Defining Natural-Born Citizen

From reading all the material on the subject of natural born citizens I can’t help but conclude the following:

1) Citizens of united states was never properly defined by the framers mainly because only state law could define whom were born a citizen of the state which in return automatically made them a citizen of the united states under article 4.

2) Congress in 1866 recognized not all states recognized people of color as citizens and set out to define who were citizens of the united states through statute and amendment to the constitution.

3) Congress decided to recognize all persons born or naturalized as citizens of the united states as long as they could not be claimed as subjects of another country.

4) The 14th amendment was clearly designed to recognized only those politically attached to the nation (citizens) and no other.

5) Just as a naturalized citizen cannot be claimed by any other foreign power as their citizens, neither can anyone born.

Obama cannot be a citizen of the united states under the true meaning behind born or naturalized subject to the jurisdiction of the united states. Justice Gray himself confirmed this in Elk v Wilkins writing for the majority in defining subject to the jurisdiction as political attachment and not mere place of birth. This was in perfect agreement with acts of congress of 1866, 1868 and 1874.

This crazy notion that place of birth controls citizenship is so contrary to written law makes you wonder how so many got carried away with such an easily debunked belief.

In Reply to JimAZtec: I have spent many hours thinking about whats causing this madness. The supreme court has never ruled to define NB other than in its accepted legal definition. Perhaps this deceit went far further than most thought, and reaced a point where to avoid anarcy the court remains silent. By doing so the court is violating their constitutional charter. The lesser of two evils? Media experts say art 14 and citizenship are what qualify the president. Most people belive that, why not just leave it there? Why I will continue to fight this is not whos in office, in some ways bush and mccain seem to be littlt better. Its what this will pry the door open to. The constitution is already in peril even before this mess sterted,[I know I cant type] This will take us to a place were we wont be able to come back from. Of all the dangers the framers wrote about this is the one issue they feared the most.

Mike said: “The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.”

How come Elk was ignored then? Said Gray in Elk: “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 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.”

How come Wong ignored the legislative intent or meaning placed on the words? John Paul Stevens: “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.”

No matter how much spin or lipstick you try and place on Wong, it still suffers from zero support from history and defined legislative law. In other words, Wong will always be a deliberate judicial lie honored only those who lack honor themselves such as yourself.

Well, Chief Justice Roberts must think Obama’s qualified. So far he’s sworn the Big O in twice, and who knows what the future might have in store.

And since Article 2 says “from date of adoption of this constitution”, the first time a natural-born citizen could have been elected would have been 1824, which would have been the first presidential election to take place more than 35 years after adoption of the Constitution, which was on September 17, 1787. Here’s the math: 1787, plus 35 years = 1822, plus two years until the next presidential election.

In one of my earlier post, I used the term “authority” in the legal sense. In legal circles, that is a term of art, and means “legal authority binding on the courts,” usually in the form of a binding judicial decision. In the US, the US Supreme Court is the highest authority on federal questions, including constitutional interpretation. Quotes from the Framers are considered to be “secondary authorities.” They may be authoritative, but they are not binding on a court.

On the McCain natural-born citizenship question, the issue was decided in England in the 13th century, and his citizenship was decided long before this country was settled. The cases and statutory authorities are cited in the Wong decision.

The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.

Madison and Mason were undoubtedly great men and great thinkers, but if we are talking about American law, it is CJ Marshall and his colleagues and successors on the Supreme Court that we are required to rely on. If you are looking for the legal basis of the mainstream perspective on the question of whether or not Obama is a natural-born citizen, you might want to take some time and look at these decisions and the earlier cases cited in them.

On a personal level, if you look at Obama’s history, you will see that he spent his most-formative years at an elite prep school and then attended a series of elite colleges and universities. All of them were in this country. His grandmother was a bank vice president. Of recent presidents, his educational background is closest to that of GWB. That’s the scariest thing about him.

In Reply to geoff:

I feel the same way. I am consumed by the angst of our generation (I am the same age as Obama) blowing up the charter that protects us from Government Tyranny. I am ashamed at the degree to which so many don’t seem to care or are so biased that they are willing to be blind to the breakage of National Law. I hear so many people say that “the term natural Born citizen is not defined in the constitution, so we can define it how we wish”, or “that is what it meant then, but not now”. The fact is that the term means the same now as it did then, and is every bit as precient as it was in 1788. There has been no Amendment to change it. There are volumes written about it’s meaning if one wants to extend a little intellectual effort. The term was even discussed recently by the senators during the writing of Resolution 511:

EXCERPT OF SECRETARY CHERTOFF TESTIMONY FROM APRIL 2, 2008: (Resolution 511)

Chairman Leahy. We will come back to that. I would mention one other thing, if I might, Senator Specter. Let me just ask this: I believe–and we have had some question in this Committee to have a special law passed declaring that Senator McCain, who was born in the Panama Canal, that he meets the constitutional requirement to be President. I fully believe he does. I have never had any question in my mind that he meets our constitutional requirement. You are a former Federal judge. You are the head of the agency that executes Federal immigration law. Do you have any doubt in your mind–I mean, I have none in mine. Do you have any doubt in your mind that he is constitutionally eligible to become President?

Secretary Chertoff. My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen.

Chairman Leahy. That is mine, too. Thank you.

They all heard it, talked about it and debated it. If Leahy thinks that a NBC is the product of Citizen parents, how could he support Obama? How could ANY OF THEM. They are all in violation of Article 6. I cried for my country on 1/20, if this injustice is allowed to stand, and Mob Rule is allowed to be the Law of the land, then my children may be living in “Venezuela” in the near future.

In Reply to rxsid:

b.t.w. had they not put the ‘or’ part in there, 1811 would have been the first time our young country could have had an eligible POTUS (1776 + 35), asuming 14 years of residency of course.

Barry can’t be a NBC because he had (admittedly) British citizenship at birth. So did the (majority…perhaps 100%?) founders of our country. They too were British citizens at birth….and they knew that they would not fit the NBC requirement. So….they grandfathered themselves in by a simple ‘or’ statement:

Article II Section I (in part): “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”

“or a Citizen of the United States, at the time of the Adoption of this Constitution”

Mikey said: “Stare Decisis of Ark has been that anyone born in the US are citizens.”

Not anyone, but those with a “permanent domicil 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.”

The Federal govt. disagreed with the court for very good factual reasons.

In Reply to Mikey: Gentlemen; This crisis has affected me more than any other in my life. There are two reasons. My father is 84 and nearing the end of his life. His life like so many of his generation has been one of service to his country and its people. He grew up in the depresion, almost lost his life flying c47s over the hump in ww2. The GI bill allowed him to become a doctor, he practiced for almost 40 years. My father is of that generation that gave us the nation we have today. Perhaps that sounds too patriotic today but thats what they did. Now as their generation is passing quickly, I feel a scense of shame that our generation has allowed much of what their blood, sweat, and tears brought us to slip throught our hands. The very least I can do to honor them and all before us is to fight to preserve and protect our unique Constitution. The other reason is my one year old grandson. His life is just begining and I very much want to leave him a nation of liberty freedom and justice as was given to us. Our founders feared that our Charter could be lost in one generation if the people did not understand or defend it. 33 nations with freedoms and laws much like ours fell into destruction in the 20th century, more will in this century. It now appears that the Supreme Court has failed in its Constiutional duty as has the Congress,and the Presidency. If one aspect of the Constitution is unsurped as has article 2 been, then we no longer have a nation based on a foundation of law. The people of this nation it seems now will not be heard by its goverment. I close with this . There are four boxes that support freedom. Soap, Ballot, Jury,and Cartridge. God help us we may well have only the fourth box left to us now.

In Reply to Mike:

The jurisdictional phrase of the 14th Amendment as defined by Elk v. Wilkins was NOT only directed at Indians and diplomats, and your ingenuous logic is telling. The case was about an indian, the definition is the test used to make the decision, and the test is not only applicable to Indians.

The writers and deliberators of that Amendment were very clear, and much is written about the fact that the phrase meant Complete Allegiance and Sole Jurisdiction to the US and NO OTHER FOREIGN POWER. Of course those born or naturalized in the US were WITHIN the jurisdiction of US Law (BCL) if they were not an indian or diplomat’s child. They were only Subject to the jurisdiction (sole allegiance to the US) if they were born with no other allegiance (not a dual citizen) or took the oath of Citizenship. That is Natural Law or National Law, not British Common Law. The 14A mirrored the Civil Rights Act of 1866 and Revised statutes 1992, which used the same language as Elk.

Stare Decisis of Ark has been that anyone born in the US are citizens, due to the wrongly applied BCL doctrine to the jurisdictional phrase, but that is Clearly not the intent of the Amendment as written (as expressed clearly by the writers of the 14A). The decision in Ark though, wasn’t about who could be POTUS, and they never deemed Wong a NBC, only “citizen”.

There are no court decisions that deem any person less than born in the US to citizen parents as NBC. There is no amendment that changes the meaning of NBC as understood by the framers from the contemporary “Law of Nations”. There have been NO precedent (except Chester Arthur, and fraud is NOT precedent) of a POTUS that does not fit this NBC model.

The phrasing that is used by some to arrive at the conclusion that born in the US that “in other words, who at birth is a US citizen”, or “there are 2 types of citizens, those born and those naturalized” is false and ingenuous in it’s framing of the question. The framing should be more like “whom at birth is subject to the jurisdiction of the US and No Other Foreign Power?” A Natural Born Citizen of course! Obama, in stare decisis of ARK is a Native Citizen (his term is “fight the smears”, why doesn’t he say Natural Born? Hmmm), which is not the same as NBC. By his OWN ADMISSION, at birth his citizenship status “was governed by Great Britain”. How can that possibly be a NBC?

Mike said: “As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis.”

Congress did make legislation and was crystal clear in words and actions to what their legislation was adopted to accomplish. You and and morons like J. Gray desire to turn a blind eye to the obvious truth and reinterprete history to your liken.

Mike said: “As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected.”

Now I am fully convinced you are a moron.

Mike said: “In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England.”

So, was a child born to aliens in VA, VT, GA born a citizen of the United States? NO? How can that be, you said SCOTUS said the common law of US citizenship was the same as the common law of England! Hey Mike, can you point us to some pre-1866 U.S. Statute that says anyone born in any state is a U.S. Citizen regardless of who their parents were? Come on, put up for once!

Mike said: “If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.”

James Madison:

“A characteristic peculiarity of the Govt of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govt possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted… As men our birthright was from a much higher source than the common or any other human law and of much greater extent than is imparted or admitted by the common law.

James Madison to George Washington:

“What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.”

I know, like a good little moron Mike is, he will say many of Madison’s “views have been rejected.” LOL

geoff, you are correct that IF the senate were to pass such a resolution, it would have no effect as against the constitution. And note that a resolution is not a law, but only a “sense of the Senate.” In order to become law, it would need to be passed by both houses of Congress, and then signed by the president.

However, “Natural Born” IS most definately a matter of law, as can be seen from the differences of opinion between the majority and dissenting opinions in the Wong Kim Ark decision. The majority interpreted the Constitution in accord with common law principles, which are the principles of legal interpretation of this country dating back to its inception. The dissenters thought the matter should be decided in accordance with French law and the European notion of “Natural Law”, whatever that might mean. (I tend to believe that generally speaking, “natural law” is cited as an unchallengeable basis for what a proponent thinks is a good idea.) As we know, the dissenters didn’t have the votes to support their position.

JimAztec draws the wrong conclusion from my statement about a national common law. As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis. This does not mean that all statutes regarding citizenship are unconstitutional, only those that contravene the US Constitution. So, for example, if a law was passed that provided that in order to meet the “natural born citizen” requirement of Section 2, it was necessary for one’s grandparents also to have been citizens. I think such a law would clearly be unconstitutional, because it contravenes the legal meaning of “natural born citizen” by imposing additional requirements. That is in sharp contrast with a law that might, for example, clarify the legal status of a person born in the Panama Canal Zone during the US mandate, or a law regulating naturalization. Either would clearly be constitutional.

As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected. We know from many souces, including Supreme Court decisions, that the US did have a common law at the time the Constitution was adopted. In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England. If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.

Mike said: “Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.”

If that was REALLY true then all citizenship laws enacted by the states since 1790 would had been unconstitutional, duh! Congress shot down this ill-conceived opinion on July 27, 1868 (same congress who approved the 14th) with the Rights of American Citizens Act: “That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”

George Mason was right, the common law of England was not the common law of the United States.

You really should consider the accuracy of what you post, Mike.

In Reply to Mike: nb is not law it is a natural act. caselaw is about citizenship. founders intent is citizenship by a natural act not a law no one can question your allegence if it flows from your birth. i may be wrong but i do not find were sc has made a different definition from founders intent. sc can decide constitutionality but olny admendment can change it. why did senate pass resolution not law defining natural born as born of two citizen parents in april 2008. to me this a serious breech of the constitution.

I apologize if this reply is disjointed, I have been skipping back and forth from watching the inauguration and related ceremonials while writing it. (And did anyone notice that the usually unflappable Chief Justice Roberts muffed the oath of office when he recited it for the incoming president? Glad to know he’s human, too.)

Back in the day, one of my teachers once said “The first rule of interpretation is read on.” I think that geoff and Jim might benefit from this observation.

Jim said: “If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem).”

Well, actually, what the cited common law decisions (dating back to the 13th century) have uniformly held is that for those born in the country, citizenship follows place of birth.

Jim goes on to say; “Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state.”

Actually, what the Supreme Court said about a national common law is; “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.” 169 U.S. 655-656, citing Smith v. Alabama, 124 U.S. 478. Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.

geoff asks; “Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats[?]” and again questions President Obama’s status as NBC. Aside from not taking even a moment to proofread, he also refuses to acknowledge over two centuries of precedent, dating back to the 1804 decision in the wonderfully named maritime case Charming Betsy (2 Cranch. 64). In response to geoff’s question, some might reply that only the staunchest of flat-earth tin hats would hold firm to their individual perspective on the meaning of Constitutional language in the face of over 200 years of uniformly contrary decisions from the Supreme Court.

We should admire their firmness, while - perhaps - questioning their judgment.

In Reply to JimAZtec: Lets focus on admendment. Cons. is changed olny by admendment. There is an admendment in the congress waiting for the votes to move it. It would change NB in article 2. That tells me there is no Cons. change to artic. 2. It is the law. Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats.

Mike quotes Wong Kim Ark: “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.”

If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem). The same thing had been upheld in this country see Ex parte Reynolds, Ludlam v. Ludlum to name a few.

Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state. If Swayne was correct then every person born within the District of Columbia would been US citizens (they were not.)

geoff hamilton said:

“Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”

Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;

“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion 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.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]

Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.

geoff hamilton said:

“Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”

Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;

“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion 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.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]

Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.

In Reply to Mike: Agian the issue is not citizenship. Obama was born a citizen, per the 14th admendment. Article 2 section 1 is what a president must be. born of two citizens born in this country. natural born. The founders were concerned about a leader with dual citizenship. Olny an admendment can chage that. there are none. It is not citizenship

So, to summarize the three most recent posts,

“No matter what more that two hundred years of US law says, and in spite of decisions of the US Supreme Court over the same period uniformly holding that a person born in the US is a citizen, what I say goes!”

This has turned into a more-or-less interesting religious discussion of what US law SHOULD be, but we are beating a dead horse here, and rearguing issues that were decided in 1895 by the US Supreme Court in US v. Wong Kim Ark.

All three posts overlook the fundamental holding in that case: A person born in the US is a US citizen, regardless of his mother’s citizenship, his father’s citizenship, and a host of other factors, unless his parents are foreign diplomats. And no matter what they “wish”, the meanings of the relevant terms were determined by the Supreme Court generations ago. JimAztec might want to keep in mind that resident aliens may join the military, and were subject to the draft until it was terminated after the Vietnam War.

In Reply to DadBode: Agian the issue is not that he is not a citizen . Obama is a citizen by birth. Thats the 14th admendment. Article 2 section 1 is the requirerment for pres. Natural born born of two citizens born in this country. Natural born is not a law it is a natural act. You are because both your parents were. He is a citizen he is not N B he is unconstitutional. He knows it. His citizen ship is by law not by a natural act. the child always inhearets the fathers birthright. thats reconized law.

I continue to find this information continue to be sorely lacking: As given in § 1401. Nationals and citizens of United States at birth The following shall be nationals and citizens of the United States at birth: Conditions are clearly given. 1. Only one parent has to be a natural-born citizen of the United States of America in order for a child to be a natural-born citizen. 2. Obama’s mother was born in Kansas to natural-born citizen parents (one would have sufficed but there were two). 3. If one parent is a natural-born citizen, the child is also a natural-born citizen, no matter where the child is born, even the planet Jupiter! I have never seen any definitive proof that Obama’s mother was NOT a natural born citizen. None. Ever. Until that is proven, he is a citizen. Case closed. And to those who claim he had dual citizenship: A child inherits citizenship from the country of the mother’s natural born birth. If the father is a UK subject, it doesn’t matter, except the child may possibly be able to obtain both a UK passport and a US passport. But that changes nothing. The child inherits citizenship from the country of the mother’s natural born birth.

In Reply to Mike: People the issues is not birth certificate, dont be smoke screened by Obama. He is using the equal protection clause in the 14th admendment to get around what is the Constituional requirerment for president. Natural Born. Perhaps the goverment is that ignorant of the Constitution and now they just hope this doesnt’ blow back on them. Obama is born of a British citizen, and is born a citizen per the 14th. If there is no admendment to change natural born and there is not it is the law. That simple. and no one seems to get it. He is willing to unsurp our Constitution for power and politics. God help us.

In Reply to Mike:

Didn’t the court in Elk say about “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 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.”

Could Wong Kim Ark’s parents vote or even be called up for military duty? Nope! It’s no different in residing within the jurisdiction of a court vs. being a subject of a court’s jurisdiction. Wong Kim Ark was born within the jurisdiction of California but not born subject to the jurisdiction.

Obama was born subject to the jurisdiction of the U.K within the limits of Hawaii. If Obama as a minor and denied a lawyer for some crime the British govt. would have intervened on his behalf just as the US does for its own citizens abroad.

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except … children born on our soil to temporary sojourners or representatives of foreign Governments.”

What is a “temporary sojourner”? It means a temporary resident. All chinese laborers and merchants were considered temporary residents because they were here to work or do business and were prevented by law and treaty from becoming citizens.

Anonymous’s valiant attempt to distinguish away the holding in the 1895 Wong case (remembering that Chinese custom is ‘last name first’), on the basis of the 1884 decision in Elk v. Wilkins (112 U.S. 94) must fail for the reasons stated by the Court in the Wong decision. The distinction might ‘hold water’ if Obama had been a full-blooded Native American whose parents had been exempt from taxes and resided on Indian land “not subject to the jurisdiction of the United States’ at the time of his birth, as was the case with the plaintiff in Elk v. Wilkins. However, Sen. Obama was born in Hawaii, his father was NOT an Indian, the senator was not born on Indian land where US law did not apply, and he was not exempt from US taxes. Here’s how the Wong court distinguished the decision in Elk v. Wilkins:

“The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U. S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.

“That decision was placed upon the grounds that the meaning of those words was “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;” that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that

“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian 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, or the children born within the United States of ambassadors or other public ministers of foreign nations.”

“And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 194 U.S. 880-881, citing 112 U. S. 94, 99-103.

Plainly, the court in 1895 did not believe that the holding in Elk v. Wilkins had ANY relevance to the citizenship issue in US v. Wong Kim Ark. Further, it appears highly unlikely that the modern Court would think it has the slightest relevance to Sen. Obama, and neither should any of the rest of us.

Here’s a link to the Elk v. Wilkins decision: http://supreme.justia.com/us/112/94/case.html#94

In Reply to Mike:

Wrong. “Subject to the jurisdiction” meant the same in 1898 as it did in 1874 (in Elk v. Wilkins). It meant Sole Political Allegiance, and no allegiance to any other foreign power (ala the Civil Rights Act of 1866). The 14th A gave those born “within” the juridiction of the US the choice to be “subject to the jurisdiction of the US” at the age of consent, which is the holding of Ark. Ark is deemed a “Citizen” not NBC. If a person is born “subject to the jurisdiction of the US” (parents are citizens), then he/she is a NBC. If you are born of an alien father, then you are born “within the jurisdiction”, but not “subject to the jurisdiction” of the US, You are a Native citizen (Obama’s term, and why doesn’t he use the term Natural Born citizen?), not a NBC. As far as ex post facto, there is none. Natural Born citizen means just what it always meant. the 14th A gave birthright citizenship, not necessarily Natural Born Ctizenship.

JimAztec said:

“As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law!”

That’s simply not correct. In the Wong decision, the court relied not just on pre-Revolutionary English common law and statutory authority, but also on the US Constitution, US statutes, and over 100 years of American decisional authority to decide the case. That IS hardly “England’s old common law”, even in 1895 when the case was decided. The decision is a textbook Supreme Court constitutional decision, in order to interpret the text, the court does not cast about for some plausable interpretation of the text. Instead, it was necesary for the court to determine what the Constitutional text meant in 1787 when it was written, based on the legal meaning of the langauge at that time:

“In Minor v. Happersett, the [chief justice] 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.” 169 U.S. 655.

“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.” Id.

There is nothing new in this, and it has been the universal practice in US courts since the nation was founded; in order to decide what statutory or constitutional language means, a court must determine how the same language has been interpreted in the past. And because there was no American common law prior to the Revolution, it was necessary to look to the common law in the US prior to the Revolution, which was the common law of England.

The Court then reviews the history of the pre-Revolutionary common law, and states its rule in the following language:

“[B]y 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.

“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”. 169 U.S. 658.

The Court then reviews a number of Supreme Court cases in which the Court esteblished the American common law, and followed this interpretation of what the framers in 1787 meant by “a natural-born citizen of the United States.”

So what does this mean? It means that even if Sen. Obama had been born prior to adoption of the 14th Amendment, he would have been a ‘natural-born citizen’ and eligible to be president, even though his father was not a citizen at the time of his birth. And because his father was not enslaved, he would not have been excluded from citizenship under the decision in the Dred Scott case.

Mike wrote: “In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen.”

And the Wong Kim Ark court said England’s common law determines US citizenship: “In this as in other respects, it [14th amendment] 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.”

As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law! Garbage in, garbage out.

The Elg Case is really irrelevant to whatever point you are trying to make because Ms. Elg’s father was a naturalized US citizen at her birth.

In Reply to Therese Daniels:

Just keep talking Therese. The more you open your mouth (or keyboard), the more comfortable I feel that we’ll have the right and duly elected president on Jan. 20th.

In case you didn’t guess, I am talking about President-elect Barack Obama.

On the common law issue raised in JimAztec’s latest post, I can hardly think that JimAztec is unaware that immigration law is the result of the accretion of legal decisions (e.g., common law), statutory law, and constitutional provisions and amendments. He has set up what is known in legal circles as a “straw man”, which is a hypothetical so extreme that it can easily be knocked down. I don’t think that any of us would question, even before his latest post, that JimAztec does not like any part of the Supreme Court’s decision in the Wong case. I hardly doubt he is alone in that. Nonetheless, it is one in a long line of decisions (both previous and subsequent) that defines the law in this important area, and like it or not, it is the law of the land until it is overruled. In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen. The same reasoning would apply to Sen. Obama. And since Sen. Obama’s father was a British citizen at the time of Obama’s birth, the British could also have claimed him as a citizen.

His point on the “black man” issue has cultural overtones, even if the legal issue was forever laid to rest by adoption of the 13th Amendment. Although Sen. Obama’s mother was ‘white’, he is universally referred to as a black man, and almost never as “half-black.”

But I can hardly believe that it could be Sen. Obama’s race that has our friend in such a high dudgeon?

In Reply to Mike:

No amount of lipstick you try to put on Wong Kim Ark, it is still a BIG lying Pig. You think Wong Kim Ark is so right and controlling, fine; let’s take the absurdity of Wong Kim Ark to the next level, shall we?

The majority said 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.”

But wait, there are other exceptions other than children born to ambassadors or foreign ministers. Under common law children born of parents of mixed races the offspring follows the condition of the father!

So, under common law that J. Gray says is the common law of this country, and nothing has changed since Wong Kim Ark in the year 1898, Obama is not a citizen because he was born to a black father and a white mother. Under common law his citizenship is that of the father and would not be a natural born British subject no matter what.

This principle prevailed under many laws of the states and even the federal govt. But since the 14th amendment merely reaffirmed the common law under Wong Kim Ark (cough), Obama can not be a citizen of the United States.

Are you sure you want to continue treating Wong Kim Ark as controlling law?

In reply to Todd, he might want to keep in mind that a 5-4 vote in conference would be only a vote to hear the case, and NOT a vote on the merits. This could just as easily be attributed to a desire to reaffirm existing law as to rewrite decisional authority dating back to the first days of this country. And Todd might also remember that a decision that Obama is not a NBC would result either in the vice-president becoming president, or a new vote by the democrat-dominated electoral college. I think it is highly unlikely that Sen. McCain would be elected by that body, given its present makeup. However, it is possible that Sen. Clinton would become the first woman president.

On the issue Todd raised about the common law, I think that the point made in the Wong decision is that at the time of the revolution, the common law of the colonies and future states was the same as the common law of Great Britain. Thereafter, the two diverged in response to diverging judicial decisions. However, as you would see from a review of the Wong decision, there was a substantial inter-relationship between the two, which has lessened over time. One major difference is that the US has a written constitution. One part of that, the 14th amendment, directly contradicts the point JimAztec makes about the law of New York, although even the most casual review of the Wong decision would show him that it was not accurate, even before the 14th amendment was adopted.

In Reply to Sid Davis:

SCOTUS will not address the issue in open court, period. The reason is simple: The liberal wing in no way want to have to defend Wong Kim Ark because it can’t be defended without ignoring the truth as did Justice Gray was forced to do. Plaintiff’s will point to the same arguments as Madison has and the court would be in the uncomfortable position of having to say all that does not matter! The common law of England still prevails throughout the country! They might even suggest the 39th Congress could not have meant subject to the jurisdiction to mean political jurisdiction.

And then there is the uncomfortable prospect McCain would have to be declared the victor, leaving the potential retiring justices being replaced with a conservative. Self-preservation, baby!

I have been following these cases at the SCOTUS relating to the natural born citizenship issue and Obama.

The pattern seems to be that initially the applications are denied by a “liberal leaning” Justice (so far Souter, Ginsberg, and Kennedy) and when resubmitted to a “conservative leaning” Justice (so far Thomas, Scilia, Roberts) they are referred to conference. In conference so far two have been denied (Donofrio and Wrotnowski), one has not been reported yet (Berg cert), and two are still scheduled for conference (Berg injunction and Lightfoot). I understand yet another one has just been denied (Broe) by Souter, and probably will be resubmitted to another Justice.

It takes the vote of four Justices in conference to accept the case for review, so obviously less than four, if any, are voting in conference to accept the cases.

So what is going on?

At first I thought there was a contest going on between the two wings of the court and that maybe the conservative wing (Thomas, Scilia, Roberts, and Alito) were case shopping to pick one where the other Justices could not justify ruling for Obama on a procedural technicality.

I, perhaps naively, thought that the conservative Justices referring the cases to conference actually thought they had merit, but it has now occurred to me that they are using the referral to conference as a means to trash can the cases since denial in conference cuts off any further resubmission.

Another possibility is that the conservative Justices believe that if they take the case that ultimately the vote will be 5/4 in favor of Obama being a natural born citizen, and that they do not want to take the heat for the consequences of the country having a President where 4 Supreme Court Justices voted that he was not Constitutionally qualified; the wussy cop out alternative.

I do not understand the significance of the Court taking a case before verses after Obama is sworn in, and if that is involved in their consideration. It did occur to me that once Obama is sworn in that if they then found him not qualified that Biden would become President, and that they might be waiting till then so that they could not be accused of playing politics; a Democrat would still be President.

It just seems strange that Roberts, who will be swearing in Obama, could ethically or legally go forward and participate in the “coronation” if he has concluded that Obama is disqualified, yet the case he referred to conference (Lightfoot) will not be in conference till Jan. 23, after Obama is sworn.

My best guess is that they are using referral to conference as a means to quash these cases and that they do not intend to actually address the issue in open Court.

Comments?

Mike (#1074) said: “Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens”

Actually, the decision did no such thing. The cases singled out by the Wong Kim Ark court simply rehashed the English rule prior to the revolution. American judicial thinking rested on Lynch v. Clark and the courts were too stupid to appreciate the fact Lynch v. Clark was overturned by statue. The court was very clear in stating the only reason they were resorting to the common law was because New York had no law on the books in regards to babies born to aliens.

The fact the conclusion in Lynch v. Clark was overturned and an alien no longer could never again claim citizenship by simply being born in the state of New York just further proves how inept in law Horace Gray really was.

In Reply to Mike:

With all due repect, although Justice Gray wrote alot about the Natural Born Citizen issue, he did not deem that Ark was a NBC, just “citizen”, and this case was not about the qualification to become POTUS.

“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.”

In Perkins v. Elg SCOTUS gave specific examples of NBCs. They even noted that Steinkauler, born of citizen parents, had the ability to be elected POTUS, while Bohn, born of alien parents, was deemed “American Citizen”, not NBC.

Just found and read much of the Supreme Court’s decision in Wong Kim Ark (1898) 169 U.S. 649.

Here’s a link to the decision:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=169&page=649

Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens:

“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion 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.” Ibid, 169 U.S. 662-663 [cit. omitted.]

The Court also held that adoption of the 14th amendment did not restrict this rule:

“The first section of the fourteenth amendment of the constitution begins with the words, ‘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.’ As appears upon 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. It is declaratory in form, and enabling and extending in effect. 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 Tae y in 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.” Ibid, 169 U.S. 675-676 [citations omitted.]

The Court also held that “natural-born” and “native-born” are synonomous.

Publius and many commenters on this thread and elsewhere may disagree with the holding, but the case is dispositive of Sen. Obama’s right to be president. Given the long history of this line of decisions, I believe that it is extremely unlikely that even the present activist court would overturn a 110 year old decision or try to overturn the election results.

In Reply to Matt L.:

This question is regarding your post #1033 on 12/23/2008

Like you, I have become unshakeably convinced that Vattel’s definition for ‘natural born citizen’ is what the founding fathers had in mind when they entered the term into the Constitution.

But I’m not familiar with the the origin of the further subdivision you listed regarding the mother’s marital status, “2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen”,

when Vattel’s text merely says “of parents who are citizens”.

After all, the child of unwed parents still has a father who is considered a parent and may be sued for child support, so it seems to me he should still be relevant to the child’s citizenship status.

Because if the allowance for an unwed mother is correct, it might provide the loophole that Obama seeks, in that at the time of Barack Obama Senior’s marriage to Stanley Ann Dunham in 1961, he was already married to a woman named Grace Kezia Obama back in Kenya with whom he had two children, and whom he never divorced; in fact, after completing his education in the U.S. he returned to Kenya and bore two more children with her. The marriage to Stanley Ann Dunham could therefore be rendered invalid on the basis of bigamy, meaning Barack Obama was therefore born on U.S. soil to a single unwed mother who was a U.S. citizen, thus meeting your test for a natural born citizen.

I have lost all respect for SCOTUS. They should have addressed the meaning of Natural Born Citizen long ago. There is great danger in the lack of interpretation … Truly, now there is nothing stopping a child, born on US soil to two alien parents and subsequenly raised in a foreign country, from ultimately becoming POTUS. All the child must do is declare US citizenship when coming of age, and move to the United States. It is NATURAL that our true allegiance stems from our upbringing. Regardless of the geography of birth, a person raised in a foreign country cannot have the same conviction of allegiance to the United States, as someone raised in this country.

Publius wrote: “Certainly, the fact of dual citizenship at birth should not be the sum and substance of any indictment of a candidate for POTUS. Strictly speaking, the Constitution includes no positive language that specifically provides that dual citizens are automatically disqualified.”

Except to the degree that “natural born” was something they could never be because of their prior loyalty to the King. Thus, the framers were referencing an “alien influence,” though no longer in existence, that meant they, though born here, were not able to run for president without the grandfather clause.

And here we are again…

My, my, January 20 is literally around the corner, and one can only wonder if the Supreme Court might deign to get involved after that date.

Anyone have any brilliant ideas of what to do at this point?

In Reply to Jeff, Esq.:

Our forefathers used the Law of Nations to help frame our Country.

Jusitce Scalia used it earlier this year in an opinion on right to bear arms.

In Reply to Therese Daniels: Quite unfortunately, Ms. Daniels, the Constitution WILL be raped and pillaged with, once again, relative impunity. I fear for my country, as should all Americans, whether they be of the liberal or conservative persuasion.

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.” Thomas Jefferson.

Let’s pray—and prod—our “representatives” and our courts to rigorously and selflessly uphold the Constitution.

Perhaps Jefferson was also prescient when he said ” Every generation needs a new revolution.” Are we yet at that point?

Jeff, Esq. says “the United States of America is not governed by or through the “laws of nature” and if you think that the ‘laws of nature’ justification would survive strict or intermediate scrutiny, you’re nuts.”

That’s right, lawyers and liberals desire us to be governed through the edicts of 5 clerics dressed in black robes, not written laws or enactments by the people themselves.

Sen. Jacob M. Howard: “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

In Congress, July 4, 1776:

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

John Adams: “[N]o doubt, that terrible and critical moment when the Colonies of North America, groaning under the intolerable weight of the chains with which the boundless ambition of Great Britain had loaded them, were forced into a just and lawful war to recover the use and enjoyment of that liberty to which they were entitled by the sacred and unalienable laws of nature.”

“A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.”

That’s fine, except the United States of America is not governed by or through the “laws of nature” and if you think that the “laws of nature” justification would survive strict or intermediate scrutiny, you’re nuts.

In Reply to JimAZtec:
AFTER ALL IS SAID AND DONE IT BOILS DOWN TO THIS

There are no misunderstandings here. Sufficient accurate facts and information have come forward that establish beyond a shadow of a doubt that BARRY SOTOERO, AKA BARACK HUSSEIN MOHAMMED OBAMA IS NOT ELIGIBLE TO BE US PRESIDENT. He is not eligible under the USA Constitution, Article II sec.—. Because he does not meet the qualifications of NATURAL BORN CITIZEN.

BARRY SOTOERO IS ABOUT TO BECOME A USURPER

IT APPEARS THERE IS NOT ONE PERSON IN OUR GOVERNMENT WITH THE INTEGRITY TO STOP HIM. OH, SHAME, SHAME, SHAME, PISPER SHAME!

It is no longer a question whether or not Mr. Sotoero is qualified. No matter which way liars try to convolute or twist the facts, it still boils down to: BARRY SOTOERO IS NOT ELIGIBLE TO BE PREIDENT. HE IS A USURPER. HE IS ALSO AN ILLEGAL ALIEN. THE ENTIRE WORLD KNOWS THESE FACT.BARRY IS DOES NOT LEGALLY QUALIFY TO BE PRESIDENT. So does the collection of conspirators who are insisting Sotoero be inaugurated know Barry is not eligible.

The only real question is will what is left of the government that has the authority to stop this treason against America have the courage to do what it right? It is the choice of the departments of the government who have this authority to either uphold and defend the US Constitution as it is written or betray the people of American by failing to protect the national security of America and permit a USURPER TO STEAL THE AMERICAN GOVERNMENT.

Will they, (Congress, Senate, Supreme Court, President Bush, and the military) do right by American? Will they do what they should do. What they should do and the only thing they should is save American and forbid Sotoero to take the oath, arrest and put in him jail without bail. Then after a hearing deport him to whatever country his is a citizen. Will these alleged pillars of government look the other way, consciously violate the US Constitution by allowing a traitor to become a usurper? Will they betray their oath to uphold and protect the Constitution, America, and the American people?

This and only this is the question every patriot American is hanging by its nails between now and January 20m 2009. While Sotoero supporter are using the promise of major riots in the street if the do not follow the “will or the people”, American will face the reality of a greater crisis—A REVOLUTION.

So which will it be—Uphold and protect the Constitution or rape and violate it; Permit a Usurper in the White House or arrest and throw the bum our; Riots in the streets or an all our revolution?

USA patriots-shout www.blogtalkradio.com/vos

Open Audio Letter to Congress

My presentation to Congressman Tom Cole with the audio from a vietnam vet from Arizona.

He’s one heck of a Patriot.

http://www.youtube.com/watch?v=kjhkHTcU2ug

Interesting quote from Madison’s “What subject to the jurisdiction thereof really means”:

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except … children born on our soil to temporary sojourners or representatives of foreign Governments.”

FWIW: Judge Morrow in the case of Wong Kim Ark in the United States District Court for the Northern District of California (1896) said:

Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. … The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.

In Reply to Mike:

Wong Kim Ark does NOT conclude that Ark is a Natural Born citizen. It beats around the bush taking about NBC, but in the conclusion states that she is merely a “citizen”, not a Natural Born Citizen.

Elg v. Perkins, on the otherhand, upholds that Elg is a “Natural Born Citizen” due to her parents being Naturalized citizens at the time of her birth in Brooklyn. It also affirms an earlier case of Mr. Steinkauler, who by virtue of his parents naturalized status at the time of his birth, was a “Native born Citizen”. In the example of Bohn though, because his parents weren’t citizens, he was said to be an “American citizen”. There is a clear differentiation.

Some misc. items I found researching that is interesting:

Laws of Mexico [1895]

Article 1.— The following are Mexicans:

I. Those born in the national territory, of a father who is a Mexican by birth or naturalization.

II. Those born in the national territory, of a Mexican mother and of a father who is not legally known under the laws of the Republic. Those born of unknown parents, or of parents of unknown nationality, shall be classed under this head.

Article 2.— The following are aliens:

I. Those born outside of the national territory who are subjects of foreign governments, and who have not been naturalized in Mexico.

II. The children of an alien father, or of an alien mother and unknown father, born in the national territory, until they reach the age at which, according to the law of the nationality of the father or of the mother, as the case may be, they become of age. At the expiration of the year following that age they shall be regarded as Mexicans, unless they declare before the civil authorities of the place where they reside that they follow the citizenship of their parents.

(Geez, can it get any simpler then this?)

LAW AND PROCEDURE VOLUME VII (1903) WILLIAM MACK And HOWARD P. NASH THE AMERICAN LAW BOOK COMPANY

1. Children Of ALIENS. The child of a citizen father and of an alien mother is a citizen; but one born of an alien father and of a citizen mother is not a citizen.

This appears to be the international view of Obama’s citizenship:

Article 2. An illegitimate child which, during its minority, is acknowledged by its father only, or simultaneously by its father and its mother, or whose parentage is settled by the same judgment with regard to both, follows the nationality of its father on the day of its birth; if it has been acknowledged only by its mother, it takes the nationality of the latter, and retains it even when its father recognizes it later. (RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW (1916))

In Reply to Mike:

I was not aware of this “long line of decisions” over the meaning of “subject to the jurisdiction thereof.” I was under the impression the Supreme Court had never addressed its meaning. Wong Kim Ark majority never addressed the issue for obvious reasons :-)

Would had been nice if Wong Kim Ark was based on American law and not England’s. :-)

In Reply to Mike:

We really do not know if Obama is born in the United States since we have not seen his vault copy birth certificate. The COLB from Hawaii is not adequate. The crux of the matter is that Obama is most likely born in Kenya with a foreign father, and later adopted by an Indonesian father.

Whether SCOTUS act on any of the lawsuits Obama is simply not a natural born citizen.

Jim AZtec said:

“ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had [sic] been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.”

Let’s see, we have a history of US Supreme Court decisions dating back over 100 years interpreting the 14th amendment language in an inclusive sense, and uniformly holding that persons born in the US are citizens. Does anyone want to remind Mr. AZtec that the law is formed by a process of drawing inferences from similar cases over the years. And that the Supreme Court has uniformly upheld the Wong decision over the long period of time since it was decided.

Mr. AZtec is eager to state his disagreement with this long line of decisions, but fails to state any basis in law or fact - other than his disagreement with the outcome - for his opinion. OK, we know where you stand. But it would be helpful to state some basis from law, fact or statutory language to persuade us that this is based on something other than personal prejudice.

Now, looking at the decisions, what do we know? The Wong Kim Ark case tells us that a person born in the US is a US citizen, whether or not his parents were US citizens. After that, the Elg case, in which the Supreme Court held that Ms. Elg, who was born in the US and was the daughter of naturalized US citizens, was also a citizen - seems rudimentary, which might well explain the lower court decisions in the case, which uniformly upheld Ms. Elg’s citizenship claims. The upshot of this long line of citizenship cases make the chances extremely remote that the Supreme Court would attempt to block Sen. Obama from becoming president on the basis of his status as a US citizen, because under this long line of precedents, he IS a natural born citizen.

In Reply to JimAZtec:

I agree somewhat….

But it’s not a different subject matter, but an aspect of a larger whole. That being citizenship. And the opinion did not firmly set upon the Wong Kim Ark opinion (though clearly further confusing the issue with it’s mixed usage of Native & Natural), but on multiple other cases and laws (Steinkauler’s Case, 1875)(Moore’s International Law Dig.)(etc.) as well.

It’s fairly easy to see that this case was one of several that confused the citizenship issue.

Because of Natural Born Citizenship being “assumed” by the court, but I believe this was partially influenced by the older legacy laws of a man giving citizenship to his wife as well. This umbrellaed the children in NBC-hood “correctly” when that ‘law’ existed, however it was incorrectly held-over, or assumed, thus causing the mess today.

De Vattel’s book makes the issue clear without the sexism (currently) involved.

In Reply to Mike:

ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.

After reading the linked portions of the decision in the Elg Case, I am even more convinced than before that Sen. Obama is a “natural born citizen,” as that term is used in the US Constitution. In Elg, CJ Hughes cites many of the earlier decisions already discussed in the comments to this article. I also think that Prof. Chin’s article glosses over an important point in Sen. McCain’s case, which is that under US law, the child of US citizens was always considered to be a US citizen from birth. I think that there may well be a related category of “Constitutional citizenship” which is inherent, and Congress would have only limited power to restrict this category of citizenship. Instead, I would describe the statutes cited in Prof. Chin’s article as either clarifying the issue when it was otherwise unclear, or as expanding citizenship to persons who would otherwise not be citizens.

I thought the legal brief filed in the Hollander case also raised a nuimber of issues relating to jurisdictional and juridical issues not previously addressed, all of which appear to support the eligibility of both Sen. McCain and Sen. Obama to serve as our president.

In Reply to Kris:

For the SCOTUS not to hear it makes ‘some’ sense as their is a constitutional provision covering the party’s responsibility for vetting their person (though it’s clear that the States can do vetting on their own, which frankly has lead to this to begin with).

McCain’s attorneys reached VERY hard to make it seem like he was an NBC didn’t they! However no one can make someone NBC after the fact. It would take a Constitutional change to make it happen.

http://www.scribd.com/doc/9258498/Why-Sen-John-McCain-Cannot-Be-President

I disagree with the Professors final point though as ‘fairness’ is a very transient thing with protection of the Nation coming first. Which is why Lincoln was so torn over what he had to do.

If Mr. McCain’s attorneys are correct, the SCOTUS will not consider any case until Congress certifies on Jan 8. What is the procedure to file suit on or after Jan 8?

Who would one sue and for what?

Thanks a million!

McCain’s reply Hollander v. McCain: http://electionlawblog.org/archives/Hollander-M2DisFAC.pdf

The case of Perkins v. ELG, 307 U.S. 325 (1939) weaves a rather clear cut definition of what a naturalized citizen is and a citizen born who can run for POTUS office is. However it muddy’s up the terminology slightly with the terms Native & Natural.

The case is rather large, but here’s a part of it and the final court opinion:

http://www.theobamafile.com/PerkinsVELG.doc

IMO, given the weight of evidence it’s pretty clear cut what the Founders meant with the NBC wording. However due to the existing amount & weight of anti-racism & anti-sexism SC judgments & opinions. The SC would rather allow a non-NBC to attain the position of POTUS rather than actually be exercise their authority.

WOW, Berg v Obama is Scheduled TWICE for SCOTUS Conference on Jan 16. What the heck???

There has got to be more than meets the eye behind closed doors for this issue to keep being scheduled.

In Reply to Mike:

The very term “natural born citizen” is right there in print (albeit in French) in de Vattel’s treatise published in 1758, and in subsequent English language editions of the work, all very well thumbed by the framers. Vattel was Swiss, so his overall philosophy was informed by continental Europe’s tradition of civil law. However, a key characteristic allowing him to net such a wide and distinguished audience in the American colonies may have been his clear antagonism to Britain’s tradition of common law.

The framers and ratifiers of the Constitution knew first hand what it meant to be forced to eat the then-rotten fruit of the British common law when it came to the way in which the Colonies were governed. As a result, anyone who believes that the Article II, Section 1 term “natural born citizen” was derived from, or directly related to, the British term “natural born subject” rightly faces an enormous hurdle when it comes to proving their case. Far from embracing it, the framers were desperately trying to make a clean break with the British example.

If the arguments set forth in Mr. Madison’s article and the following comments have merit, the following appears to be true:

1) The first child born in the United States after the ratification of the U.S. Constitution in 1787 to a married U.S. citizen father (de Vattel) or, if applicable, to an unmarried U.S. citizen mother (von Bar) was our first “natural born citizen”. Because of the minimum age requirement, it was not until 35 years later that anyone in this class of citizen would be constitutionaly eligible to run for president.

2) In 1789, the office of POTUS was available to an individual who was at least 35 years old, was a citizen of a U.S. state at the moment the U.S. Constitution was ratified, and had resided in a U.S. state for at least the past 14 years (i.e., from the beginning of the Revolutionary war in 1775 onward). For later presidential candidates, the “start date” of the residency requirement marched forward in time (1779, 1783, 1787, etc.).

3) With the death of the last U.S. citizen born before the moment the U.S. constitution was ratified (let’s say, 1890) the pool of potential POTUS candidates was finally purged of potential “grandfather clause” candidates so as to only contain those who were born in the United States to married U.S. fathers or unmarried U.S. mothers.

If those who take issue with Mr. Madison’s position are to be taken seriously, this is where the break occurs. They claim that the 1898 SCOTUS decision in U.S. v. Wong Kim Ark decision worked an important change to the originally-understood meaning of the Article II, section 1 term “natural born citizen”.

While this notion is not necessarily intellectually bankrupt, it suffers from the fact that, as of yet, it does not bear the imprimatur of the U.S. Supreme Court. In other words, there is actually no precedent in terms of on-point decisional law from the Supreme Court to support this notion, however true it may ring in the ears of certain interested parties today.

Turning to the particular circumstances of Mr. Wong Kim Ark, he was born to parents who, though permanent residents of the U.S. when he was born, nevertheless remained subjects of the Emporer of China. In its decision in U.S. v. Wong Kim Ark, SCOTUS clearly articulated a broader scope of the 14th Amendment than had previously been recognized. In doing so, SCOTUS considered it important that Mr. Ark’s parents had demonstrated a clear attachment to the United States. In specifically recognizing Mr. Wong Kim Ark as a U.S. citizen under the 14th Amendment, SCOTUS laid down the general rule that any individual (other than children of foreign rulers and diplomats) born on U.S. soil to permanent resident alien parents is a “born” citizen of the United States pursuant to the 14th Amendment.

Not satisfied with mere citizenship privileges for such individuals based on SCOTUS’s construction of the 14th Amendment, Mr. Madison’s interlocutors now claim that this newly-recognized class of U.S. citizens must also be recognized as Article II, Section 1 “natural born citizens”, fully eligible to run for and assume the office of POTUS. But in order for SCOTUS to endorse such a theory, it will need to do so in a legitimate fashion, in a decision based on the results of an actual case or controversy brought before it, and taking into account all of the circumstances that gave rise to their positive citizenship decision for Mr. Wong Kim Ark, and not just some of them.

That is, if SCOTUS is to be called upon to loosen up the parental citizenship requirement on the one hand (so as to allow at least some individuals born to one or more non-citizen parents to assume the office of POTUS), it will need to hold these new members of the “natural born citizen” class to the special requirement that they be born to two permanent resident parents. Needless to say, and unfortunately for Mr. Obama, this is a result that does not necessarily accommodate individuals born to foreign fathers present in the United States on temporary student visas.

Mr. Madison’s detractors should carefully consider Chief Justice Fuller’s dissenting opinion in U.S. v. Wong Kim Ark. In it, Chief Justice Fuller firmly objected to the notion, seemingly raised (but not truly pursued) by the author of SCOTUS’s majority opinion in that case (Justice Horace Gray), that the only thing “natural born” ever meant in the first place was that the individual in question was born on U.S. soil: “[I]t 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.”

Note that Justice Fuller is not agitating in favor of recognizing foreign-born U.S. citizens as eligible to the presidency. Far from it. Rather, he is attempting to illustrating the absurdity of interpreting the 14th Amendment to mean that children born on U.S. soil to two non-citizen resident alien parents are POTUS-eligible in light of what he clearly considers to be an established, irrefutable fact: That children born overseas to two U.S. citizen parents (read: Mr. McCain) are POTUS-ineligible.

In Reply to Matt L.: Don’t know where you came from, Matt; but, thanks very much for stepping up on this. It was helpful. And you write VERY clearly as well.

Mainly to clarify the issue for myself, on my nascent blog, Opinerlog, and relying a good deal on this blog and its commentary, I tried to summarize the issue. Not sure iI did it justice, but I tried.

I have also been discussing this issue with some friends who are either unfazed, perplexed, burdened with the belief that all is lost anyway so why bother, those who are fearful of the consequences in the streets should the issue be seriously raised, and those who think early dementia is setting in on my part.

Well, I’ll admit to the possible dementia, but I won’t admit that so many bright, stable guys, as yourself, are nincompoops, blindly partisan hacks or deeply troubled conspiratorial theorists either. It’s a burning issue which deserves the full light of day, come what may.

I wish some one—or more—of the luminaries about whom you speak would but muster the courage to bring this up publicly. But, frankly, I honestly believe political courage is a rare commodity anymore. In truth, I think it’s dead, symptomatic of a declining America. So very tragic.

Also, given his baggage, I don’t think Berg helped the cause at all. We need some stellar Americans whose character and history are impeccable.

Truthfully, for the first time I genuinely fear for the security of American values and traditions. In the malaise in which our country now finds itself, the Constitution no longer appears sacrosanct, and oaths to uphold it have become empty the-means-justifies-the-ends words. Power alone is their God. And I see it day in and day out on the news and C-Span channels. My stomach is in knots watching our political leadership double-speak and obfuscate. Sickening.

I, for one, have written my congressional “reps” and asked them to openly question the constitutional eligibility of Obama to assume the Presidency on January 20th. I believe that if one Senator and one Rep step up, the issue can be dealt with head-on before inauguration. But, again, I just don’t see that level of courage present in those once venerable halls of Congress.

In one’s headlong pursuit of power these days, it seems now that nothing is sacred. Nothing is off-limits. Unfortunately, that cynicism is rampant on both sides of the aisle. So, where do little guys like me turn? What recourse do we really have?

Sorry for rambling. And, thanks again.

In Reply to Jim Delaney:

You are not going wrong at all. But you are clearly responding in a natural and honest fashion to questions raised.

I sense that you are also perplexed at the apparent absence of honest, straightforward, and satisfying/satisfactory answers to these questions. Your confusion is all the more justified based on the fact that those who you might expect to be knowledgeable about the circumstances we are discussing, and whose opinions, if presented publicly, would presumably carry much weight (e.g., legal luminaries, high public officials, etc.), have, more or less to a person, been stone cold silent on this issue.

Ordinarily, this is a signal that justifies a conclusion that the issue in question is not really an issue, but rather, amounts to nothing but misguided ramblings on the part of people who should find something better to do with their time. But there are some ‘twists’ to the current circumstances which ought to give thoughtful, intelligent people with no particular political axe to grind pause to consider whether a different conclusion is justified.

The most relevant and compelling sources of law (notably, the relevant legal treatises penned during the colonial period by de Vattel and von Bar, respectively) appear to demonstrate that what our framers intended when they inserted the term “natural born citizen” into the Article II, Section 1 presidential eligibility clause (PEC), and what the ratifiers of the original Constitition (together with the first ten Amendments) understood when presented with the final document, is that the office of POTUS was unavailable to any otherwise qualified individual who cannot also show that he or she was both: 1) born on U.S. soil, and 2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen.

Mr. McCain was born in a Panamanian hospital in Colon, Panama. Mr. Obama was born to a father who was a foreign national (a citizen of Kenya). Since Mr. McCain was not born on U.S. soil, he presumably fails prong (1) of the above test. Since Mr. Obama was born to a mother who, though married at the time he was born, was not married to a U.S. citizen, he presumably fails prong (2) of the above test. As a result, prior to November 4th, we were left in the unusual (to say the least) situation in the current national election cycle in which neither of the major party candidates was likely constitutionally eligible to assume the office of POTUS. If neither of these candidates was POTUS-eligible to begin with, neither the results of the November 4th national election, nor the fact of the December 15th Electoral College vote, can be be considered to have solved the problem. Neither will an inauguration on January 20th bring relief: The stringent requirements of the presidential eligibility clause apply equally to sitting presidents and presidential candidates alike.

To add insult to injury, only this month did we learn that Chester A. Arthur (who became our twenty-first president in 1881 upon the assassination of the previous President, James Garfield), was born to a non-citizen father. For those who are only now realizing this, CAA’s father, William Arthur, was still a British subject at the time of CAA’s birth in 1829. Naturalization records from Washington County, New York show that he did not become a U.S. citizen until 1843. As a result, the legitimacy of CAA’s presidency from 1881-1885 (including any and all U.S. laws that became law under his signature) will now be drawn into question.

As one astute observer has recently observed, it doesn’t matter how much glory a stadium full of fans heaps on the slugger who hits the game-winning, walk-off grand slam. If you fail to touch first base on on your leisurely trot around the bases, and the pitcher chooses to toss the ball to the first basemen, who then steps on the bag, you will be called out. No questions asked. Or as the SCOTUS saying goes, “though the heavens may fall…”

If ever silence on the part of legal luminaries or high public officials in the United States could be regarded as something less than golden, the time would appear to be now (prior to January 20th). Is it too much to ask for at least one person meeting this description to weigh in on this issue?

For any one of the above-categorized persons, it may indeed be too much to ask. The notion of speaking up now, in the absence of a compelling personal reason for doing so, could seem like a career-threatening move of the highest order for folks in high places. To be heard publicly to suggest that the current theory (i.e., that Mr. Obama’s lack of a U.S. citizen father may render him ineligible for the office of POTUS) may actually hold water is to invite public inquiry as to what one’s ultimate personal opinion is on the matter. To withhold one’s personal opinion after raising the issue is to demonstrate a lack of intellectual courage. This is a label nobody in public life wishes to wear if they can avoid it.

I seems rather more likely that most, if not all individuals in positions of public trust or authority that have seriously considered this question (whether Mr. Obama’s lack of a U.S. citizen father renders him ineligible for the office of POTUS) have concluded that silence in the first instance is the best strategy. In other words, if a Mutually Assured Destruction policy was in effect as between the two major parties during the runup to the November 4th national election, it appears to have given way to a strict regime of Don’t ask, Don’t tell.

For Publius

I know you may be repeating yourself in doing so, but would sincerely appreciate your commenting on #1016 and #1022. Given the range of honest dissent on this subject, and what appears to be a fairly loose interpretation of natural born citizen on the part of many participants here, am beginning to believe that many here would readily accept anyone’s eligibility to run for Prez so long as he can claim us citizenship by whatever means. And, frankly, that is a bit unnerving for me. Thanks very much.

In Reply to the truth:

P.A. Madison and others at Federalistblog.us certainly do not have single-digit IQ’s.

In Reply to Mike: You have any evidence to prove anyone within the United States was ever considered “subject to the jurisdiction” of the United States prior to 1898?

I live within the jurisdiction of several courts but I have never been a subject of their jurisdiction.

The citizenship clause is no different from Sec. 1992 of U.S. Revised Statutes that was enacted the same year: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

I believe the the above law remained the law all the way up until 1965 and was wholly ignored which was a national tragedy

In Reply to the truth: Madison has documented his sources in other works. If you are looking for well documented sources you should try research or hire Mr. Madison to prepare you a well documented historical analysis.

As I recall, Rep. Bingham’s comment was part of the debate leading to drafting and passage of the 14th Amendment, which was than adopted by the states. However, a fundamental rule of statutory construction is that legislative history is only relevant to interpretation when the language of the law is not clear. I do not think that the first sentence of the 14th Amendment is unclear on the issue of citizenship, and it does seem to contradict Rep. Bingham’s point on the natural citizen issue, since it confers citizenship on every person born within the US and subject to its jurisdiction, without regard to the citizenship of the parents. It is also important to keep in mind that one fundamental purpose of the 14th Amendment was to guaranty citizenship to freedmen who had been born in the US, but whose parents were not citizens by virtue of their status as enslaved persons, and that may have been the focus of Rep. Bingham’s comment, rather than the children of resident aliens. However, subsequent statutory construction (by the Supreme Court) follows the plain language of the amendment.

Of course, the question here is whether or not this also amended the “natural born citizen clause, and you already know my perspective on that from previous comments on this forum.

Whom ever P.A. Madison is, he is a dimwit for not documenting his sources, just as most of the single digit IQ holders are at the federalist blog.

For Mr. Madison/Publius:

Would sincerely appreciate your learned opinions re my#1016 entry.

With respect to Prez Clause, and irrespective of my political leanings, I am still very much disposed to believing that the natural born citizenship vs us citizenship distinction was purposeful on the part of the Framers.

Also, and side from Rep. Bingham’s statement with respect to natural born citizenship, is the distinction clearly made anywhere else in the 14th Amendment in any way which would clearly/reasonably negate its meaning within the context of the Prez Clause?

Thanks!

In Reply to P.A. Madison: Thank you for your quick response. I would like to write to my Congressional representatives. This explanation of the meaning of a “natural born citizen” by Rep. Bingham is very clear.

Here are the USA laws from State Dept as regards Dual Nationality.

Once a US citizen (either by birth or naturalization), one can never lose it execept by them officially renouncing it.

So all the stuff about Obama losing citizenship in Indonesia is just hot-wind-air theories.

We need to stick to basic premises. NBC and BC so far.

The rest are distractions!!!

Dear P.A. Madison,

Could you indicate the reference (source) for the Rep. John A. Bingham quote shown below?

Rep. John A. Bingham:

“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.”

Thank you.

In Reply to Mike: Thanks, Mike. I understood how the diplomatic piece applied to my examples. But, now I’m really beginning to question whether or not we’re all chasing our tails on the natural born citizenship (nbc) eligibility issue. Nonetheless, some considerations/questions for everyone’: 1) John Jay’s 1787 ltr to Washington specifically warning against any but an nbc assuming the presidency seems to have directly led to nbc being specifically included in the Pres. Clause and no where else, thus, presumably, the Framers’ clear intent to make a distinction between nbc and us citizen for purposes of the Presidency; 2) E. Vattel’s Law of Nations in which there is citizenship by law of nature (inheritance from father) and by statute, and his accent on inheritance of citizenship from the father as being pivotally weighty; 3) Rep. Bingham’s assertion,which seems to draw a distinction as well, by his stating that “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is a nbc”. Didn’t just say us citizen; 4) State Dept. Foreign Affairs Manual’s statement that seems to make a citizenship status distinction with this: “the fact that someone is a nbc pursuant to a statute [by law as opposed to natural law, presumably] does not necessarily imply that he or she is such a citizen for Constitutional purposes”, presumably meaning the Prez. Clause since that’s the only other place I know nbc appears. Everything I’ve read seems to underscore the nearly overriding importance of the father’s citizenship and that being “born of” a father of dual allegiance/citizenship renders him ineligible for Prez. I really think a distinction was deliberately drawn by Framers for the purpose of Art II, Sec 1, but for no other purpose. Where am I going wrong. Am SOOOOO boggled!

A friend asserts that he emailed Hawaii Dept of Health which said that Hawaii no longer issues certificates of live birth, only certifications, and that since the us state dept accepts certifications to issue passports, then why does obama need to divulge the vault copy of birth?

what’s the truth here? anyone know?

Jim Delaney asked for perspectives on the hypothetical situations raised in his earlier post. Here’s my take on his questions:

Q: If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”. Right?

Not right. Under the 14th Amendment and Supreme Court decisonal authority, every person who is born in the US and is subject to its jurisdiction is a US citizen, even if their parents are not. My view is that the only exception is the children of foreign diplomats, since foreign diplomats are not subject to US jurisdiction. I would call this “US citizenship because of the circumstances of birth.” Others disagree, but I think that the Supreme Court is VERY unlikely to try to create an intellectual distinction between that and a “natural-born citizen.” After adoption of the 14th Amendment, they are the same thing.

Q. If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”? Right?

Generally speaking, the answer is yes, provided that the parents are married. However, this question poses a number of complexities, depending on circumstances, and it raises a number of issues. First is marital status. Second is whether or not diplomatic status is an issue. Third is whether extra-territorial jurisdiction is an issue. But I think that if the parents are married and the father is a US citizen, and the child is born in the US, the child is clearly a natural born citizen. The only possible exception would be if the mother is a foreign diplomat. I do not know what US law says about the children of such “mixed couples” when the child is born outside the US, but I think there is a specific provision for children of US citizen mothers. I agree that under traditional rules, the foreign-born childen of US citizen fathers are US citizens from birth if the parents are married, and are probably not if the parents are not married.

Q. If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”. Right?

Children of diplomats (e.g., in the US on diplomatic passports) are NOT subject to US jurisdiction, and in my opinion their US-born children are not US citizens from birth. The US born children of other aliens are US citizens from birth and in my view natural born citizens. I don’t think that the 14th Amendment would create US citizenship for children of aliens born outside the US in places “subject to US jurisdiction,” such as Guantanamo, Cuba.

Q. Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”? Right?

As you know from my comments, I do not believe that the Supreme Court would attempt to create a distinction between “natural-born citizen” and those who are US citizens because of the circumstances of their birth. That distinction would undermine the meaning of the 14th Amendment. Therefore, I believe that every person born in the US (other than children of foreign diplomats) is a “natural born citizen.” I haven’t figured out what happens if one parent is a diplomat, and the other is not. Under traditional notions of citizenship, the marital status of the parents would be determinative, and the child would follow the citizenship of the father, if the parents are married, and that of the mother if they are not.

What I have not seen thus far is a logical explanation of a distinction between “natural born citizen” and “someone who is a US citizen because of the circumstances of birth,” and right now, I cannot see one.

Sure hope I can get a definitive response to my 12/14 queries re those various citizenship situations which may or may not render a child “natural born” for purposes of the Presidiential Clause. Am still somewhat confused over the jurisdictional requirement. Assuming a child is a natural born citizen by virtue of parentage alone (2 US citizen parents or a US Citizen father alone at time of birth), does jurisdiction of birth matter, and is there always the additional requiremenet that either both parents or the father’s firm allegiance alone to the US exists at time of the child’s birth? I thought breaking it down as I did below would help clarify it for me. Thanks!

Thanks to Publius for the clarification on the Donofrio case. I may have confused it with the Berg case, which did involve standing, as I recall. And Publius is probably correct that the US Supreme Court doesn’t have the stomach for this, but I think they are also informed by the likeliest outcome, in view of the legal precedents discussed here.

I think that Arnold is probably not the right person to test the meaning of natural-born citizen, since it is pretty much undisputed that he was not subject to the jurisdiction of the US at the time of his birth. Nice to see some humor here, though.

On the issue of clarification raised by Publius, it sounds like the plaintiffs in these suits have done enough work to provide the basis for an interesting and authoritative law review article on the meaning of the constitutional provision. Any takers?

In Reply to JimAZtec:

Sorry JimAZtec and Mike, but both of you are off-base on this.

Granted, there was a slew of lawsuits challenging Mr. Obama’s legitimacy for the office of POTUS that could never get past square one because the plaintiffs were powerless to demonstrate standing to sue Mr. Obama. Because most of these cases were brought in federal district court, the standing issue was susceptible to relatively easy analysis (because it’s basically the same across the country), with the same result in each case: no standing—get out of my courtroom!

Mr. Donofrio’s case was different. He never sued Mr. Obama personally. He was suing the Secretary of State of New Jersey in state court in New Jersey under the theory that because she was refusing to do her job as set forth in the statutes and Constitution of New Jersey, the court should force her to do her job and begin vetting POTUS candidates, starting with the two major party candidates and one third party candidate this year.

As it happens, Mr. Donofrio benefitted from what happen to be a relatively liberal tradition in New Jersey in granting taxpayers and taxpayer groups standing to sue state actors who fail to do the job they are elected or appointed to do. Moreover, by the time Mr. Donofrio’s case reached SCOTUS, the question of standing to sue was not at issue (it was basically established). The state of New Jersey never challenged him on standing. The Supreme Court of New Jersey made a final ruling based on “movants papers”, thereby rendering a decision on the merits that, procedurally speaking, can never occur absent at least a sub silentio holding that the plaintiff has standing.

With a merits decision in place by the time Mr. Donofrio applied to SCOTUS for an emergency stay of the 2008 election, the question was no longer one of standing, but rather, whether SCOTUS was inclined to intervene in the goings on in New Jersey. The fact that SCOTUS declined Mr. Donofrio’s invitation to mix it up with the bad actors in New Jersey means just that—they took a pass. To my mind, the decision on the part of SCOTUS to stay above the fray has everything to do with the phrase “discretion is the better part of valor”, and very little to do with a desire to express approval or disapproval of Mr. Donofrio’s case on the merits, or to lump Mr. Donofrio in with folks like Mr. Berg, whose standing to sue is questionable at best.

BTW, and IMHO, its a moot question as to whether either Mr. Donofrio or Mr. Wrotowski retain the ability to petition SCOTUS for a writ of certiorari. They have no plans to do so, and quite frankly, given the current atmosphere, I don’t blame either of them one bit for being reticent. Both of them have done yeoman’s work educating all of us in what the Constitution means when it says “natural born citizen”. This despite what appears to me to be an enormous edifice (with no foundation) having been erected to water down the meaning of that term by what seems like dozens of eminent individuals who I believe know better, but who are agenda-driven and are therefore uninterested in originalist arguments.

Now that that genie is out of the bottle, though, it will be interesting to see what the fallout is.

Publius

In Reply to Mike:

Both Donofrio and Wrotnowski were considered dead before the court had rejected their stays. As I said before, the only way to get this before the court is for someone with standing to make a challenge. A likely scenario would be for a state to refuse to certify Obama’s EV’s on the grounds he does not meet the qualification of a natural born.

Obama or the Democratic Party then might sue to challenge the assertion he does not meet the qualification. The FEC conceivably could challenge his qualification if it wasn’t for the fact they lack ability to distinguish fact from fiction.

Another option is to have Arnold Schwarzenegger run for president in 4 years. He could argue he was “born” AND naturalized subject to the jurisdiction of the United States and therefore a natural born citizen. His argument would be just as legitimate as the argument that says anyone born on American soil and subject to the jurisdiction thereof is a natural born citizen. No where does it say someone has to be born on American soil (old wives tale), only they must be born or naturalized and subject to the jurisdiction of the United States just like a naturalized Arnold! There is no distinction between being born or naturalized when it comes to subject to the jurisdiction thereof! Hahahahahaha

Of course subject to the jurisdiction of the US cannot then mean physical location or else idiots can create loopholes all day long like with Obama and maybe even Arnold if he wanted.

My understanding is that the Donofrio case is dead; the lower court determined that the plaintiff did not have standing to challenge Mr. Obama’s citizenship because the nature of the personal harm he alleged was too remote to support the lawsuit. This was appealed to the US Supreme Court, which upheld the ruling of the lower court on December 8, 2008.

Today (12-15-08), the US Supreme Court also denied the plaintiff’s application for an injunction in the Wrotnowski case. This is a pretty good indication that the applicant did not satisfy the Court that there was any likelihood of success on the merits.

It is looking pretty obvious that the Court does not want to get involved in another partisan political dispute.

To Publius: I saw this comment on Americasright.com. Is this valid?

“The cases have not been denied. Donofrio v. Wells has not been denied. I expect that while stays have not been issued based upon Wrotnowski v. Bysiewicz, that it will not be denied today, either.

Donofrio v. Wells, the case, is pending. Expect all to pile up as pending until after the Congress (allegedly) certifies the Electoral College vote.

That is when it may hit the Fed Fan up the hill at the SCOTUS.

See:

article: federal judicial review allowed only after Congressional certification of the presidential vote…”

In Reply to Publius:

Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth in the U.S. and its possessions?

Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth outside the U.S. and its possessions?

If Obama can really produce a valid “vault copy of his birth certificate—-long form with all supporting evidence—then he has no problem if he is actually born in Hawaii and his dad was naturalized or actually a citizen at the time of Obama’s birth.

To me the above paragraph seems to fit all Presidents excluding the framers and Chester Arthur.

Do you hold the Obama is Hawaiian born? If you hold to Hawaii, why so? I think the preponderance of evidence leads to Kenya.

In any case, Obama’s refusals are harming America! He is a man who thinks our Constitution is flawed.

Thank for you help! I am sorry if this is a retread for you.

In Reply to Publius: In my feeble attempt to cut to the chaste on the issue of a person’s eligibilty to be President or VP, let me try a few permutations here and get your learned replies: first, to be President within the intent and spirit of the Presidential Clause and the 14th Amendment, a person must be a “natural born citizen”. Right?

Thus, and assuming everyone is in agreement on that score, if the candidate had been born of 2 US Citizens within the jurisdiction of the US, s/he would absolutely meet the “natural born” eligibility requirement. Right? And it would be of no consequence if one or both of these US Citizen parents had been naturalized, so long as both were US Citizens at the time of the child’s birth. Right?

Within the meaning and spirit of the law, is transmission of “natural born citizenship” solely dependent upon a father’s “attachment”to the US, i.e. the father’s citizenship when the child is born. In the final analysis, conferral of “natural born citizenship” status is strictly a patrilineal thing. Right?

These specific questions:

If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”. Right?

If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”? Right?

If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”. Right?

Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”? Right?

In the absence of a lofty SCOTUS definition, the definition you guys render here is good enough for me. Thanks!

In Reply to Hugh:

Natural law seems to indicate that the child of an unmarried U.S. citizen mother inherits U.S. citizenship from the mother.

The “II” versus “Jr.” naming convention may be a distinction without a difference, I’ll admit, though it did pique my curiosity.

Nevertheless if Mr. Obama finds himself in a pinch, and needs to show that he is a constitutionally-vallid natural born citizen in order to assume the office of POTUS, I would think that proof that his mother was not legally married to his father at the time of his birth in Hawaii, delivered between now and January 20th, could be just what the doctor ordered.

In Reply to Publius:

Jim Delaney may be speaking of U S Code Section 1401 which may relate to INA 301, but it does not speak of marriage of the child’s parents as a requirement as far as I can tell. The only qualifiers are one US citizen parent, one alien parent and the time limits. Please explain!

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

I think the Donofrio and Wrotnowski cases are correct due to Obama’s admission that he is a British citizen via his father.

In Reply to Jjim Delaney:

Presuming you have the right citation, I suspect the 1961-era statute you are referring to applied to a child born outside the United States to a U.S. citizen mothers married to a father of foreign nationality.

The existence of statutes like the one you mention is, it seems to me, evidence that there currently isn’t, and probably never was, any provision of natural law, pursuant to which a children can be considered to inherit their citizenship of their married mothers.

Emphasis on the word “married.”

Consider the following passage taken from the dissent in Wong Kim Ark: “And to the same effect are the modern writers, as, for instance, [169 U.S. 649, 709] Bar, who says: ‘To what nation a person belongs is by the laws of all nations closely dependent on descent. It is almost a universal rule that the citizenship of the parents determines it,-that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth; and that must necessarily be recognized as the correct canon, since nationality is in its essence dependent on descent.’ Int. Law, 31.”

I have seen it said somewhere that if an boy baby is given his father’s name, but instead of having “Jr.” as a suffix to his name, he is instead given the suffix “II”, this is an indication that the child not the product of a legal marriage between his mother and father. In other words, the boy was born out of wedlock—a ‘bastard’.

I seem to recall seeing where on the Hawaii Certification of Live Birth the Obama campaign released to the public, the candidate’s name is listed as “Barack Hussein Obama II.”

Query whether this is an indication that Barack Hussein Obama and Stanley Ann Dunham were not actually married when the future presidential candidate was born in Hawaii?

If Mr. Obama’s parents were not actually married when he was born, I would think this explains a few things pretty well, and in a way quite favorable to Mr. Obama in terms of his future political plans.

First, assuming it is true that Barack Hussein Obama II’s mother (Stanley Ann Dunham) and father (Barack Hussein Obama) were not legally married at the time of his birth in Hawaii in 1961, and assuming Mr. Obama is personally aware of this, Mr. Obama may (being an attorney and former Con Law professor) be of the professional opinion (as yet unvoiced, but as it turns out, possibly quite correct) that he inherited his U.S. citizenship from his U.S. citizen mother pursuant to this very provision of natural law set forth by Bar in Section 31 of his International Law treatise. Since Chief Justice Fuller cited Section 31 of Bar’s Internation Law treatise in his own dissent (joined by Justice Harlan) to Justice Horace Gray’s SCOTUS majority opinion in U.S. v. Wong Kim Ark, Mr. Obama may have concluded that anyone who currently finds favor in the basic logic of Chief Justice Fuller’s dissenting opinion (as I find I have) is likely to concede (I can see where I might, if prompted) that a child born to an unwed U.S. citizen mother is a “natural born citizen”, fully qualified to assume the office of POTUS.

Second, and again, if all of this (however strange to imagine) is in fact true, it would provide a surprisingly innocent explanation to the average concerned U.S. citizen as to why Mr. Obama has been, let’s say, a little ‘reticent’ when it comes to releasing the vault copy of his birth certificate.

And third, while it may turn out that Chester A. Arthur was in fact not a constitutionally-valid natural born citizen, based on the fact that CAA was born to a father who, though legitimately married to CAA’s mother, was nevertheless a British subject who did not become naturalized in the U.S. until some fourteen years after the CAA’s Vermont birth in 1829, Mr. Obama can take his ease, assured of a different fate based on a certain minor (but nevertheless critically important) factual distinction!

In Reply to Publius: Am not an attorney, but am smitten by the complexity of this case. To clear up a more mundane issue regarding OBH’s birth and citizenship status, would one of you fellas respond to this. Hope it hasn’t already been covered somewhere here. If it has, my apologies for the intrusion.

Somewhere I read that in 1961, the date of OBH’s birth, INA 301(g) required that if a child was born in a marital situatiion of a US Citizen and an alien that the US Citizen must have been physcially present in US for 10 years, 5 of which must have been over the age of 14. Since OBH’s US Citizen mom was 18 at the time of OBH’s birth, then is it true that her US Citizenship could not have been transmitted to her son for her having failed to meet the physcial requirment’s test? And if that’s true, then isn’t it also true that OBH, even if born in the US, is neither a US Citizen by birth or a “natural born citizen”? ALos, is the current less stringent physical presence requirement retroactive to 1961? Confusing stuff for a neophyte. Thanks.

Silly me.

I thought what was under discussion here is whether or not the candidates in the recent election meet Constitutional qualifications to be president of the US, not an ad hominum attack on the winning candidate. Mr. Daniel’s catalog of red herrings aside, the evidence is that Sen. Obama WAS born in the US, but as always, some people will never be persuaded, no matter how convincing the evidence. I suspect that Mr. Daniels would never support the senator or any other Democrat, even if the candidate had been born in the Lincoln Memorial.

From a practical perspective, there is no dispute about the formative part of Sen. Obama’s life, he went to elementary school in Indonesia, was raised by his white grandparents in Hawaii from age 11, went to the state’s most exclusive private high school where he was the only black student, went from there to an exclusive private college in a suburb of Los Angeles, finished his undergraduate degree at an Ivy League university, went on to be elected president of the law review at the nation’s most distinguished law school, and then went on to teach at another distinguished law school while working in Chicago as a community organizer. Most people would think that part of his experience is far more relevant to his patterns of thinking and ability to govern than whether or not his soon-to-decamp father was a British citizen at the time of his birth. A few have noted the stark contrast with the educational achievements of the losing candidates.

Whether or not the president-elect has the temperament and experience to be president, the fact is that he won more than enough votes to be elected president by the electoral college, in fact, almost twice as many as Sen. McCain. Mr. Daniels will have eight years to get used to that.

Why is it that the “silver-plated” part of Mr. Daniel’s screed makes me think of the governor of Alaska, whose popularity there is based on large hand-outs financed by a big increase in corporate taxes? More like Eva Peron than any American politician, but now we are indeed far afield from the issue of consitutional qualifications.

Now, where were we?

In Reply to Mike:

If you are loathe to condemn a candidate for POTUS solely on the basis of his or her being a dual citizen at birth, I think you would have company in me. I assure you, I am am doing my dead level best to avoid leading anyone astray on the proper criteria for determining who is and who is not a “natural born citizen” as that term is used in Article II, section 1 of the U.S. Constitution.

Certainly, the fact of dual citizenship at birth should not be the sum and substance of any indictment of a candidate for POTUS. Strictly speaking, the Constitution includes no positive language that specifically provides that dual citizens are automatically disqualified.

In terms of the true question at hand in the case of Wong Kim Ark, which is whether the U.S. government was obliged to recognize him as a citizen of the United States or not based on the fact of his birth on U.S. soil, it may be helpful to consider one similarity between the circumstances of Wong Kim Ark’s birth, Barack Hussein Obama’s birth, and Chester A. Arthur’s birth, one difference unique to the circumstances of WKK’s birth which I believe probably never actually counted against him, and one one difference unique to the circumstances of BHO’s birth which may (at least potentially) complicate his case for why he should be considered a “natural born citizen” as that term is used in the Article II, Section 1 presidential eligibility clause of the Constitution.

If not for the inspired research of Leo Donofrio earlier this month on the case of former U.S. President Chester A. Arthur, we would still be ignorant of the fact that CAA’s father only became a citizen of the United States in the county of Washington, New York in 1843, some 14 years after CAA’s 1829 birth in Vermont to a U.S. citizen mother.

So beyond the fact that all were born in the United States, one key similarity beween and among WKA, CAA, and BHO is that each was born to a father who was a foreign national at the time.

As we know, after a failed attempt to secure the Republican Nomination for president (1884), and after being replaced in office by Democrat Grover Cleveland of New York (1885), CAA died in 1886. SCOTUS decided the case of Wong Kim Ark some twelve years later, in 1898. Before 1898, one who was born on U.S. soil to a resident foreign father was not considered a U.S. citizen, but rather, was presumed to have inherited the father’s citizenship. Of course, if the father was a resident alien otherwise qualifed for naturalization later in life, at the time a child is born to him (prior to 1898, at least), that child would presumably also be considered a resident alien, and would be similarly qualified to become a U.S. citizen at some point in the future.

So it seems clear that that it was only after the SCOTUS decision in Wong Kim Ark that the U.S. government was legally obliged to recognize, as U.S. citizens, individuals who were born on U.S. soil to non-citizen fathers.

Did BHO and CAA have anything like a “leg up” over WKA in terms of claiming U.S. citizenship at birth, it would presumably be the fact that the mother of each was a U.S. citizen, whereas WKA’s mother was a resident alien (Chinese national)? If this is in fact a distinction with a difference, I would think it would be important to determine when this occurred. It certainly wasn’t always the case, and is arguably not the case now.

According to my understanding of the natural law relating to this issue, throughout history, at least up until the time of Wong Kim Ark’s birth in San Francisco sometime between 1868 and 1873, being born to a citizen father was a sufficient condition for a given child to be considered to have inherited his or her citizenship. That is, whether your birth occurred domestically, or in a foreign country, if your father was a citizen, you were a citizen.

Beyond this, however, my understanding is, that being born to a citizen father was traditionally also always a necessary condition for a given child to be considered to have inherited his or her citizenship. The upshot of this, of course, is that, back in the day (at least), and as bad or ‘off-key’ as this may sound to the modern ear, particularly in the U.S., the citizenship status of the mother never actually mattered when it came to the relevant provisions of natural law. This was certainly the case when CAA was born in 1829, at least up until and including the time WKA was born (in the 1868-1873 time frame).

Vestiges of this provision of natural law were arguably still operative at the time of BHO’s birth in 1961. Recall that if BHO were born overseas rather than in Hawaii, his mother’s age (eighteen) would not have been sufficient for BHO to meet the then-in-effect citizenship requirements of U.S. statutory law (based on the math, she would have needed to be at least nineteen). To this day, I am unaware that the provisions of natural law allowing one to inherit the citizenship of one’s father only are recognized as having been displaced, such that a more inclusive arrangement prevails such that one can now lay claim to inherited citizenship at birth so long as one of your parents was a citizen. In fact, even now in the U.S., the ability to demonstrate citizenship status based solely on the fact of one’s mother being a U.S. citizen appears to be a 20th century development (and a limited one at that) appears to be a result not of any particular provision of natural law, but rather of recently-enacted positive laws to this effect.

Assuming for the moment that WKA’s mother’s status as a resident alien did not present any additional obstacle (vis-a-vis BHO and CAA) in terms of forcing the government to recognize WKA as a U.S. citizen, we are left to ponder whether BHO Sr.’s status as a temporary U.S. resident (here on a student visa) at the time of BHO’s birth should actually be considered to leave BHO at a disadvantage as against WKA and CAA, both whose fathers were permanent residents at the time of their respective births. The argument would be that BHO’s claim to U.S. citizenship is that much weaker than the respective claims of WKK and CAA based on the fact that BHO’s father’s personal ties to the U.S. were clearly weaker by comparison.

To be clear, I make no case that BHO is not a U.S. citizen. His birth in Hawaii, plus the decision in U.S. v. Wong Kim Ark (as recently followed in Hamdi v. Rumsfeld), makes that a foregone conclusion. Rather, I am attempting to explore the relevant facts of his birth to determine whether or not there would be a good reason for considering the nature of BHO’s citizenship to be different from those of CAA and WKK in a way, or to an extent, that could adversely impact his specific claim to being a constitutionally-valid natural born citizen.

Mike seems to suggest that there isn’t a substantive difference in the meaning of the terms, Citizen and Natural Born Citizen (relative to the circumstances at birth). Apparently many suggest that there is confusion in what the term Natural Born Citizen means altogether. As one who does not know the law, perhaps you could enlighten me here, as you are sounding as if you do.

There is a consensus that individual X is a Natural Born Citizen. Just for fun, lets say he goes off to China, renounces his U.S. citizenship and becomes a Chinese national. Now, he is obviously not a Citizen of the U.S., yet surely he is still a natural born American? After many years our fictional character (let’s call him Kim) decides it wasn’t a great idea after all, as the cultural revolution has become like ancient history and it’s becoming more like the capitalist system he wanted to leave, and reluctantly returns to the U.S. and becomes naturalized - with very little trouble (after all he is natural born). After the requisite amount of time he decides to run for the Presidency. He is a natural born American and he is a citizen. Is he a natural born citizen? Is there still no significance between his being natural born and being a citizen who was born in the U.S.? He is also a statutory citizen, is he not? Is he perhaps a Citizen, who is native born?

Why would the framers make a distinction between a qualification for a senator, who should be a citizen, and that of the Commander in Chief, who should be a natural born citizen? Superfluous verbiage? What would lawyers (like you?) do if there is a confusion about a term which was used widely in a bygone age,? Would you consult the dictionaries of the time.? And if there wasn’t an appropriate dictionary (one national in character explicitly showing local distinctions of the term), would you not consult those with the greater erudition who used the term at the time and place in question? And would they, especially if they used it emphatically, without undo contradiction by their peers, be considered authorities of the term? How much of an authority relative to a well respected dictionary? Would you in general, concur with these individuals? I understand that there is a distinction between intentions in the law and the intentions or motivations of the framers, but is there not a bridge?

Hamdi is a ‘known‘ entity without the best and uncompromised interests of the US at heart. Hopefully no one would vote for him or for Charlie Manson admirer, Bill Ayers. The problem is with the ‘unknown‘ entities who may not have undivided loyalty to the US. Did the framers not have this also in mind when they devised the more stringent qualification?

Why 66,000,000 Obama Votes Are Not the Will of People

One of the most common arguments presented by Obamabots why the people who are challenging Obama’s eligibility to be President should not do so is because 66,000,000 people voted for Obama. Therefore choice for Obama is the will of the people. Wrong, wrong, wrong and 66,000,000 votes wrong. Only half of America voted. Only half of the half who voted, voted for whom they thought was Obama. That makes the number only 25% of the people who thought they voted for Obama. That is hardly the will of the people. The candidate for whom 66,000,000 people voted, was not the candidate they thought he was.

1. First of all Obama’s true legal name is Barry Sotoero. If Obama’s real name is Barry Sotoero, the people voted for Barack Hussein Obama and not Barry Sotoero. Barack Obama doesn’t exist except by his fictional creation.
2. If Obama knowing he failed to meet one of the three criteria to become president, then he is knowingly a false candidate. False means not real. Not real means fiction. The people voted for a fictional candidate and not a bonafide qualified real candidate. They voted for a fictional character.
3. If Obama was “change you could believe in”, then the people voted for their belief in change not to get short changed.
4. If Obama is MSM favorite and MSM suppressed vital information necessary for the public choice and reported only favorable information about Obama, then the people voted for Obama media hype, not the favorite.
5. If Obama is a flim/flam man, the people voted for the flim/flam and not the man. The man is an illusion.
6. If Obama is an empty suit, they voted for the suit and not the empty.
7. If Obama is “the one”, they voted for a fantasy and not the man.
8. If Obama is one slick glittering package, they voted for the package and not the slick.
9. If Obama is a silver plated turd, they voted for the silver plating and not the turd.

If Obama is not qualified under the US Constitution to be President, then he perjured himself and perpetrated a heinous fraud upon the American people. All those people who voted in good faith for him have been betrayed. The reality is that had MSM been objective in their reporting about Obama and disclosed the question of his eligibility based upon his citizenship, perhaps 66,000,000 would have voted differently. Because Obama, the DNC, MSM, and a few thousand more deliberately covered up the truth, published a forged COLB, chances are very good there is a USURPER about to steal the government and place America in the greatest NATIONAL SECURITY THREAT in her history.

Under no circumstances can Obamabots claim because 66,000,000 who voted for what they thought was a valid candidate these votes represent the will of the people. Again, had the voters known the real facts, the question is would they have voted for him. It cannot be called the will of the people when the people who voted had voted based upon false information.

The fat lady hasn’t sung yet. The more you discover the more power you gain. Join the discussion at www.blogtalkradio.com/vos Sunday 12-14-08 from 7 p.m. to 10 p.m. PST. How will Blag’s arrest affect the rest of the Obama thugs?

Check out this video regarding the electoral college Cut and paste – it’s excellent http://wethepeopleusa.ning.com/video/video/show?id=2482704%3AVideo%3A13154

While there may be a number of troubling aspects to the idea that an accused terrorist or ‘fellow traveller’ like Yaser Esam Hamdi might be able to become president, the most disturbing is the notion that he could garner the political support and votes to become president. However, I do believe that after adoption of the 14th Amendment, he does meet the Constitutional qualifications (assuming he is 35 yrs old). However, so did Timothy McVeigh and Charlie Manson, and I wouldn’t want to see either of them as president, either.

In Reply to Mike:

You rely on the SCOTUS decision in U.S. v. Wong Kim Ark as legal precedent for the proposition that Mr. Obama is a natural born citizen and is thus qualified for the office of POTUS. By your reasoning, Wong Kim Ark himself, born of two resident alien parents, was also a natural born citizen, fully qualified for the office of POTUS. In light of the recent decision in Hamdi v. Rumsfeld, it is clear that by now, more than 100 years after deciding Wong Kim Ark’s case, SCOTUS can be relied upon to recognize anyone who is born on U.S. soil, even individuals like Los Angeles-born Yaser Esam Hamdi who are born to alien parents who are in the United States illegally.

The U.S. government regards Yaser Esam Hamdi, who was arrested in a battle zone by Northern Alliance soldiers to whom he surrendered his firearm, as an illegal enemy combatant. The Supreme Court recognizes him as a U.S. citizen. By your analysis, it is settled U.S. law that if Mr. Hamdi finds life in the United States to his liking now, and decides to live here for the next 14 years or so, he will be eligible to run for (and if he manages to muster up sufficient popularity, win and assume) the office of POTUS.

Does this trouble you?

BREAKING NEWS!!!

White House says “No Blair House for Obama until after Electoral College vote count”.

http://www.uslaw.com/pop/?p=164

I think Publius is focusing on a distinction without a difference, when he tries to distringuish Mr. Wong’s status as US citizen by virtue of birth, from the status of Sen. Obama as a “natural born citizen” of the US. The only difference is that neither of Mr. Wong’s parents were US citizens, whereas Sen. Obama’s mother was a US citizen. As stated in my earlier posts, I do not believe that there is any logical difference between someone who is a US citizen by virtue of the circumstances of his birth, and a “natural-born citizen.”

US jurisprudence has always held that the child of two US citizens is a citizen from birth, no matter where the child was born, and in this case, the “dual citizenship” exception cited by Publius is also a red herring, since dual citizen status would be determined by the law of the country where the child was born, rather than by US law: the law of one country might provide that the child of a non-national born within its borders is a citizen, while the law of a second country might not. As I said in my earlier posts, the phrase “subject to jurisdiction” means that the individual involved is subject to the jurisdiction of the US, which means “not here on diplomatic status”, and therefore subject to the laws of the US.

Likewise, Publius has cited the Elg case as additional authority for the proposition that a child born in the US is a US Citizen from birth, even if it’s parents subsequently relinquish their citizenship. I think Publius might agree that this is an indication of where the courts are likely to go, and could be considered ‘persuasive’ rather than ‘binding’ authority.

On the issue of the various attempts to obtain a judicial determination of Sen. Obama’s qualification, I think it is delusional to think that a justice who desired to weigh in on the issue would not vote in favor of the writ, and the 9-0 decisions should be an indication of the opinion of the Court on the merits of this litigation. Remember that court jurisdiction and standing are always relevant, given the limited jurisdiction of the federal courts.

(And BTW, “president-elect” is a status, rather than a title, and Sen. Obama should be called just that.)

Wong Kim Ark court saw the condition of the parents a deciding factor and not just birth. Justice gray was involved in Elk v. Wilkins (1884) where the court held “subject to the jurisdiction” of the United States required “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.”

Wong Kim Ark is both factually and legally invalid. Anyone who might draw attention to Wong Kim Ark are themselves morally corrupt.

In Reply to Mike:

Based on the following, it appears that Mr. Wrotnowski’s Application for Emergency Stay is doomed to suffer the same fate on Monday, December 15th as Mr. Donofrio’s did on Monday of this week. Denied w/o comment.

http://www.supremecourtus.gov/orders/courtorders/121208zr.pdf

You said:

As has already been observed, I believe that Mssrs. Wrotnowski and Dombrio both have a standing issue…

I say:

A decision on the merits of Mr. Donofrio’s case was rendered by the Supreme Court of New Jersey. As a result, in the matter of his Application for Emergency Stay to SCOTUS, Mr. Donofrio’s standing to sue the Secretary of State of New Jersey was not before the court. That is not to say that SCOTUS could not be heard to defy the courts of New Jersey, where ordinary citizens and groups thereof have long had the benefit of unusually liberal court rules in terms of demonstrating their standing to sue government officials in state court. Just that they would have to raise the issue of standing sua sponte, and they explain why New Jersey’s court rules should not apply, in order to justify a refusal to consider the case on the merits.

You said:

…that is what tripped up the Dombrio petition 9-0, and I do not expect any different outcome on the Wrotnowski petition.

I say:

You are likely right, of course, on the ultimate outcome of the Wrotnowski Applicaton for Emergency Stay. But I would be strongly inclined to warn you away from any particular conclusion on the question of whether the justices as a whole, or any justice in particular, believed that Mr. Donofrio’s or Mr. Wrotnowski’s case was fatally short on merit. Do not discount the possibility, for example, that the justices felt the issue, though probably meritorious, was not yet ripe for adjudication by an Article III court (i.e., too early) because the Electoral College has not yet met and voted, or is moot (too late) because the die is already cast (e.g., New Jersey’s role is complete), or that the claim ‘non-justiciable’ by an Article III court because disputes of this sort are more properly aired out in another forum (e.g., by Electors at the convention, by Congress upon counting elector ballots, etc.). The fact that we will likely be left with an unreviewable (because purely discretionary) “no” decision with no comment given means that no closure is at hand for the issues raised. Again, I must emphasize that this outcome is perfectly consistent with a circumstance in which the legal arguments lodged as part of Mr. Wrotnowski’s claim resonated with at least some of the justices.

You said:

I think these decisions could be seen an an indication that the Court does not wish to revisit this part of its jurisprudence.

I say:

I have to say I concur, except to say that there really is nothing on record that qualifies as true “jurisprudence” in terms of the definition of “natural born citizen”. A decision on either of Mr. Donofrio’s or Mr. Wrotnowski’s claims would have addressed a classic case of first impression regarding the U.S. Constitution, a circumstance that is by now quite rare. I sincerely hope that the reticence exhibited by SCOTUS this month is warranted, as I believe this issue will not go away until an on-point SCOTUS decision is rendered.

You said:

Publius might believe that a decision on ‘natural born citizen’ can be crafted without affecting the Wong Kim Ark decision. But that decision rests on the premise that Wong was a US citizen by virtue of the circumstances of his birth. I think it would be exceedingly difficult for the Court to now take a position that the Wong decision does not affect the interpretation of “natural born citizen,”…

I say:

Strictly speaking, the similarity between the two cases that is currently striking you is probably not based on a correspondence of the facts and circumstances involved, but rather, based on the specific legal conclusion arrived at by Justice Gray. To further illustrate my point, consider whether, if Justice Gray’s conclusion had been the opposite (no citizenship for Wong Kim Ark, “subject to the jurisdiction of the United States” means subject to the sole jurisdiction thereof so as to deny the possibility of dual citizenship), I can’t imagine coming up with a good argument for why Mr. Obama’s example of being blocked from assuming the office of POTUS by virtue of being a British subject at birth must be considered to be analogous to Mr. Ark’s example of being refused re-entry to the U.S. as a non-citizen, based solely on the common fact of the two births having taken place on U.S. soil.

You said:

And the 9-0 decision on Dombrio’s petition suggests that none of the present justices want to craft that argument.

I say:

Enough of this talk of “9-0”. They were fully empowered to deny the two Applications outright (e.g., based on a procedural technicality or other flaw), even if all nine justices found themselves personally convinced that, on balance, the Applicants were probably in the right based both on the facts, and on and the law. Likely as not we will never learn what the specific breakdown was, at least not in the short term. In the meantime, the issue may be brought before SCOTUS once again, this time by an appellant whose case is, by comparison, more ripe, or perhaps less ‘blemished’, prompting the court to render an on-point decision on the merits, and answering this 200+ year old question once and for all.