John Jay, Alexander Hamilton, and the Mystery of the “Natural Born Citizen” Letter

Famous Letter from Jay to Washington Proposed a Constitutional “Natural Born Citizen” Clause

John Jay vs. Alexander Hamilton -- Were They At Odds on Presidential Qualifications?

John Jay vs. Alexander Hamilton -- Were They At Odds on Presidential Qualifications?

In the summer of 1787, leaders from across America were gathered in Philadelphia in a convention that would create a new Constitution for the fledgling United States.

On July 25th, Founding Father and US Secretary of Foreign Affairs John Jay — who was stuck up in New York — wrote a letter to General George Washington, the presiding officer of the Constitutional Convention. In that letter, Jay said:

“Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.”

On September 2, Washington wrote a reply in which he said, “I thank you for the hints contained in your letter.” And on September 4, the “natural born citizen” clause for Presidential eligibility appeared in a draft of the Constitution reported from the Committee of Eleven.

The “natural born citizen” requirement was approved, with no objection or debate from any member of the Convention, on the 7th.

But John Jay was not the only person known to have wanted a birth-related requirement for the man ultimately in charge of our nation’s armed forces. Among the 55 delegates to the Convention, there was one other person who is known to have entertained such an idea.

Alexander Hamilton Thought the New President Should Be “Born a Citizen.”

On June 18, 1787 (a month before Jay’s letter) Alexander Hamilton submitted to the Convention a sketch of a plan of government. Several copies (with some variations) of this plan have survived.

Hamilton’s plan called for a chief executive — but called that executive a “Governour” rather than a “President.” The plan mentioned no eligibility requirements for this chief executive.

Notable in Hamilton’s plan was that both Senators and the Governour would be elected “for good behavior” — which really meant for life. Although members of the Convention seem to have felt Hamilton’s plan was well thought-out and workable, it was a non-starter. The proposed life terms were a turn-off. Many of the delegates also didn’t like the similarity of Hamilton’s plan to the British system, and they did not want to establish some new kind of monarchy. As a result, the plan was never seriously considered.

About the end of the Convention, two months later, Hamilton gave a paper to James Madison which he said represented the Constitution he would have wanted. Hamilton had stated its principles in the course of the deliberations. Preeminent Constitutional historian Max Farrand notes that this paper “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”

Hamilton’s later, more complete “draft constitution” provided:

“No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

Was Jay’s Letter a “Correction” of Hamilton’s Proposal?

In an 2010 article entitled, “Is Being a Born Citizen of the United States Sufficient Citizenship Status to be President? The Founders and Framers Emphatically Decided It Was Not!” Commander Charles Kerchner claims that the Framers of the Constitution rejected Hamilton’s proposal that the President should be “born a citizen” and instead implemented a different requirement — that he be a “natural born citizen.”

“Hamilton’s suggested presidential citizenship eligibility requirement was that a Citizen simply had to be ‘born a Citizen’ of the USA, i.e., a Citizen by Birth. But that citizenship status was rejected by the framers as insufficient. Instead of allowing any person “born a citizen” to be President and Commander of the military, the framers chose to adopt the more stringent requirement recommended by John Jay, i.e., requiring the Citizen to be a “natural born Citizen”, to block any chance of the person with foreign allegiances or claims on their allegiance at birth from becoming President and Commander of the Military. No person having any foreign influence or claim of allegiance on them at birth could serve as a future President. The person must be a “natural born citizen” with unity of citizenship and sole allegiance to the United States at birth.

Jay’s proposal… added the additional adjective before “born Citizen” that was proposed by Hamilton. And that word and adjective “natural” means something special from the laws of nature that modifies just being born a Citizen of the USA… Natural means from nature by the facts of nature of one’s birth. Not created retroactively after the fact by a man-made law. A natural born Citizen needs no man-made law to bestow Citizenship on them. The added adjective “natural” comes from Natural Law which is recognized the world over as universal law and which is the foundation of the Law of Nations which was codified by Vattel in 1758 in his preeminent legal treatise used by the founders…”

[Note: In a separate article, I've talked about the natural law origin of the term "natural born citizen," which in reality is different from what Cdr. Kerchner claims.]

Kerchner’s major claim is that “born a citizen” and “natural born citizen” mean two different things, with “natural born citizen” requiring birth on US soil to two US citizen parents at the time of birth. And in order to support this claim, he states that the Founding Fathers rejected Hamilton’s eligibility requirement in favor of John Jay’s.

There are some problems with this claim.

The first problem is that Jay underlined the word “born” and not the word “natural.” If Jay was correcting Hamilton’s idea of what the qualification should be, why do this? Why not underline “natural” instead? It doesn’t make sense.

The second problem has already been noted, in passing: The Constitutional Convention did not reject Hamilton’s proposal in favor of Jay’s for the simple reason that Hamilton’s wording was never on the table.

The sketch of the plan which Hamilton presented on June 18th to the Convention contains no eligibility requirements for the “Governour” at all. Kerchner has entirely confused this with the much more complete and very different “draft constitution” given by Hamilton to James Madison at the end of the Convention.

As Farrand notes, the latter “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”

And the fact that Hamilton’s suggestion in his private document that the President (note the change in terminology) should be “born a citizen” was not adopted by the Convention through any informal channels is conclusively shown by the fact that no eligibility requirements for President appeared in the August 6th draft of the Constitution.

If the Convention had adopted Hamilton’s idea, it would most certainly have appeared in that draft.

Nor do the words “born a citizen” appear even once in any of the Convention notes — indicating that Hamilton’s supposed “proposal” was never even a topic of public debate. The only place these words appear is in Hamilton’s private paper given to Madison at the Convention’s end.

Kerchner therefore claims that the Framers of the Constitution “rejected” a “proposal” by Hamilton that was never made in any public presentation, and never brought to the floor for any debate or decision. And even if Hamilton spoke about his preferences to others during the course of the deliberations, his “born a citizen” qualification was never adopted by the Convention.

Collapse of a Claim

Kerchner’s claim that the Framers of the Constitution “emphatically decided” to “reject” Hamilton’s wording in favor of Jay’s, then, collapses completely.

The fact that Alexander Hamilton said “born a citizen” and that John Jay said “natural born citizen” therefore does not imply that the Framers rejected one in favor of the other, or that the two similar phrases mean different things.

But the history of Jay’s letter is about to become more interesting yet.

Who Was John Jay’s Inside Man at the Constitutional Convention?

It is clear that the details of the proceedings in Philadelphia were kept a tight secret, limited only to those who were “in the know.” If you weren’t at the Convention, then you had to have some sort of very special connection with somebody who was, in order to have any idea whatsoever what the delegates were talking about.

You had to know somebody.

The Constitutional Convention lasted for more than four months. The delegates took up the matter of the Presidency (or “Executive”) on July 17th. They then skipped a day and began speaking earnestly about the Presidency on the 19th.

It was two to three days’ journey from Philadelphia (where the Convention was) to New York City (where John Jay was).

John Jay’s letter was dated the 25th, only 6 days after the Convention began discussing the Presidency in earnest.

It is clear, therefore, that John Jay knew somebody — that he had an “inside line.” But who was it?

Was it George Washington, to whom he wrote on the 25th of July?

John Jay and George Washington

John Jay and George Washington were friends — since at least the late 1770s.

But in spite of that fact, the idea that Washington was feeding Jay detailed information on the Convention’s proceedings seems very unlikely. No letters have survived which would indicate that — and if there had been any such letters, at least some would likely have survived.

Could Washington have sent Jay a draft of the Constitution? Again, the prospect is extremely unlikely. As we’ve noted, the Convention’s proceedings were kept secret; and no one — least of all Washington — would have risked sending notes of the Convention to New York. Beyond that, any such draft would have had to be laboriously hand-written. There were no photocopiers in those days.

And remember, Hamilton’s eligibility requirement was not adopted or even debated by the Convention. So even in the extremely unlikely event that somebody did send a draft of the Constitution from the Convention to Jay, any such draft would not have contained Hamilton’s eligibility requirement!

Having personally been to important decision-making conventions, and interacted with those who are in charge of such conferences, I can further tell you from personal experience that the “top man,” invariably, is exceedingly busy. In addition to the constant responsibility of keeping everything flowing, and the constant activity of meetings, cutting back-room deals, and smoothing over ruffled relationships between key players, even in the quieter moments literally everybody wants a piece of the Chief.

The top man in a major convention might find time to write a note home, might even find the time to answer some important correspondence — but a person in that position does not generally have any time to play the role of informant to some person outside the proceedings.

In fact, we have an almost iron-clad indication that General George Washington — who by then was recognized as America’s elder statesman and who would soon be unanimously elected the first President of the United States — was not John Jay’s “inside man.”

It took George Washington — at the very least — about 4 weeks just to write a brief, two-paragraph reply to John Jay’s letter.

For all of the above reasons, the idea of John Jay getting detailed convention information from Washington seems very highly unlikely.

But if George Washington wasn’t John Jay’s “inside man…” who was?

Out of the 55 Delegates Who Gathered in Philadelphia, There Is One — and Only One — Likely Candidate for John Jay’s “Inside Man.”

Jay’s contact would most likely have been someone from his own State. And while other States sent as many as eight delegates to the Convention, the State of New York only ever fielded three.

At the beginning of July, two of those delegates, disgusted and horrified that the Convention had decided to scrap the Articles of Confederation and write an entirely new Constitution, resigned the proceedings in protest and left in anger — never to return.

Those two delegates — John Lansing and Robert Yates — took a very different philosophical view to John Jay, so neither would likely have sent him any information at all. In any event, both of them shipped out some time between July 5th and July 10th. At the very latest, this was one week before the conversation turned to the matter of the Presidency. Therefore, neither of those men could possibly have been Jay’s informer on those proceedings.

The one remaining New York delegate was from New York City, just as John Jay was.

And that city, in 1787 as now, was America’s largest. But back then, it had only about 30,000 people.

In a city of that size, all of the movers and shakers in a particular industry know each other. This would have been true even in the days of transportation by horseback. And in fact, the one remaining New York delegate is known to have been a personal friend and colleague of John Jay — since at least 1775, before the Revolution, when our delegate was still a student at what is now Columbia University.

Unlike Lansing and Yates, he shared Jay’s exact same political philosophy. Both men were Federalists. Both men were also anti-slavery — and had worked together as abolitionists.

That delegate had tried very hard, in fact — unsuccessfully — to get his friend John Jay admitted as a fourth New York delegate to the Convention! So when that attempt failed, it only made sense that our delegate would keep Jay apprised of the proceedings.

That delegate would also soon involve John Jay on an absolutely critical and historic project to get the proposed new Constitution ratified, and in that quest the two would co-author — with James Madison — the famous “Federalist Papers.” These would be published as a series of 85 newspaper articles which for 10 months would relentlessly urge adoption of the new Constitution. And they would ultimately succeed.

Finally, that delegate is known to have made the two-day trip back and forth from the Convention to New York so often that he could practically be described as a “commuter.”

That delegate was Alexander Hamilton.

Surely it is no coincidence that the only two men, out of the 55 Convention delegates plus the few knowledgeable outsiders, who are known to have wanted a birth requirement for Presidential eligibility, were close friends and colleagues.

It is not at all difficult to picture Alexander Hamilton and John Jay sitting in a study during one of Hamilton’s frequent returns to New York, discussing the Convention proceedings and the possible provisions that might be put into the document.

Who it was that actually came up with the idea that the President should be a native citizen is lost to history. Was it John Jay, or was it Alexander Hamilton? We will never know.

One thing seems quite clear, though.

There was never any conflict between John Jay’s idea of that requirement, and Alexander Hamilton’s.

They were both expressions of the same idea.

This entry was posted in Conclusions, Natural Born Citizen, New Information. Bookmark the permalink.

134 Responses to John Jay, Alexander Hamilton, and the Mystery of the “Natural Born Citizen” Letter

  1. John Woodman says:

    I am in process of writing my final article for this blog. In that article, I wanted to make a brief mention of the relationship between John Jay and Alexander Hamilton. But there was just too much to say to relegate that to a few lines. This particular topic just would not be crammed into the final article; it insisted on being published on its own.

    • John Woodman says:

      Needless to say, the actual history of the Constitutional Convention only further illustrates how truly cuckoo the claims of the “Vattel birthers” are.

  2. Northland10 says:

    Nicely written, John, not just in the simple facts but how you developed them to your conclusion.

  3. gorefan says:

    I believe Kerchner is basing his claim on a previous mistake by Jill Pryor in her 1988, Yale Law Review article:

    “On June 18, a little over a month before Jay’s letter, Alexander Hamilton submitted a “sketch of a plan of government which ‘was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose … in … future discussion.’ ” Article IX, section 1 of the sketch provided: “No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”” Yale Law Review.

    I actually pointed this out to Mario back in November, 2010 during the Lakin court martial. Comments from November 23, 2010:

    http://www.caaflog.com/2010/11/21/this-week-in-military-justice-21-november-2010-edition/

    • John Woodman says:

      I did a lot of research that led to the writing of this article… I actually first intended to write it 3 months ago, but at that time got a bit bogged down with the research and laid it aside. In that whole process I ran across the quote from Jill Pryor’s Yale Law Review article that you mentioned, and noted that her account conflicted with Farrand’s. That was one of the things that led to me double check original sources to see if there was any chance Farrand was wrong.

      • gorefan says:

        I’ve seen other law review articles that repeat the same mistake which I suspect are all based on that quote from Pryor. And of course there are a number of birthers who repeat the mistake, KenyanBornObamAcorn is one who repeats it even thoough she has been shown the mistake. In fact, it appears in a recent legal brief filed in Maryland.

    • John Woodman says:

      Astonishing. I have just gotten around to reading some of that thread.

      And here I thought I was the person to discover that.

      gorefan, you get the credit for pointing out — more than a year and a half ago — that the Presidential eligibility clause was not in Hamilton’s June 18 plan.

      What is truly astonishing is that for more than a year and a half, Kerchner’s article — which is really nothing more than a gigantic falsehood — has remained uncorrected on Mario’s site.

      And Mario knew it was a gigantic falsehood all along. And yet he has allowed it to remain, deceiving the public, all of this time.

      As of June 14, 2012 — a year and nine months after the article was written — the article still remains, with not a single note anywhere on the page regarding any error.

      In fairness, I doubt that the article was written by Charles Kerchner with the intent of deceiving people. But for a year and a half now that has been the result.

      The following exchange shows that Mr. Apuzzo was made aware of the falseness of the article more than a year and a half ago:
      ———————————————
      Dwight Sullivan says:
      November 24, 2010 at 7:11 pm

      Mr. Apuzzo, I just looked at the edited article again. It’s still full of untruths. Consider this: “Hamilton’s suggested presidential citizenship eligibility requirement was that a Citizen simply had to be ‘born a Citizen’ of the USA, i.e., a Citizen by Birth. But that citizenship status was rejected by the framers as insufficient.” Since Hamilton didn’t make that proposal to the Constitutional Convention, it couldn’t have been “rejected by the framers as insufficient.”

      The article also makes false claims about Jay’s letter to President Washington. Consider this: “The below is the relevant proposed change language from Jay’s letter which he proposed to strengthen the citizenship requirements in Article II and to require more than just being a ‘born Citizen’ of the United States to serve as a future Commander in Chief and President.” There’s so much wrong with that sentence, it’s hard to know where to start. First, Jay wasn’t a delegate to the Convention. And, as I thought was common knowledge, the proceedings of the Convention were secret. So Jay couldn’t have been proposing to “strengthen the citizenship requirements in Article II.” In fact, at the time, there WERE NO citizenship requirements for the President. And, in any event, Jay’s letter wasn’t written about the presidency — it was written about the commander-in-chief of the Army.

      The article later repeats the falsehood that “Jay’s proposal recommended clause added the additional adjective before ‘born Citizen’ that was proposed by Hamilton.”

      Information also appears in the article that is, as far as I know, historically uncorroborated. Can you please document the claim that “General Washington passed on the recommendation from Jay to the convention”?

      Mr. Apuzzo, I’m sorry if you think it’s too high a burden to expect that you will correct mistakes on your website that are called to your attention. Even if I refused to do that (I don’t, but even if I did), I would hope that on your “Place . . . to Get the Right Answers,” you would choose to correct known falsehoods.
      ———————————————
      Mario Apuzzo, Esq. says:
      November 24, 2010 at 7:26 pm

      Mr. Sullivan,

      In your attempt to avoid addressing my point to you about when you or anyone else learns of errors, you go back and revise in a self-serving way the posture of how this whole conversation regarding the Hamilton article started. That is a very typical response from someone on the defense.

      Saying that I am not familiar with the history of the Constitutional convention because I did not catch someone else’s alleged error in an article he wrote and posted on my blog is also pure nonsense. Do you really believe that you have provided a fair measure of someone’s knowledge of a subject matter based on such an occurence? You really are not showing yourself to be much of a rational person.

      Your point now that I somehow have not made your requested corrections even though you made me aware of the need to is ridiculous, since the issue has only come up today. As you say, one correction was made today but you damand that all of what you call “multiple mistakes” be correct immediately and fault me because that was not done as fast as you would like me to do it. It is easy to see the absurdity of your position and that you really do not believe anything that you are writing but only say anything to defend your indefensible position.

      Do not try to gain some high ground by claiming that I somehow knew about all this since who knows when and have failed to take some corrective action. You just keep digging yourself deeper in falsehoods.

      I said that it is “not my job” to go looking for someone else’s errors. I never said that it is not my job to correct errors if I am aware of them.

      You are also rather dishonest by addressing me as though I wrote the Hamilton article. You know that I did not but you persist in acting like I did just to give you some feeling of power by being able to ask me questions on it and misleading anyone who may be reading your comments.

      Regarding the other alleged errors in the article of which you speak, I told you that your objections were noted and being considered. I guess that was not good enough for you or you just figured that you readers forgot I wrote that and so now you just persist in your foolishness.
      ———————————————
      Is Apuzzo’s client Charles Kerchner aware of the full falsity of his article? Difficult to say. Kerchner republished the article last September at his blog, and also uploaded a copy to Scribd. But comments at Scribd are disabled — which is not unique to this article; Kerchner apparently has comments disabled on all of his uploads; and currently there are no comments at his blog that advise him of the error.

      However, it seems clear that Kerchner was made aware of some problems, at least, with the article. The original version incorrectly stated that Alexander Hamilton wrote the first draft of the Constitution. This was corrected not only at Mario Apuzzo’s blog, but also at Kerchner’s. And Apuzzo noted in November 2010, “Regarding the other alleged errors in the article of which you speak, I told you that your objections were noted and being considered.”

      From that statement, it would appear, at least, that Kerchner was made aware of the other incorrect statements as well. But apparently none of them were ever corrected.

      • gorefan says:

        Sorry for responding so late, I just notice this comment. You might find this interesting:

        http://www.caaflog.com/2010/11/28/this-week-in-military-justice-28-november-2010-edition/

        Mario Apuzzo, Esq. says: December 3, 2010 at 2:16 am

        Mr. Sullivan,

        [skip]

        “And did you ever advice Jill A. Pryor that her article has the error in it regarding her confusion of the two Hamilton documents? I’m sure you did not because it did not suit your purpose. But you were so concerned about correcting Commander Kerchner who relied upon her erroneous statement. ”

        He was calling out Mr. Sullivan for not contacting Ms Pryor to have her correct the 24 year old article. That’s chutzpah, LOL

        • John Woodman says:

          Just unbelievable.

          It wasn’t Jill Pryor who is publicly building this huge false doctrine based on her (small) error in a 24 year old article.

          It’s Kerchner, and it’s Mario Apuzzo who has it posted at his blog, uncorrected, unnoted, deceiving the public for the past year and a half, while Apuzzo has known all the time that the whole article is basically one big falsehood.

  4. Hugh Hudson says:

    John:

    What mistake is everyone speaking of? What mistake are the Birthers making? Obviously, the Framers settled on “natural born Citizen” as it is recorded in the Constitution. It is imperative that we receive the Constitution as the Framers wrote it.

    • John Woodman says:

      In this thread, the “mistake” people are speaking of is a reference to a 1988 Yale Law Journal article on the Presidential eligibility clause authored by Jill Pryor (who was 25 years old at the time and incidentally, is currently nominated to a position on the US Eleventh Circuit Court of Appeals).

      Her paper is, of course, a scholarly one, and in general is well-written and sheds some light on the topic she was writing about. But it seems to imply that Alexander Hamilton presented his “born a citizen” qualification to the Constitutional Convention in his speech on June 18 — which is not the case.

      Technically speaking, I’m not at all sure whether there actually is a mistake. Nonetheless, the way the paper is worded lets the reader easily draw that conclusion.

      The problem today — to put it into a nutshell — is that the birthers don’t want to receive the Constitution as the Framers wrote it. They want to claim that it means something that the Framers did not say, while simultaneously making the claim that they are the ones honoring the Framers’ intentions. And some of those, like Mr. Apuzzo, who are behind the claims, are prepared to say all kinds of things that simply are not true in order to push their will onto other people, and to try to get people to believe their false claims.

      • John Woodman says:

        Rereading some of this, I would say yes, Pryor did make a mistake in her article. The way it is worded, she attributes the “born a citizen” phrase to the “sketch,” which is the same word she uses for the June 18th presentation.

        Pryor’s article, while it contains much good information, is therefore erroneous on this particular point.

  5. John.Frank says:

    With respect, this analysis does not address the constitutional question as to the meaning of the phrase “natural born citizen?”

    Does it mean that:

    - the person only needs to be born in the United States,

    - the person be born in the United States, both of whose parents are American citizens at the time of birth?

    - the person be born in the United States, one of whose parents is an American citizen at the time of birth?

    - the person was born outside of the United States, but both of that individual’s parents were American citizens at the time of birth?

    - the person was born outside of the United States, but one of that individual’s parents was an American citizen at the time of birth?

    There are two 18th century Supreme Court cases which discuss the issue. One case says in obiter dicta that a natural born citizen is someone born of two American parents.

    The other suggests in obiter dicta that a natural born citizen is someone born in the United States.

    These decisions and the whole issue has been debated at length between those who argue that Obama is constitutionally eligible and those who argue that Obama is not constitutionally eligible.

    Until the issue is heard and resolved by the Supreme Court the debate will never be resolved.

    Irrespective of the views of those who argue in favor of Obama’s eligibility (including the use of the derogatory name calling to mock those with whom they disagree) at some point the Supreme Court will have to address the issue, because a criminal defendant will use the issue to challenge the legal validity of the charges he, she or it is facing under a law signed into force by President Obama.

    • Jim says:

      John.Frank says: “Until the issue is heard and resolved by the Supreme Court the debate will never be resolved.”

      Then you’ll be happy to hear that the issue has been heard by the SCOTUS and has been applied to President Obama’s case multiple times. The case was Wong Kim Ark and has been applied in Indiana, Georgia, etc, etc, etc. Hope that helps you sleep better knowing that there is no conflict in the courts as to what natural born Citizen means in the Constitution.

      • John.Frank says:

        Yes, I am aware of Wong Kim Ark case.

        If the obiter dicta in that case is upheld by the Supreme Court, that means a person who is born in the United States of foreign parents, who is raised outside of the United States and therefore has allegiances to foreign powers can be elected President.

        Somehow I doubt that is what the framers had in mind, and not a proposition that most Americans would agree with.

        As such, I remain of the view that ultimately the issue will have to be heard by the Supreme Court.

        • Jim says:

          John.Frank says: “If the obiter dicta in that case is upheld by the Supreme Court, that means a person who is born in the United States of foreign parents, who is raised outside of the United States and therefore has allegiances to foreign powers can be elected President.”

          That is correct. However, it would be up to the voters to decide IF they would be elected President. Another of the checks and balances that the framers put into the Constitution. Amazing how the framers trust the voters more than you do…does that mean you’d prefer a dictatorship or monarchy instead?

        • John Woodman says:

          It’s always been indisputably the case that a person could be born here of US parents, move abroad and be raised in China, or Russia all the way to adulthood, and then come back and be eligible to run for President upon reaching age 35.

          And the Constitution, in fact, only requires 14 years’ residence — total — in the United States, in order to run for President. So that means that someone like Ronald Reagan, who was first elected President at age 68, could theoretically have spent as many as 54 of those years living in other countries and still have been eligible to be President.

          I don’t think the Framers were under any illusions that they were creating a perfect Constitution. They did the best they could, balancing such things as a desire to protect America from undue foreign influence (chiefly, intrigues by existing powerful European royalty rather than any fear of our own native-born citizens of immigrant parents), and also balancing the desire — which was very clear — to attract Europe’s best to actually leave Europe and come over here and cast their lot in with us, and join us in our noble experiment.

          That they were under no illusions of having built the perfect Constitution is shown by the fact that they built in a process to repair its flaws — the Constitutional Amendment process. And that process has been successfully used now, 27 times. So the Constitution we have now is not the one we started with… and that’s a good thing, and one of which the Founding Fathers would have heartily approved.

          If there is a compelling need, therefore, the Constitution can be amended. But that begins by first recognizing, accurately, what it currently means. ;-)

    • John Woodman says:

      Hi, John.

      As for the definition of “natural born citizen,” it is considered well settled among those in the legal profession that persons born in the United States are natural born citizens. This is why cases such as Purpura v Obama, which Mr. Apuzzo recently filed an amicus brief in, are simply thrown out without judges even bothering to issue a written opinion. The question is so well settled that it is considered to have no merit at all.

      And the reason it is well settled is because of one of the court cases you mention.

      The one remaining area of any dispute at all as to the meaning of “natural born citizen” (in the legal profession that is, rather than in the general public) has to do with the children born abroad of US citizen parents. The general consensus seems to be that yes, they are “natural born citizens” as well. But although the Supreme Court in 1898 made some comments on that issue, those comments were tacked on to US v Wong Kim Ark, and that particular question has never been specifically brought before the Court for a definitive answer.

      There are two 18th century Supreme Court cases which discuss the issue. One case says in obiter dicta that a natural born citizen is someone born of two American parents.

      Minor v Happersett says that someone born on US soil of two citizen parents is definitely a natural born citizen. That’s not quite the same as saying that a natural born citizen is “someone born on US soil of two citizen parents.”

      Or, to put it another way: A Frenchman is most definitely a European. But is not necessarily required to be a Frenchman in order to be a European. There might be other nationalities besides Frenchmen that are European as well. And in fact, there are.

      In the same way, a person born on US soil of two citizen parents is most definitely a natural born citizen. But it is not necessarily required to be born on US soil of two citizen parents in order to be a natural born citizen. There may be other groups of people besides those both born on US soil to two citizen parents who are natural born citizens as well. And in fact, there are. Those born on US soil — even of non-citizen parents — clearly qualify. Those born of US citizens in foreign countries probably qualify as well.

      And yes, you are absolutely correct to identify that particular statement in any case as obiter dicta.

      In the “Easy to Find Guide to the Contents of This Site” (see upper right) you will find a series of 5 articles that analyze Minor v Happersett’s language on natural born citizenship in depth.

      The other suggests in obiter dicta that a natural born citizen is someone born in the United States.

      These decisions and the whole issue has been debated at length between those who argue that Obama is constitutionally eligible and those who argue that Obama is not constitutionally eligible.

      Until the issue is heard and resolved by the Supreme Court the debate will never be resolved.

      Actually, in the actual rationale (ratio decidendi) for US v Wong Kim Ark, the Supreme Court clearly found that Mr. Wong was both a “citizen” and “natural born.” They also stated that the same rule had always applied historically in England, then in the Colonies, then in the United States after the establishment of the Constitution, that all children born in the country, even of non-citizen parents, were “natural born.” These things they stated as “irresistible” “conclusions.”

      Because this was part of the ratio decidendi, and not obiter dicta, it established a binding precedent that those born in the United States are natural born citizens.

      This is understood by judges in our federal and state courts. Again, it is a large factor in why Mr. Apuzzo is now zero for eight in his attempts to get a court ruling to the contrary; and it is the reason why the US Supreme Court is likely to simply dismiss without comment any future attempts to appeal such questions to that Court.

      You will also find some very brief commentary on US v Wong Kim Ark in the guide to the contents of this site. Only one article. The reason it is just one article is that that’s all I needed to write to show that US v Wong Kim Ark found Wong to be both “a citizen” and “natural born.” I recommend that you read the entire case for yourself. The majority opinion uses the phrase “natural born” literally dozens of times.

      • John.Frank says:

        I have read the US v Wong Kim Ark case and am obliged to respectfully disagree that should the matter reach the Supreme Court that the Court will simply dismiss the matter out of hand.

        I write this because the Wong Kim Ark case deals with the application of the 14th amendment and not the section of the Constitution dealing with the eligibility of a person to be President.

        As such IMHO the use of the phrase “natural born citizen” by Mr. Justice Gray in his opinion, along with the related analysis is obiter dicta (aka guidance) on the meaning of that phrase in the relevant section of the Constitution and not binding.

        That written, I do acknowledge that a number of lower courts have referenced this case in dismissing a number of eligibility applications.

        • John Woodman says:

          I would encourage you to also read the articles that I wrote both on that case and on Minor v Happersett. I personally did not notice on my first reading through US v Wong Kim Ark that in the rationale they had gone beyond simply declaring Wong to be a citizen. It is quite a bit to get your head completely around on a first reading.

          The prevalent meme at the time was that the Court had “only” declared Wong to be “a citizen,” and I kind of accepted that uncritically at first.

          The dissent (Fuller) also clearly understood the implications of the majority’s ruling. One of his big complaints had to do with his understanding that the Court was, in fact, declaring that Wong Kim Ark was eligible to one day run for and become President.

        • Jim says:

          John.Frank says: “I have read the US v Wong Kim Ark case and am obliged to respectfully disagree that should the matter reach the Supreme Court that the Court will simply dismiss the matter out of hand.”

          I’m afraid that you’ve missed the part where some cases (not sure which off the top of my head) HAVE reached the SCOTUS and been dismissed out of hand. It’s not like there’s any conflict about what constitutes a natural born Citizen anywhere but in the minds of people who don’t want President Obama to be eligible. Otherwise, it is well-settled.

          • John Woodman says:

            This is true, at least insofar as it concerns those born on US soil.

            As noted earlier, it’s not iron-clad in regard to those born abroad of citizen parents, but most people (including myself) believe they qualify as well. And I think that if it ever came to a challenge, that’s probably the way it would go. As Fuller noted in the dissent to US v Wong Kim Ark, it simply does not seem reasonable that the Founding Fathers wanted such people to be ineligible.

        • John.Frank

          So just who said that Gray’s discussion about who was a natural born citizen in WKA is obiter dicta? The Wong Kim Ark case was about citizenship. Gray determined that for WKA to be a citizen he had to be a natural born citizen. He could not be naturalized since the Chinese exclusion act forbade that. Therefore, the discussion about just who was a natural born citizen was not obiter dicta. It was central to the decision. Go back and read the definition of the term and you will understand the difference between the two cases and why in Minor Justice Waite’s remarks were obiter dicta and in WKA Justice Gray’s long discussion was not.

          Regardless of how you classify the discussions in the two cases since WKA was decided last it would provide the precedent. This is especially true since Minor didn’t even decide the issue conclusively. You seem to be trying to portray this as Waite said this in Minor and Gray said that in WKA. That would not be accurate.

          • John Woodman says:

            Exactly. Well stated.

            Go back and read the definition of the term and you will understand the difference between the two cases and why in Minor Justice Waite’s remarks were obiter dicta and in WKA Justice Gray’s long discussion was not.

            I have a pretty full discussion of this in the articles referenced earlier.

        • gorefan says:

          John.Frank

          Mr. Woodman directs you to the dissenting opinion of Chief Justice Fuller, I would suggest that you also read the appellant brief. In that brief the Government contends that the lower court ruling made Wong Kim Ark a “natural-born citizen” even though the lower court never uses that term.

          “The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen.”

          This was the understanding at the time, anyone born in the US was a citizen (a natural born citizen) so that Justice Gray did not have to use that specific term.

  6. Hugh Hudson says:

    John:

    Article 1, Section 2 and Article 1, Section 3 of the Constitution require Representatives and Senators to be Citizens [only], respectively.

    Article 2, Section 1 of the Constitution requires the President to be a natural born Citizen.

    In Marbury v Madison 5 U.S. 137 Chief Justice John Marshall says

    “Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

    “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
    Page 5 U. S. 175″

    The Articles and Sections of the Constitution have a separate legal effect. Article 1, Sections 2 and 3 express the general citizenship requirement.

    Citizens may be born in country, or foreigners may naturalize to the United States. Citizens born in county may have at their birth both parents as Citizens or one parent as a Citizen. A born Citizen is a native Citizen.

    Article 1, Section 2 and Section 3 cannot and do not govern Article 2, Section 1 requiring the President to be a natural born Citizen which is a specific requirement.

    It is Marbury v Madison 5 U.S. 137 written by Chief Justice John Marshall that is requiring this. I am sure that he was well acquainted with what Blackstone, St. George Tucker and the rest of his contemporaries had said. No doubt he was well aware of the writings of David Ramsay.

    The Colonies fought the Revolutionary War to break with the British Empire, and the War of 1812 specifically dealt with the forced seizure of American citizens by the British Navy.

    So, I sincerely doubt that the Founders and Framers wanted any citizen to be President but a natural born Citizen. I think the Founders and Framers broke with English Common Law as to citizenship. I think the natural born Citizenship is born in county to two citizen parents at the time of the child’s birth.

    • John Woodman says:

      So, I sincerely doubt that the Founders and Framers wanted any citizen to be President but a natural born Citizen.

      It is clear that they established a rule that only a natural born citizen can be President or Vice-President. There’s no disagreement about that.

      I think the Founders and Framers broke with English Common Law as to citizenship. I think the natural born Citizenship is born in county to two citizen parents at the time of the child’s birth.

      They broke with the principle in ECL that a person could not renounce his British citizenship. Oddly, they seem to have retained for a while the idea that a person could not renounce his American citizenship. So they broke with the English common law on that particular point… to the degree that it suited them.

      They did not break with the principle of who was born a natural born subject/ citizen.

    • Northland10 says:

      I think the natural born Citizenship is born in county to two citizen parents at the time of the child’s birth.

      You may think that, however, there is scant evidence that the founders specifically said this. However, there is evidence the founders felt that the location of the birth was all that was necessary. Again, back to Madison, again:

      It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

    • ehancock says:

      Re: “I think the Founders and Framers broke with English Common Law as to citizenship.”

      IF that happened there would have to be proof of it. There would have to be a letter saying: “Let’s not use the common law definition. Let’s use the Vattel definition.” Or there would have to be an article or a letter or a law saying: “the meaning of birth in the country in the common law is insufficient. Let us make it two citizen parents.”

      IF such a letter or article existed, there would be proof. But there isn’t anything like that at all.

      And as John Woodman points out, there is plenty of evidence that the meaning of Natural Born comes from the common law and refers to the place of birth. That is the way that Natural Born Citizen was actually used at the time, and there is no example of them using it to refer to parents.

      Here is an example of how the phrase was used at the time, in 1803, shortly after the Constitution was written:

      “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

      As you can see, the meaning of the phrase referred only to the place of birth, not to the parents. Natural Born Citizens were “those born within the state.”

      • John Woodman says:

        Hi, ehancock — long time no see!

        IF that happened there would have to be proof of it. There would have to be a letter saying: “Let’s not use the common law definition. Let’s use the Vattel definition.” Or there would have to be an article or a letter or a law saying: “the meaning of birth in the country in the common law is insufficient. Let us make it two citizen parents.”

        IF such a letter or article existed, there would be proof. But there isn’t anything like that at all.

        Actually, I think that given that we’re dealing with an entire country here…

        …and that probably something well over 90% of those in the legal profession were trained in the English common law…

        …and that the English common law used the term “natural born subject” widely…

        …and that it was clearly understood that the term included all persons born on English soil with no reference to the citizenship of their parents…

        …and that the Colonies also used the term “natural born subject” widely…

        …and that the term “natural born subject” used in the United States was understood to mean exactly the same thing as “natural born subject” used in England…

        …and that the term “natural born subject” continued to be used in the United States after the Revolution until people began using the word “citizen” instead of “subject”…

        …and that at the same time as people began using “citizen” instead of “subject,” they began using “natural born citizen” instead of “natural born subject”…

        I would think that, given all of those factors, it would have taken something more than just a letter, or an article, in order to change that status quo.

        It would have taken, at the least, a debate among the Founding Fathers, and an agreement and announcement that “natural born” as applied to “citizen” meant something other than what “natural born” as applied to “subject” had always meant.

        There is simply no possible way, given these circumstances, that the term could have possibly been understood by most of those in America in the legal profession to require birth of citizen parents, without such a public debate and announcement, or without an actual law defining a new meaning.

        And that being the case, IF the Founding Fathers had meant anything different, they would either have explicitly redefined the term, or (far more likely) they would have used a different term.

        To do otherwise would be simply and utterly insane. And our Founding Fathers were not simply and utterly insane. It wasn’t a bunch of half-baked nuthouse loonies who wrote the Declaration of Independence and the Constitution.

        In fact, if they had meant Vattel’s concept, then they would have used Vattel’s terminology.

        End of story. That’s it.

  7. John Woodman says:

    I have made a couple of updates to the article.

    The most important of these is an absolute clarity that no eligibility requirements were in Hamilton’s presentation at all. We have multiple copies of his June 18 plan, which I have linked to, and it is very different from the private paper he handed to James Madison at the end of the Convention.

    • gorefan says:

      The problem is that those who make the Hamilton mistake are not using those references. They use “The Works of Alexander Hamilton” Volume II edited by John C. Hamilton, 1850.

      Starting on page 393 is the June 18th draft plan. It is titled “Propositions for a Constitution of Government by Hamiliton, 1787″ and is immediately followed on page 395 by his draft constitution which is titled “Constitution of Government by the People of the United States of America. First draft of Hamilton, 1787.” That constitution’s presidential eligiblity clause is on page 407.

      Unfortunately, this copy of his draft constitution does not contain the handwritten note about this being a “Copy of a paper communicated to J. M. by Col. Hamilton, about the close of the Convention in Philada. 1787…”.

      If people don’t do any further research, its easy to see their confusion.

      • John Woodman says:

        I agree. What’s wrong is not so much that Kerchner made the mistake in the first place. It’s not hard at all to see how he could have come to the conclusion he did.

        What’s wrong is that Apuzzo was advised of the errors more than a year and a half ago, and yet they have continued to be presented to the public as if they were truth.

        The entire article ought to be scrapped and a written retraction issued.

  8. Hugh Hudson says:

    Ok, guys:

    Why did Chief Justice John Marshall write these words into his majority opinion into Marbury v Madison 5 U.S 137?

    “Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

    “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
    Page 5 U. S. 175″

    I am not making this up. I am quoting Chief Justice John Marshall.

    The natural born Citizen clause must be given separate legal effect than the Citizen clauses of Representatives and Senators. This is what Chief Justice John Marshall is saying.

    Also, considering this to quote John:

    “There is simply no possible way, given these circumstances, that the term could have possibly been understood by most of those in America in the legal profession to require birth of citizen parents, without such a public debate and announcement, or without an actual law defining a new meaning.

    “And that being the case, IF the Founding Fathers had meant anything different, they would either have explicitly redefined the term, or (far more likely) they would have used a different term.

    “To do otherwise would be simply and utterly insane. And our Founding Fathers were not simply and utterly insane. It wasn’t a bunch of half-baked nuthouse loonies who wrote the Declaration of Independence and the Constitution.”

    I say that the Founders and Framers did use the separate legal term “natural born Citizen” and it does not mean the same thing as natural born subject. The Founders and Framers did not use the words “natural born subject” in the Constitution!

    The Constitution itself is the document that declares the We the People are citizens and not subjects.

    If you were born in America after the adoption of the Constitution you could still call yourself a natural born subject if you desired to do so, but you would be wrong. The Constitition itself called you a natural born citizen.

    Please address my questions concerning what Chief Justice John Marshall wrote in Marbury v Madison 5 U.S. 137, and how is relates to the natural born Citizen clause for Presidents and the Citizen clauses for Representatives and Senators.

    Thanks!

    • John Woodman says:

      I say that the Founders and Framers did use the separate legal term “natural born Citizen” and it does not mean the same thing as natural born subject. The Founders and Framers did not use the words “natural born subject” in the Constitution!

      I fail to see what the problem is.

      The difference between “citizen” and “subject” is that one is a citizen of a free country, and the other is a subject to a King or Queen.

      The difference between “natural born citizen” and “natural born subject” is that one is a citizen and one is a subject.

      The difference between “natural born” and “natural born” is… well, there is no difference, is there?

      Apuzzo and Kerchner declare that “natural born” means something quite different from “natural born.” It’s hogwash.

  9. Hugh Hudson says:

    John:

    How about this question below? How about the requirement as stated below?

    Why did Chief Justice John Marshall write these words into his majority opinion into Marbury v Madison 5 U.S 137?

    “Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

    “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
    Page 5 U. S. 175″

    I am not making this up. I am quoting Chief Justice John Marshall.

    The natural born Citizen clause must be given separate legal effect than the Citizen clauses of Representatives and Senators. This is what Chief Justice John Marshall is saying.

    • John Woodman says:

      I really have no idea what you are attempting to drive at.

      First of all, that’s not what Chief Justice John Marshall was saying, as he was not commenting on the natural born citizen clause. However, since at least some of that comment is general, then whatever part of it is general and valid would apply both to that and to all other parts of the Constitution.

      You state that the natural born citizen clause “must be given separate legal effect than the Citizen clauses of Representatives and Senators” as if there is something profound in saying that. It’s obvious that it has separate legal effect. The natural born citizen clause is part of the qualifications for the Presidency. The clauses for Representatives and Senators are part of the qualifications for Representatives and Senators. Those are separate legal effects.

    • Northland10 says:

      The natural born Citizen clause must be given separate legal effect than the Citizen clauses of Representatives and Senators. This is what Chief Justice John Marshall is saying.

      As best as I can tell, you are trying to argue that Natural Born Citizen and Citizen (as listed in the Representative and Senators qualifications) are different terms. Somehow, you think Marshall’s statement supports this and each term has its own legal effect.

      Natural Born Citizen and Citizen in this usage are not completely separate terms but related terms. A Citizen would contain those who were Naturalized and Natural Born Citizens. They use the term Citizen as it would include both and, in terms of writing, be less cumbersome. Instead of writing:

      “Must be a Natural Born Citizen or a Naturalized Citizen, having been naturalized 9 years prior”

      they wrote:

      “…been nine years a citizen of the United States…”

      This, makes for a shorter and easier to read statement and would include the obvious Natural Born Citizen and all those naturalized over 9 years prior.

      If we followed your understanding of Marshall, we would end up with:

      1. The guard animal must be a German Shepherd.
      2. A blind assistance animal must be a dog.

      Thus, your logic ends up with, a German Shepherd cannot be a blind assistance animal because the words give it separate legal effect. You just miss that a German Shepherd is a type of dog and a Natural Born Citizen is a type of citizen (of which their are only 2 types).

      In short, you have a term, Citizen, and terms related to how somebody becomes a citizen, Natural-born or Naturalized. That is all there is, and that is all there ever has been.

  10. Hugh Hudson says:

    Well, what was Marshall exactly saying?

    I think he was a expressing every clause in the Constitution how must be intepreted. The specific words natural born Citizen are not governed by the general word Citizen.

    Here is a quote from h2ooflife.wordpress.com.

    “I had presumed that the idiom “natural born citizen” appeared nowhere in U.S. Law other than A2S1C5, but I found it in administrative law and it is contrasted with native and naturalized citizenship. I’ve never seen any mention of this fact before and wonder how many are aware of it in the ineligibility camp. Here’s the quotes:
    http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

    He then quoted two provisions from the link provided, but there’s actually three at the official INS “.gov” site which establish official recognition by the federal government that native-born and natural-born should be separately delineated. When you visit the suggested link to the Immigration and Naturalization service, it brings you to “Interpretation 324.2 Reacquisition of citizenship lost by marriage.”

    Interpretation 324.2 (a)(3) provides:

    “The repatriation provisions of these two most recent enactments also apply to a native- and natural-born citizen woman who expatriated herself by marriage to an alien…” (Emphasis added.)

    Then, Interpretation 324.2(a)(7) provides:

    “(7) Restoration of citizenship is prospective . Restoration to citizenship under any one of the three statutes is not regarded as having erased the period of alienage that immediately preceded it.

    The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922″, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired.” (Emphasis added.)

    And again, Interpretation 324.2(b) provides:

    “The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if naturalized, native, or natural-born citizen, as determined by her status prior to loss.” (Emphasis added.)

    http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

    Three times in this official INS Interpretation – currently published by the Obama Administration – native-born and natural-born are given separate consideration. And in the third example – from Interpretation 324.2(b) – the INS clearly states that each delineation, “naturalized, native, or natural-born citizen“, is a separate status.

    The INS includes the following explanation of Interpretations:

    “Interpretations were created to supplement and clarify the provisions of the statute and regulations as interpreted by the courts. These materials usually are not included in the regulations because they deal generally with procedural matters and do not deal directly with application and benefit requirements. They are still a useful tool to help you understand how the DHS Bureaus performs their different immigration services and enforcement functions. Users of the Operation Instructions and Interpretations should always consult the relevant regulations and manuals in conjunction with these materials. As the DHS Bureaus have grown, the trend has been towards inclusion of more materials in the regulations and field manuals, and the Operations Instructions and Interpretations have been updated less frequently.”

    Why is the term “native-born” used in the manual. Please explain to me what a “native-born”citizen is?

    I consider “native-born” as born in country and one or both parents are foreigners or the parents have not naturalized before the birth of child.

    So, please answer the question as to what Marshall was saying, why the INS manual includes native-born citizen, and what is a native born citizen?

    Thanks!

    • John Woodman says:

      Marshall was noting the quite reasonable general legal principle that laws must be presumed to mean something, and that if a new law is made, it has to be presumed to mean something different from other laws that are elsewhere passed. In other words, legal authorities (whether they are the Framers writing a Constitution or our legislators enacting a new law) don’t pass laws that don’t say anything.

      And he had application of that principle to the argument he was making in the case of Marbury v Madison, which is a case that really doesn’t have anything to do with natural born citizenship.

      Why is the term “native-born” used in the manual. Please explain to me what a “native-born”citizen is?

      I consider “native-born” as born in country and one or both parents are foreigners or the parents have not naturalized before the birth of child.

      As far as the difference between “native-born” and “natural-born,” this has been discussed before. The INS deals with all of the various categories of individual relationships to the US government, including citizens, green-card holders, foreign tourists, etc. There are certainly times in the history of the United States when there has been some legal distinction involving those born abroad. For example, some of the early Naturalization Acts stated that children born to US citizens abroad were to be considered as natural-born citizens, however the right to citizenship would not descend to persons whose fathers had never been resident in the United States.

      That law placed persons born US citizens in the United States and persons born US citizens in France on a different footing — not as regards themselves, but as regards their children. The US citizen born in France could go over to France and have children, and those children would be US citizens as well. The US citizen born in France could not “transmit” his US citizenship to any children without first, in essence, demonstrating a real relationship to the United States by coming over here and becoming a resident of the United States.

      Based on such factors, there is a reason for the INS — and the US government in general — to distinguish between those US citizens born in the US, and those US citizens born abroad. The former are native-born citizens. The latter are natural-born citizens, but they are not native-born.

      “Native-born” has always meant “born in the country.” That’s it. No citizen parent are or ever were required.

      Legally speaking, the native-born citizen is on a bit more certain footing than the one who is merely natural-born abroad. As an example of this, there has remained a slight shadow of doubt over the latter in regard to Presidential eligibility, long after it was erased regarding the former, even when the native-born were born of non-citizen parents. That may not comport with the Birthervision view of citizenship, but that’s how it is for those who are not birthers, which until 2008 was pretty much everybody in the US.

      So your idea of “native-born” (which you have obviously gotten from reading birther writings) is not accurate. It is not what the term has ever meant, although native-born certainly includes those born in the US of non-citizen parents.

      I hope that helps.

    • John Woodman says:

      Oh — to add another comment:

      It has often been stated, throughout the history of the United States, that the President had to be a “native-born” citizen. Even legal authority St. George Tucker made that statement.

      I think a few of these authorities probably were including those born abroad of US citizen parents in their definition of “native-born.” But most of the time, what the person saying that meant was that the President had to be born in the US. Full stop. No citizen parent requirement. In fact, in all of the hundreds of quotes on Presidential eligibility that I’ve seen, not one prior to 2008, as far as I can recall, ever stated that the President needed to be born a citizen in the US and have two citizen parents. The entire claim is one that never existed in the history of the entire United States until less than 4 years ago.

      In fact, many quotes say (a bit inaccurately) that the President had to be “born in the US.”

      This again highlights what people have always understood: “native-born” means “born in the United States.” It also goes back to James Madison’s quote in the citizenship case of William Loughton Smith:

      It is an established maxim that birth is a criterion of allegiance [Madison is here speaking of the allegiance that makes a person a citizen]. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States.

  11. Hugh Hudson says:

    Conerning Chief Justice John Marshall and the interpretation of the Constitution and how it relates to other US law I quote http://naturalborncitizen.wordpress.com/.

    “If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the “natural born Citizen” clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The United States Supreme Court has determined that it is inadmissible to even make that argument.”

    Therefore, I can only conclude that there are naturalized citizens, native-born citizens and natural born Citizens.

    • John Woodman says:

      You would be correct, except that there is some overlap between native-born and natural-born.

      If you are native-born, you are necessarily a natural-born citizen. If you are a natural-born citizen, that doesn’t necessarily make you a native-born citizen.

    • John Woodman says:

      Look at it this way:

      “A Candidate for City Manager must be at least a high-school graduate.”

      Anyone who is a college graduate qualifies for this position, even if that person dropped out of high school and didn’t graduate, but later enrolled in college and graduated from college.

  12. Hugh Hudson says:

    John:

    “Legally speaking, the native-born citizen is on a bit more certain footing than the one who is merely natural-born abroad.”

    Native-born citizens are born in country. “Natural born [Citizen] abroad” is absurd according to the US law. Presidents must be born in country.

    “It has often been stated, throughout the history of the United States, that the President had to be a “native-born” citizen. Even legal authority St. George Tucker made that statement.”

    Obviously, Presidents had to be born in the US. But that does not mean that all native-born citizens are natural born Citizens.

    The natural born Citizen clause in the Constitution requires the natural born Citizen means something more then native-born citizen.

    • Hugh Hudson says:

      The natural born Citizen clause in the Constitution requires the natural born Citizen means something more then native-born citizen.

      It does. It also includes citizens at birth born abroad who are natural born but not native born. However, all native born citizens are natural born. Can you point to a court decision that held otherwise?

    • John Woodman says:

      Native-born citizens are born in country. “Natural born [Citizen] abroad” is absurd according to the US law. Presidents must be born in country.

      You asked me to explain it to you, and I explained it to you. That’s it. That’s how it’s always been. And historically, that is clear.

      If you don’t believe that, then read through what legal authorities, government officials and educators have said about natural born citizenship throughout American history.

      The link referenced contains around 400 quotes. And all are in accord with the understanding of “natural born” and “native born” as I’ve just explained it. None of them are in accord with the idea that you have just expressed.

      It is a complete fiction, invented within the past 4 years and propagandized to the public by folks like Leo Donofrio and Mario Apuzzo.

      So which do you care for — a fiction, made up on the spot? A recently-invented falsehood about the Constitution?

      Do you care for the REAL Constitution of the United States? Or are you (like most birthers) prepared to just cut out and throw those parts of our Constitution in the trash that you don’t like?

      If you or I don’t like the way it is, our Founding Fathers had the foresight to provide a way to change the Constitution. If you think you can muster the votes for a movement to pass a Constitutional Amendment to exclude the children born on US soil of non-citizen parents, then go for it.

      I personally think you would never have any chance of finding the votes for such an Amendment, but it’s a free country. More or less.

  13. Hugh Hudson says:

    To John:

    How can all native-born citizens be natural born citizens? All natural born citizens are citizens. The basic citizenship requirement is “born in country”. All others who acquire citizenship are naturalized.

    If it is as you say, then why did the Framers use the “natural born Citizen” as to Presidents. Why not just used the word “Citizen”? I do not think that the general citizenship require can govern the specific natural born Citizen requirement.

    I think all natural born Citizens are citizens, but not all “born in country” citizens are natural born citizens. Hence, their description: native-born citizens.

    To Reality Check:

    How can foreign-born (out-side the US) be considered natural born to the US?

    I do not understand!

    I don’t think the children born outside of US, of US parents need naturalization. They follow the US citizenship of their parents. But those children are not natural born Citizens.

    Concerning children born in foreign countries to foreign parents, those children must naturalize to be US citizens.

    I have no knowledge of any Supreme Court Opinion that holds as law in the ruling section that people-born outside the US are, in fact, natural born Citizens.

    Please advise!

    • gorefan says:

      Hugh,

      The Founders understood both natural born and native born to be the same thing.

      St. George Tucker wrote in 1803:

      “That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague.”A View of the Constitution of the United States

      And James Iredell said:

      No man but a native, or who has resided fourteen years in America, can be chosen President.” (North Carolina Debates on the Constiution, July 30th, 1788).

  14. Hugh Hudson says:

    To Reality Check:
    How can foreign-born (out-side the US) be considered natural born to the US?

    I do not understand!

    I don’t think the children born outside of US, of US parents need naturalization. They follow the US citizenship of their parents. But those children are not natural born Citizens.

    You just answered your own question but then you drew an incorrect conclusion. Since there are and have always been only two types of US citizens, natural born and naturalized, those who are not naturalized therefore must be natural born. Websters defines natural born as “having a specified status or character by birth”. Therefore, anyone with the status of citizen at birth is a natural born citizen. That has always been the definition. This isn’t a difficult concept.

    • John Woodman says:

      Right. It’s not remotely difficult.

      If you’re born a citizen, you’re a natural born citizen.

      Birthers ask: “Then why the extra word? Why natural?

      And the reason for that is answered in this article. These definitions came from the English conception of natural law, which was largely derived from he writings of St. Paul in the Bible, and specifically Paul’s letter to the Romans.

  15. Hugh Hudson says:

    “‘Native-born citizens are born in country. “Natural born [Citizen] abroad” is absurd according to the US law. Presidents must be born in country.

    You asked me to explain it to you, and I explained it to you. That’s it. That’s how it’s always been. And historically, that is clear.”

    Excuse John!

    I have never even heard of the phrase “natural born abroad”.

    “Natural born [Citizen] abroad” is your term and Reality Check’s. Nothing is the Constitution or any US law says that US Presidents can be foreign-born. Now the Framers did allow themselves an exception, but that exception has ceased.

    • Millions of people voted for a candidate in 2008 who was born in the Canal Zone while his father was serving his country. Was John McCain born abroad?

      You said: “Presidents must be born in country.” Can you cite a section in US Code that says that? Please do not turn it around either. To exclude a natural born citizen because he happened to be born while his or her parents were serving their country on foreign soil I think the courts would require an explicit law.

  16. Hugh Hudson says:

    Reality Check:

    I do recall Donofrio saying that John McCain is a statutory citizen, and not natural born.
    Here is the only link I have found. It speaks of a “native-born” requirement, but clearly the Constitution says that the requirement is natural born citizen for Presidents.

    http://www.abovetopsecret.com/forum/thread337922/pg2

    The post is by dbates.

    The “native-born” requirement has been clearly spelled out in the Supreme Court’s interpretation of U.S. Const. Art. II, 1. (Obviously the Presidental requirement is natural born citizen per the Constitution.)

    “John McCain’s “statutory” citizenship is defective in “place of birth” and will make him constitutionally ineligiible.

    “BTW, persons born in international waters to U.S. citizens even in a U.S. registered vessel – or in outside U.S. airspace to U.S. citizens in a U.S. registered aircraft, are NOT born in the U.S. – they are “statutory” citizens – not “native-born” – and not constitutionally eligible for the nation executive.”

    But I have found this link http://genealogy.about.com/b/2008/08/30/john-mccains-citizenship-status.htm

    This gives some explanation and a further link to a retroactive 1937, a PDF file, as follows:

    7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT
    (CT:CON-367; 04-08-2011) (Office of Origin: CA/OCS/PRI)

    http://www.state.gov/documents/organization/86757.pdf

    I have not read this.

    • John Woodman says:

      I do recall Donofrio saying that John McCain is a statutory citizen, and not natural born.

      Virtually everything Leo Donofrio has written is frankly rubbish.

      You go and carefully read the authorities he cites in favor of his points, and then you find that when you read them in context, they don’t say what he claims they say.

      WIth Mario Apuzzo, it’s even more so.

      Donofrio, however, has a bit of a point here, although he carries it too far.

      This is why there has historically been some doubt about those born of US citizens abroad. It’s been well settled — at least ever since US v Wong Kim Ark — that those born on US soil are natural born citizens and qualified to be President, regardless of the citizenship of their parents. Doesn’t matter.

      I personally believe that the intention of Framers of the Constitution was that the children born abroad of US citizens should also be eligible to the Presidency, and I think they made that intention clear by passing a law during the very first Congress that specified that such persons were to be considered natural born citizens. And from everything I’ve seen, this seems to be the general consensus among those in the legal profession.

      Actually, I have little doubt that if and when we have a candidate born a US citizen abroad, who is actually elected President, an opponent is likely to challenge that in the courts. But I also believe that if and when that challenge occurs, the Supreme Court is likely to decide in favor of the candidate.

      Unless such a decision is simply made along partisan lines, in which case the bets are off.

      Because of partisanship — even on the high Court — someone born a citizen outside of the USA running for President might be well advised to do so when there is a favorable balance on the Court.

  17. Slartibartfast says:

    Hugh,

    Your argument is a straw man–you misrepresent the opposing position and, in doing so, turn it into an easily refuted proposition. If you did this unintentionally it displays ignorance (there’s nothing wrong with ignorance, but I would suggest in the future that you try to alleviate it rather than proudly displaying it for all to see…) and if you weren’t ignorant, then you were being dishonest.

    You said:

    “Legally speaking, the native-born citizen is on a bit more certain footing than the one who is merely natural-born abroad.”

    Legally speaking, the situation is muddled due to the extensive use of natural born and native born as synonyms–something well-documented by John and many others. This is due to the fact that the vast majority of people who belong to one of the groups also belong to the other. Every credible authority recognizes that, with the exception of children of ambassadors (those with diplomatic immunity from US jurisdiction) and enemy troops (also not subject to US jurisdiction), any native born person is natural born. While the status of non-native born citizens is not as clear, I cannot believe that the founders intent would have been to exclude someone born in John McCain’s circumstances from the presidency nor do I believe that the courts would rule someone who was born a US citizen ineligible. I believe this is the reason (in addition to “good sportsmanship”) then Senators Clinton and Obama sponsored the resolution declaring McCain a natural born citizen–they knew it was a losing issue both in the courts and in the court of public opinion. If you want to talk about these things in general terms, then natural born and native born are virtually synonymous (like Newtonian laws are sufficiently accurate in the vast majority of circumstances even though we know that they are not exact), but if you want to discuss the nuances then you need to account for all of the possibilities on the Venn diagram or, just like adding 0.99 c and 0.99 c and getting 1.98 c, you’ll be making an egregious mistake.

    Native-born citizens are born in country.

    Yes. By definition.

    “Natural born [Citizen] abroad” is absurd according to the US law.

    Why is it absurd? “natural born” was a legal term of art for centuries before the Constitution was written. This means that its meaning was well understood–exactly the sort of term that you’d use when writing an important document. If you didn’t want to use the universally understood term in its well-defined meaning, then you would have explicitly said so–just as the Founders did in reference to the term “treason”. The idea that the meaning was radically changed by the Founders without them having mentioned it is absurd.

    Presidents must be born in country.

    Demonstrably false–it is obviously true that the child of an ambassador, born in the country in which they were stationed, would be a natural born citizen and eligible for the presidency since the ambassador is subject to US jurisdiction rather than local jurisdiction. Furthermore, as I said above, I highly doubt that any court, let alone SCOTUS would rule that any US citizen at birth (whether native born or no) was ineligible for POTUS.

    “It has often been stated, throughout the history of the United States, that the President had to be a “native-born” citizen. Even legal authority St. George Tucker made that statement.”

    And the statement is true for all practical purposes–just like Newton’s laws…

    Obviously, Presidents had to be born in the US.

    No, they didn’t–it’s just that the vast majority of people eligible to be president were born in the US.

    But that does not mean that all native-born citizens are natural born Citizens.

    They aren’t–but the terms are frequently used synonymously because they, for the most part, refer to the same group of people. If you want to speak in general, you can equate the two terms, but if you want to understand the nuances, then you must recognize that they are not exactly equivalent. If you fail to take one of these paths then, again, you are being either dishonest or displaying ignorance.

    The natural born Citizen clause in the Constitution requires the natural born Citizen means something more then native-born citizen.

    Here we get to the crux of your straw man–first, since the Constitution never mentions the term “native-born citizen”, there can be no requirement that it be different from the term “natural-born citizen” (although, as I pointed out above, the two classes aren’t precisely equal). The Constitution does, however, require the terms “natural born citizen” and “citizen” to be distinct–which they obviously are given the existence of naturalized citizens. Thus leaving your argument moot. All that remains to be seen is if you have the intellectual honesty to admit it–I’m guessing that you don’t…

    John,

    I’ve been taking a hiatus from following the birthers for a while now, but I just wanted to thank you for your work on this issue before you retired from the fray. While I’m adamantly opposed to your politics (and don’t believe that some of your ideas about politics would stand up to the kind of scrutiny that you gave the birther claims*), I greatly respect the integrity and scientific chops you brought to this issue. If more people on the right were as willing to accept an uncomfortable truth over convenient lies as you have demonstrated yourself to be, I’d feel a lot better about the state of our country.

    Thank you and good luck in your future endeavors.

    * In particular, you once made a comment about President Obama being responsible for the largest increase in the debt (you gave a per capita figure)–If you actually look at the drivers of our national debt, very little of it is a result of President Obama’s actions: President Bush’s tax cuts, President Bush’s Medicare part D, the economic downturn, the stimulus (which certainly also reduced the revenue lost to the downturn, although the size of this effect is debatable–what isn’t debatable is that it is the smallest of these factors) and the bailout of GM (which I believe made the government money and, I believe, prevented the collapse of the auto parts business and the loss of as many as 30 million additional jobs and the tax revenue that goes with them…). The other cost which is routinely ascribed to President Obama by those on the right is the cost of the the wars in Afghanistan and Iraq–adding this to President Obama’s “bill” because he changed President Bush’s policy of keeping the wars off the books seems to me like the kind of tactic Mario uses. As a fellow scientist, I’ll share a hypothesis with you: the deficit will decrease in a second Obama administration or it will increase under President Romney–at least if you count the cost of the war with Iran that I think he would be likely to start (especially given his close relationship with Dick Cheney). Hopefully if my hypothesis turns out to be correct you will reconsider your political views with the same objectivity that you brought to the birth certificate issue.

    • John Woodman says:

      Slartibartfast,

      First, thanks for your thanks.

      Second, a few of the quotes you reference above originated with me. But your comments have been about the same things that I myself might add.

      Third, I have effectively withdrawn much of my judgment concerning who is responsible for our financial state. I do recognize that the current President certainly is not anywhere near solely responsible for our current state of affairs, and have come to the unpleasant conclusion that some of our Republican Presidents, as you have mentioned, do indeed bear some significant responsibility as well.

      Actually, I think our politicians on both sides of the aisle have just about spent us into oblivion. We now have a national debt that exceeds $50,000 for every man, woman and child in the country. So, in essence, you personally and every member of your family is “on the hook” for a personal $50,000 debt that you did not run up. The US government ran it up, on your behalf. If you have a family of four, and pay “your fair share” in taxes, that is more than $200,000 that the government is going to come after you for.

      I don’t think that’s remotely healthy.

      I don’t think Obama is responsible for any of the costs of the wars in Iraq or Afghanistan. And I do think, for the sake of our national security, that those wars were justified. The people I blame for those costs are our enemies who started the fight, including Saddam, who had an unending stream of opportunities to avoid a real confrontation over years, but was too stupid to realize that we might just call his bluff.

      And yes, the fight has been expensive, but if you don’t pay the price now, you’re likely to pay a much bigger price later, as the US and England and all of Western Europe did after appeasing Hitler.

  18. Hugh Hudson says:

    Reality Check:

    Look at pages 10-11 of the PDF file.

    Thanks!

  19. Hugh Hudson says:
    June 15, 2012 at 4:44 pm

    Reality Check:

    I do recall Donofrio saying that John McCain is a statutory citizen, and not natural born.
    Here is the only link I have found. It speaks of a “native-born” requirement, but clearly the Constitution says that the requirement is natural born citizen for Presidents.

    http://www.abovetopsecret.com/forum/thread337922/pg2

    The post is by dbates.

    So Leo the Loser and dbates the blogger are the best you can do?

  20. Hugh Hudson says:

    Startibartfast:

    I certainly did not say these words. I was quoting John.

    1. You said:
    “Legally speaking, the native-born citizen is on a bit more certain footing than the one who is merely natural-born abroad.”

    Concerning the following, I did write these words.

    Native-born citizens are born in country.
    You said “Yes. By definition.”

    Concerning St. George Tucker, I was quoting John.

    “It has often been stated, throughout the history of the United States, that the President had to be a “native-born” citizen. Even legal authority St. George Tucker made that statement.”

    1. Obviously, Presidents had to be born in the US.

    “No, they didn’t–it’s just that the vast majority of people eligible to be president were born in the US. But that does not mean that all native-born citizens are natural born Citizens.They aren’t–but the terms are frequently used synonymously because they, for the most part, refer to the same group of people. If you want to speak in general, you can equate the two terms, but if you want to understand the nuances, then you must recognize that they are not exactly equivalent. If you fail to take one of these paths then, again, you are being either dishonest or displaying ignorance.”

    Well, I guess I will just have to disagree with you that Presidents had to be born in the United States, and that does not mean that all native-born citizens are natural born Citizens.

    If the definition of native-born citizen is a citizen born in country, then I actually agree with St. George Tucker’s statement, in the sense, that Presidents had to be born in county.

    1. The natural born Citizen clause in the Constitution requires the natural born Citizen means something more then native-born citizen.

    Here we get to the crux of your straw man–first, since the Constitution never mentions the term “native-born citizen”,…

    You are absolutely right that the Constitution never mentions native-born citizen.
    So what I said should read:

    The natural born Citizen clause in the Constitution requires the natural born Citizen means something more than a citizen.

    On the contrary, I never recall the Constitution mentioning the words naturalized citizen.

    • John Woodman says:

      As the Supreme Court noted in one of the court cases (I forget which one at the moment and am not going to bother to look it up :lol:) the Constitution provides that citizens may be born (here the Court referenced the natural born citizen reference, or they may be naturalized (and here the Court reference the provision of the Constitution that authorizes Congress to establish a uniform rule of naturalization.)

      • Jim says:

        It’s from Minor…from the paragraph before the one they love to quote.

        “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides6 that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’7 and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization. “

  21. Hugh Hudson says:

    Reality Check: Here is my post of 4:55 PM.

    Reality Check:

    Look at pages 10-11 of the PDF file.

    Thanks!

  22. Hugh Hudson says:

    Reality Check:

    Here is the link. In the second paragraph click on “retroactive 1937 law”. The Panama details are on page 10-11 of 81, I think. Let me know if this does not work.

    http://genealogy.about.com/b/2008/08/30/john-mccains-citizenship-status.htm

    • It appears to me that the law made anyone born after 1904 in the circumstances McCain was born to be a citizen at birth, aka a natural born citizen. Do you not agree?

    • John Woodman says:

      It’s an interesting bit of conversation.

      When you drill down to the NY Times article referenced (which quotes legal experts Ted Olson and Jill Pryor, the latter of whom is also mentioned in my article above) you will find that there’s no doubt expressed about anybody born in the US; the doubts — to the extent they exist — are about Americans born abroad (such as John McCain). Coincidentally — or perhaps not — this is exactly the same thing that I’ve been saying.

      A few weeks later, Ted Olson and Laurence Tribe — who are real and well-recognized legal experts as opposed to folks like Leo Donofrio and Mario Apuzzo — wrote a significant memo on the topic, concluding that McCain is a natural born citizen. Some of their reasoning is interesting and relevant:

      Senator McCain’s status as a “natural born” citizen by virtue of his birth to U.S. citizen parents is consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause.

      Those statutes provided, for example, that children born abroad to parents who were “natural-born Subjects” were also “natural-born Subjects… to all Intents, Constructions and Purposes whatsoever.” …Thus, the First Congress’s statutory recognition that persons born abroad to U.S. citizens were “natural born” citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.

      Senator McCain is certainly not the hypothetical “Foreigner” who John Jay and George Washington were concerned might usurp the role of Commander in Chief.

  23. Hugh Hudson says:

    Reality Check:

    I certainly think that John McCain is a statutory citizen. He had two citizen parents, but he gained citizen by statute.

    If McCain is actually a natural born Citizen, then no statute is necessary to make him a natural born Citizen. “Natural born” by necessity happens at birth. You cannot acquire natural born Citizen status after you are born.

    The law was enacted and it granted citizenship to persons. I do not think that this law granted natural born Citizenship to any person.

    If all persons born in John McCain’s condition of birth are indeed natural born Citizens, then why was the law enacted to secure their citizenship?

    The fact that this law was enacted supports the view that there is an actual difference between citizens (I speak of non-naturalized citizens) and natural born Citizens. The law is entitled: 7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT.

    The people that acquired their citizenship in this manner are no less a citizen than any other citizen.

    If much then same way, foreigners have obtained their citizenship through the Naturalization Acts. Their US citizenship is secure through those laws.

    But I think neither groups to be natural born Citizens.

    • You are entitled to your opinion of course even though it is incorrect based on court decisions, opinions of serious legal scholars, and I suspect the vast majority of people who read this blog. The discussion about McCain is academic since he will never run again. As for the current President, if you think he will be found ineligible and removed I would be glad to take you money in a wager on that.

    • John Woodman says:

      If all persons born in John McCain’s condition of birth are indeed natural born Citizens, then why was the law enacted to secure their citizenship?

      Well… first, there seems to have always been an equivalence between being a citizen at birth and being a natural born citizen. Basically, there were citizens at birth (=natural born citizens), and those who went through a naturalization process (=naturalized citizens).

      And if you believe Olson and Tribe (who, again, are “real” legal experts) it seems that the historical development of the term of art “natural born subject” which gave way to “natural born citizen” included persons who were citizens at birth by statute.

      All of which seems consistent, if slightly counterintuitive.

  24. Hugh Hudson says:

    John:

    You quote Ted Olson and Lawrence Tribe. Fair enough!

    Leo Donofrio is saying in a quote from his site “that the ‘natural born’ were repealed in the 1795 Naturalization Act and never returned again.”

    I know that you do not like Donofrio and Apuzzio, but we are dealing with Naturalization Acts here.

    Here is the link…http://naturalborncitizen.wordpress.com/2012/01/25/the-current-ins-officially-recognizes-a-delineation-between-natural-born-and-native-born/

    “But more important is that all of the following naturalization acts, 1795, 1802, etc., were also passed to naturalize the children of U.S. citizens born abroad. And the words “natural born” were repealed in the 1795 Naturalization Act and never returned again.

    “In Rogers. v. Bellei, 401 U.S. 815 (1971), the U.S. Supreme Court confirmed that persons born abroad are not covered by the 14th Amendment, and therefore, their citizenship can be stripped from them by Congress, whereas Congress cannot strip citizenship from a 14th Amendment citizen, whether born or naturalized here:

    “Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S., at 688 . Then follows a most significant sentence:

    ”But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

    • John Woodman says:

      And the words “natural born” were repealed in the 1795 Naturalization Act and never returned again.

      The question then becomes, were those words actually necessary?

      If there is a category of citizen at birth that is not a natural born citizen, then they were.

      If there is no category of citizen at birth that isn’t a natural born citizen, then they weren’t actually necessary.

      • John Woodman says:

        Oddly enough, as Jim has pointed out, it’s Minor v Happersett (!) that makes the point that there are only two kinds of citizens.

  25. Hugh Hudson says:

    If it is as you say that all citizens at birth are natural born, then why did Congress even change the language? I guess they just wanted to waste time, ink and erasures.

    • Slartibartfast says:

      Now you’re just being willfully ignorant–several people here have pointed out that those born citizens overseas aren’t indisputably natural born citizens (although I believe that since no court is likely to rule otherwise they are natural born for all intents and purposes and that the Founders wouldn’t have had any desire to exclude people like John McCain from the presidency).

      As for Congress, you seem to be assuming that they can’t make mistakes (something which is clearly not the case). We don’t know why the language changed, but it could be that they realized that Congress doesn’t have the power to declare people natural born citizens, only naturalized ones or that they found the clause to be unnecessary and removed it to leave the law simpler (and thus better) or it could be because of something else entirely. What we do know for certain is that this issue has no impact on people born in the United States–which means it is irrelevant to President Obama’s case since he, by virtue of his birth in Hawai’i, is unquestionably a natural born citizen in the eyes of the courts, the law, and every decent American citizen.

  26. Hugh Hudson says:

    Slartibartfast:

    Concerning your comment below:

    I am not trying to be willfully ignorant.

    I was referring to John’s comment to me, so if there is any correction to be had I want to be from John. I don’t recall him speaking or writing to me about the citizens born overseas having their natural born citizenship status in any dispute (among those who hold that opinion). In fact, I had never even heard that American citizens born overseas could ever be natural born citizens. Now, I am not of that opinion, and it is fine to have a different opinion than me.

    I am not telling any person on this blog how ignorant they are or how willfully ignorant they are. Now, this ignorant talk from you must stop! Do you understand?
    ——————————————————————————————–
    “Now you’re just being willfully ignorant–several people here have pointed out that those born citizens overseas aren’t indisputably natural born citizens (although I believe that since no court is likely to rule otherwise they are natural born for all intents and purposes and that the Founders wouldn’t have had any desire to exclude people like John McCain from the presidency).”

    • John Woodman says:

      If I might register an opinion here, I don’t get the impression you’re being “willfully ignorant.” I can state, however, that over the course of the past year, I’ve run into a LOT of people who were. I expect that has been Slartibartfast’s experience as well, and suspect that his response might include a bit of reaction based on his experiences with others.

      As regards this particular point: At the moment, I personally think it’s one of the best that’s been brought up on the “two-citizen-parent” side of the discussion in the history of this blog. And maybe in the history of the entire discussion.

      The record of the debate on the 1795 law does not include any debate, in either the House or the Senate, on this change in wording in the law. While the records of our early Congresses are much less complete and verbatim than they later became, I would assume that if there was debate on the floor, then that would have been recorded.

      I therefore think that the change in wording must have taken place in committee, before the bill was brought to the floor of the House.

      We know that Congressional Acts must be presumed to have been made for some reason. And changes in wording, likewise.

      I am therefore personally thinking that the Congress of 1795 — at least the House Committee that drafted the bill — actually intended to make children born overseas of US citizen parents “naturalized” citizens, and withdraw from them the status of “natural born” citizens.

      There are a few reasons I can think of that they might have wanted to do this. One is that they might have felt the inclusion of “natural born citizen” was unnecessary or otherwise less well-worded than simply saying “citizen of the United States,” and assumed that everyone would know that if one was born a citizen, then he or she was a “natural born citizen.”

      But I will confess: That doesn’t seem to me a very satisfactory reason for such a change in wording.

      A second reason is that they might have felt that there was no legal power on the part of Congress to specify that a person was “natural born,” and that the revised wording was better for that reason.

      And the third reason is possibly the most obvious one: That they intended to make the children born abroad of US citizen parents “naturalized” citizens, not “natural born” citizens, and thereby withdraw the possibility of Presidential eligibility from such citizens.

      IF the third reason is the correct one — and there are definitely some good arguments to be made for it — then that would, indeed, have created a category of citizen who was “naturalized at birth.”

      Now — having said that, a couple of observations.

      First, while I think there is definitely a very good case to be made that they were withdrawing Presidential eligibility from children born US citizens abroad, I don’t think it’s completely certain that was the purpose.

      Second, even if they did establish a category of persons who were naturalized citizens at birth, there seems to be no good evidence at all that there was ever any category of US-born citizens that were naturalized citizens at birth. In other words, even if the children born abroad of US citizens were naturalized citizens at birth, I really see no indication that anyone born on US soil was ever anything other than a natural born citizen.

      Third (in regard to the eligibility of US citizens born abroad) I am not at all sure that Congresses who enacted subsequent naturalization laws would have understood that the laws they were enacting would, in effect, tend towards Presidential ineligibility for such citizens. In other words, even if removing Presidential eligibility from persons born US citizens abroad was the purpose of the Third Congress, it may well not have been the purpose of any successive Congress who enacted subsequent legislation with similar wording.

      And it certainly wasn’t the purpose of the First Congress, which was the one closest to our Founding Fathers and Framers of the Constitution.

      In any event, this particular event adds a bit of weight towards making the eligibility of US citizens born abroad a bit more doubtful. I still think, however, that if the Supreme Court were to rule on the eligibility of persons born US citizens abroad, that they would most likely find such persons were eligible.

      • BrianH says:

        John, as to:

        I am not at all sure that Congresses who enacted subsequent naturalization laws would have understood that the laws they were enacting would, in effect, tend towards Presidential ineligibility for such citizens. In other words, even if removing Presidential eligibility from persons born US citizens abroad was the purpose of the Third Congress, it may well not have been the purpose of any successive Congress who enacted subsequent legislation with similar wording.

        Congress cannot, merely through its legislation (i.e., not a States-ratified Const. Amendment) either expand or diminish what the Constitution has set forth. Congressional acts are by definition inferior and subject to the Constitution. Even if a Congress believes that’s what it is doing, it’s a nullity.

        [I'm editing this to allow the possibility that power granted to Congress to establish uniform naturalization laws could be understood as including the inherent authority to define a special class of "natural born citizen." The foreign-born situation defies simple analysis.]

        At best, perhaps, the earliest acts might be viewed as shedding light on the historical question of original Constitutional meaning. But even that is dubious, given the membership of any Congress differs from the Framers, the passage of years, etc.

        Justice Gray in WKA indicated the meaning of NBC is to be understood by reference to the English common law. Given that statutory law generally is viewed in distinction to the common law (very often enacted to change the c.l. decision), it’s not clear how appeal to early statutes helps or hurts the argument in favor of foreign-born citizens. I agree with your first sentence above: early on the whole framework of judicial review and Constitutional interpretation had yet to evolve. Inquiry as to early congressional intent strikes me as anachronistic.

        • John Woodman says:

          Yes — your edit, Brian, is interesting, given a bit from the Tribe/ Olsen memo that I also referenced above:

          Senator McCain’s status as a “natural born” citizen by virtue of his birth to U.S. citizen parents is consistent with British statutes in force when the Constitution was drafted, which undoubtedly informed the Framers’ understanding of the Natural Born Citizen Clause.

          Those statutes provided, for example, that children born abroad to parents who were “natural-born Subjects” were also “natural-born Subjects… to all Intents, Constructions and Purposes whatsoever.” …Thus, the First Congress’s statutory recognition that persons born abroad to U.S. citizens were “natural born” citizens fully conformed to British tradition, whereby citizenship conferred by statute based on the circumstances of one’s birth made one natural born.…

          One gets the impression that our early Congresses were much more careful than some later Congresses have been about the Constitutionality of acts that they passed. And it seems very clear that the first Congress believed they had the authority to declare the children born abroad of US citizens to be natural born citizens.

          In any event, whatever one might think about the status of those born abroad of citizen parents, their status doesn’t seem to directly affect the status of children born on US soil.

          Finally (perhaps), I agree with the following comment from Slartibartfast:

          I believe that since no court is likely to rule otherwise they are natural born for all intents and purposes and that the Founders wouldn’t have had any desire to exclude people like John McCain from the presidency

          I too don’t think the Founders or Framers would have had any desire to exclude folks like John McCain, or others who have been born abroad of US citizen parents.

          • BrianH says:

            I agree a McCain-type situation passes muster easily, as there is precedent under pre-Constitution English law, as you’ve noted.

            Things get a bit more gray if one posits just one U.S. citizen parent, as then more reliance must be placed on later statutory declarations (I’m not aware of an early English matter presenting that situation.)

            If there’s any point on which I might grant the Birthers something resembling a nod, it’s the lament that the Constitutional question lacks an effective forum or remedy. The Courts aren’t likely to preempt the political process up to election. And once a candidate has been elected by populace and electors, the pressure to confirm that would be enormous. The U.S. holds a place in a world that has changed significantly since 1787. Not having certainty as to who the President is or if any prior acts were valid isn’t a situation to contemplate.

  27. Hugh Hudson says:

    John:

    Thanks for your comments!

    “And the third reason is possibly the most obvious one: That they intended to make the children born abroad of US citizen parents ‘naturalized’ citizens, not ‘natural born’ citizens, and thereby withdraw the possibility of Presidential eligibility from such citizens.”

    I think that children born out of county to citizen parents can only receive citizenship, I say, by statute, for like of a better word. I think that fits John McCain’s situation. People in this group would need no naturalization.

    Furthermore, people of this group would fail to be natural born citizens since natural born citizens are born in county. I do not know how any person born outside the US is a natural born Citizen.

    “Naturalization at birth” is a new term to me. Naturalization requires oath-taking. Born babies have not such capacity.

    The term “statutory citizen” makes more sense to me (for foreign-born children of US citizens”.

    Naturalized citizen is for foreign-born childred of foreigners.

  28. Hugh Hudson says:

    John:

    “There are a few reasons I can think of that they might have wanted to do this. One is that they might have felt the inclusion of “natural born citizen” was unnecessary or otherwise less well-worded than simply saying “citizen of the United States,” and assumed that everyone would know that if one was born a citizen, then he or she was a “natural born citizen.”

    I do not buy the “assumption” issue at all. After 1795 “natural born” was removed from the Naturalization Acts, and never returned. This indicates to me that Congress decided on change and never went back on it.

    Does Congress legislate by assumption? Laws are passed to give stability to the people. Why would people need to guess about their citizenship? Or have any confusion about what Congress thought about? Talk about confusion!!!

    • John Woodman says:

      I do not buy the “assumption” issue at all. After 1795 “natural born” was removed from the Naturalization Acts, and never returned. This indicates to me that Congress decided on change and never went back on it.

      Right. As I noted, that doesn’t seem a satisfactory explanation.

  29. Slartibartfast says:

    Hugh said:

    Slartibartfast:

    Concerning your comment below:

    I am not trying to be willfully ignorant.

    You are either willfully ignorant or you aren’t. If you are, then you are trying to be–that’s what “willfully” means.

    I was referring to John’s comment to me, so if there is any correction to be had I want to be from John.

    I believe that it is up to me whether or not I want to respond to a comment on a blog (although John has veto power, should he wish to use it…). You get to choose how and if you will respond to me, not what I do. These ideas rise and fall on their merits not the person presenting them (the whole point of what John did is that anyone of sufficient intelligence [I know, that excludes most birthers {a lack of integrity excludes the rest}] can repeat everything he did and get similar results). You, like every birther, seem willing to put your faith in any authority that says what you want to hear while subjecting any authority with which you disagree to impossible standards until you are able to find some minor detail which you then misrepresent to make your straw man argument. That seems pretty dishonest to me… better to be ignorant (even willfully ignorant).

    I don’t recall him speaking or writing to me about the citizens born overseas having their natural born citizenship status in any dispute (among those who hold that opinion). In fact, I had never even heard that American citizens born overseas could ever be natural born citizens. Now, I am not of that opinion, and it is fine to have a different opinion than me.

    Yet you repeatedly stated that no one born overseas can be president. Given that you clearly have neither done any honest research on this issue nor have you thought any of your arguments (and their ramifications) through, this can only be construed as flaunting your ignorance. You may not know these things and John may not have said them to you, but we do and John has painstakingly debunked a large number of claims on this website and in his book–you don’t get a pass just because John hasn’t personally rubbed your nose in the absurdity of all of your arguments. Remember, it is better to keep your mouth shut and be thought a fool than to speak and remove all doubt.

    I am not telling any person on this blog how ignorant they are or how willfully ignorant they are.

    If you can present examples of how I am being ignorant or how I am making use of logical fallacies, feel free–I don’t think you’ll be able to find any. If you aren’t willing to have a discussion in good faith (as your use of logical fallacies and refusal to admit–or defend yourself–when they were pointed out would suggest), then I fail to see why I should restrain myself from pointing out how you are being dishonest and/or ignorant.

    Now, this ignorant talk from you must stop! Do you understand?

    If you continue to use straw man arguments, refuse to acknowledge or refute attacks on your positions, and hide plead ignorance while putting forward the thoroughly debunked arguments of demonstrated liars as being equivalent to the mountain of evidence to the contrary, I will continue to point it out (at least until I’m distracted by something shiny…). You’ve taken a position which cannot be defended in good faith (except by the ignorant)–you’ll have to live with the consequences. You can, of course, easily stop all of it by simply admitting that President Obama is a natural born citizen and eligible for his office. Can you do that?

  30. Hugh Hudson says:

    Slartibart:

    Here is John response concerning me being “willfully ignorant” concerning the matter of which we (Reality Check, John and) I were speaking.

    “If I might register an opinion here, I don’t get the impression you’re being “willfully ignorant.” I can state, however, that over the course of the past year, I’ve run into a LOT of people who were. I expect that has been Slartibartfast’s experience as well, and suspect that his response might include a bit of reaction based on his experiences with others.

    “As regards this particular point: At the moment, I personally think it’s one of the best that’s been brought up on the “two-citizen-parent” side of the discussion in the history of this blog. And maybe in the history of the entire discussion.”

    You are calling me ignorant, or willfully ignorant, one of not sufficient intelligence or having lack of integrity. You tell me to keep my mouth shut if I can’t defend my positions. Basically your saying that something next to fool, if not fool. Furthermore, you suggest that I have kept company with demonstrated liars and that I am being dishonest.

    That is quite a list!

    John Woodman probably will disagree with me on a lot of positions, but I think he is at least willing to respect me.

  31. Hugh Hudson says:

    John:

    Slartibartfast is on the warpath with me again. I did not start this fight. I do not have the authority to “pull rank” on him. I told him to stop it. I do not even feel welcome on this site. I refuse to be dragged through the mud!

    If you desire to speak with me you can do so by my e-mail.

    Thanks!

  32. Hugh Hudson says:

    Slartibartfast:

    Yes, you do have a right to respond, but you will at least some respect in dealing with me as a person.

    I am not saying your a fool, an agnorant person, that you lack intelligence, that you don’t defend your position, or that you associate with demonstrated liars.

    But what I saying is that you will have to stop your hard-charging disrepect toward me. You will not pound on me just because I have a different opinion.

    “I believe that it is up to me whether or not I want to respond to a comment on a blog (although John has veto power, should he wish to use it…). You get to choose how and if you will respond to me, not what I do.”

  33. Slartibartfast says:

    Hugh,

    At John’s request, I am apologizing for jumping to the conclusion that you were another birther playing “concern troll”–something that I (and everyone else that has been following the birthers) has seen happen over and over again on many blogs and fora in the past 4 years. Assuming that you are new to the issue (or just haven’t ever seriously researched it), you should be aware that the birthers have been attempting to smear the President of the United States (and his family–vile slurs against his wife, his children, his parents–especially his mother–and his grandparents are commonplace amongst the birtherstani) with baseless allegations, bald-faced lies, and any other seditious slander that they could think of since just after he released what we now know to be incontrovertible proof* that he was a natural born citizen. Personally, I feel that using the truth to smear those that use lies to smear the president is a reasonable response, but I’ll assume that you were not aware of the type of people you were associating with (one of the worst examples of the kind of racist filth birthers seem to have no problem agreeing with and linking to–if you can stomach it: http://lamecherry.blogspot.com/ ). I hope you can see that if I was flinging mud (and I was), then I was only doing so because of being repeatedly provoked by die-hard liars and con artists–some the very same ones who’s arguments you were quoting.

    Anyway, I’m offering you a clean slate–if you would like to have a polite discussion in good faith, nothing would please me more.

    To go back to what bothered me initially, you said that since all of the words in the Constitution must have meaning (which I agree is true), there must be a distinction between native born citizen and natural born citizen. There are two problems with this: first, it implies that there isn’t a difference between natural born and native born, which, as I explained above, is untrue; and second, since the phrase “native born citizen” does not appear in the Constitution, the only inference you can make is that “natural born citizen” and “citizen” must have distinct meanings–which they clearly do: citizens includes both the natural born and the naturalized. Does this make it clear why I felt your statement was fallacious? Did I correctly interpret what you meant? If I’ve misconstrued your comment, please let me know what it was that you were intending to say.

    Again, I apologize for preemptively lumping you in with the birthers and assure you that if you want to discuss these issues in good faith, I’ll be nothing but polite.

    * If you’d like to dispute this statement, then you should give me an example of what you believe would be sufficient evidence to raise doubt regarding President Obama’s Hawai’ian birth (given the evidence currently extant) in a US court.

    • John Woodman says:

      By the way, Slartibartfast, I’d like to thank you for being willing to give Mr. Hudson a chance here. And actually, I do think that by so doing you speak well of yourself and of those on the un-birther side.

  34. Hugh Hudson says:

    Slartibartfast:

    Thank you! Your words “impossible standards” kind of got to me since I understand what carrying around some things that just seem not solvable. And then you certainly have a right to speak. I have been “in a fit to be tied” over not been permitted speak. We all need to be careful with our words because words have power to give life or kill.

    I do not think I have the right or the authority just to correct anyone on this site. When I was objecting to the “Natural Born Abroad”. Really, I do think that is an absurdity. I don’t see that even being possible.

    So, I guess that when real differences arise those differences should be put on the shelf.

    My background is Christian, Republican, Conservative.

    Concerning the natural born Citizen issue and the Birth Certificate, I am squirely in Leo Donofrio’s camp.

    Now I know that you guys think that Donofrio (and Apruzzo) are just off-the-deep end, “documented liars”. Lest that is the impression I get.

    But I followed Donofrio’s blog years. My observations included. He is one brainy, very intelligent, lawyer. He is very through in his research. He is the one that I gathered the documentation and link concerning the Naturalization Acts noted above in another note. He discovered that references to Minor v Happerstatt had be sabotogued at Justia.com. Lnks and references were omitted as I recall I have seen him so angry at some people that he would not have anything to do with them professionally, and yet he would reconsider his stance. I have seen him do this. You can count on it, Leo Donofrio is one brainy, very intelligent lawyer. He and Stephen Pidgeon have both been intimidated. He is a poker player and a very savy intelligent man. He is the person who discovered naturalization information on James Garfield’s father (You most likely disagree here). You may think that he is a nut, but he is one great lawyer. I have read in blog and some of the issues his has analyzed are mind boggling. He definitely thinks that Obama was born in Hawai’i. He made statutory construction very simple as he was explaining how Marbury v Madison was critical in the intrepration of every word and clause in the Constitution and every other US law. My dealings with the anti-Birther camp lead me to conclude that they believe Marbury v Madison is mostly without merit concerning citizenship issues since the case says nothing directly about citizenship. He would not allow political cheap shots concerning Obama or any other cheap shots, either. He would snip them, and rebuke blog participants. His was a legal blog and he dealt almost exclusively with legal issues. He dealt with most of the big citizenship cases, if not all at one time or another. To me there is no doubt whatsover that Donofrio really does respect the US Constitution, Laws, Statutes. But Judge and Court refusal to actually hear cases was an exceedingly great grief to him. What I am saying may not make sense to you, but it true. It is the most honest record that I can remember. Constitutionally I would call him a strict constructionalist (He said more conservative then Rush Limbaugh). In other areas of his life declared himself to be “very liberal” (that is my best remembered phrase-my perception of what he said.

    • JRC says:

      See…this is an example of lack of critical thinking. Sorry if it offends you, but it is true. You state that Justia.com was sabotaged. What relevance does one website have to do with anything? First it was revealed the reason for the error. Second, unless you can prove systematic sabotage on all websites, and destruction of every printed law book on Minor, the claim in moronic. Honestly you are a birther, and you show the intelligence of one.

      Please, tell me what relevance Justia.com has on anything at all? Just incredibly stupid birther crap.

    • John Woodman says:

      I’m afraid that Leo Donofrio does not evoke much admiration around here.

      I have a rule: If I find out someone is telling me something that is just flat-out, bald-faced untrue, any thing that person tells me from then on is highly suspect.

      And if it happens more than once, that person can never be trusted again, and the working assumption, until proven otherwise, is that anything he says is false.

      Donofrio has confessed to willfully deceiving the public in the past. And when I started checking his claims, it didn’t take long to find him quoting an authority as supposedly supporting him, then reading the authority’s work in context and discovering that he said the exact opposite.

      I’ve written more on Leo Donofrio here.

      I frankly can’t understand why you would believe someone like Leo Donofrio.

      Actually… that sparks a train of thought.

      Why do folks believe people like Leo Donofrio and Mario Apuzzo?

      I can think of a few reasons.

      * They don’t know much about a particular issue and are inclined to believe someone simply because he seems to be “on their side,” or because they happen to read that source first. (Lack of knowledge). Hmm… two other reasons there.

      * They accept a source as credible because they read that source first.

      * They accept a source because he’s “on their side” (whether politically or otherwise), and so they naturally trust him.

      * They do not have time to research the matter for themselves.

      * They do not have the inclination to research for themselves.

      * They do not have sufficient critical thinking and research skills and practices to examine both sides, think them through, and discern what is truth and what is fantasy; what is solid evidence and rationale, and what is not.

      * They make decisions based on emotions (“feeling”) rather than facts and logic (“thinking”), and they like the feeling they get from a particular side.

      * They value a reality that they like, or that makes them feel good, more than they value the actual truth.

      * They simply want to believe one side and not the other.

      In any event: If you’re putting your trust in Leo Donofrio and Mario Apuzzo for the truth, I’m afraid your trust is misplaced. Their claims have been debunked again and again and again.

      • Rambo Ike says:

        Hey John,

        Exactly! I feel the same way you do when I find people telling me flat-out, bold-faced lies. I become highly suspicious and tend not to believe anything further from them.

        Politically speaking, for years I blogged on a true 1st Amendment site. This year has been quite a spectacle posting comments on anti-Birther sites seeing they either block my comments correcting their outright lies, or in some instances they have actually changed up the wording of what I posted.

        • John Woodman says:

          Exactly! I feel the same way you do when I find people telling me flat-out, bold-faced lies. I become highly suspicious and tend not to believe anything further from them.

          Then why do you believe and continue to root for birthers who have repeatedly told you verifiable falsehoods?

          Politically speaking, for years I blogged on a true 1st Amendment site. This year has been quite a spectacle posting comments on anti-Birther sites seeing they either block my comments correcting their outright lies, or in some instances they have actually changed up the wording of what I posted.

          I would be interested in knowing exactly what sites you think have blocked your comments “correcting their outright lies” or changed the wording of what you posted.

          Every non-birther site that I have any real personal experience with — my own blog, of course, Dr. Conspiracy’s blog, Reality Check’s blog, and Squeeky Fromm’s (that’s four) has, as far as I know, allowed birthers to speak their minds freely, without censorship. Yes, it’s true that if you’ve used the term “Obot” here lately, I may have changed that it to “HONEST RESEARCHER” — but only after asking posters such as yourself and particularly Mario Apuzzo repeatedly to please not use that term here, without any effect.

          And I have banned one poster and put a couple of others on moderation for sheer obnoxiousness. But those aren’t freedom of speech issues; they have to do with a person’s behavior.

          In short, I know of no anti-birther site that really censors birther speech, and I know of few birther sites that allow free speech of non-birthers. I have had my factual, non-inflammatory comments censored again and again, with the result that it didn’t take long for me to give up on posting at most birther sites.

          • I have actually only “banned” one commenter at my blog, MichaelN. He is also banned here. He was abusive, offensive and essentially just recopied the same discredited arguments over and over again. I gave him an option on how to get unbanned but he has been unable or unwilling to meet the criteria.

            • John Woodman says:

              Right. The reason he was banned here is that he was abusive, offensive and essentially just recopied the same discredited arguments over and over again.

              I gave him no option on getting unbanned. I had repeatedly warned him in advance that if he didn’t behave here he would be banned permanently.

              This was after RC had already banned him from his blog.

            • BTW, the two criteria I gave MicahelN to be unbanned were

              1. To cite a major decision by SCOTUS where they prefaced the ruling with the words “there are doubts” and show that what follows is universally accepted to be settled law.

              2. To convince Jonathan Turley that the “two parent citizen” interpretation for natural born citizen is correct and to write an article to that effect on his blog.

              Unfortunately he has met neither to date.

            • John Woodman says:

              Lol. So you banned him permanently as well.

            • BrianH says:

              R.C. “He was abusive, offensive and essentially just recopied the same discredited arguments over and over again.”

              J.W. “The reason he was banned here is that he was abusive, offensive and essentially just recopied the same discredited arguments over and over again.”

              “Sublimity is the echo of a great mind.”
              — Longinus

    • John Woodman says:

      As regards Justia, that’s been discussed here before, in the comments on several of our articles.

      I’ve just expanded the usefulness of the site by making comments searchable using the regular search box at upper right.

      You might also be interested in the comments regarding Frederick van Dyne.

    • Slartibartfast says:

      Hugh,

      Thank you for explaining the context of your beliefs (I will return the favor later). I believe that you have been exposed to a considerable amount of misinformation (and outright lies), but before delving into that let’s lay the groundwork for some critical thinking.

      In science, one starts with a falsifiable hypothesis (such as “Barack Obama is eligible for the presidency”) and designs an experiment to test the hypothesis. An important part of this design is determining the meaning of the possible outcomes of the experiment–in particular, there must be at least one possible outcome which falsifies the hypothesis (proves it wrong). By contrast, while birthers routinely claim that they would be satisfied by this or that, when their requirements are satisfied they just change them and claim that the new goal is all that is necessary to appease them. With this in mind, I think that a good starting place is this: What would you consider sufficient evidence that President Obama is eligible for his office?

  35. Hugh Hudson says:

    Slartibartfast:

    I will get back to you on your questions. I know that there is at least one that really rankles me terribly! It has to do with England Common Law and what Supreme Court Justice write in their opinions.

  36. Rambo Ike says:

    Hi Hugh,

    I read your posting above in this thread regarding McCain’s citizenship. Here’s a couple facts about it that it looks like you’re not aware of:

    In 1936, when McCain was born in Panama, the country only had jus sanguinis for birthright citizenship. In 1928 Panama changed up Article 6 in its National Constitution to read: “Those who are born in the republic of foreign parents shall be called Panamans if in one year following their majority they declare to the Executive Power that they choose Panaman nationality and prove that they have resided in the republic during the 6 years previous to said declaration.”

    Thus at the time when McCain was born there there was no automatic Panamanian birthright citizenship for babies born in Panama for foreigners. Since there is no record of McCain ever applying for Panamanian citizenship and both his parents were American citizens, it equates to ONLY the United States having a claim to him. And since the parents’s permanent residence [not temporary while in the military] was the United States means McCain was a “natural born Citizen” of the United States.

    • John Woodman says:

      All of which is very nice, but there is no actual Constitutional qualification requiring that a person renounce any citizenship another country might extend to him in order to be eligible to the office of President.

      Of course, if that really becomes a concern from a political point of view, a politician can do so voluntarily, as Michele Bachmann did earlier this year. But there is no legal requirement.

      And yes, I understand that the Founding Fathers and Framers of the Constitution had an expectation that a person would be a citizen of one country only. Even so, they didn’t codify such an expectation into law, and given that the United States does not control which persons in the world any other country extends their citizenship to, doing so would not have been proper anyway. Had they done so, countries like Iran or North Korea could mess with us simply by passing laws making them citizens of their own countries, thereby rendering them ineligible according to our own laws.

      Finally, it’s worth noting (as always when this topic comes up) that some countries automatically give citizenship to persons who are descended from, or who marry, one of their citizens. That’s how Michele Bachmann gained her Swiss citizenship, for example. [Edit: See correction below!]

      • I think the case of Michele Bachmann is not completely analogous because she first applied for Swiss citizenship, which was granted, and only renounced it after a firestorm erupted over it.

  37. Hugh Hudson says:

    John and Slartibartfast:

    I will certainly not be participating on this site.

    The only witness that I am going to offer you all is a partial quote from Founder David Ramsay:

    “THE United States are a new nation, or polical society, formed at firft by the declaration of independence, out of thofe British fubjects in America, who were thrown out of royal protection by act of parliament, paffed in December, 1775.

    “A citizen of the United States, means a member of this new nation. The principle of government be radically changed by the revolution, the political character of the people was also changed from fubjects to citizens.

    “The difference is immenfe. Subject is derived from the latin words fub and jacio, and one means under the power of another; but a citizen is an unit of a mafs of free people, who collectively, poffefs fovereigny.

    Subjects look up to a mafter, but citizens are fo far equal, that none have heriditary rights fuperior to others. Each citizen of a free ftate contains, within himfelf, by nature and conftitution, as much of the common fovereignty as another. In the eye of reafon and philofophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them at pleafure: but citizens poffefs in their own right original fovereignty.”

    So, the American Colonies were thrown out of royal protection by the England Parliament. The American Revolution changed the political character from subjects to citizens.

    I can only conclude that England Common Law does not give birth to American citizens. Subjects do not make citizens. Ramsay’s Dissertation makes this clear. If you will not listen to Ramsay, you will not listen to me.

    • Hugh Hudson

      Are you familiar with the story of David Ramsey and the context of the quote or did you just come across the quote in passing?

    • Slartibartfast says:

      Hugh,

      I’m sorry that you’re not willing to discuss this matter in good faith, but I guess preserving your ignorance is more important to you–disappointing, but hardly unexpected. I pity the life you will lead having shackled yourself to the lies of hatemongers and con-artists, but that’s your choice.

      I’ll leave you with the words of James Madison–words which I have never found a birther willing to acknowledge, let alone address:

      “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”

      http://nativeborncitizen.wordpress.com/natural-born-quotes/

      • John Woodman says:

        Slartibartfast, please see my note below.

        I would also like to note that your quote of James Madison, the Father of our Constitution (which quote I have also referred to below) was in direct refutation of David Ramsay’s claims regarding citizenship, a vote which Ramsay lost, thirty-six to one.

        • Slartibartfast says:

          I didn’t know about the context of the Madison quote–thanks. I guess it was even more appropriate than I thought…

    • John Woodman says:

      By saying, “I will certainly not be participating on this site,” after Slartibartfast has publicly apologized and offered an olive branch, and done his best to be polite, then as far as I can tell, Mr. Hudson is making it clear that he actually does not want to discuss or know the truth, unless the truth is likely to leave intact his precious belief that Mr. Obama is ineligible.

      In other words, he is demonstrating that he is choosing the path that Slartibartfast actually had him pegged as choosing — the path of willful ignorance.

      That being the case, it appears that I owe an apology to Slartibartfast.

      As for David Ramsay, believe me, I know all about him. I apparently know more about him than you do, Mr. Hudson. I have read his dissertation multiple times, researched who he was, and researched the context in which he wrote that dissertation.

      That particular paper was clearly written for the purpose of supporting his campaign to have William Loughton Smith (who beat Ramsay in an election for the House of Representatives) declared ineligible to the office. In other words, it was a marketing piece written to lobby Congress for a sore-loser campaign.

      While Ramsay does state his opinion that citizen parents are required in order to be an American citizen, his treatise makes no direct reference to the status of children born on US soil of immigrant parents. Why not? That wasn’t its purpose.

      The point about citizen parents is directly supportive of his personal sore-loser goal; therefore, it must be understood in that context.

      He ordered his printer, as soon as the piece was printed, to distribute a copy to every member of Congress. But his campaign — and therefore his main points on citizenship — were resoundingly (thirty-six to one!!) repudiated by our leaders in the House of Representatives. This repudiation was led by none other than James Madison, the “Father of the Constitution,” who clearly declared that when it comes to the allegiance that makes for citizenship, “in general place is the most certain criterion; it is what applies in the United States.”

      For all of these reasons, David Ramsay’s treatise clearly did not represent the views of the Founding Fathers, and cannot establish any guide at all as to what they considered the phrase “natural born citizen” to mean.

      Now I am sure you didn’t want to hear that, as you’ve already stated that you “will certainly not be participating on this site.” Nonetheless, it’s the truth.

    • John Woodman says:

      PS — It’s not “fubjects,” it’s “subjects.”

      • Thomas Brown says:

        Yow. HH kept all the long-script s’s rendered as f’s. I’m so used to reading early texts I didn’t even notice.

        If I’m not careful, paleontologists are going to start thinking of a name for me.

        • John Woodman says:

          Even in the early texts — at least as far as the text itself is concerned — the letters are s’s and not f’s. The f’s have a cross-bar, the s’s don’t.

          I think it stemmed from a practice dating back to the days of handwritten script of making the s’s that were inside words very long, just to be fancy about it. But in printed books, they couldn’t extend the bottom of the s very far, so they chopped the bottom off.

          If you look at an old text, you’ll see that what we now consider a regular s was used at the end of words.

          Eventually people seem to have decided that the variant s’s looked too much like f’s, and it became the practice to only use the ones we now regard as a normal s.

          Of course, if a graphic has been OCR’ed, without any spell check applied, it might well convert those s’s to f’s. But in that case I would expect other misspellings as well. I wonder where Hugh got his text from?

          • Thomas Brown says:

            Right you are. Most of my experience is with Shakespeare-era texts, and there they set a type of s which descends, as well as using terminal s’s which don’t. Those printers indulged in other text affectations which are even tougher to endure, such as using i for j (because there was no j in Latin) and using v for u and vice versa! That one is a mystery. So you end up reading a sentence like “I haue no vse for loue; onely iustice.”

            I am slowly developing a new edition of the Plays I call the Fearelesse Folio. These are electronic texts that retain as much of the flavor of the First Folio and the early Quartos (spelling, punctuation, fonts, etc.) as possible but changing only what confuses the eye of an actor using the text as a script for performance. I would be happy to email you a page or two if you’re interested at all.

            Indeed, though, in later times they truncated the long-script s’s making them VERY much like f’s, so Revolutionary to Federal period texts are quite vexing. And OCR just makes it worse.

            • John Woodman says:

              I would be happy to email you a page or two if you’re interested at all.

              Sure.

              The ancient Romans didn’t have the u, only v.

              Wikipedia is of some vse here:

              During the late Middle Ages, two forms of “v” developed, which were both used for its ancestor u and modern v. The pointed form “v” was written at the beginning of a word, while a rounded form “u” was used in the middle or end, regardless of sound. So whereas valor and excuse appeared as in modern printing, “have” and “upon” were printed haue and vpon. The first distinction between the letters “u” and “v” is recorded in a Gothic alphabet from 1386, where “v” preceded “u”. By the mid-16th century, the “v” form was used to represent the consonant and “u” the vowel sound, giving us the modern letter “u”. Capital “U” was not accepted as a distinct letter until many years later.

  38. Hugh Hudson says:

    John and Slarlibartfast:

    Yes and I will add from David Ramsey, 1789:

    “Nearly three millions of people who had been fubjects, became citizens. Their former political connection with George the third was done away, and a new one was formed, not with another king, but among themselves, by which they became coequel citizens, and collectively, affumed all the rights of sovereignty.”

    The connection with the British Empire was broken.

    • Thomas Brown says:

      Yes, but not the jus soli tradition of citizenship. That was retained, as were innumerable other facets of English law.

      Get it? Born in the USA means (with very few exceptions) you can run for President. Born somewhere else, to citizens from another country, and becoming a US citizen later, you can’t. Period. Established law, now with a 10-yard list of cases giving precedent.

      You have lost. Take a vacation.

    • gorefan says:

      Hugh Hudson,

      There is no doubt that Dr. Ramsay’s dissertation was part of his campaign to unseat William L. Smith.

      From Dr. Ramsay’s 1789 Dissertation:

      “The following appear to be the only modes of acquiring this distinguishing privilege.
      1st. By being parties to the original compact, the declaration of independence.
      2d, By taking an oath of fidelity to some one of the United States, agreeably to law.
      3d, By tacit consent and acquiescence.
      4th. By birth or inheritance,
      5th. By adoption.”

      [skip]

      “Citizenship is an adventitious character to every adult in the United States.”

      [skip]

      “Many persons, hostile to our liberties and independence, might put in their claim to be citizens. All children born in the interval between the peace of Paris, 1763, and the declaration of independence in 1776, within the British posts on our northwestern frontier, now wrongfully held from us, would be citizens. Our East-India trade would be laid open to many adventurers, who have contributed nothing towards the establishment of our liberties: for the natives of this country, born before the revolution, who are now dispersed over the world, might on that principle, fit out ships, make voyages to India, come here and sell their goods, under the character of citizens, from the circumstances of their coming”

      From Dr. Ramsay’s 1789 petition to Congress:

      “that citizenship with the United States is an adventitious character to every person possessing it, who is now thirty years of age ; and that it can, in no case, have been acquired but in one of the following modes:”

      “1st. By birth or inheritance.”
      “2d. By having been a party to the late revolution.”
      “3d. By taking an oath of fidelity to some of the States.”
      “4th. By tacit consent.”
      “5th. By adoption : ”

      “and that Mr. Smith cannot have acquired the character of a citizen, in either of these modes”

      [skip]

      “Our East India trade would be laid open to the numerous natives of this country, who are now dispersed over Europe and the West Indies. If birth and residence within the limits of the United States, before the revolution, conferred the rights of citizenship, persons of the aforesaid description neither done nor hazarded anything for our independence, might trade to the East Indies as citizens of the United States, from the circumstance of their having been born in this country thirty or forty years ago, and, after having glutted our market with extravagant importations, carry the whole profits of their commerce to their present residence in foreign countries”

      ====================================================
      Dr. Ramsay letter to Madison:

      Charleston April 4th, 1789
      Dear Sir,

      Presuming on our ancient acquaintance I take the liberty of soliciting your attention to an affair of mine that is now before your Honorable House. One of the elected federal representatives of this State is, in my opinion, ineligible. This case is in short thus: this gentleman alluded to left Carolina in the year 1770 his parents died about the same time and he was absent from America during the whole of the war and till November, 1783. As in the time of his absence the Revolution took place I contend that in order to his becoming a Citizen of the United States something must have been done previously on his part to show his acquiescence in the new government established without his consent. The lowest test of acquiescence is in my opinion residence in the country. Till he resided under the government of the United States I cannot therefore see how he acquired citizenship. We were all born subjects but you and I were cleared from our allegiance by the restraining act of Parliament passed in December 1775. You and I became citizens by being parties to the Declaration of Independence. By that act a new compact for a new government was form between the then residing and consenting inhabitants of the States. But an absent native neither lost his allegiance by the one nor acquired citizenship by the other. Such continued, subjects while in Europe and under British protection and could become Citizens on their returning and by residence by an oath or by some other move manifesting their acquiescence in the revolution. It is impossible to do justice to the argument in a ____ nor is it necessary to one of your enlightenment and understanding. But as the subject is new I beg your attention to it and if your opinions ____ with mine I shall thank you for supporting my Petition on the subject when the merits of it are discussed before your Honorable House.

      I am Sir with great respect and esteem your most obedient and Humble Servant.

      David Ramsay

      =====================================================

      Dr. Ramsay sent the following letter to Elias Boudinot:

      Charleston March 31st 1789
      Dear Sir,

      Presuming on our ancient friendship I take the liberty of soliciting your attention to an affair of mine that will become before Congress. Those who were opposed to me at a late election urged that I was not a native of South Carolina & that I was a friend to the emancipation of negroes. These pleas were urged to favor the election of another who was absent from America from his 12th to his 26th year that is from 1770 to 1783. I contend that he is constitutionally ineligible as not having been seven years a citizen and have submitted the matter to Congress. By looking into the restraining act of Decr 1775 on which we ground our legal discharge from allegiance you will find that it did not operate on absent natives & that therefore such especially if absent all the time of the war could not be divested of their British allegiance till they returned to their native country. You and I lost our allegiance by that act of Parliament & acquired citizenship by being parties to the Declaration of Independence. I contend that Mr. Smith could neither have lost the one nor acquired the other (especially as his parents died British subjects) until his return here in Novr 1783. You understand the doctrine of allegiance better that I do & the difficulty of divesting a native subject of G. B. of his allegiance. You also know that these who were born before the Union of England & Scotland were not subjects of England till they were naturalized and many other topics that prove citizenship with the U. S. to be an adventitious character to all now 30 years old & only acquirable by their joining in some way or other the U. S. as members of that new political society & by some act of their own. If you think as I do on this matter I will thank you for explaining it to Congress & for placing the merits of the question in a true light.

      The enclosed dissertation I sent sometime ago to Mr. Hazard to be printed & offered for sale & a copy to be sent by the printer as from himself to every member of Congress. Mr. Hazard has not answered my letters. I therefore for fear of accidents transmit to you a duplicate requesting that it may now be printed & distributed if not done already.

      My petition is now in the hands of Doctor Tucker who will show it to you on asking him. I send you all I have of the papers I printed here on the subject. Mr. Hazard has the whole on both sides. I am with great respect & esteem your friend & very humble sert

      David Ramsay

      =====================================================

      Mr. Boudinot also voted against Dr. Ramsay’s petition.

      Dr. Ramsay’s views on acquiring citizenship were completely rejected by James Madison and four other signers of the Constitution (Thomas Fitzsimmons, George Clymer, Daniel Carroll, Nicholas Gilman).

  39. I briefly looked at Apuzzo’s blog earlier today. His last article was posted well before the NJ hearing where he completely bombed. It has over 600 comments. Mario posts many 3 and 4 part comments. I suppose Blogspot must have a character limit on comments or something. I am sure Mario is happy to have that kind of activity even though a fair percentage of the comments are from Mario himself or MichaelN the marionette.

    In my opinion if you have to write that much you should just post another article. In Mario’s case though says less with more words than about any person I have ever seen. It is a sad state of affairs actually. Now that his case in NJ is essentially dead and all he can do is file appeals that will be denied he is pretty much a non-entity in the Birther movement. Maybe he can hook up with Phil Berg and start the first chapter of the Birther has been club.

  40. I do not agree that John Jay necessarily had an “inside man” at the Federal Convention. There were widespread rumors that the Convention was considering bringing in some foreign royal to be king of the United States, and Jay could have been responding to that. The delegates took an oath of secrecy, and I have no reason to believe that they casually discarded that oath for best buddies.

    In fact, we have the letter from Jay (in New York) to Washington (in Philadelphia) and Jay’s reply. If indeed Washington were passing intelligence to Jay, where are the other letters?

    • John Woodman says:

      Hi Kevin,

      Good to see you visiting here.

      I’m wondering though whether you read the article very thoroughly, or only skimmed it? I know you’re probably a pretty busy guy.

      The Constitutional Convention lasted for four months. I would think that the rumors swirled during the entire four months. And yet the timing of John Jay’s letter was precisely 6 days after the Convention took up the topic of the Presidency in earnest. It was a 2 to 3 day journey from Philadelphia to New York.

      If you read the article a bit more closely, you will see that I concluded that for George Washington to be giving John Jay information was extremely unlikely. I pretty much ruled that scenario out, and part of that was exactly what you stated — other letters would have survived.

      Alexander Hamilton, though, is known to have been a friend and close working associate of John Jay. He came from the exact same city, had tried earnestly to get Jay into the Convention as a 4th New York delegate, was left at that time to represent the State of New York at the Convention all by himself, and is known to have traveled back and forth between the Convention and New York City so many times he could practically be described as a commuter.

      As far as secrecy goes: John Jay was at that time the United States Secretary for Foreign Affairs — a position that within months would be renamed to Secretary of State. Historian Richard Morris in 1973 identified 7 key Founding Fathers. Jay made the list, with Washington, Franklin, Adams, Jefferson, Madison and Hamilton. Adams and Jefferson were in Europe — but John Jay was literally just up the road, and ought to have been at the Convention. He was also a friend of George Washington, and given Jay’s position and relationships, I don’t know that anyone would have minded him being informally kept in the loop.

      Finally, there is the oddity that of the 55 delegates, plus all other American leaders who did not attend, only Hamilton and Jay are known to have wanted a natural born citizen/ citizen at birth requirement for President.

      So the evidence that Hamilton and Jay talked about Presidential eligibility is circumstantial, but all things considered I think there is a very good case to be made for it.

  41. ehancock says:

    The latest news is that Florida has now joined all the other state courts in ruling that the meaning of Natural Born Citizen includes all children born in the USA except for those born to foreign diplomats:

    http://judicial.clerk.leon.fl.us/image_orders.asp?caseid=58101756&jiscaseid=&defseq=&chargeseq=&dktid=20039029&dktsource=CRTV

    In retrospect, this should have been expected, but still I thought there might be a chance that the judge would fall for the Minor vs Happersett bull.

    I have really lost count on the number of courts that have specifically ruled on presidential eligibility. This would make it at least five state courts and the one federal court in Tinsdale that have ruled on Obama. But there is also Hollander v. McCain, and that really should be counted too. That would make it six state courts. And in at least one, maybe two of these, there was an appeal and the higher court turned down the appeal, thus upholding the lower court–so seven or eight.

    • John Woodman says:

      I didn’t see the order for dismissal there, but found it here.

      The judge dismissed the case “for procedural and substantive reasons,” including the fact that if Mr. Obama was born in the United States, then he is Constitutionally eligible.

      As far as number of cases, I don’t know. I can only refer back to what I wrote in this article.

      By the way, Ellen, I would like to invite you to participate in my upcoming “retirement party.” I’m planning to invite all birthers, and all anti-birthers, to come and discuss material covered in my final article.

  42. Pingback: The Truth About John Jay’s Letter To Washington « h2ooflife

  43. TJ McCann says:

    In these comments I see repeated admonitions to read the Wong Kim Ark decision. Yet nowhere in that majority opinion does Justice Gray declare Wong Kim Ark a natural born citizen, despite Gray’s gross distortions of precedent and history, and obvious desire to promote such a corruption. Such a statement regarding Ark beign a natural born citizen does not exist! In fact Gray even reversed his own precedent in Elk v Wilkins regarding “jurisdiction”.

    The fact of the matter is that none of the colony-states gave direct citizenship for birth on American soil and therefore the country would have been bereft of any qualified natural born citizens for its first 111 years!

    In fact, on June 22, 1874, six years after the 14th Amendment was ratified, Congress issued a joint congressional report, House Report No. 784, stating:

    “The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.”

    This is profoundly significant because children of aliens (both illegal and legally resident) are born with the allegiance (and citizenship) of both their parents. No person born on American soil had any such birthright unless they were also born to parents who were citizens. While Congress and this country were forced to recognize dual allegiance from the outfall of this egregious Wong Kim Ark legislation-from-the-bench, the only true “birthright citizenship” ever recognized at this country’s onset was birth on American soil to parents who were this country’s citizens. While the corrupt Ark decision changed the statutory effect of “citizen”, and even allowed dual citizenship, this did not in any way affect the terms of natural born citizen.

    And those of you citing the statements of the British Jurist Blackstone on the matter, even as misrepresented by Justice Gray himself, should know that this too is a corrupt misrepresentation of Blackstone’s documentation. Blackstone actually recognized that “natural born” (subject), was the result of the progressively changing definition of natural born as a result of decrees from the Crown, and as such was not really any sort of “common law”, and clearly not any sort of Natural Law recognition, which is by definition outside of man-made Positive Law.

    In his 1765 Commentaries, Blackstone recognized the following:

    To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent,might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves,to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

    Those of you touting British “common law” should recognize that by those terms, Obama would more likely be recognized as a natural born SUBJECT of Britain, due to his father’s own nationality, and still has no chance of being a natural born citizen of these United States. Justice Gray really had to cherry-pick to find support in Blackstone, further emphasizing his deliberate malfeasance.

    Furthermore, it should be recognized that the idea of even trying to cite British “common law” (which this is not) relating to the matter of SUBJECTS, and applying that to free citizens of the United States, is a most offensive transgression made against this nation’s very origins and our freedoms. Accurately recognized, Blackstone’s evolving definition of “natural born SUBJECT” represents the application of the British ideology of “Perpetual Allegiance”, which was forcibly projected to great offense upon the American colonists. We fought two wars, the Revolutionary War and War of 1812, to emphatically reject this ideology, and declare that we are not subjects to much of anything, particularly not the Crown.

    “The common law of England is not the common law of these states” – George Mason, “Father of the Bill of Rights”, Virginia Ratifying Convention, June 19, 1788.

    “The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.” Antonin Scalia speech, Nov. 22, 2008.

    Thirty years prior to Blackstone’s Commentaries, in 1736, British scholar Matthew Bacon recognized the fundamental definition of “natural-born Subject”, A New Abridgement of the Law, vol 1, pg 77:

    “All those are natural-born Subjects whose Parents, at the Time of their Birth, were under the actual Obedience of our King, and whose Place of Birth was within his dominions.”

    Not only does this indicate that the place of birth must be within the “dominion” (British territory) itself, but it also indicates that the parents must be under the “actual obedience” of the King. The emphasis on “actual Obedience” strongly differentiate that from a presumed obedience resulting from mere happenstance of birth within the dominion. Given this, those who had foreign allegiance did not give birth on British soil to British natural born subjects. This is definition by Bacon is the same as our own “Natural Law” definition today, involving (1) the allegiance (citizenship) of both parents and (2) birth within the U.S.territory (dominion).

    Incidentally, the claim that the definition provided in Minor v Happersett was by no means a exclusionary definition is truly a facile argument. Those believing this need to review Boolean logic and mathematics. Furthermore, it should be noted that Justice Gray made no attempt to undermine or detract from that definition in Happersett when he cited it in Wong Kim Ark.

    The fact is that there is no difference at all between Vattel’s definition of Natural Born and what this country and the Supreme Court has consistently recognized over its entire history in some 6 cases.

    It is a highly prejudicial conclusion to believe the reason the Court has not taken up any one of the many cases because they do not have merit. They do in fact have merit and an enormous amount of support. However the fact remains that the Constitution does not provide any authority to the Court to pronounce a sitting President as ineligible, and then does not suggest any lawful means to remove such an occupier. As such the Court likely recognized this as a “political” consideration, outside its authority. However that fact does not change Obama’s status as an illegitimate usurper, incapable of being legitimately elected. No election can serve to cleanse the pre-existing failed qualification for office, which is undeniably established by his father’s foreign citizenship.

    The “birth certificate” could not be more irrelevant. Obama could have been born on the steps of the Supreme Court, dressed in swaddling clothes, lain in a manger, and witnessed by all Nine, and he still would have no chance of being a natural born citizen of these United States.

    (And, no, Jill A. Pryor’s paper is not at all “scholarly”, but that is a whole other issue entirely.)

  44. TJ McCann says:

    And while we’re at it, since Hollander v McCain was mentioned, John McCain is not eligible to be President either, and members of the Senate clearly perpetrated deliberate fraud in order to promote McCain as eligible. Curiously among those socially minded legislators repeatedly working to make McCain appear eligible for the Office is Clair McCaskill, Hillary Clinton, and Barack Obama.

    John McCain was not even a mere citizen of the United States until almost a full year following his birth, by 8 U.S.C. § 1403, a statute, thereby naturalized.

    John McCain: A Case of Senate Fraud (PDF)

    Also you should be aware regarding Obama that both the DNC and Hawaiian Democratic Party removed for the first time all reference to being qualified under the Constitution in their 2008 certification statements. This is no coincidence.

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