say that both courts acknowledged our citizenship understanding as being composed of born and naturalized, both in the original constitution and the later 14th. Yes, MvH used A2 to establish her citizenship but so what? The fact the court did not use the 14th does not mean that she wasn’t also a born citizen by that metric. The court emphasized that it was not the 14th in which she derived her citizenship and political rights, they existed prior to its existence. This is not to say that the 14th was not applicable to her situation. It is ill thought to believe that the court not explicitly using the 14th to define her citizenship meant that no relationship can be made to the two born references in our constitution. I’m not explaining my point well, but you get the idea.
@portney It would be disingenuous not to concede that considerable controversy existed before the court decision and admittedly still exists in some quarters. I do not agree with the court’s understanding but I realize it has a direct impact on presidential eligibility.
As a matter of history, there was no controvercy prior to Dred Scott. Followig reconstruction we saw for the first time people disputing that jus soli was the rule but they were clearly in the minority. The “data dump” you refer to contains the opinion of pretty every significant scholar prior to 1875 and I could keep citing more authority if you would like. Have you found one person prior to such time disputing jus soli yet. In the run-up to WKA there are a few authorities disputing jus soli, many motivated by the desire to keep the chinese from citizenship. Yet the vast majority agreed with Justice Gray. I could do another data dump if you want.
“1. We know Gray first cited Minor to develop the case of the English common law
2. Gray later cited the entire ‘NBC” passage in Minor to point out that there were doubts about children of aliens
3. Minor court did not reach the 14th to make Minor a citizen
4.WKA reached the 14th to make WKA a citizen.”
Gray later cited the NBC passage solely to argue that neither Justice Miller nor the other justices in SLaughterhouse were committted to the view that children of aliens were excluded from the 14th Amendment. Gray did not say he agreed that there were doubts or whether such doubts had merit. He was pointing out a previous court cited unspecified doubts and was uncommitted to resolving them.
WKA did reach the 14th to make WKA a citizen. The Court was asked whether WKA was a citizen under the 14th, so of course the Court addressed the 14th. Gray never said WKA was a citizen under the 14th Amendment. The holding said he was a citizen. However, Gray spent the first 20 pages of the decision saying a person of WKA’s status would be a citizen under the original constitution and the next 20 saying a person of WKA’s status would be a citizen under the 14th Amendment as the Amendment was “declaratory of existing rights and affirmative of existing law.” Hence, WKA could only be a citizen under the 14th Amendment if he would have been one under the original Constitution.
@portney It is ill thought to believe that the court not explicitly using the 14th to define her citizenship meant that no relationship can be made to the two born references in our constitution.
I think that is right. I don’t think there is any plausible interpretation of the 14th Amendment that would not include Minor. One would have thought the framers of the 14th Amendment would have made the language clearer as to relationship between the clauses. The facts are there were much more controversial subjects they were debating. What happened was language was introduced and all anyone argued about was the application to indians and the Chinese. They talked about Presidential eligibility, but no one suggested using the words “natural born” which would have made sense. In fact, many members of such Congress said the President must be a native born citizen. In real life we find that many provisions of our Constitution and Amendments were adopted with little debate and without clear language leaving the Courts to sort it out. It is an imperfect science. The next time the Court addresses this issue, it will be with respect to anchor babies as there too many people pushing such issue for it not to eventually get before the Court.
The most relevant court case on the the 14A’s citizenship clause was, and still is, Elk, because the question before the court was the extent of the Fourteenth’s “subject to the jurisdiction thereof.” Doesn’t matter if the party was Indian or a little green man from mars, all that matters that was the constitutional question before the court to adjudicate. Gray answered it was political attachment and not mere physical location. Gray tried to side step what the court already had held in Elk in WKA but this was purely dicta and not a question before that court.
Why is it that in more than a million word here, that no one brings up the name Bingham, and Trumbull and Howard are brought up by Ballentine, only in passing?
Was U.S. vs. Wong Kim Ark Wrongly Decided?
by P.A. Madison on December 10th, 2006
In reading the majorities opinion in Wong Kim Ark, one cannot help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous court decisions, a United States Attorney General Opinion over the meaning of the Fourteenth’s citizenship clause, and law previously made over alien citizenship via birth, leaves one to wonder what is going on here?
Deeper into the decision, justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found under the Fourteenth Amendment, Jacob M. Howard and Lyman Trumbull. They are also attempting to keep their prior adjudication to what “subject to the jurisdiction thereof” means in Elk v. Wilkins out of the discussion or else Wong Kim Ark can’t be said to be a citizen of the United States.
It is clear the Wong Kim Ark majority recognized the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: “Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.”
Whatever credibility the court may had at the beginning was soon lost when Gray wrote:
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment … as the equivalent of the words “within the limits and under the jurisdiction of the United States…”
Here the court is assuming what Congress may have intended while also arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court. Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”
Reviewing the intended purpose behind the words of the clause by both Sen. Howard and Sen. Trumbull, who were responsible for the drafting of the citizenship clause, clearly revealed the intended effect of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history of this language. Howard presents a major hurdle for the majority when he specifically declared the clause to be “virtue of natural law and national law,” never once making any reference to England’s common law doctrine. Perhaps this is why Gray wasted much of his commentary along common law themes.
An Act of April 9, 1866 established for the first time a national law that read, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” Rep. John A. Bingham, chief architect of the 14th Amendments first section, said this national law (Section 1992 of the US Revised Statutes) was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.
Sen. Trumbull, who was the author of this national law, said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.”
However, Gray insists Trumbull really meant to grant citizenship to everyone born due only to the fact they were born on American soil. Moreover, if everyone owed allegiance by simply being on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps the true answer is because locality itself was never enough to confer complete allegiance.
Speaking of the Fourteenth Amendment, Sen. Trumbull goes on to declare: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.“
Sen. Howard follows up by stating, “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
The Supreme Court had earlier discussed the meaning of the 14th amendment’s citizenship clause in the Slaughterhouse cases and noted, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power. The United States Attorney General in 1873 ruled the word “jurisdiction” under the Fourteenth Amendment to mean:
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)
In Elk v. Wilkins, 112 U.S. 94, the court was specifically asked to address “subject to the jurisdiction thereof,” and held it meant:
The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Here we have the framers, the Attorney General and the Elk court all agreeing that “subject to the jurisdiction thereof” means political attachment. The question begs, what happened to the adopted meaning?
In Wong Kim Ark the court made a weak attempt to marginalize what it had said in Elk on the grounds that decision “concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”
In truth the adjudicated meaning of “subject to the jurisdiction” in Elk did in fact have the “tendency to deny citizenship to children” because it applied to all person born whether Indian, Asian or any other race. The real question is which court was the question of “subject to the jurisdiction” before the court?
The answer is, Elk.
The definition for “subject to the jurisdiction thereof” handed down in Elk posed a real problem for Wong Kim Ark because Wong’s parents did not owe the United States direct and complete allegiance nor did they fall within the political jurisdiction. To try and sidestep the judicial meaning of “subject to the jurisdiction” found in Elk, Gray attempts to obfuscate the meaning of “subject to the jurisdiction thereof” by painting a new meaning under the Fourteenth Amendment:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State…
Unfortunately for Gray, he can’t unmake history nor can he hide from what he had ruled in Elk. Again, Kim Ark was not born into the allegiance of the United States, his parents had no political attachment, and his parents were subject to treaties in the same way that Indians were.
When all was said and done, the majority in Wong Kim Ark reveals their true nonsensical position: “To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.“
That statement pretty much removes all doubt whether the Wong Kim Ark court had any idea what they were talking about.
The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to “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 [born to American citizens].”
It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: “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 was needed to prevent rebel States from refusing to recognize former slaves (now citizens) as citizens of the United States under the Fourteenth’s first section (privileges and immunities).
Furthermore, these former slaves could be said to had no political attachment to any other country – meaning they did not owe “allegiance to anybody else.” To add additional insult, the court says: “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.
The most significant truth to come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller himself when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” He was absolutely correct.
Only reason the language of the Fourteenth differs from the civil rights bill of 1866, which used the language “and not subject to any foreign power, excluding Indians not taxed” to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the Fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.
It is worth mentioning that it was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction of the United States. Obviously, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.
For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of personal allegiance to the King, no more survived the American Revolution than the same rule survived the French Revolution.“
There is also a disturbing ethical aspect of Wong Kim Ark in terms of the majorities’ apparent willingness to place themselves unethically above both facts and the supreme law of the land. The United States by treaty with China was prevented from admitting Chinese subjects to citizenship. This treaty was ratified by the same senators who had adopted both Section 1992 of the US Revised Statutes and the Fourteenth Amendment.
Furthermore, the court was also prohibited under 22 Stat. §14 to admit subjects of China to U.S. citizenship, “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.“
The Fuller court was no stranger to criticism or controversy when it came to interpreting law or the Constitution. For example, in the cases of Brooks vs. Codman, and Foote v. Women’s Board of Missions the question was who should get the money appropriated as indemnity for spoliations of William Gray’s (Justice Gray’s grandfather) ships? Codman was the administrator of William Gray’s estate and under a 1891 law payments could only go to “creditors, legatees, assignees or strangers to the blood.”
What did the court do? They did just as they had done in Wong Kim Ark; they simply said forget what the law says because we think payments should go to the “next of kin,” i.e., Justice Horace Gray.
Conclusion
The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of “subject to the jurisdiction” since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born born subject to its jurisdiction.
P.A. … who?
Ray:
Your “P.A. Madison” reminds me of the “Dead Doctors Don’t Lie” person and the Trudeau(???) dude on infomercials selling vitamins and herb books. They spend 90% of their time running down doctors and other straw men and a few more minutes avoiding “proving” their snake oil really works.
Sooo, when you are through listening to them you kinda sorta have the feeling that they have been running you around in circles and not really saying much in any substantive way.
Chief Soaring Eagle didn’t convince me and neither did P.A. Madison, who didn’t say much beyond, “Gee golly that Wong Kim Ark court was sure naughty!” And, just in case somebody convinced you to buy a bunch of supplements. . .
http://www.quackwatch.org/01QuackeryRelatedTopics/DSH/colloidalminerals.html
Portney: Yes, on this issue, there is a goodness and light side.
Squeeky Fromm
Girl Reporter
I don’t believe PA Madison makes a convincing argument, or any one for that matter, that states WKA is not settled law for born citizenship and hence NbC. Having disagreement with the decision per “subject to the jurisdiction” does not invalidate the court opinion. Maybe I’m wrong, but I don’t think so.
@majestic The most relevant court case on the the 14A’s citizenship clause was, and still is, Elk, because the question before the court was the extent of the Fourteenth’s “subject to the jurisdiction thereof.”
That is clearly wrong. Elk involved an indian born in an indian nation that later left such nation. the case had nothing to do with children of aliens and says nothing about them. Gray tells us that such indians tribes are quasi foreign nations and he equated persons born to such tribes to alines born in a foreign land:
“Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government,”
There is no evidence that the language “but completely subject to their political jurisdiction and owing them direct and immediate allegiance” was meant to exclude aliens as no one said children of aliens were no subject to the political jurisdiction of the US or didn’t owe their direct allegiance to the US. I am not aware of anyone ever using the term “poltical jurisdiction” but suspect he meant the political obligations of a subjection such a being liabile for treason or military duty. I am not aware that anyone ever questioned that native children of aliens owed such obligations. For example, no one questioned the right to draft children of aliens during the Civil War.
@Portney I don’t believe PA Madison makes a convincing argument, or any one for that matter, that states WKA is not settled law for born citizenship and hence NbC. Having disagreement with the decision per “subject to the jurisdiction” does not invalidate the court opinion. Maybe I’m wrong, but I don’t think so.
Madison’s arguments here are not original. He is regurgitating much of fuller’s dissent and later works by people like Schuck, Smith and Eastman. Their case is simply not supported by history. Their case is mostly based upon cherry picking a few ambiguous quotes from the 39th Congress out of context while ignoring 99% of the legislative history that supports birthright citizenship. For example, saying Howard referred to “national law, or rather of natural law” rather than the common law. Rather Howard was one of 9 people in such Congress arguing that jus soli was the universal rule.
“They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country.”
Howard also tells us what the pre-existing law was he was claimed to be codifying:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…”
“Subject to their laws.” “Subject to the jurisdiction.” Gee, “jurisdiction” literally means “legal authority.” Not much mystery here.
Citing Trumbull is pretty silly. He was talking about indians born to tribes that were on land we didn’t control when he talked about complete jurisdicition or “not owing allegiance to anyone else.” Trumbull said all the indians had to do to have their children be born citizens was leave their tribes and make themselves subject to our laws, i.e., put themselves in the same position as children of aliens. Trumbull said one owed allegaince to his place of birth, repeatedly said that children of aliens were citizens and would say the rule of native birth was the common law of all nations. Some statements of Trumbull:
“How is it that every person born in these United States owes allegiance to the Government? Every thing that he is or has, his property and his life, may be taken by the Government of the United States in its defense, or to maintain the honor of the nation. And can it be that our ancestors struggled through a long war and set up this Government, and that the people of our day have struggled through another war, with all its sacrifices and all its desolation, to maintain it, and at last that we have got a Government which is all-powerful to command the obedience of the citizen, but has no power to afford him protection?” Senator Trumbull, William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 255 (1868)
“birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.” Senator Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)
“And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868).
“I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?” Senator Trumbull, CONG. GLOBE, 39th Cong., 1st Sess. 497 (1866).
“I am afraid that we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”‘ Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
“Undoubably.” Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)(in reply to Sen. Cowen’s question whether [the Civil Rights Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country).
“It is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do.” Senator Trumbull, Cong. Globe, 1st Sess. 39th Congress, pt. 1, p. 475 (1866).
“whenever they [indians] are separated from their tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States.” Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 572 (1866).
in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
ballantine, I appreciate the additional info but it should be noted that the WKA perspective of NbC is not the only one (i.e. the Mexican version which incorporates the nationality of the father). I think Gray missed an opportunity to provide a better check on who is entitled to citizenship. In fact, due the evident discord I’m not alone in that opinion. I think it sad, though, that many have followed the path I was on and confused their abhorrence of the impact on presidential eligibility with the decision itself. Truly a wasted effort of shock and disbelief that could have been better spent rectifying rather than making tinfoil hats.
“I think Gray missed an opportunity to provide a better check on who is entitled to citizenship.”
Was it Gray’s job to provide a better check on citizenship? I guess that depends upon what one thinks the role of the Court is. Gray was seen as an historian who looked to historical understanding for interpretation. This is obviously not the sole approach. His philosophy seems similar to Scalia as they both discounted legislative history but rather looked to the historical understanding of terms at the relevant time. Hence, both put emphasis on the English common law and early American authorities when looking at the original Constitution. Such logic dictates interpretation the 14th amendment by what “citizenship,” “allegiance” and “jurisdiction” were understood to mean in 1866, as Gray attempts to do.
That being said, personally, I don’t necessarily agree with this approach as the world is very different today than it was in 1787 or 1866. They didn’t have illegal aliens or vacation babies back then and they never gave such topics any thought. Should we be bound by the limited common law exceptions to the jus soli rule that the framers recognized, or should the Court update them to account for the modern world? Many conservative scholars would call such updating judicial activism. But is it really? This is what scholars argue about and there are no easy answers.
Portney’s conversion, while both arduous and satisfying, demonstrates that there is a rigor to legal reasoning that law schools strive to teach.
Generally law schools are successful in teaching people to “think like lawyers” (to quote Prof. Kingsfield). Sometimes not. And sometimes people become lawyers without bothering to go to a real la school. Leo Donofrio and Mario Apuzzo are examples of law school failures. Orly Taitz is an example of someone who became a lawyer without bothering to learn anything about the law, or to think.
And there are those whom graduated Harvard and are “smart enough” to “rethink” things and decide it best to give up their law license. ???
Ray,
Why would someone who had no intention of practicing law keep their license up-to-date? How many Congressmen have legal degrees and how many of them have law licenses?
Sterngard Friegen,
This just in:
“Orly, you never cease to amaze me! If only every American would be as dedicated to freedom as you are, what a GREAT nation we could be once more.
You now definitely have STANDING as Ms. Lax would be harmed as a candidate on the Dem ticket if any votes were to go to an illegitimate Obama.
Obama is surely going down. Just don’t let him slip off to a country where we cannot extradite him and put him in prison for life. I would love to see him living in Tent City in AZ wearing pink undies and jumpsuit, doing community service the rest of his life ( he loves community service, and could organize all the other prisoners) on one of Sheriff Joe Arpaio’s chain gangs.
I shall continue to pray for your success in all endeavors”.
Florence
Slartibartfast,
Good question and you tell me. My wife went to Georgetown and NYU and fits into one of those groups.
Oh, and she thinks MvH citizenship is dicta. And I don’t know who the heck Florance is.
Peace be upon you.
Over 1200 comments and getting back to whether the juicy “birther” portion of MvH is dicta…would folks agree that it is largely immaterial in light of WKA? Perhaps it is more than dicta, but it is inarguable that Waite left the door open that a later court could resolve whether the parents’ nationality was pertinent to the US understanding of NbC.
Portney,
I am pretty much of the mind that at this point this issue does not matter. Once it is determined that President Obama has used forged documents to enter the highest office, when the dust settles, the people of this country will do whatever it takes to insure that it never happens again.
Our economic situation in this country will at some point determine who we allow to be citizens.
Oahu
Once it is determined that President Obama has used forged documents
As there is no competent evidence of that, birthers will continue to be the punchline of the late-night comedians. (Birthers will also continue to troll comment sections of blogs.)
bob,
That’s okay, it just means that the birthers are making the right look more extreme…
Birthers are really obots?
Ray,
I assume that keeping a law license requires one to pay as well as maintain one’s expertise (although Orly would seem to be a counter-example…)–time and money a person might feel better spent elsewhere. Most members of Congress have legal degrees and I believe you will find very few of them that have law licenses. Suggesting the President Obama is acting suspiciously for behaving similarly to his colleagues and predecessors is a double standard and indicative of Obama Derangement Syndrome.
bob,
Birthers are just so completely incompetent that they end up helping the very people they despise…
If the comments are turning to questions of criminality on the part of the President, I’m done. The constitutional question is interesting and has merit in its own right and doesn’t need provocation as to whether Mr. Obama is undeserving due his ideology or mischief.
On that note, I’ve always wondered if the birth certificate pursuance was an acknowledgement that NbC was understood to be a ruse or weak argument. Those that contend the 14th had no influence, outside of granting former slaves their citizenship in light of Dred Scott, are grasping now with MvH. MvH is clear but not conclusive and acknowledged as so by the court. I’m starting to think those who push the BC know this for a fact.
@portney Over 1200 comments and getting back to whether the juicy “birther” portion of MvH is dicta.
Here is the law review by Abramowitz and Stearns referenced above. It is quite good.
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1118&context=fac_pubs
In their analysis there are two types of legal propositions: supportive proposition and nonsupportive propositions. The former are presumptively holding, the latter are presumptively dicta. Supportive propositions are either necessary or sufficient. The difference is that a supportive proposition may not be necessary to a second proposition if there is another justification. For example, the proposition that someone is a natural born citizen is sufficient to the proposition that they are a citizen for there are other ways to be a citizen. Thus, Abramowitz and Stearns put forth these formal definitions:
Necessary Proposition: A proposition is necessary to another if the second cannot be true if the first is false.
Sufficient Proposition: A proposition is sufficient to another if the second cannot be false if the first is true.
Supportive Proposition (i.e., a presumptive holding): A proposition that is a necessary proposition or sufficient proposition to the disposition of the case or another supportive proposition of the case.
Non-Supportive Proposition (i.e., presumptive dicta): a proposition that is neither a necessary proposition or a sufficient proposition.
Abramowitz and Stearns apply this analysis to Bakke. they identify the disposition and 9 other propositions and analyze whether eash is Supportive or Non-Supportive or the disposition or another Supportive Proposition.
Here is Abramowitz and Stearns’ analysis applied to Minor:
Here are 5 legal propositions following by the disposition in (6).
(1) A native born woman of citizen parents is a citizen
(2) There is doubt whether a native born child of aliens is a citizen
(3) The privileges and immunities clause does not grant citizens the right to vote
(4) The due process clause does not grant any person the write to vote
(5) The Republican form of government clause does not grant anyone the right to vote
(6) Nothing in the Constitution grants anyone the right to vote.
(3), (4) and (5) are necessary propositions for if any one is false, the (6) is false. (1) and (2) are not necessary propositions. The Court can make statements (3) – (6) even if (1) and (2) are false. (1) and (2) are not sufficient propositions. (1) and (2) being true does not mean that any of (3) – (6) must be true.
If the Court had ruled that citizenship did grant Minor the right to vote, then (1) would have been a necessary proposition since the Court could not have made such a ruling had Minor not been a citizen.
Ballantine, i think citizenship was more integral then you let on;
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”
I realize that her citizenship was not challenged, but her pleading was contingent on her citizenship with relation to the new amendment. The court considered it immaterial as to her fount and resultant liberties afforded by the constitution. If I had throw a dart, I’d say it was clearly a necessary proposition if the court desired to take a tact other than the 14th.
You are not following their analysis. To be holding, they say a proposition must be either a necessary or sufficient proposition to the disposition of the case or another supportive proposition to the disposition. Hence, you must find the disposition and work backwards to determine the status of previous legal propositions. Do you see the disposition in Minor? It is that nothing in the Constitution grants anyone the right to vote. There is no dispute that is the disposition and no dispute that the question of citizenship had nothing to do with it or any of its predicate holdings. The fact that it was pleaded is immaterial. They pleaded jurisdiction as well. But unless jurisdiction was the issue put before the Supreme Court by the court below or was relevant to the disposition of the case by the Court, any discussion of jurisdiction would be ducts. As I have pointed out many times, there are many cases that address whether citizens have certain rights that never address the issue of citizenship if such is unnecessary to dispose of the
Portney,
I see above that your stated belief is that Justice Waite left the door open for others to be added to the list of natural-born citizens.
I am interested in how you arrived at that conclusion. Could you please provide the quote in which you consider Justice Waite to have left the door open?
Thanks
“As I have pointed out many times, there are many cases that address whether citizens have certain rights that never address the issue of citizenship if such is unnecessary to dispose of the”
Unfinished thought?
Ballantine,
Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.
Have you read the SCOTUS brief of Virginia Minor?
Please explain to the rest what Sua Sponte review is, and then explain the difference between obiter dictum and judicial dictum…along with the precedential value of both.
“Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.”
Not relevant to whether the discussion is dicta or holding.
“Have you read the SCOTUS brief of Virginia Minor?”
Defendant conceded citizenship in the initial pleadings. The state did not contested the case at the Missouri Supreme Court or in the US Supreme Court and hence never contested citizenship at any level. The Missouri Supreme Court never mentioned her citizenship and hence such issue was not before the court on appeal. If you have any other evidence, let me know. However, even if such issue was raised, it doesn’t mean it isn’t dicta if unrelated to the disposition of the case as pointed out above.
“Please explain to the rest what Sua Sponte review is, and then explain the difference between obiter dictum and judicial dictum…along with the precedential value of both.”
Now, you are moving the goalposts. The discussion was holding vs. dicta. Judicial dicta is dicta on a subject thoroughly argued and examined by the court. Judicial dicta is not binding but is persausive authority. The dicta in Minor is clearly obiter dictum. First, there is no evidence the issue was ever argued. Second, the court’s analysis was not thorough, but superficial. The Court never told us what was the status of Minor’s parents, we had to infer that. The Court made a few assertions citing no authority at all. It said to look to the common law, but didn’t state the well-known common law rule. It mentioned some unknow persons having some unknown doubts, but it declined to elaborate. This is the poster child of obiter dicta. Compare to Wong Kim Ark’s 22 pages examining the common law rule citing every significant authority in england and the US, as well as the history and basis of the rule. Of course, WKA’s analysis is not dicta and supercedes anything in Minor.
“I am interested in how you arrived at that conclusion. Could you please provide the quote in which you consider Justice Waite to have left the door open?”
Perhaps when it declined to opine on the citizneship status of children of aliens simply noting that some unknown person had some unknown doubts. Didn’t say such doubts had merit. Didn’t say they were talking about a type of citizen other than natural born. Don’t tell me you think calling someone a citizen mean they are not a natural born citizen as the court only calls Virginia Minor a “citizen” and makes clear that there are two types of “citizens,” (i) natural born and (ii) naturalized. Now go read Wong Kim Ark which spend the entire case dealing with the status of children of aliens under the original and Amended Constitution.
Consul said:
This shows that Consul did not understand Ballantine’s previous posts on logic (which were great–thanks Ballantine!).
The Minor court asked (and answered) the questions: “are citizens entitled to vote?” and “is Ms. Minor a citizen?”. Because the answer to the first question was “no”, the answer to the question at bar (“is Ms. Minor entitled to vote?” is “no” regardless of the answer to the latter question. This makes the question of Ms. Minor’s citizenship unnecessary to the ruling and thus dicta. As a result of your inability or unwillingness to understand this point, your question is ill-formed and your conclusion is not at all logical.
Here is my thoughts on how Abramowitz and Stearns’ analysis applies to WKA. Much more complicated than Minor. May need to think about some points some more, but here is how see it initially:
Legal Propositions:
(1) A native born child of aliens is a natural born subject.
(2) “Natural born citizen” in the original Constitution is defined by reference to natural born subject.
(3) Prior to 1866, at least all white persons who would have been natural born subjects were born citizens.
(4) Persons born outside of the United States can only be made citizens by statute.
(5) The first clause in the 14th Amendment was declaratory of pre-1866 law other than to clarify the law was color blind.
(6) Persons who would have been natural born subjects of any color were citizens under the 14the Amendment.
(7) Native born children of aliens domiciled in the US were born citizens.
(7) is the disposition. Notice the Court simply said “citizen” without mentioning the 14th Amendment or type of citizen. Hence, (6) is a “Sufficient Proposition” to (7) as if (6) is true, (7) cannot be false. (6) is not a Necessary Proposition as (7) could be true is (6) was false if WKA was a citizen by something other than the 14th Amendment.
(5) seems to be a “Sufficient Proposition” to (6). It is not necessary, as there may be some other argument why the 14th Amendment is defined by the common law. It is sufficient, for if the Amendment was declaratory of the pre-existing English common law rule, then (6) cannot be false as it simply re-states the pre-existing rule.
(4) is neither a Sufficient or Necessary Proposition and hence is dicta.
(3) seems a Sufficient Proposition to (6) for if the Amendment was declaratory of the pre-existing common law rule, then (6) cannot be false. It arguable is a “Sufficient Proposition” for (7) depending upon what one makes of the “at least all white” language.
(2) should be a Sufficient Proposition to (3) since if “natural born citizen” is defined by reference to “natural born subject” (3) must be true as a natural born citizen is clearly a citizen. Also, it might be a Sufficient Proposition for (7) for if he would be a natural born citizen, he would be a citizen. Remember, Minor siad they did not need to address the 14th since Minor was a citizen under the original Constituion by being natural born.
(1) should a Sufficient Proposition to (7), for given the other holdings, if (1) is true, then (7) must be true.
Seems to me that you can’t get to (7) without each of (1), (2), (3), (5), and (6). Hence, they are all part of the holding. Without the common law being incorporated into the original Constitution, there is no basis in the Court’s opinion as to why the common law defined pre-1866 citizenship and hence would be the basis for the 14th Amendment
Ballantine,
Can you give us the legal definition of “domiciled”? In order to try to refute the birther “doG of the Gaps”-type argument that Barack Obama Sr. wasn’t domiciled in Hawai’i (like any argument could be made that Dr. Dunham wasn’t…) I’ve tried to find out for myself and the results weren’t very satisfactory (although I did figure out which states I’ve been domiciled in and when…).
Ballantine,
You are a sophist the likes of the Lesser Hippias. You clearly have a limited understanding of our federal courts. You have no idea as to what tools are made available to our federal courts. This is a fact demonstrated by your reliance on English common law.
Being that you claim to share the opinion of the overwhelming majority, the only reason for you to maintain your anonymity is to avoid repercussions of the Bar.
Minor, even at the state level asserted that the 14th Amendment conferred voting rights upon citizens.
It’s no wonder you avoided discussing what sua sponte means.
It wasn’t until Obama came along that anyone considered the citizenship portion of Minor to be dicta. Maybe you should read Justice Daniel’s concurrence in Dred Scott to see why the Court was intimately familiar with Vattel.
Slartibartfast,
You ignorant fuck! You come in here calling people names, yet at this late date you admittedly don’t understand domicile? You deserve nothing but ridicule.
Consul,
You are an idiot. I haven’t called anyone a name that they haven’t earned by their statements. I didn’t say that I didn’t understand domicile, just that I hadn’t found a clear legal definition of the term. Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i (and subject to its jurisdiction) at the time of the president’s birth and I am certain that Dr. Dunham was. However, I doubt that a mother who illegally entered the country immediately before giving birth is considered domiciled in the US, yet her child is still considered a natural born citizen. In order to understand the nuances of the law we need to have accurate definitions of terms–meaning something better that “this definition I found on the internet (which has neither clarity or authority)”. I don’t think you or your fellow birthers even understand how to have a discussion in good faith.
It’s the illogical fallacious arguments of ignorant birthers that deserve nothing but ridicule. I showed how your failure to understand what Ballantine was saying invalidated your point. If I were wrong, then you would be able to demonstrate your understanding of Ballantine’s comments and explain the fallacy in my argument. Your failure to do so argues eloquently that you are unable to show that you understand the analysis Ballantine described and are incapable of finding a flaw in any of my reasoning. That must really suck for you.
Wow, still going.
I believe that all WKA needed to confirm citizenship was the language from “The Exchange” and the language of the 14th. The rest is dicta.
Consul,
So you have now shown your colors to be someone uneducated in law.
“Being that you claim to share the opinion of the overwhelming majority, the only reason for you to maintain your anonymity is to avoid repercussions of the Bar.”
And why do you claim your anonymity? It is not in dispute what the opinion of the overwhelming majority is. Look at CRS report or any legal dictionary or treatise. Do you not own a legal dictionary? We retain our anonymity because Corsi, Orly and other idiot birthers have harrassed people who have challenged them. If you want to know, I work for one of the biggest law firms in the world and clerked for a federal appeals court one level below the Supreme Court. What are your credentials? I suppose reading wingnut sites.
“Minor, even at the state level asserted that the 14th Amendment conferred voting rights upon citizens.”
Making no sense. At the state level, they made such claim, but the court didn’t need to determine if she was a citizen to resolve such claim. You see, when a court determines that citizenship is irrelvant to the right to vote, it does not need to determine citizenship. Hence, the state court never stated whether Minor was a citizen. Another example, in Ex Parte Lockewood, the issue was whether a citizen had the right to be a member of the bar. The Court never said Lockwood was a citizen. Didn’t matter since even if she was, it wouldn’t give her the right to vote. Law school 101.
“It’s no wonder you avoided discussing what sua sponte means.”
Whether the Court addresssed the issue on its own does not mean it is not obiter dicta. What point are you trying to make? Seems you do not know.
“It wasn’t until Obama came along that anyone considered the citizenship portion of Minor to be dicta. Maybe you should read Justice Daniel’s concurrence in Dred Scott to see why the Court was intimately familiar with Vattel.”
Now you are showing your ignorance. No one discussing natural born in Wong Kim Ark suggested Minor was precedent at all and no one has ever suggested it is precedent for the definition of “natural born citizen.” Citing Justice Daniel shows you are not a lawyer as no lawyer would cite Justice Daniel. Daniel cited Vattel on a point unrelated to natrual born citizenship and hence cannot be cited on that point. Daniel said that the writers on public law agreed that a citizen must have equal rights and privileges and cited Vattel on such point, emphasizing the part of Vattel’s writing on such point in the sentence before the NBC statement:
“The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages.”
After citing this passage from Vattel, Daniel concludes:
“From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion.”
Simply, saying Daniel defined “natrual born” by Vattel is dishonest or ignorant as that is not the purpose of the citation. Hard to believe that people don’t understand that one needs to look at the context of a citation to understand its relevance to a case.
I thought that it might be instructive to formally break down Ballantine’s analysis of Wong Kim Ark and see how it compares to Leo’s interpretation of Minor…
Ballantine said:
This mentions a class (A=”natural born subjects” [presumably defined by the English common law]) as well as two conditions (B=”native born” [presumably defined as jus soli allegiance] and C=”child of aliens” [presumably not jus sanguinis]). Logically this becomes:
(1) If B and C then A
or in set theory:
(1) The set of all persons who satisfy B and C is contained in A
or:
(1) [ B (intersection) C ] (contained in) A
D = “Natural born citizen”–defined by (2) as used in the Constitution
(2) D = A (logically or set-theoretically)
E = “Prior to 1866″–things as defined by pre-1866 law
E** = “post-1866″–things as defined by post-1866 law
F = “born citizens”–self-explanatory
G = “white persons”–used as a control to determine the effects of the 14th amendment
(3) If E and A* and G then F
or
(3) [ E (int) A* (int) G ] (contained in) F
* this isn’t quite A, but the class of people who would hypothetically belong in A (under English common law) which is what is understood to be D
(4) if not B then not D
(5) E and E** are equivalent as applied to G and E** applies identically to not G as it does to G.
H = “citizens under the 14th Amendment”
(6) If A* and [ G U (not G)] then H
C’ = children of domiciled aliens (whatever that means…)
(7) If B and C’ then F
or
(7) [ B (intersection) C' ] (contained in) F
and it also seems clear that nothing is disturbed in the rationale if C’ is replaced with C in the conclusion.
What do you know–when you take a sound legal analysis and analyze the logic formally, it all makes sense. Who would have thought?
“Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i”
Aliens such as those admitted as temporary visitors, students or workers may not lawfully form an intent to remain in the United States because they have visas that require that the holder have “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15). This excludes them as lawful “domiciliaries.” See Graham , 998 F.2d at 196; see also Melian v. INS , 987 F.2d 1521, 1525 (11th Cir. 1993)(alien on temporary visitor visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Brown v. INS , 856 F.2d 728, 731 (5th Cir. 1988)(alien on student visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Anwo v. INS , 607 F.2d 435, 437 (D.C. Cir. 1979)(same). Likewise, an alien who enters the country illegally cannot have a lawful intent to remain here. Castellon -Contreras , 45 F.3d at 153.
Consul,
That’s nice. Would you agree that the fact that the court in Wong Kim Ark could have made the same ruling without using the word “domiciled” and the same reasoning would still support it makes the point moot?
“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 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.”
“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,”
I’m not even remotely learned in the law, but it appears straight forward the Waite court recognized a preponderance of belief as to those merely jus soli were considered NbC. His decision (dicta?) did not go there due not having the necessity, but could not help but acknowledge the disparate opinions. Again, it seems reasonable that if a later court ruled that a child born without reference to the citizenship of the parents is, in fact, a born citizen then such should be included in the American NbC narrative. I don’t like it, but it seems settled law.
Consul, are you tracking perhaps the most fascinating consequence of the WKA decision as later upheld in the 1971 USSC RvB;
That only those born within the United States can be considered NbC. All those born to American citizens in foreign nations, US territories and protectorates are, in fact, naturalized born citizens. The citizenship determination of these naturalized born Americans is beyond the present scope of the 14th and entirely the providence of the constitutional power given to the congress to naturalize. Furthermore, folks like McCain would have to seek the courts judgement to include his birth narrative in light of the impact of WKA. He didn’t seek such opinion and should have never been eligible. Ironically, Mr. Obama was eligible due his native birth by metric of WKA and yet had the most question by “birthers”.
Portney,
The Common Law rule incorporated into the NBC clause with the notion that natural born subject=natural born citizen=born citizens in the 14th, inevitably looses its merit when we turn our heads to Americans born abroad or to illegal aliens born within.
Consul:
Consul said:
Ballantine,
Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.
Uh, how about not just a citizen, but a natural born citizen. 1844 Clarke v. Lynch:
It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and indeed, before the discovery of America by Columbus.
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. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country, does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important, and more deeply felt, in reference to political rights, than to rights of property. The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.
In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died. She therefore inherited the property in controversy, if Thomas Lynch xhad any estate therein, to the entire exclusion of the complainant, who was then an alien, and incapable of taking by descent.
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
Squeeky Fromm
Girl Reporter
ave you read
Portney,
John McCain didn’t need to seek the court’s opinion to be eligible–in fact the courts cannot give their opinion without having some controversy to rule on. The consensus of most lawyers seems to be that while McCain may not be eligible by the letter of the law, it is unlikely that he would be ruled ineligible by the courts. Combined with the fact that his presumptive opponents (Senators Clinton and Obama) sponsored a Senate resolution basically saying that they weren’t going to raise the issue against him effectively (if not legally) makes him natural born. Where do you get the idea that someone must “seek an opinion” to be eligible?
mrjr101,
You may feel it loses merit, however that doesn’t change the fact that it remains the law of the land.
Slarti, folks state that the law is obvious with regard to WKA. If so, then the RvB decision should be held equally obvious that the impact of WKA conspicuously prohibited from consideration anyone not born in the United States. The senate had to create a non-binding bill for folks to be fooled that he was actually eligible. Everyone knew he was not a WKA NbC. The fact that it was understood McCain was not eligible per WKA reinforces the argument that the landmark case was pertinent to our understanding of NbC.
“Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i”
Not relevant. WKA doesn’t say one needs domiciled parents. The facts of the case had domiciled parents but Gray’s definition of the 14th Amendment is part of the holding and is much broader:
“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.”
Includes, not limited to, children of resident aliens. Of course, children of temporary residents were natural born subjects and hence natural born citizens.
“Would you agree that the fact that the court in Wong Kim Ark could have made the same ruling without using the word “domiciled” and the same reasoning would still support it makes the point moot?”
No. The relationship between the domiciled alien and that of a visitor are different.
Portney,
Please read the portion of Justice Waite’s opinion again. This time make sure to identify exactly what Justice Waite is saying could be added to. I think you will see that it is to the role of citizens [not natural-born citizens] where the doubts were concerned. The natives or natural-born citizens were clearly defined and not left open.
Knowing that Justice Waite was quoting Vattel, there is little reason to doubt that the Court was familiar with the whole paragraph they were quoting. That paragraph ends with;
“I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
“No. The relationship between the domiciled alien and that of a visitor are different.”
Of course, Gray never said this. Rather, he embrace the common law which made no difference. Have you read the case?
“Knowing that Justice Waite was quoting Vattel…”
Waite didn’t quote Vattel at all. Again, have you read the case?
“Waite didn’t quote Vattel at all”
I guess he pulled it out of his ass! Just because he didn’t attribute it to Vattel, that doesn’t mean that he wasn’t quoting Vattel. (or the accepted English translation thereof)
We have a choice here. Do we accept the bias of Ballantine, or do we look to what a court without a dog in this fight had to say?
I’m siding with the court.
Not only did the Eighth Circuit recognize that Justice Waite’s words came from Vattel; the court was nice enough to point out that those words specifically came from Page 101 of the English translation of Vattel’s Law of Nations.
“This time make sure to identify exactly what Justice Waite is saying could be added to. I think you will see that it is to the role of citizens [not natural-born citizens] where the doubts were concerned.”
what? I think you should reread it.
“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.”
Justice Waite is talking about NbCs. Look, being difficult is something I excel, you needn’t insinuate your personal hopes and fears into the opinion. Unfortunately, it is quite clear that the discussion starts with that which is undoubted regarding NbC and concludes with his admittance as to what is still unresolved. I don’t like the fact WKA answered those doubts the way it did, but it doesn’t change the fact NbC was fundamentally changed to include the offspring of illegal aliens.
ballantine, I would beg to differ and state that Waite did echo Vattel. I’m not sure why you would find this difficult to see or admit. I think it has no legal impact on WKA or our history of ECL. The understanding of the world by our founders included Swiss philosophers as well as English barristers.
“I guess he pulled it out of his ass! Just because he didn’t attribute it to Vattel, that doesn’t mean that he wasn’t quoting Vattel. (or the accepted English translation thereof)/”
Waite said he was looking “at common law.” Sorry, that is not Vattel. It is true that was nodoubt about native children of citizens at common law. Saying he was citing Vattel is just making stuff up which seems to be all you do. Of course, you don’t have to try to figure out what Waite dicta meant as you have a whole later case spending 20 plus pages telling us the law “at common law.”
“Not only did the Eighth Circuit recognize that Justice Waite’s words came from Vattel; the court was nice enough to point out that those words specifically came from Page 101 of the English translation of Vattel’s Law of Nations.”
You have to provide a cite if you want a comment. The 8th circuit would have no idea where Waite got the quote. Again, no court has ever said “at common law” had anything to do with Vattel.
“ballantine, I would beg to differ and state that Waite did echo Vattel. I’m not sure why you would find this difficult to see or admit. I think it has no legal impact on WKA or our history of ECL. The understanding of the world by our founders included Swiss philosophers as well as English barristers.”
If Waite said he was looking to Vattel, one could say he was looking to Vattel. To say otherwise is mere speculation. He said the common law which is not Vattel. This is the problem with trying to parse and read between the lines of ambiguous obiter dicta and why real lawyers generally ignore such. A real lawyer will only cite what a court actually says and nothing more. Trying to go further is unethical.
Portney,
“Some authorities go further and include as citizens”
If he would have said that some authorities go further and include as natural-born citizens, I think I would understand your reading. As written, it is clear that the “some authorities” who went further only included them “as citizens”.
“The natives, or indigenes, are those born in the country, of parents who are citizens.” – Vattel (1759)
“The natives, or natural born citizens, are those born in the country, of parents who are citizens.” – Vattel (1797)
“[I]t 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,” – Waite (1875)
Sure, it’s not a quote…but it does echo.
The Europeans have a long history of recognizing fathers as important consideration for the child’s citizenship (i.e. Jean Bodin). All of which is immaterial due to WKA recognition of mere jus soli for our American understanding of NbC.
Consul,
Prepare yourself for absolute crazy talk.
Imagine, if you will, the possibility that A2 NbC meant exactly what Waite considered doubtless in the vein of Vattel in 1787 and then CHANGED in 1898.
You don’t have to imagine, it is likely what occurred or so I believe. And if indeed Vattel was never in the scope of possibility when the constitution was written, doesn’t matter. MvH, if it did establish any precedence for the meaning, expired nearly a quarter of a century later by the answering of certain doubts by Justice Gray.
Sucks, but there it is. Unfortunately, it is settled law until another amendment or revisited by the court.
“If he would have said that some authorities go further and include as natural-born citizens, I think I would understand your reading. As written, it is clear that the “some authorities” who went further only included them “as citizens”.
Nonsense. Again, if Waite said they were talking about another type of citizen, one can say he was talking about another type of citizen. Waite doesn’t say what type of citizen and trying to claim he did is dishonest. Again, he only called Virginia Minor a “citizen.” That does not mean she was not also a “natural born citizen.’ From Minor:
“It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Is that not your definition of “natural born?” Calling someone a citizen does not mean they are not natural born. Waite tells us “citizen” means either “natural born citizen” or “naturalized citizen.”
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.”
“Sure, it’s not a quote…but it does echo.”
Again, you are merely speculating. You can only cite Waite to the extent he actually said something. Is it not true that there was no doubt about native children of citizens under the English common law? Is not Waite’s statement completely consistent with that.? The fact that someone had doubts about children of aliens under the common law doesn’t mean they were talking about the law of nations rather than the common law or some common law other than the English common law. Such again is rank speculation. When a court says it is not examining an issue, it means the court did no examine the issue and we should not be citing it as authority.
“MvH, if it did establish any precedence for the meaning, expired nearly a quarter of a century later by the answering of certain doubts by Justice Gray.”
And how dumb were the government and Chief Justice Fuller who both argued for the Vattel definition and, of course, didn’t claim that Minor was precedent or that Minor had endorsed Vattel’s definition. If only birthers were around to set them straight.
“Justice Waite is talking about NbCs. Look, being difficult is something I excel, you needn’t insinuate your personal hopes and fears into the opinion. Unfortunately, it is quite clear that the discussion starts with that which is undoubted regarding NbC and concludes with his admittance as to what is still unresolved.”
Portney, Justice Waite starts the discussion with what was always thought to be without any doubts who are the citizens in our society per our original constitution and concludes with his admittance as to what was still unresolved (the class that did not include parents). Thats the unbiased way of interpreting this quote.
If you say that Waite was referring to NBC’s in that quote then have you think about why Justice Waite said that some “authorities go further”? How can some authorities go further in the Constitution? How can you go further in the United States to include some people who can become Presidents and some people who cannot when referring to the same class of citizens? Regardless of what anyone thinks, the open question that Waite left open was who else can be Citizens of the US without reference to their parents in the language of the Constitution. Wether those people are later deemed NBC’s or not it was not relevant to the doubts in Minor.
“If you say that Waite was referring to NBC’s in that quote then have you think about why Justice Waite said that some “authorities go further”? How can some authorities go further in the Constitution?. How can you go further in the United States to include some people who can become Presidents and some people who cannot when referring to the same class of citizens? Regardless of what anyone thinks, the open question that Waite left open was who else can be Citizens of the US without reference to their parents in the language of the Constitution. Wether those people are later deemed NBC’s or not it was not relevant to the doubts in Minor.”
He means authorities interpreting the Constitution. Some authorities interpret different that other people. Seems pretty clear. And authorities can disagree on interpreting “natural born” like Justice Gray and Fuller did.
Again it is simply dishonest to say the doubts related to some other form of citizenship because Waite does not say that. This whoe part of the opinion was on the original Constitution where Waite tells us there are only two kinds of citizens, natural born and naturalized. Unless Waite tells us which one is he talking about, it is unethical to say he is. Of course, anyone who knows history knows it can’t be naturalzied citizen as a native born person could not be naturalized by definition and, of course, there had never been a naturalization statute prior to such time making a native child of aliens a citizen at birth
ballantine
1, December 10, 2011 at 8:24 am
I agree with you regarding WKA’s requirement of domiciled parents (and said that is what the formal logic indicated above), but in light of comments like the below, I would suggest that the definition of “domiciled” IS relevant to debunking birthers. If we were going to ignore things that birthers fixate on just because they are stupid and irrelevant then we would be forced to ignore the birthers completely.
Consul
1, December 10, 2011 at 8:53 am
Slartibartfast,
I think the writers on public law argued about the definition of domicile. Here is Justice Story in his Commentaries on the Conflicts of Law which is probably as good as source one can get in the early republic:
“Vattel has defined domicil to be a fixed residence in any place with an intention of always staying there.* But this is not an accurate statement. It would be more correct to say, that that place is properly the domicil of a person, in which his habitation is fixed, without any present intention of removing therefrom. Two things, then, must concur to constitute domicil; first, residence; and secondly, intention of making it the home of the party. There must be the fact, and the intent; for, as Pothier has truly observed, a person cannot establish a domicil in a place, except it be animo et facto.”
I’m a layman, of course I’m speculating. If I were you, I’m not sure what you’d call it, but it would be something other than speculating, I’m sure. I get your point being inferring on what the justice meant unless he specified either with specificity or precedence. It wasn’t or isn’t a deep point, but one of curiosity that has history in our government and courts. Vattel is part of our understanding, how significant is another matter entirely.
Ballantine, do you currently practice law or are you retired? What kind of law did or do? What favorite part of the law is it that drives your curiosity and interest?
Portney,
Forgive me if I am reading something into your recent comments that was not intended. That is not my intent.
I am left to wonder what portion of the Court’s opinion in WKA leads you to believe that 14th Amendment citizenship is the same as natural-born citizenship. Please make sure to only rely on the Court’s opinion as stated, and not their acknowledgement of what was stated by someone else.
Having a pretty good idea of how you arrived at your conclusion, I would like to ask;
If I said that a turkey sandwich was as much a sandwich as a ham sandwich, would you be left to conclude that a turkey sandwich and a ham sandwich are the same thing? (I’m not trying to be snarky. I’m just trying to understand how one became the other.)
Thanks Ballantine.
Consul,
If I say that a turkey sandwich is as much a sandwich as a ham sandwich, I clearly mean that they share the characteristics which make them sandwiches–not that they are identical. In other words, I would assume that they both consisted of the named meat (and potentially other items) between two slices of bread (although one or both could be an open-faced sandwich…). You’re trying to say that there are things that are as much a sandwich as a ham sandwich even though they don’t, for instance, involve slices of bread. In other words, you want to pretend that two classes which are equivalent to each other as far as citizenship goes nonetheless differ regarding an aspect of citizenship. Are you being intentionally dishonest or willfully ignorant or are you just not smart enough to understand how blatantly obvious your error is?
slartibartfast,
“Are you being intentionally dishonest or willfully ignorant or are you just not smart enough to understand how blatantly obvious your error is?”
If you’re in search of a well-deserved FUCK YOU, I’ll be happy to oblige. If you want a respectful exchange of ideas, you’re going about it in the wrong way.
Maybe this will help to explain what I am talking about.
Automobiles in the United States can be added to by domestic or imports. Of the domestic models, we have those manufactured by U.S. auto makers (GM, Ford, Chrysler…), and we have those manufactured domestically by foreign-owned corporations (Honda, Toyota, …).
Some of those domestic automobiles would be considered to be “All American”. Others (Honda, Toyota, …) would not. Yet they are all domestic automobiles.
When we talk “Buy American”, we generally are referring to those vehicles manufactured by U.S. corporations.
Here’s a Car & Driver article that drives home my point.
http://www.caranddriver.com/features/the-best-reasons-to-buy-american
Are natural-born citizen women as much a citizen as natural-born citizen men?
“If I say that a turkey sandwich is as much a sandwich as a ham sandwich, I clearly mean that they share the characteristics which make them sandwiches–not that they are identical.”
It’s a good thing we’re talking about sandwiches, because you said a mouthful.
If I say that a [U.S. born child of permanently domiciled aliens] is as much a [citizen] as a [natural-born citizen], I clearly mean that they share the characteristics which make them [citizens]–not that they are identical.
Those are your words with the relevant portions of WKA exchanged.
Consul,
A respectful exchange cannot occur until both sides accept the same logical framework–something birthers are unwilling or unable to do.
Since you are probably unhappy that I turned your sandwich analogy against you and have tried to switch analogies in an attempt to advance your straw man argument, I’m going to ignore them.
Your restatement of what I said about sandwiches is correct* (although, per above, the phrase “permanently domiciled” is unnecessary). The disagreement here seems to be regarding the meaning of “as much a citizen as”. You asked about women and men–I’ll assume you meant at the time of Wong Kim Ark–so, under the law women were as much citizens as men even though they weren’t entitled to vote because voting isn’t a prerogative of citizenship**. Eligibility for the presidency, however, is very much a prerogative of citizenship and thus two distinct classes are not “as much a citizen” as each other if they disagree on this privilege of citizenship.
What do you think the relation “as much a citizen” does and does not include?
* by which I mean that it accurately reflects my opinion, not that my opinion is correct (which I also believe).
** Minor v. Happersett
slartibartfast,
“A respectful exchange cannot occur until both sides accept the same logical framework–something birthers are unwilling or unable to do.”
bigot: a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group with hatred and intolerance.
It may be too much to ask of a bigot. You do conform to the textbook definition of a bigot. Do you not?
Let me introduce you to <a href="http://en.wikipedia.org/wiki/Henry_St._George_Tucker,_Sr." Henry St. George Tucker. I prefer to let those who don’t have a dog in this fight speak for me.
CHAPTER VII.
OF ALIENS AND CITIZENS.
Before we proceed to the subject of the domestic relations, I propose to offer to the student such considerations respecting aliens and citizenship as the plan of these lectures seems to require, and the nature of this complicated matter will permit. I speak of it as complicated, because it does not rest merely upon principles of natural right and justice, upon the doctrines of the common law, or even upon the more expanded ground of the law of nations. These would of themselves oppose sufficient difficulties to the enquirer, and offer ample field for the controversialist. But when to these are added the statutory provisions of different nations in entire conflict with each other, it becomes exceedingly difficult, if not impossible, to lay down any certain rules for our direction. I design to enquire, first, what is the common law doctrine of allegiance and alienage; secondly, the effect of the revolution and of the statutory regulations adopted in Virginia; and thirdly, what may now be considered as the law of the subject, considering it in connection with the power vested in the federal government, and long since exercised by congress, of establishing an uniform law of naturalization.
What is the common law doctrine of allegiance and alienage?
According to the dictates of natural reason, the natives or indigenes of every country, born of parents who were citizens of that country at the time of their birth, are to be considered as citizens. Society can only be perpetuated by the children of its members, who naturally follow the condition of their parents and succeed to their rights. The interests of society, therefore, demand the establishment of this principle as a concessum; and it may fairly be so considered, unless the contrary be expressly declared by the municipal law. In like manner, the interest of the offspring of a citizen justifies the inference of his tacit consent to become a citizen until he renounces that character.
But though a child be born in the country, yet if both his parents were strangers not designing a permanent change of country, it would be sufficiently obvious, that as he must follow the condition and succeed to the rights of his parents, he would on the principles of natural reason be considered as much a stranger to the country as his father. In such case it would be the place of his birth, indeed, not his country.
Moreover, as the nature of our species, and the received principles of civil society, allow, in matters of this description, the mastery to the male, we may go a step further, and advance, that if the father and mother are of different countries, the child born of them in a country to which they are both strangers will, upon principles of natural reason, belong to the country of the father rather than to that of the mother.
But though a child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born, it does not follow that he is in no respect to be considered as a member of its society while he remains in it. Bound by their own and their parents’ residence, the children of foreigners are subject to the laws while that residence continues, and are obliged to defend it (except against their own country) in return for the protection it has afforded.
It seems also equally clear, that upon principles of natural reason, a child, on whom the character of a citizen is devolved because of his parentage, would have a right, at years of discretion, to accept or renounce the condition of his parents; and at his election, either tacitly or avowedly, might take upon himself the character of a citizen, or relinquish it by removal and by becoming a member of another community.
Thus, it appears to me, that if the different States of the civilized world had been content to follow the dictates of reason and good sense , alone, instead of pursuing the ignis fatuus of a deceptive policy, there would have been little room for controversy. We should not have witnessed the barbarism of condemning as a traitor(a) a man who was taken in arms for the country in which he had passed his life as a subject, from infancy to age, because he had been born within the dominions of another monarch; nor should we have seen a bloody war arising between two nations speaking the same language and adopting very similar institutions, about the rights to the personal services of the indigenes of the one who had become the adopted citizens of the other.
The common law, in most instances, adopts these obvious principles of natural reason. But new principles were afterwards introduced by statute, both inconsistent with reason and in their consequences demonstrative of their own absurdity. This we shall plainly perceive, even on a cursory view of the subject.
http://books.google.com/books?id=zPVBAAAAYAAJ&pg=PA56&dq=society+parents+citizens&hl=en&ei=dMfETYWjE6Xr0gGF8vGECA&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDkQ6AEwAA#v=onepage&q=society%20parents%20citizens&f=false
It should be observed that Tucker refers to “common law”. However, it is obvious that he is not referring to English common law. It’s overtly obvious that men like Tucker and Waite understood the distinction between common law and the common law of England. -Something Ballantine can’t seem to wrap his head around. (A failure of much of our modern legal educators. Few students become smarter than their teachers. To achieve that you must educate yourself.)
“Again it is simply dishonest to say the doubts related to some other form of citizenship because Waite does not say that. This whoe part of the opinion was on the original Constitution where Waite tells us there are only two kinds of citizens, natural born and naturalized. Unless Waite tells us which one is he talking about, it is unethical to say he is. Of course, anyone who knows history knows it can’t be naturalzied citizen as a native born person could not be naturalized by definition and, of course, there had never been a naturalization statute prior to such time making a native child of aliens a citizen at birth”
The doubts are not related to “some other forms of citizenship”. The doubts are related to their inclusion as citizens in the society. If you really want to be honest, then you should say that Waite tells us that additions to citizenship may be in two ways, by birth and naturalization. Here is the actual quote:
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.”
Again, it is APPARENT from the Constitution itself that new citizens maybe born, or they may be created by naturalization. Note the word APPARENT.
Waite never said the two kinds of citizens were Natural Born and Naturalized, this would be dishonest and making it narrower to what he actually said. He does not limit additions by birth to natural born nor does he say that all born citizens are natural born.
Then in the following paragraphs he discussed additions made by birth and by Naturalization. The NBC’s (children of citizen parents)without doubts were born citizens, another class were also born citizens(no parents reference) but there were doubts.
Waite did not say that natural born and born citizen are the same thing. Waite did not say that adding new citizens by birth would mean that they are natural born.
mrjr101,
“Then in the following paragraphs he discussed additions made by birth and by Naturalization. The NBC’s (children of citizen parents)without doubts were born citizens, another class were also born citizens(no parents reference) but there were doubts.”
That’s not what Waite said either. Waite said;
“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.”
Waite acknowledged doubts as to the citizenship of children born within the jurisdiction without reference to their parents. You saying “another class were also born citizens” indicates that they were considered to be born citizens which is in direct contradiction to the opinion of Waite; for he acknowledged that the citizenship without reference to parents was in doubt.
Consul,
In this quote, he is talking about the additions to citizens by the birth path in the American society. When Waite says that some authorities go further and include as citizens children without questioning the parent descent, he was contextually still referring to additions to citizenship by birth. What Waite does not say is that all additions by birth means natural born, that’s the point I made.
mrjr101,
I understand your point. I was just pointing out that you inferred that they were citizens (by calling them “born citizens”) while Waite didn’t go that far.
If you have not followed the link I provided for tucker’s treatise, I highly recommend it. It points out the problems with dual allegiance, and makes it extremely clear why John Jay (with his experience in foreign relations) would see that as a problem for any commander in chief.
“Thus, if a child of American parents were born in London, he would by the English law be an Englishman, entitled to all the privileges and bound to all the duties of a British subject; and if he returned to America, and in the event of war took arms for the country of his parents and the land of his connexions and his hopes, he would be hanged as a traitor by the British law. On the other hand, if he enlisted under the flag of England, he would be hanged as a traitor to America, because, as the child of American parents, he is by our law to he considered as a citizen, though born in another land. These are the consequences of an attempt to push too far the right of the State over its supposed members, instead of pursuing the obvious principles of natural justice and sound reason.”
These “conflicts of citizenship”, when possessed by the commander in chief of the army, who may well be captured on the battlefield, are not the product of fantasy.
Notice that I refer to the commander in chief of the army, not the Chief Executive of the United States. I do this because John Jay did not express the restriction be placed on the Chief Executive, but on the commander in chief.
Consul,
Thanks for the Tucker link. It has led me to much more reading. I though you might find these links interesting.
http://www.law.northwestern.edu/lawreview/Colloquy/2008/48/index.html
Northwestern University Law Review : Colloquy : 2008 : Hardy
The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights
David T. Hardy[*]
[download pdf]
Few if any legal figures in the early republic held the status of St. George Tucker. Educated in the law by William and Mary’s George Wythe, Tucker succeeded him as the College’s professor of law, a post he held from 1790 until his appointment to the bench in 1804.[1] While at William and Mary, he produced an edition of Blackstone’s Commentaries,[2] annotated in light of American law. The text became “the standard work on American law for a generation” and Tucker remained the most frequently cited American legal scholar for over two decades.[3] Tucker’s role in American legal scholarship was likewise striking. He has been termed “the first modern American law professor” and creator of the American law degree.[4]
Tucker had exceptional opportunity to observe the legal events at the Founding. His closest friend, John Page, and his brother Thomas Tucker served in the first House; they and others kept him informed, by correspondence, of its events.[5] He was temperamentally suited to analyze the Framing period. His edition of the Commentaries was far from a reprint of the original; Tucker documented at length where the American States had refused to adopt common law principles, and where the new Constitution and Bill of Rights diverged from them.[6] While Blackstone had seen the common law as supra-personal and beyond improvement, Tucker delighted in documenting how Americans of his time had improved upon it and eliminated its shortcomings.[
http://etd.lsu.edu/docs/available/etd-05252005-133708/unrestricted/Vanderford_dis.pdf
RIGHTS OF HUMANS,
RIGHTS OF STATES: THE ACADEMIC LEGACY OF
ST. GEORGE TUCKER IN NINETEENTH-CENTURY VIRGINIA
A Dissertation
Submitted to the Graduate Faculty of the Louisiana State University and
Agricultural and Mechanical College In partial fulfillment of the requirements for the degree of Doctor of Philosophy in
The Department of History
by
Chad Vanderford
A.B., University of California at Berkeley, 1996
M.A., California State University Northridge, 2000
August 2005
Abstract
“College professors in the nineteenth-century South lavished a great deal of attention on the issues of slavery and constitutionalism, and they paid careful attention to the connections between these issues and the idea of natural rights. In this dissertation I offer an analysis of the lives and writings of three generations of college professors in nineteenth-century Virginia, focusing especially on St. George Tucker and his descendants. As a contemporary of Thomas Jefferson and as a delegate to the Annapolis convention, Tucker can rightly be considered as one of the founding fathers. But he is best known for inaugurating the academic discourse on the issues of slavery and constitutionalism in his capacity as professor of law at the College of William and Mary. His sons, Henry and Beverley Tucker, and his grandson John Randolph Tucker kept these academic traditions alive for three generations. Members of the Tucker family continuously espoused a modern theory of natural rights based upon a contractual understanding of how people come to exist in society. By the 1850s, however, some professors such as George Frederick Holmes had abandoned the philosophy of modern natural rights in favor of a rearticulation of classic or ancient natural right: a non-contractual conception of the right to rule. This recovery made possible the “positive good” defense of slavery, but it put a strain upon the orthodox theory of constitutional interpretation that had been at the center of Virginian political thought.
This dissertation examines how the Tuckers and others strove to keep the philosophy of the founding generation alive throughout the various political upheavals of the nineteenth century.”
Ray,
Thanks for the links and information on St. George Tucker.
I should point out that the treatise I was relying on was from his son Henry St. George Tucker. Henry truly did follow in his father’s footsteps.
Consul,
Henry, yes, I was aware of that. I am now a two hour expert on Tucker. The second link goes heavily into the family history.
It is amazing how things came about in the lead up to the Civil War and how long it took to get to that point, knowing all the while, the the teapot was simmering and would eventually boil over. Further, how economics had a bigger hand in the breakdown than did the slave issue. Tucker and brother Beverley died many years before the war, thinking that we could avoid it.
….and 32-year-old Thomas Jefferson who proclaimed that all men are created equal.
“May you live in interesting (NBC) times.”
“It should be observed that Tucker refers to “common law”. However, it is obvious that he is not referring to English common law. It’s overtly obvious that men like Tucker and Waite understood the distinction between common law and the common law of England. -Something Ballantine can’t seem to wrap his head around. (A failure of much of our modern legal educators. Few students become smarter than their teachers. To achieve that you must educate yourself.)”
Consul:
Your point is valid. At English Common Law there was no doubt that children were to be included as subjects without reference to the subjecthood of their parents. For this reason, I do not see how Waite meant that it was English Common Law that controled the additions to citizenship in this passage. After basically giving a lecture of citizenship inclusion in the United States in the Minor case, to make a statement that at English Common Law there were doubts about children of aliens is simply absurd, It just doesn’t make sense.
@consul I am left to wonder what portion of the Court’s opinion in WKA leads you to believe that 14th Amendment citizenship is the same as natural-born citizenship. Please make sure to only rely on the Court’s opinion as stated, and not their acknowledgement of what was stated by someone else.
Duh, maybe the 5 pages telling us that natural born citizen be defined by reference to the English common law and natural born subject such as:
“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.”
If you actually read the case he clearly spells out what “birth in the allegaicne” means in both England and America as “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.”
The 14th Amendment is said to be “declaratory of existing rights and affirmative of existing law” and means:
“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.”
Uh, for those paying attention, that is the definition of natural born subject, the same definition we were told defined natural born citizen. That is what declaratory means.
“If I say that a [U.S. born child of permanently domiciled aliens] is as much a [citizen] as a [natural-born citizen], I clearly mean that they share the characteristics which make them [citizens]–not that they are identical.”
Gibberish, Binney’s paper is on the English common law which he says we adopted. He is saying they are both citizens by operation of the same principle, i.e., the English common law. A citizen by the same principle means the same type of citizen. Binney in the previous sentence of his paper only says there are two types citizens, those born within the limits and under the jusrisdiction of the US and naturalized. The former Binney defines as natural born citizens or subjects. You ignore the clear definition of natural born in Gray’s opinion and here again are parsing, speculating and reading between the lines trying to find support in a quote from a paper on the English common law suggesting a paper on the common law didn’t define natural born by the common law.
@Mrjr101 Then in the following paragraphs he discussed additions made by birth and by Naturalization. The NBC’s (children of citizen parents)without doubts were born citizens, another class were also born citizens(no parents reference) but there were doubts.”
The problem is again you are saying something Waite doesn’t say. It says another class of people, not another class of citizens. Two classes of people could be nautal born. Waite only called Minor a “citizen.” that doesn’t mean she is not a “natural born citizen” as the latter is simply a sub-category of the former.
@MRjr101 Waite did not say that natural born and born citizen are the same thing. Waite did not say that adding new citizens by birth would mean that they are natural born.
And Waite didn’t say the citizenship he was talking about with respect to aliens is something other than natural born citizenship. You are making that up trying to read between the lines to support your conclusion. You can spin all you want but unless Waite said they were a different type of citizen, it is dishonest to say that is what he meant. Hard to believe that people can’t understand calling someone a “citizen” doesn’t mean they are not a natural born citizen.
@Mrjr101 Your point is valid. At English Common Law there was no doubt that children were to be included as subjects without reference to the subjecthood of their parents. For this reason, I do not see how Waite meant that it was English Common Law that controled the additions to citizenship in this passage. After basically giving a lecture of citizenship inclusion in the United States in the Minor case, to make a statement that at English Common Law there were doubts about children of aliens is simply absurd, It just doesn’t make sense.
You are speculating. How do you know they were experts on the English common law when they admit they did not look into the issue. Perhaps some members of the Court did think our common law was different than that of England. Again, speculation. What it doesn’t mean is the law of nations. The trouble again of trying to read meaning into obiter dicta. If it wasn’t dicta it would have told us what common law like WKA did. I challenge you to find the Court ever using the phrase “at common law” or to say the Constitution must be defined by the “common law” to refer to anything other than the English common law. You could look all day and would not find anything. Waite used the term in Reynolds v. US, 98 U.S. 145 (1879), in The Harrisburg, 98 U.S. 145 (1886) and in Munn v. Illinois, 94 U.S. 113 (1876). Waite joined in this opinion:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
Justice Taft make the point even better:
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
Sorry, but saying the “common law” doesn’t mean the “common law” the Court has always referred to and that calling someone a “citizen” means they cannot be a “natural born citizen” when the court says a “natural born citizen” is also a citizen is not legal interpretation. It is trying to read your preferred meaning into ambiguous dicta. If only we had another case that directly addressed the issue. Oh wait.
Consul posted:
Wow–that parenthetical at the end is just chock full of bullshit, isn’t it? First off, teachers don’t make people smarter–they impart knowledge. I was probably smarter than most of my math teachers K-12, yet that doesn’t mean that they weren’t able to convey a solid foundation in arithmetic, algebra, geometry, and calculus that has served me well in developing a much deeper understanding than any of them had in the subjects they taught me. In college and grad school I studied with many men (and women) who were clearly both smarter and more well-educated than I–most of whom were outstanding teachers as well. This has provided me with an incredible head start to “educating myself”. In studying the martial arts, you eventually reach a point (generally marked by a black belt or some other recognition of mastery) where you can no longer be taught, but must learn on your own (and by teaching others–you don’t really understand a subject until you’ve successfully explained it to someone else…). Any intellectual pursuit is similar, but I highly doubt you’ve every reached that point in any of your own studies. Human achievement is built on standing on the shoulders of the pyramid of giants who have gone before us. Arguing (as you and the other birther hatriots do) that these giants were wrong or those giants were misinterpreted by everyone else is missing the forest for the trees– They are seen as giants because the standard interpretation of their work is considered true (and significant). If you wish to show otherwise you need an extraordinary argument–something which the birthers have proven incapable of producing. But that’s what happens when you try to interpret master-level lessons with kindergarten-level knowledge and understanding…
ALCON, I think an important linchpin of the NbC argument is whether our constitution holds that A2 natural born and 14th born are synonymous, if yes, the question of eligibility is moot due WKA. The only way there can be the remotest doubt is if there is some sort of non-naturalized constitutional born citizen that is not considered natural born. Those that are born citizens due to naturalization laws are obviously not NbCs…last I checked Obama was a born citizen not solely according to naturalization statute but IAW the court’s opinion of a declarative citizenship provision of the constitution.
If I can move on from the doubt, anyone can.
Are these the rules on citizenship that we believe are in effect at the moment?
1. Babies born in this country, on land or water, are citizens
except for children of foreign ambassadors.
2. Babies born abroad of two citizens are citizens.
3. Babies born abroad of a citizen married to a non-citizen are citizens.
4. People naturalized are citizens.
Is that it?
—
1.) There was a time when citizen of a state and citizen of the USA were held to be not the same. I think that might have been an issue in Dred Scott.
2) I always assumed that natural-born was not intended to be opposed to unnatural-born (possibly meaning Caesarean, induced, in vitro, or surrogate), but was just the way they talked – all flowery, and meaning “born”.
3) If the requirement is that both parent be citizens, even if you were born in this country, then I claim the task of establishing anyone’s provenance becomes quickly impossible, since it must trust the citizenship status of the parents – can that be trusted? – or trace back to either naturalization or the time of the adoption of the Constitution. Any defect casts its shadow far and wide on all descendants.
martin,
1) I don’t think there was ever a difference for white people.
2) Since the Constitution predates all of those things (and the definition of “natural born” predates the Constitution by at least 2 centuries), I think that’s a safe assumption.
3) That seems to be one of the arguments that birthers just ignore–presumably because they have no good answer…
martin, mandated by WKA and upheld by ROGERS V. BELLEI, 401 U. S. 815 (1971) citizenship within the United States is restricted to three factors;
“Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing
Page 401 U. S. 830
rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S. at 169 U. S. 688. Then follows a most significant sentence:
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.”
http://supreme.justia.com/us/401/815/case.html
Everyone born outside the United States are citizens at the discretion of the congress to naturalize and are not natural born citizens.
…comments…kidspost…bdaman…
The best of the season and a happy new year to all.
As i said above, but there was little discussion at the time:
Now that we have disposed of the myth that the US Supreme Court in Minor v. Happersett ruled that two US citizen parents are required to be a Natural Born US Citizen, it is worth asking how a US Supreme Court would rule today.
The idea that two US citizen parents are required to be president is based on the notion that children born in the United States of foreign parents are somehow less reliable citizens than US-born children of US parents.
IF you believe that that is true, then it is possible to believe that the writers of the Constitution also believed it—despite the fact that they did not say it. There are no articles from the writers of the US Constitution saying that they considered the US-born children of foreigners would be security risks or that they should be treated differently than the US-born children of American citizens.
On the other hand, if you DO NOT believe that this notion is true, if you cannot see a way in which US-born children of foreigners are likely to be less reliable than US-born children of US citizens (given that the US-born children of US citizens also can be unreliable), then it is difficult if not impossible to believe that the writers of the US Constitution believed it. If they had said that they believed it, that would be a different thing, but they didn’t.
What this means is that in addition to the four liberal justices on the Supreme Court, virtually all the conservatives would vote against the two-parent theory as well.
The conservative justices would not have to ask themselves whether making the US-born children of foreigners not eligible to be president is a good thing or a bad thing. The fact is that the writers of the US Constitution did not say that wanted the US-born children of foreigners to be treated differently than the US-born children of US citizens, and that absence is sufficient.
Under strict construction principles, if the US Constitution does not say it, the US Constitution does not mean it. So the strict constructionists among the conservative justices would not vote for the two-parent theory.
As for the originalists, the historical evidence holds overwhelmingly that the meaning of Natural Born at the time the Constitution was written refers to the meaning of Natural Born Subject in the common law. The idea that the writers of the Constitution, who were mainly lawyers and justices, would pull the phrase out of Vattel (whose words were not even translated to use the words “Natural Born Citizen” until a decade after the Constitution) is simply laughable.
Moreover, originalist justices on the US Supreme Court would have the guidance of the Wong Kim Ark ruling as to the original meaning of Natural Born. And, when they do their own research, the justices would have the evidence of such uses of the term Natural Born Citizen in the years around when the Constitution was written as this, written in 1803:
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
As you can see, the meaning of Natural Born Citizen refers only to the place of birth, not to parents. Natural Born Citizens were “those born within the state.”
And this, written in 1829 by a man familiar with many of the writers of the Constitution:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
Thus the votes of the originalists among the conservative justices are lost to the two-parent theory as well as the strict-constructionists.
These conservative justices, the strict constructionists and the originalists, would likely then review the Minor v Happersett decision, and determine, as is obvious, that it is dicta and not a ruling, and that the statement that at one time there were doubts is meaningless in any case. (At one time there were doubts as to whether zippers would work).
So, if the case were ever called by the US Supreme Court, it is likely that the two-parent theory would lose with the vote being nine to zero, or maybe eight to one.
But the court will never call the case because to call it you have to get four justices who think that it is an issue—and if you have eight or nine justices who think that the Constitution is obvious how can you get four justices to think that it is an issue?
At this point two-fers often reply that it does not matter whether the US Supreme Court calls the case or what it would rule, they think that the two-parent theory really is what the Constitution meant. The obvious answer to this is that even if they were right, the law is based on court rulings, and if there is no court ruling that two citizen parents are required, it is not the law.
But in a broader sense they are right. It is possible for each of us to hold a theory about what the Constitution means, and that is really what we are discussing here. In the debate about what the US Constitution meant in the phrase Natural Born Citizen, we can be liberals, in which case the idea that it meant that a child with two citizen parents is better than a child with foreign parents is profoundly immoral, not to mention wrong.
Or, we can be strict constructionists, in which case the fact that the writers of the US Constitution never said that they intended for the US-born children of foreigners to be treated differently than the US-born children of American citizens is sufficient. Or we can be originalists, in which case the meaning in the common law, and the quotations from Tucker and Rawle (and the fact that Vattel is not mentioned in the Federalist Papers while the common law often is) will be the guide.
The two-parent theory is absurd in itself, and the notion that the majority of justices in the Minor v. Happersett case held to it is equally absurd.
And Orly loses again . . .
Obama Birthplace Lawsuit Tossed By Appeals Court
Nal,
From Chief Justice Marshall’s opinion in Cohens v. Virginia 100 U.S. 1
“It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
Nice comment, Ellen. I agree with your reasoning. I think there is also a case to be made that the Court would in general find a ruling to limit the pool of people eligible to be president to go against the fundamental principle of a participatory democracy. You would in effect be telling a very large number of citizens for life that they are somehow second class citizens based on their parents status over which they had no control. Many think the NBC clause itself is anachronistic and unnecessary and have argued that it should be abolished. That the Court would rule to make it even more restrictive is very unlikely.
Fred: I wouldn’t call the Court ruling, if it turns out to be that way (2 parents citizens)a “limitation” or discrimination of certain citizens. They would just be interpreting the phrase as it was always meant to be interpreted since the adoption of the Constitution. Whether you think that meaning itself is discriminatory or not it’s another subject of discussion.
mrjr101,
A ruling of “2 citizen parents” would clearly limit presidential eligibility–in other words it would discriminate (take away rights) from a class of citizens. That discrimination may be good or bad, Constitutional or not, but it is definitely discriminatory (i.e. it is technically discrimination but not necessarily in a pejorative fashion). In light of the fact that the courts have clearly ruled “jus soli“, for the SCOTUS to overturn that ruling in favor of “2 citizen parents” would unquestionably be restricting rights.
If the Courts clearly ruled just soli for Presidential eligigibility already then there wouldn’t be a case in the first place. I assumed that this theoretical “future court ruling” that you guys referred to revolved around the argument that WKA was somehow not the standing law as far as the meaning of NbC. Then if that’s the case this future court wouldn’t be overruling anything.
mrjr101,
The courts have clearly ruled–the opposition in WKA argued that if the SCOTUS ruled in Mr. Wong’s favor then he would be eligible for the presidency*. The court agreed and ruled in Mr. Wong’s favor. That’s the law until a later court says otherwise.
*35-14-hike!
im sure you know that the dissent is not part of the ruling.It obviously does not make anything clear and it is not the law.
Did I mention the dissent? (and, while I am not a lawyer, I would think that reading the dissent would generally be very helpful in clarifying the ruling [by contrast] and would also usually be the source of arguments to overturn rulings). Essentially the lawyer arguing that Mr. Wong wasn’t a citizen said to the court “Don’t rule in his favor or he could run for president one day” and the court said “You’re right” and ruled in his favor.
The most obvious thing about you is your willful ignorance.
mrjr101 – “im sure you know that the dissent is not part of the ruling.It obviously does not make anything clear and it is not the law.”
Actually, I believe that Slartibartfast is referring to the US Government’s brief in the appeal of the District Court’s ruling.
In that brief the Government said the District Court ruled:
“The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen…”
and later
“Are Chinese children born in this country to share with the descendants of the patiots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth?”
Appellant Brief:
http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA
Appellee Brief:
http://www.scribd.com/doc/23965351/Wong-Kim-Ark-US-v-169-US-649-1898-Respondents-Brief-Appellee-Wong
District Court Ruling:
http://tinyurl.com/88js2up
The District Court decision starts on page 382.
“Shortly after Donofrio’s findings and further claims regarding the precedent set by Minor, Professor Jonathan Turley published a post by contributor David Drumm entitled “Holdings, Dicta, and Stare Decisis.” The last sentence of Drumm’s post refers to the Wikipedia article on Minor as further support for his assertion that the “natural born” comments are dicta; however, that particular Wikipedia entry was revised only a couple of months ago (soon after Donofrio’s assertions) to include the very paragraph that Drumm cites. Comments on Drumm’s post now number over 1,300, bearing witness to an ugly war that continues to rage among anonymous commenters. The revision history for the Wikipedia entry reveals similar battle scars.”
Read more: http://www.americanthinker.com/2012/01/academia_shrugs_obamas_citizenship_and_the_presidency.html#ixzz1jD4t0oEw
Dear ugly warriors…;)
I read here lots about Wong Kim Ark.
Judge in Wong Kim Ark very bad man. He lie to your country. Wong Kim Ark demolished as any kind of precedent. What you do now? Go home?
http://naturalborncitizen.wordpress.com/2012/01/11/the-objectively-gray-propaganda-of-masked-rascals/
We find many lawyers talking about Minor v Happersett. Non call them dicta. Only people after Obama in picture call them dicta. Looks too convenient. Sad.
Re: “Judge in Wong Kim Ark very bad man. ”
That is your opinion. In any case, the judge you refer to was not alone. He simply wrote the opinion that summed up the views of six Supreme Court justices in a six-to-two ruling (one justice did not vote). And the decision is the law.
The Minor vs. Happersett case is not a ruling on the matter. The Wong Kim Ark case is a clear ruling on the meaning of Natural Born Citizen, and it refers to the common law (not Vattel) and says that the meaning of Natural Born in the common law has always referred to the place of birth, not to the parents of a citizen.
Gorefan, the appellant briefs nor the District courts decision is necessarily part of the supreme court rulings. The highest court makes the decision in favor of one side and still this does not make all of the arguments from the winning side necessarily true or the arguments from the losing side necessarily false. Consider this invisible disclaimer in all court rullings: “I’m gonna rule in favor of you, but my decision is the only thing that’s binding precedence in lower courts”
mrjr101
Never said they were, I was merely pointing out to you what Slartibartfast meant when he said,
“the opposition in WKA argued that if the SCOTUS ruled in Mr. Wong’s favor then he would be eligible for the presidency”
The “opposition” he was referring to was the Appellants Brief not, as you responded, the dissenting opinion.
Although, in the dissent, Chief Justice Fuller did write,
“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.”
Chief Justice Fuller understood the implications of the majority opinion.
gorefan,
Yes, that is what I was referring to. Thank you.
mrjr101,
The same reasoning that the court used to declare Mr. Wong a citizen was acknowledged (by both sides) to also imply that Mr. Wong was a natural born citizen. Are you really not smart enough to see how this undermines your argument or are you just not honest enough to admit when you make an error?
Gorefan, yes that was Justice Fuller’s opinion I understand but we must pay closer attention to the decision and the binding precedent than the opinion of judges that has no weight on the law.
Slart, of course its understood that the opposition was the U.S. Government who feared the implications. You know, they made a pretty good damn argument to try to win the case, but it’s just that opinions that goes no where before future courts. We will see what the Supreme Court thinks about WKA and the M v H decision in the not so far future, I have no doubt about it.