The Federalist Blog

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 “Ëœnatural 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.

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.)

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?

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 http://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

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.

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.

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 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!

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 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.

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?

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.

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!

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!!!

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!

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.

In Reply to the truth:

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

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.

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.

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.

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.

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.

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 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:

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.