The Historical Meaning of “Natural Born Citizen” —
Part 5: The Supreme Court Speaks

[To start at the very beginning, click here.] 

“Four Supreme Court Cases”

In 2009, a Blogger Claimed the Supreme Court Required Citizen Parents for Natural Born Citizenship

In 2009, a Blogger Claimed the Supreme Court Required Citizen Parents for Natural Born Citizenship

In the fall of 2009, a blog called “The Post & Email” ran an article which claimed that four US Supreme Court cases had defined the term “natural born citizen.”

The four cases named were The Venus (1814), Shanks v Dupont (1830), Minor v Happersett (1875), and US v Wong Kim Ark (1898). We’ve looked at two of these already. The other two have been analyzed and discussed at length; and we will summarize what they actually mean in this section, with links to more info.

The author of the article, “John Charlton,” seems to have since retired from the scene. But others took up the mantra, such as Leo Donofrio (now also retired) and Mario Apuzzo. They have claimed, particularly, that Minor v Happersett provided a “binding precedent” that two citizen parents are required to be eligible to be President. The claim has obviously been directed at the current President of the United States, Barack Obama. Literally dozens of lawsuits have followed across the country challenging his eligibility.

As an aside, it has bothered me somewhat that there seemed to be almost no information available as to who this “John Charlton,” founder of The Post & Email, actually was. No professional details. No real contact information. No nothing. Who was this shadowy, semi-anonymous figure? I finally began to wonder whether he might actually be a well-connected political operative of some sort running a clandestine smear campaign, or simply a pseudonym for the Post & Email’s current editor, Sharon Rondeau.

Although it wasn’t particularly easy to find out, I now know a very good deal about the founder of The Post & Email, the author of the “Four Supreme Court Cases” article. No, I won’t publish any of his personal details, as he has chosen to keep those private. Suffice it to say, he does exist, and he is not Sharon Rondeau. Nor is he a famous person. As far as I can tell, he doesn’t seem to be some well-connected political operative, either. His profession is neither politics nor law, and he appears to be just what he claimed to be — a “citizen journalist.”

Be that as it may, those who seek to take on such a role have a responsibility to report accurately to the public. And this author, whether inadvertently or not, has stirred up a good deal of mischief through his authoritative-sounding misinterpretation of Constitutional law.

There’s another lesson here, for those who read things on the internet: If someone is not willing to step forward and provide full details of exactly who they are and what their qualifications are, that in itself may be an indication that any information from that source ought to be fully and personally confirmed before you believe it.

Of course, that can be said of a lot of things, and being able to personally identify someone is no guarantee at all that they are providing good information. There are plenty of publicly-identifiable people telling complete falsehoods. But at least it’s a start.

Having tested and evaluated those cases, we will now go over the last of the four, and touch on a couple of other late 1800′s matters as well. Our sources for this period of American history include:

  • US Supreme Court: Minor v Happersett (1875)
  • Alexander Porter Morse’s Writings on Citizenship (1881, 1904)
  • Chester A. Arthur’s Presidency (1881-1885)
  • Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)
  • US State Department Policy in the 1880s & 1890s
  • US Supreme Court: US v Wong Kim Ark (1898)

US Supreme Court: Minor v Happersett (1875)

Minor v Happersett was an 1875 case in which the Supreme Court ruled that being a citizen did not give Virginia Minor, or any other woman, the right to vote. As someone has aptly pointed out, the ruling in this case was voided by the Nineteenth Amendment!

1. That raises the obvious question of how a case whose ruling was entirely voided by Constitutional Amendment could possibly set a “binding precedent” as to anything.

Aside from that, the claim that this case means one has to have two citizen parents to be President has been beaten to death, and is false for several other reasons as well.

2. The statement referenced by birthers was clearly and demonstrably obiter dictum — a non-binding side comment.

3. The case gave no “definition” for “natural born citizen.”

4. The Court never said that citizen parents are required to be a natural born citizen.

5. The statement that it did is based on twisted and invalid logic.

6. Even if the Court had given such a definition, and even if it had said what the birthers claim it says, it would have been overruled by the later case of United States v Wong Kim Ark.

In addition to all of the above, at least one court has quite specifically ruled that Minor v Happersett does not say what Mr. Apuzzo and other birthers claim it says.

Alexander Porter Morse’s Writings on Citizenship (1881, 1904)

Alexander Porter Morse Wrote a Treatise on Citizenship and a Law Journal Article, and Was the Government's Lawyer in Plessy v Ferguson

Alexander Porter Morse Wrote a Treatise on Citizenship and a Law Journal Article, and Was the Government's Lawyer in Plessy v Ferguson

Alexander Porter Morse was an American lawyer, who wrote an 1881 treatise on citizenship, and a 1904 law journal article on whether the children born overseas of US parents were eligible to the Presidency.

For the sake of brevity, I won’t attempt to analyze his writings here, except to say that Morse does seem to have been of the view that the US-born children of aliens were not, or at least shouldn’t be, eligible to become President. His most pertinent comment is:

If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “ native citizen” should be substituted…

The question is, what importance should we attach to Mr. Morse’s opinion? The birther tendency seems to be to claim that anyone who favors their position is a legal Albert Einstein, and anyone who does not, no matter how esteemed, doesn’t know what he’s talking about. In fact, one forum post in 2010 immediately hailed Morse as a “top international lawyer.”

He certainly seems to have been competent enough, as he was the government’s lawyer before the US Supreme Court in the infamous Plessy v Ferguson case (1896) which ruled that racial segregation was legal. Plessy v Ferguson remained US law until overturned in 1954 by the equally famous Brown v the Board of Education, which paved the way for our modern racially-integrated society.

But that seems to have been pretty much Morse’s only claim to fame. So what value should we attach to an opinion in a law journal article — which, by the way, appears to be the only law journal article that Morse ever wrote? As “SnakeDoctor” in the above-mentioned forum thread immediately notes:

Legally speaking, treatises are not controlling anywhere or for anyone. Law Journal articles are the legal equivalent of an op-ed. Anyone, particularly any “legal scholar” or professor (no matter whether they’re right or wrong) can write a treatise.

When writing about a legal subject — particularly Constitutional law — treatises and law journal articles are among the lesser sources to cite.

Nonetheless, Morse’s writings are a point in favor of the birthers’ claim.

Chester A. Arthur’s Presidency (1881-1885)

Chester Arthur Became President in 1881 When James Garfield Was Felled by an Assassin's Bullet.

Chester Arthur Became President in 1881 When James Garfield Was Felled by an Assassin's Bullet.

In 2008, Leo Donofrio claimed to have uncovered “proof” that Arthur had concealed the fact that his father had not naturalized as a US citizen until after Arthur was born, in order to avoid being “outed” as having been ineligible for the Vice-Presidency and Presidency. This was claimed because some of the things Arthur had said about ages and dates turned out not to match records, and particularly, apparently, because Chester Arthur had had his papers destroyed.

As a result, Arthur has been claimed by some birthers to have been the “original usurper.”

Oddly enough, one of the papers that survived, and is present in the Library of Congress’ Chester Alan Arthur papers, is his father’s 1843 naturalization certificate. If Arthur wanted to conceal his father’s naturalization date, that does seem rather odd.

In fact, it turns out that Arthur’s political opponents did assert he was ineligible for the Presidency — but not for the reason Donofrio claims. A man named Arthur Hinman was apparently hired to dig up dirt on Arthur. He first alleged that Arthur had been born in Ireland. Why Ireland? It was well known and published in contemporary biographies of Arthur, that Arthur’s father had immigrated to the United States from Ireland.

When that was shown to be false, he alleged Arthur to have been born in Canada, instead of Vermont. Hinman wrote a book entitled, “How a British Subject became President of the United States.”

Hinman in fact goes into an entire biography of Arthur’s father, detailing his birth in Ireland, education in Belfast, and emigration first to Canada and then the United States. And yet, even though he goes to great length in an attempt to show that Arthur is ineligible, not once does he attempt to make the case that he is ineligible by reason of his father having been an Irishman. He doesn’t even ask the question.

The entire incident, then, is not evidence for the two-citizen-parent claim, but at least weak evidence against it. Given the lengths that Hinman went to in an attempt to prove Arthur’s ineligibility, it can be presumed that if people had understood the children of foreigners not to be natural born citizens, Hinman would have exploited that angle. He did not.

As an aside, if Chester Arthur was a “usurper,” he was certainly an odd one. During the Republican convention of 1880 — where Arthur had just been asked to run for Vice President — he stated to Sen. Roscoe Conkling of New York (who had just told him that Garfield was sure to lose) “The office of the Vice-President is a greater honor than I ever dreamed of attaining. A barren nomination would be a great honor.

When Arthur made it to the carefree, do-nothing post of Vice-President, he would seem to have been as happy as a pig in mud.

And when President Garfield was shot, Arthur was horrified. According to historian Neil A. Hamilton:

Arthur never wanted more than the vice presidency and followed every report about the president’s health with an anxiety that caused him to lose weight and withdraw from his friends. When it looked like Garfield might live, Arthur said, “As the President gets better I get better, too.”

For the next two and a half months, while Garfield lingered near death, Arthur refused to take the reins as acting President.

Upon learning the news that President Garfield had finally died, Arthur hid in his townhome in New York, put his head in his hands, and — according to his servants — “sobbed uncontrollably.”

No one, including Chester A. Arthur, seems to have wanted a Chester A. Arthur Presidency. But once in the office, he made the best of it and attempted to do a creditable job. Quoting the Wikipedia article on Arthur:

As journalist Alexander McClure would later write, “No man ever entered the Presidency so profoundly and widely distrusted as Chester Alan Arthur, and no one ever retired… more generally respected, alike by political friend and foe.” Although his failing health and political temperament combined to make his administration less active than a modern presidency, he earned praise among contemporaries for his solid performance in office. The New York World summed up Arthur’s presidency at his death in 1886: “No duty was neglected in his administration, and no adventurous project alarmed the nation.”

Personally, I have come to quite like Chester A. Arthur.

Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)

I mention this only because a birther named Tracy Fair has claimed that an 1884 speech by President Arthur provided evidence that he knew he was ineligible. In that speech, Arthur said:

“An uniform rule of naturalization such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization. A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”

This claim, like so many other birther claims, has been shown to be false. Arthur’s speech clearly had reference to the recent Supreme Court case of Elk v Wilkins, which had ruled that an American Indian who had been born in a tribe, but then had separated himself from that tribe, was not a US citizen and could not participate as one without first going through a naturalization process.

Such a situation was less than satisfactory. But in spite of Arthur’s plea to do something about the matter, it would not be fixed during his Presidency, or his lifetime.

It should be mentioned in regard to the Elk case itself that John Elk was found not to be a United States citizen; and the reason for this ruling was not that he had been born of “non-citizen” (that is, immigrant) parents. The reason was that he had been born under and as part of a different sovereign government altogether — that of an Indian tribe.

As such, he was not born subject to US law or “subject to the jurisdiction of the United States.” Because of this, Native Americans born under their tribal governments were declared not to be US citizens — at least, not until they naturalized. This is an altogether different situation from the children of immigrants who came to our shores, participated in the mainstream of our society, and were subject to United States laws in exactly the same way that the native born members of our society were.

This state of affairs was eventually (mostly) fixed by Congress in 1924 by the Indian Citizenship Act, which opened the doors of citizenship much wider for Native Americans. By 1948, Native Americans possessed full voting rights as well.

US State Department Policy in the 1880s & 1890s

In the 1880s, the State Department changed its policy regarding children born in the United States of non-citizen parents, whose parents then removed the children to another country.

In 1880, Secretary of State William Evarts wrote:

“A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as his nationality when he arrives at full age.”

Just five years later, however, Secretary of State Freylinghuysen was of a different mind.

Under Freylinghuysen and subsequent Secretaries of State, passports were denied to US-born persons whose parents had removed them from the country during their childhood. These State Department policies have been discussed more fully in a separate article.

Although the changed State Department policies did not affect those born on US soil who never left the country, they did serve as a later basis — as we will see in Part 6 — for Democratic activist Breckinridge Long to raise questions about the 1916 Presidential candidacy of Republican Charles Evans Hughes.

They can therefore be counted as being evidence that is at least somewhat favorable to the birther ideal of what a natural born citizen is.

US Supreme Court: US v Wong Kim Ark (1898)

Wong Kim Ark Was Found to Be Not Just a Citizen, but a Natural Born One

Wong Kim Ark Was Found to Be Not Just a Citizen, but a Natural Born One

Now we come to the Big Kahuna of US citizenship cases.

Wong Kim Ark was a young man detained upon entering San Francisco from China, on the grounds that he was not a citizen of the United States. The Chinese Exclusion Acts prevented Chinese people from becoming US citizens.

But Wong was born in the United States. His case reached the Supreme Court in 1898, with the Court ruling in his favor.

Birthers such as Mario Apuzzo have claimed that the Supreme Court “only” found young Mr. Wong to be a “citizen” but specifically “stopped short of” finding him to be a natural born citizen.

The claim is simply false. The Supreme Court not only found Wong was a citizen — they also found — as an “irresistible” “conclusion” that he was “natural born.”

If someone is both “natural born,” and a “citizen,” then that makes that person a natural born citizen.

It really isn’t that hard, folks.

Here are a couple of quotes from the Court:

“The foregoing considerations and authorities [that is, the Court's entire discussion to date] irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, ‘strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;’ and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides…”

The Court also made clear that for the purposes of this discussion, “citizen” and “subject” were “precisely analagous.” So even though they, in quoting Lord Coke to add his authority to the discussion, use the term “natural born subject,” they found no essential difference between a “natural born subject” and a “natural born citizen.”

They also clearly state that the same rule in regard to children of alien parents had applied for centuries, in England, in the Colonies, and in the United States:

“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”

As well, even the dissent in the case recognized the implication that Wong Kim Ark would one day be legally qualified to run for President:

“I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”

A more detailed discussion of the case is available here. There is far more that can be said about the decision than I have attempted to go into either here or in the larger article. For example, the Court used the term “natural born” some three dozen times in their ruling. And that discussion was part of the core rationale for the case, so it clearly created a binding precedent.

That binding precedent is one of the most significant reasons why birthers lose every single Vattel-driven “natural born citizen” case that they bring into our courts.

For those who consult the larger article, I would like to commend to you the comments of BrianH, who has done some further analysis of the case.

We Are Now In the Home Stretch of Our Look at What “Natural Born Citizen” Has Meant Throughout History.

In Part Six, we will take a quick tour of the understanding of “natural born citizen” in the 20th century and today, as well as reference a few sources for quotes from those who have spoken about the topic.

Then we’ll bring everything together in our final Conclusion.

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

61 Responses to The Historical Meaning of “Natural Born Citizen” —
Part 5: The Supreme Court Speaks

  1. John Woodman says:

    I’ve decided to pick up the pace a bit. Here’s Part 5. This leaves only Part 6 and the Conclusion.

  2. Scientist says:

    John, nice article.

    A few concurring points on Minor:

    1. Of course, what the case was ABOUT matters. Courts are supposed to focus on matters that are properly before them. Virginia Minor’s citizenship was not in dispute and was not properly before the court, only her right to vote was. The Justices might as well have commented on the weather as on her citizenship. By contrast, Wong was a case that was entirely about citizenship, so the comments on citizenship are fully material.
    2. And, of course, what the RULING was matters. The Minor ruling was an odious one, overturned by the 19th amendment. Is it possible that a court could use impeccable reasonsing, yet come to a grievously wrong conclusion? I suppose almost anything is possible, but personally I would be exceedingly cautious about using reasoning that lead to a faulty conclusion.
    3. There is no such thing as “binding precedent”. Precedent is very important and deserves respect. But courts are not obligated to compound an error for all eternity by blindly following precedent. Even if Minor really had defined natural born citizen unambiguously (it did not) future courts are free to reconsider the matter and come to a diifferent conclusion. Plessy v Ferguson unambiguously decided that “separate but equal” was constitutional. Brown v Board of Education decided Plessy was wrong. The later decision holds and is the law. So, even if Minor had said, “This and only this is what a natural born citizen is”, courts today are not required to agree with or follow that logic if they find it to be wrong.

    The fact that the best the birthers can do is hang their hat on pulling a couple of sentences unrelated to the case at hand out of a lamentable ruling shows very clearly how weak their “case” is.

  3. I read John Charlton’s article and in the section on The Venus he provided a link to Justia where it clearly says that the opinion of the majority was delivered by J.[ustice] Washington and then Marshall’s dissenting opinion follows. Apparently he assumed no one would follow the link he provided.

  4. Suranis says:

    I think I’ll Order a book on Chester Arthur. I think he is a person I would rather like too. Certainly he seems to have been a rather vain but otherwise thoroughly decent man.

    • Scientist says:

      He rests about 1 mile from where I type. Our post office is the converted church where his father preached.

      • John Woodman says:

        It would be interesting to visit.

        There’s a really interesting 1998 article about what happened when a young woman named Alice Wong went looking for records on her great-grandfather:

        This April 16, Alice Wong walked into the National Archives and Records Administration in San Bruno for the first time. The people who work there were waiting for her. Alice had phoned the archives on the suggestion of her grandfather, who had read a newspaper article about the dispute over Chinese Exclusion Act files held in the San Bruno archives. He suggested there might be documents relating to his father in them. So Alice, a 20-year-old from suburban South San Francisco, went to the archives to look at her great-grandfather’s immigration records.

        She certainly was not prepared for the reception she got. Neil Thomsen, an archive employee who works with the Chinese Exclusion Act records, asked for her autograph. Then she was introduced to the entire staff: “This is Wong Kim Ark’s great-granddaughter.”

        The rest of the article is here.

        Dred Scott is buried in St. Louis, which is about 3 hours from where I live. We don’t get over there often, but when we do I’d like to look up his burial place and pay my respects.

        • Scientist says:

          Arthur is buried in Albany Rural Cemetary. He is well-regarded in this area to this day. I think the most interesting thing about him is that he rose through the ranks of the corrupt Conkling machine to the patronage position of Collector of the Port of New York. In that job, he was entitled to keep a portion of the fines assessed against people who tried to evade tariffs. He made as much as $50,000/year, which was a ton of money in those days.

          Despite those origins, his major accomplishment in office is considered to be the abolishment of patronage in the federal Civil Service. Goes to show you can’t always tell about people.

        • When I read articles like the one about Alice Wong it reminds me how disgusting and counter to American ideals is the Birther argument that the 14th amendment created a bunch of “second class” citizens who even though they have been citizens all their life are inferior Constitutionally. They will not come out and say it that way but that is exactly what the arguments are all about. The argument runs so counter to the core American principle of equality that it is amazing that anyone who considers himself educated and a patriot could dare make it. I think the fact that most of these “14th amendment citizens” in this day and time are not of white European heritage is a factor too. Did I just call two parent citizen Birthers racist? No, but racists were making the “14th amendment citizen” distinction long before 2008 so I think the argument itself is inherently racist.

          • John Woodman says:

            I find that there is common ground between restrictionists and racists.

            Racism is inherently restrictionist: Racists want to restrict certain privileges to people of a particular race (in virtually every instance, their own).

            Birthers may not be racist, but they are restrictionist.

            Because of this common ground, they end up in rather bad company. Even the legal arguments that birthers make are typically from overturned or superceded racist and sexist cases: the Dred Scott case, Minor v Happersett, and so forth.

            Likewise, the few people they can find to legitimately quote — and Alexander Porter Morse is almost the sum of that — end up being of like mind. Morse was the government’s lawyer for Plessy v Ferguson, which gave the stamp of Supreme Court approval to racial segregation, which then lasted until overturned by Brown v Board of Education in 1954.

    • John Woodman says:

      :lol: That seems to be a pretty good description of him.

    • The definitive biography of Arthur is Gentleman Boss by Thomas Reeves.

  5. President Arthur’s dual citizenship seems to be one of the most poorly kept secrets of history. Even Teddy Roosevelt knew it, writing in his work Fear God and take your own part.

    President Andrew Jackson on this theory could have been impressed for military service in the English army against which he fought at New Orleans, if he had ever happened to visit England; and President Arthur would have been in the same plight.

    Roosevelt has a message for the birthers:

    The United States cannot with self-respect premit its organic and fundamental law to be overridden by the laws of a foreign country.

    Bithers revere the British Nationality Act of 1948 above the US Constitution.

    • John Woodman says:

      Excellent observation. You may want to fix your link, by the way.

      Roosevelt wrote that around 1915, give or take a year, which was about 30 years after Arthur’s Presidency. So timewise, it would be about like someone writing about Ronald Reagan, or maybe Jimmy Carter, today.

  6. Tony Krowiak says:

    I’ve come across several pretty convincing arguments that Wong Kim Ark does not set a binding precedent defining Natural Born Citizen. Check them out:
    http://hesnotmypresident.wordpress.com/2009/08/21/natural-born-citizen-chapter-6-u-s-v-wong-kim-ark/

    http://naturalborncitizen.wordpress.com/2009/07/30/justice-horace-gray-clearly-indicated-wong-kim-ark-was-not-a-natural-born-citizen/

    One of the things I keep coming back to is, if natural born citizenship is conferred by birth on U.S. soil without regard to the citizenship status of the parents – i.e. jus soli – then how does a child not born on U.S. soil to parents who are citizens acquire citizenship? The other thing that bothers me about the jus soli argument has to do with allegiance. Clearly, the natural born citizen requirement was codified to prevent people with allegiances to countries other than the U.S. from becoming president. Common sense tells me that allegiance has a lot to do with how we are raised by our parents. For example, Wong Kim Ark was born to parents who were subject to the jurisdiction of the Chinese Emperor. What is more likely to influence his allegiance, his parents or the fact that he was born on U.S. soil? From a common sense standpoint, the definition of natural born citizen that includes parentage makes far more sense and can be applied whether the child is born on U.S. soil or not.

    • John Woodman says:

      Only “convincing,” Tony, if that’s about all you’ve read on the issue.

      If you’ve read very much, and honestly, you will be able to identify the arguments made as the complete poppycock that they are.

      I recommend you consult the guide to this site and start your reading on the legal, Constitutional and historical meaning of natural born citizen. Get a few cups of coffee. There are the equivalent of about 300 printed pages of honest research and analysis which completely destroy every significant birther claim ever made on the subject.

      Your contributions in support of the truth are appreciated.

    • gorefan says:

      “From a common sense standpoint, the definition of natural born citizen that includes parentage makes far more sense and can be applied whether the child is born on U.S. soil or not.”

      If I’m not mistaken, District Judge Morrow said something very similar to this just before he ruled Wong Kim Ark a citizen by his birth in the United States. And the US Government in its legal brief to the Supreme Court in the appeal of Judge Morrow’s ruling made a very similar argument. And in his dissenting opinion, Chief Justice Fuller even said that the majority ruling would make someone like Wong Kim Ark eligible to be President.

      It is not what we believe the term “natural born Citizen” means but what the Framers understood the term to mean. They were for the most part trained in English law and understood the terms from the English legal system. Alexander Hamilton even said that to find the meaning of terms in the Constitution, look for them in the English legal system. That’s why in his ruling Justice Gray spent so much time discussing the meaning of “natural born” in England and the Colonies. England used the principle of jus soli.

      • Tony Krowiak says:

        I agree, when it comes to constitutional interpretation, we must attempt to understand the intent of those who wrote the document. The English legal system, however, does not define the term natural born citizen. I’ve read the arguments that the framers used the expressions “natural born subject” and “natural born citizen” interchangeably, but I do not buy those arguments given the fact that the framers fought a revolution to break the chains of being the subjects of a sovereign.

        Here is an interesting essay from the Michigan Law Review on the problems of interpreting the meaning of the phrase “natural born citizen.” It addresses issues such as the common law definition as well as other relevant contexts. The conclusion of this essay seems to be that the meaning is ambiguous. I happen to agree with this assessment. When confronted with such a scenario, I often resort to relying on my common sense, which is why I made the statements in my original post. If I apply my common sense to this issue, it seems likely – given that the main reason for the requirement was to prevent electing a president with divided loyalties – that parentage is a primary component of the definition.

        The framers were heavily influenced by the concepts of natural law, going so far as to codify the concept of natural rights in the Declaration of Independence. Given this fact, I suspect the definition of the term has a basis in natural law. I haven’t done a lot of research on how natural law applies, so I will not delve into that at this point, it is but another avenue worth pursuing.

        • gorefan says:

          The State of Massachusetts passed a series of naturalization laws between 1785 and 1791. Those laws were used to naturalize foreigners who came to Massachusetts and became citizens. The laws all have the same format – so and so having taken an oath of allegiance is deemed to be a “natural born” citzen or subject. They used either term, citzen or subject in a rather random and interchangeable way. Clearly the legislature of Massachusetts did not see a significant difference between the two terms.

        • John Woodman says:

          Congratulations in that you seem to have done what no other birther has ever been able to do, which is turn up a contemporary writer with some credentials who makes at least some argument for two citizen parents.

          I am sure you refer to this article by Lawrence Solum.

          The problem is that Solum seems to make the assumption — based on no evidence at all — that “natural born subject” in English law was restricted to those who had English parents.

          Existing scholarship does not reveal extensive usage of the phrase “natural born citizen” in the founding era, but it was derived from the related phrase “natural born subject,” which had a technical meaning in English law and constitutional theory…

          If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified…

          One interpretation of the new term of art, “natural born citizen,” is that its content is identical to the content of the old phrase, “natural born subject,” with the purely nominal difference in the term (“citizen” versus “subject”) used to refer to members of the political community. This could result in the interpretation suggested above-which would limit natural born citizens to persons born of American parents on American soil.

          This was manifestly not the case. ANYONE born on English soil, as long as his or her parents were there “in amity,” and were not official representatives or royalty of a foreign government, was a natural born subject.

          So Solum, although a law professor with a degree from Harvard, seems to clearly be in error here. To be frank, it seems to me that I’ve done a lot more research into this particular issue than he has.

          As far as natural law is concerned, yes — the term was derived from natural law. But not the idea of natural law that birthers claim. I’ve written fairly extensively on this topic.

          • nbc says:

            The problem is that Solum seems to make the assumption — based on no evidence at all — that “natural born subject” in English law was restricted to those who had English parents.

            That’s pretty foolish given that from early on, natural born included a child born on any parent, as long as born on soil.

            Such ignorance.

            • John Woodman says:

              Exactly. He cites no authority whatsoever for the claim, but still makes it.

              It’s a pretty striking mistake for a professor of law at a real university.

              At least, if you are acquainted which the legal history, which, granted, most people, and maybe even quite a few law professors, are not.

          • gorefan says:

            I suspect Professor Solum used a poor choice of words. He later (2010) added a footnote:

            “3 In an earlier version of this article, I used the phrase “whose parents are citizens of the United States.” Some readers have misread the original as implying that someone born of only one American parent on American soil is not a “natural born citizen.” That reading ignores the context of the original sentence, which was meant to provide a case where “natural born citizen” status was indisputable. The sentence did not provide criteria for clear cases of exclusion, which were provided by the very next sentence. Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.” Indeed, the conventional view is that almost anyone born on American soil would be a natural born citizen: limited exceptions may have existed for the children of foreign Ambassadors, for the children of slaves, and perhaps others. This article does not address the question whether the conventional view is correct.”

            • John Woodman says:

              Backpedaling! In this case, it does appear wholly appropriate.

              Indeed, the conventional view is that almost anyone born on American soil would be a natural born citizen: limited exceptions may have existed for the children of foreign Ambassadors, for the children of slaves, and perhaps others. This article does not address the question whether the conventional view is correct.

              I have personally researched and written the equivalent of a 300-page book on whether the conventional view is correct. The bottom line: It is.

            • nbc says:

              Ouch, I have to admit that Prof Solum’s clarification makes sense. Too bad that some birthers have abused his statements. It’s not too late to come to realize that there is significant evidence that natural born plainly means ‘birth on soil’ and that the status of the parents had/has no relevance.

              English statute did extend natural born status to children born abroad to British Citizens, but that was not common law.

              In the US, Congress mirrored this by passing a statute in which they inadvertently considered such children to be natural born and subsequent acts removed this

            • gorefan says:

              Professor Solum is making the Justice Waite defense.

        • John Woodman says:

          Later, Solum — in some clarifying remarks — also said:

          “There is general agreement on the core of settled meaning. As a matter of inclusion, it is beyond dispute that anyone born on American soil with an American parent is a ‘natural born citizen.’

          So Solum clearly counts Obama as a natural born citizen, and states that such a conclusion is “beyond dispute.”

        • Slartibartfast says:

          Tony K. said:

          “given that the main reason for the requirement was to prevent electing a president with divided loyalties”

          Exactly where did you hear that? Birthers tend to use that meme a lot, but I’ve never seen any evidence that the Founders were trying to do anything but prevent out-of-work royalty from coming in and taking over the fledgling nation–a common practice at the time, from what I understand. No one seemed to have a problem with Jefferson’s French citizenship when they elected him President–why weren’t his clearly divided loyalties an issue? (he accepted French citizenship as an adult, not as a result of birth)

        • nbc says:

          Tony I agree, when it comes to constitutional interpretation, we must attempt to understand the intent of those who wrote the document. The English legal system, however, does not define the term natural born citizen.

          You did read US v WKA did you not? The court explains.

    • nbc says:

      Tony : One of the things I keep coming back to is, if natural born citizenship is conferred by birth on U.S. soil without regard to the citizenship status of the parents – i.e. jus soli – then how does a child not born on U.S. soil to parents who are citizens acquire citizenship?

      Naturalization statutes. For a while however such children were, by accident, omitted from gaining US citizenship. As was the case in Britain, non jus soli was enacted through statute. Common law only addressed birth on soil.

    • nbc says:

      Tony: From a common sense standpoint, the definition of natural born citizen that includes parentage makes far more sense and can be applied whether the child is born on U.S. soil or not

      Yes, that is what the lower court Judge implied as well but he was bound by the Constitution and precedents.

  7. Tony Krowiak says:

    John,

    I’ve expended far too many hours reading various expositions on the meaning of the term natural born citizen. My comment is directed specifically at whether Wong Kim Ark sets a binding precedent defining Natural Born Citizen. I think I’ve read everything you’ve written about that specific case and I think you are wrong. I linked two pieces I stumbled on during my internet travels. You did not directly respond to thekey points made in either of those pieces.

    The first paragraph following the summary of the specifics of the case in the majority opinion in Wong Kim Ark states:

    “The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.”

    Notice that the court does not say that the case hinges on whether or not the child becomes a natural born citizen at the time of his birth, only whether the child becomes a citizen at birth. The last paragraph of the opinion states:

    “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

    Again, nothing in this concluding paragraph establishes that Wong Kim Ark is a natural born citizen based upon the fact that he was born on U.S. soil. In order to draw the conclusion that Wong Kim Ark sets a binding precedent defining Natural Born Citizen, one has to twist the meaning of a sentence from a section of the opinion that provides the supporting evidence for the conclusion, but is not part of the conclusion itself. The conclusion does not even mention the term natural born citizen. Add to this the fact that whether Wonk Kim Ark was a natural born citizen, a naturalized citizen or a citizen by legislation and it is obvious that this case does not establish a binding precedent with regard to the meaning of the term natural born citizen.

    • Jim says:

      Tony Krowiak says: “My comment is directed specifically at whether Wong Kim Ark sets a binding precedent defining Natural Born Citizen. I think I’ve read everything you’ve written about that specific case and I think you are wrong. I linked two pieces I stumbled on during my internet travels. You did not directly respond to thekey points made in either of those pieces. ”

      Read the dissenting opinion, where even they understood this meant that WKA would be eligible for the Presidency.

      Supreme Court Justice Sandra Day O’Connor: “All of our Presidents have, to date, been born in the 50 states. Notably, President Obama was born in the state of Hawaii, and so is clearly a natural born citizen.”

      So, let me ask you Tony, who would you be more likely to believe, some internet constitutional wanna-be, or a Supreme Court Justice?

      • John Woodman says:

        Why, some internet constitutional wanna-be, of course.

        In fact, make that some internet constitutional wanna-be who has been caught in false claim after false claim after false claim.

        That guy, or a Supreme Court Justice? It’s not even close. Because the bogus internet constitutional wanna-be says what Tony wants to hear.

        Tony’s basically a concern troll. Either that, or he’s so biased as to be incapable of any objective rational thought. He has no compelling reason for his argument, except that he “has read everything and finds the other guy more convincing.”

        It’s sort of like saying, “I know you’ve got 300 pages of documentation here which you claim establishes that Tennessee is a State of the United States. But Jacob P. Fishbein over here has made some really compelling arguments that Tennessee is not a state at all, but a foreign country. I’ve read your stuff, and Mr. Fishbein’s stuff. I find Mr. Fishbein’s arguments far more convincing, and have concluded that Tennessee is a foreign country.”

      • Tony says:

        I would consider her opinion but seek other opinions. She is not the final word on it and there are other justices that disagree.

        • John Woodman says:

          There are no other Supreme Court Justices who have expressed any contrary opinion since two Justices dissented in the Wong Kim Ark case in 1898.

    • gorefan says:

      In the appellant (US Government) brief of the District Court ruling in Wong Kim Ark, they wrote:

      “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…”

      The Federal Government understood that District Judge Morrow’s ruling made Wong Kim Ark a “natural born citizen”. But here is the thing, Judge Morrow never used the term “natural born”, he only said that Wong Kim Ark was a citizen by virtue of his birth in the US. And the Government interpeted that to mean he was “natural born”.

    • Scientist says:

      The term “binding precedent” is a misnomer, because precedents are entitled to respect, but aren’t “binding” since they can be overturned. The Supreme Court in Plessy v Ferguson said separate but equal was OK; then in Brown v Board of Education, they said it wasn’t. So even if Wong didn’t specifically say whether everyone born in the US is a natural born citizen, later courts are free to do so. And they have. Multiple times.

      • Tony says:

        I agree, no precedent is binding. I was using the term coined by those who wrote the article to which I was responding.

        • John Woodman says:

          I think we are talking semantics here.

          Lower courts are required to follow the decision of higher courts. That is what “binding precedent” means. It doesn’t mean that Supreme Court can’t change its mind at a later date, as they did with Plessy v Ferguson giving way to Brown v Board of Education.

          At any time after Plessy and before Brown, if the same issue came up again in a lower court, that lower court was supposed to rule in accordance with Plessy. And after Brown overturned Plessy, that same court was then required to rule according to the doctrine put forth in Brown.

          • Scientist says:

            John: Tony’s argument is that Wong is not binding precedent on the issue of who is a natural born citizen. You and I both know that is wrong, but even it were right, it would mean that there is NO precedent, so lower courts are free to rule as they see fit.

            Of course, the fact is that the Ankeny court did take Wong as precedent (and rightly so). The other courts that have spoken have cited Ankeny, not because it is binding, but because they see the ruling as 100% correct.

            That is a problem for Tony. Whatever he might want to make of 19th century decisions, 21st century courts (and 20th as well) are not on his side

    • nbc says:

      The conclusion does not even mention the term natural born citizen. Add to this the fact that whether Wonk Kim Ark was a natural born citizen, a naturalized citizen or a citizen by legislation and it is obvious that this case does not establish a binding precedent with regard to the meaning of the term natural born citizen.

      You need to read beyond the conclusion to understand the situation. But let me first point out that the Government in it’s appeal argued that the lower Court was wrong in finding Wong Kim Ark to be a natural born citizen. In addition, the dissenting Judge lamented that under the majority opinion, Wong Kim Ark could run for the office of the President while children born abroad to US citizens could not.

      That by itself should have been sufficient indicators. But let’s explore the argument presented by the Court in more detail.
      The court observed that under the naturalization statutes, Wong Kim Ark could not have become a US citizen, but it observed that the Constitution discusses the term citizen as well as the term natural born citizen. The court observes that the term natural born citizen remains undefined in the Constitution and thus its meaning should be found in common law.

      The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

      The court then spends many pages outlining how the definition traces back to the term ‘natural born subject’ meaning a child born on soil.

      It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

      III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

      it rejected Mario’s position

      There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]

      Looking beyond

      V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.

      The Court then ruled him to be a citizen, not by naturalization but by virtue of birth on soil.

      The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

      Concluding two sources of citizenship

      “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

      The ruling is quite simple and straightforward, as the Courts in Ankeny and beyond have observed.

      • John Woodman says:

        You need to read beyond the conclusion to understand the situation.

        Indeed. The Court quite clearly stated — in the ratio decidendi, the rationale for the decision, that a person in Wong Kim Ark’s exact situation was “natural born,” and that the same rule had always applied both in England and in America.

        That’s “binding precedent,” and clearly so. Until and unless reversed, all lower courts are obligated to follow it.

        But nbc, you’re wasting your breath. Tony has “read” it all before. He’s not interested in the truth. He’s not interested in the authority of Supreme Court Justice Sandra Day O’Connor, either, who stated that Obama, born on US soil, was “CLEARLY” a natural born citizen.

        Because that’s not what Tony wants to believe. And neither you, nor I, nor the Supreme Court in US v Wong Kim Ark, nor Supreme Court Justice Sandra Day O’Connor, nor God Almighty Himself can make Tony believe what he doesn’t want to believe.

        • nbc says:

          Indeed. The Court quite clearly stated — in the ratio decidendi, the rationale for the decision, that a person in Wong Kim Ark’s exact situation was “natural born,” and that the same rule had always applied both in England and in America.

          But that requires one to read the whole, long decision rather than the syllabus and repeat the nonsense distilled from others.

          Do your own research, read the opinion and observe.

        • Tony says:

          This response exemplifies why I don’t like to get involved in these types of debates. You make assumptions about me that have no basis in fact or in evidence. Just because I may have an opinion with which you disagree, you draw inane conclusions about what I believe. I have tried to focus my debate on whether or not Wong Kim Ark establishes a binding precedent for the meaning of “natural born citizen.” I’ve presented logical reasoning for why I don’t think it doesn’t. By the way, you never responded directly to those points, you merely proceeded to express assumptions about whether I read the entire decision and to make ignorant statements about what I refuse to believe.

          The fact of the matter, if you care, is that I believe the question of what “natural born citizen” means is ambiguous and needs to be resolved by the court in a case directly related to the matter, such as whether President Obama meets the requirement that a president be a natural born citizen. Without a doubt, it was not necessary that Wong Kim Ark had to be a natural born citizen to re-enter the country. I suspect even you would have to agree with that statement. In other words, the Wong Kim Ark case did not turn on whether he was a natural born citizen or not.

          I assure you, I have read every word of the Wong Kim Ark decision. In my opinion, it is ridiculous to conclude that this case sets a binding precedent for the meaning of “natural born citizen.” The rationale for the decision addresses so many factors, I don’t know how you can conclude that it is an attempt to define natural born citizen. Please enlighten me as to which sections lead you to your conclusion.

          I was taught in all of my English classes that when you write an essay, or in this case an opinion, it should have an introductory paragraph stating the point you intend to make, or what you intend to prove. It is inarguable that Justice Gray, in the opening paragraphs, intended to show that Wong Kim Ark should have been admitted to the U.S. because he was a citizen – not natural born citizen – of the U.S. by virtue of the fourteenth amendment – the amendment says nothing about natural born citizenship.

          I was also taught that your concluding paragraph should summarize your conclusion to the point you intended to make as stated in the opening paragraph. It is inarguable that Justice Gray’s conclusion is that Wong Kim Ark should have been admitted to the U.S. because he was a citizen of the U.S. by virtue of the fourteenth amendment. Again, he says nothing in his opening or concluding paragraphs about whether Wong Kim Ark was a natural born citizen. Those are the facts, as they say. Everything in between the opening paragraphs and closing paragraphs are written in support of said conclusion, very little of which addresses the concept of natural born citizenship – again I ask, which sections lead you to believe it does?

          A quote from Chief Justice Marshall quoted in the Wong Kim Ark decision supports my view that binding precedent should be established only on the issue being decided in a given case. In this case, it was only necessary to decide whether Kim Wong Ark was a citizen. According to Justice Marshall:

          “It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

          Clearly, the references to the common law definition of natural born subject go beyond what was necessary to prove in order for Wong Kim Ark to win the case. Its inclusion served to illustrate why Wong Kim Ark was considered a citizen, “but ought not to control the judgment in a subsequent suit when the very point is presented for decision. ” In other words, Wong Kim Ark did not set a binding precedent with regard to the meaning of “natural born citizen.”

          If you choose to respond, please stick to addressing the arguments I just made and the question I asked and stay away from innuendo. Thanks.

          • John Woodman says:

            I have tried to focus my debate on whether or not Wong Kim Ark establishes a binding precedent for the meaning of “natural born citizen.” I’ve presented logical reasoning for why I don’t think it doesn’t.

            No, you haven’t. You put up links to two articles, both of which are frankly BS. One of them was by Leo Donofrio, the ecstasy-dropping, mushroom-eating self-proclaimed “Holy Spirit” of God on Earth with a “failed legal career” (his words) whose bogus legal claims have been repeatedly discredited.

            By the way, you never responded directly to those points, you merely proceeded to express assumptions about whether I read the entire decision and to make ignorant statements about what I refuse to believe.

            Both of those articles relied almost entirely on Horace Binney’s statement, quoted in Wong, that the child of an alien, “If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle,” misinterpreting that statement to mean that such a child is not a natural born citizen.

            None of this is new. All of this has been discussed before. Binney himself makes absolutely plain that such a child IS a natural born citizen. Horace Binney, quoted in these two article as supposedly being in support of the birther claim, DIRECTLY REFUTES the it. I wrote an entire article on this.

            I also wrote an article patiently and clearly explaining exactly why US v Wong Kim Ark DID set a clear precedent regarding natural born citizenship for persons born on US soil to non-citizen parents. You address absolutely none of the reasoning of that article. Not one word. I’m not sure whether you’ve never read anything I’ve written, or whether you just choose to ignore it.

            And the fact is, I barely treated Wong Kim Ark, hitting only the essentials. BrianH makes additional points and analysis in his comment that follows the article.

            Why did I skimp so much on the most important citizenship case relevant to the entire debate? Because even based on those few words, the conclusion was so clear, and so inescapable, that that was all I felt I needed to write.

            One of the things I keep coming back to is, if natural born citizenship is conferred by birth on U.S. soil without regard to the citizenship status of the parents – i.e. jus soli – then how does a child not born on U.S. soil to parents who are citizens acquire citizenship?

            By jus sanguinis, obviously. Every single country on earth, apparently, uses some mixture of jus soli and jus sanguinis. It is not and never was — even in England — exclusively one or the other. One can become a natural born citizen by being born a citizen on US soil, or by being born a US citizen abroad to citizen parents. This isn’t that hard.

            The other thing that bothers me about the jus soli argument has to do with allegiance. Clearly, the natural born citizen requirement was codified to prevent people with allegiances to countries other than the U.S. from becoming president.

            Every bit of real history I’ve ever read on the subject — I’m not talking about birther claims that have been written since 2008, but certainly every single word written between in the 221 years of American history prior to the past 4 — has indicated that what the Framers of the Constitution were guarding against was not some fear of little Bobby or little Marco or little Barack, born in the United States to non-citizen parents, becoming President, but a worry that some rich European Royal (probably but not necessarily British) would sweep in here with a lot of money, a lot of pomp and circumstance, and a large retinue, and buy and parade his way into the Presidency, effectively undoing the Revolution.

            Finally, your quote from Marshall is THE textbook reason why the TWO OR THREE SENTENCES in Minor v Happersett– the bread and butter of the “nbc” nutter — are utterly and entirely worthless in trying to “define” what a natural born citizen is, and precisely why the FIFTY OR SO PAGES OF EXHAUSTIVE ANALYSIS in Wong Kim Ark — which uses the term “natural born” some THREE DOZEN times — is the definitive ruling on the subject.

            So those are a FEW — although only the tiniest bit — of the details. The reason I didn’t go into them in response to your original post is because I already have. I’m not sure whether you just haven’t read the extensive writings on the subject at this site, or whether you simply choose to ignore them and believe what you want to believe. In any event, this site contains the equivalent of some 300 printed pages of careful legal, Constitutional and historical analysis. From both the legal and the historical points of view, there really is no genuine argument as to whether the child born on US soil of immigrants is a natural born citizen or not. In law, this question is considered “well settled.” It’s not even close.

          • Scientist says:

            Tony, you may be unaware, but several courts have in fact ruled that President Obama IS a natural born citizen. The first to do so, in early 2009, was the Indiana Court of Appeals in the case of Ankeny v. Governor of Indiana (who interestingly enough is Mitch Daniels, one considered a possible GOP candidate). They relied on Wong, the 14th Amendment, Calvin’s case from England and the history of the English colonies and the US. Several other courts have ruled similarly and they have all cited Ankeny.

            This is what the law is in 2012. You are welcome to believe that all these courts are wrong, but you should know what the reality is. Your argument has lost. Repeatedly. On the specific question of Barack Obama. That is a fact, sir.

            • Tony says:

              I am aware of said cases. I think given this exchange is evidence for why the Supreme Court should rule directly on this matter.

            • Scientist says:

              The Supreme Court generally steps in only when at least a substantial group of Justices believe a lower court decision is wrong or when federal appeals circuits disagree. It is clear neither is the case here, as they have rejected a challenge to the Georgia ruling, which followed Ankeny.

              Lower courts, state and federal, are not chopped liver. Their rulings are the law of the land unless and until they are overturned, which happens rather rarely. Since Ankeny is not overturned, will not be overturned and is being followed by courts all over the country, it is the law on this issue.

              Again, no one is asking you to agree. If you wish to say the sun rises in the west, you are free to do so. However, the sun will ignore you and continue to rise in the east.

            • Jim says:

              Tony says: “I am aware of said cases. I think given this exchange is evidence for why the Supreme Court should rule directly on this matter”

              I’m confused. Why? If there’s been no conflict between the courts and all of them have ruled the same way, where is the conflict for SCOTUS? This actually is proof that they don’t need to rule.

          • John Woodman says:

            Tony,

            Let me steer you toward the guide to the content of this site, particularly the guide to the articles on the meaning of “natural born citizen.” I suggest you read all of it, if you want to know the truth about the meaning of that term.

            • John Woodman says:

              And yes, Scientist makes a good point. The question HAS been addressed by the courts, and quite specifically in regard to Mr. Obama. It has lost in those courts, and it will continue to lose, each and every time it is brought up.

              And that is because the question was already decided, 114 years ago.

            • Tony says:

              John, I haven’t read all of it, but I read enough to realize that you have done a very thorough job of researching. Contrary to your – and others – assertions that my mind is made up and I am unable to accept evidence to the contrary, I am more convinced that natural born citizen may in fact have been understood by the framers to mean a person born on U.S. soil, regardless of parentage.

              I am still not certain, despite reading all of your essays on Wong Kim Ark, that the case established a binding precedent that a child born on U.S. soil is a natural born citizen. In fact, some of what you wrote would seem to support my claim, given the fact that it was not necessary to prove Wong Kim Ark a natural born citizen in order to let him into the country. He should have been let in even if he were a naturalized citizen. On this subject, we can agree to disagree.

              I still think it would behoove the court – i.e. Supreme Court – or Congress to establish what is meant by the term once and for all.

              I am also of the opinion that parentage is far more indicative of where a child’s allegiances will lie than the soil on which he is born. One can be born on U.S. soil and have zero allegiance to the U.S. if his parents teach him otherwise. In fact, what better way is there to infiltrate for evil purposes? Of course, that is my opinion only and to change the requirements for the presidency requires a constitutional amendment. I wouldn’t want to become like my leftist brethren and do so through judicial fiat.

              That is all I have to say on the subject.

            • Ballantine says:

              In case you are actually interested in learning. No court on any level has questioned the conclusion or rationale of Wong Kim Ark. The Supreme Court has re-firmed on mulitple occations that the English common law rule established nationality from the beginning of our nation. See, Weedin v. Chin Bow, 274 U.S. at 274 U. S. 660. (1927)(“The very learned and useful opinion of Mr. Justice Gray, speaking for the court in United States v. Wong Kim Ark, 169 U. S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute;” Rogers v. Bellie, 401 U.S. 815 (1971)(“Later, Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this “very learned and useful opinion of Mr. Justice Gray,” and observed “that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . . We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” The Court has never said nationality or allegiance are defined by parentage.

              During these years the Court has stated the President must be a citizen by birth or a native born or native citizen, see, Luria v. United States, 231 US 9, 22 (1913) (“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.”); United States v. Schwimmer, 279 US 644, 649 (1929) (“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.”); Baumgartner v. United States, 322 US 665, 673 (1944)(“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency”); United States v. Macintosh, 283 US 605, 624 (1931) (“The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more”); Knauer v. United States, 328 US 654, 658 (1946)(“Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency”).

              Numerous lower courts have reiterated Wong Kim Ark’s definition of natural born citizen. See, e.g., Perkins v. Elg, 99 F. 2d 408, 410 (D.C. Cir. 1938), modified and affirmed, 307 U.S. 325 (1939)( “All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States”); Nyman v. Erickson, 170 P. 546 (Wash. 1918), (“She was born in a state of the United States, and whether her parents were naturalized or not, under the Constitution she is a natural-born citizen of the United States..”); State ex rel. Carroll v. Sup. Ct. of Washington, 193 P. 226 (Wash. 1920), (“A natural-born citizen’s right to vote depends upon his place of birth, and this is the fact to be established”); Lou Goon Hop v. Dulles, 119 F. Supp. 808 (US: Dist. Court, Dist. of Columbia 1954)(“It is not denied that the person who it is claimed is the plaintiff’s father is a natural born citizen of the United States, having been born in this country”).

              In addition, numerous cases referred to native born children of aliens as “natural born citizens.” See, e.g., Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961), Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983), DeTomaso v. McGinnis, 970 F2d 211 (7th Cir. 1992), Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999), Sumiye Umeki Yamauchi v. Rogers, 181 F. Supp. 934 (D.C. Cir. Dist. 1960), Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir., 2009).

              Every court or administrative body that has addressed this issue with respect to President Obama has rejected the two-citizenship theory with several cases specifically citing Wong Kim Ark as the court below did. See, Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) transfer denied 929 N.E.2d 789 (Ind. 2010)(finding Obama to be a natural born citizen specifically citing Wong Kim Ark,); Farrar et al v. Obama, OSAH-SECSTATE-CE-1215136-60-MALIHI (Feb. 3, 2012) (Ga. Office of State Admin. Hearings) (rejecting two-parent theory citing Wong Kim Ark and Ankeny v. Daniels); Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (dismissing in forma pauperis complaint pursuant to 28 USC 1915(e)(2)(B)(ii) and holding that “It is well settled that those born in the United States are considered natural born citizens”); Jackson v. Obama, 12 SOEB GP 104 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Bd. of Elections, Feb. 3, 2012); Freeman v. Obama, 12 SOEB GP 103 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Board of Elections, Feb. 3, 2012); Hollander v. McCain, 566 F.Supp.2d 63, 66 (“Those born ‘in the United States, and subject to the jurisdiction thereof’ have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency.”) (internal citations omitted).

            • Scientist says:

              “I still think it would behoove the court – i.e. Supreme Court – or Congress to establish what is meant by the term once and for all” Contrary to what many believe, the Supreme Court exists to resolve cases, not to define terms in the Constitution. They have never specifically defined the meaning of “establishment of religion” or “the right to bear arms”, though they have ruled on a great many cases that turn on those terms. As for Congress, in certifying the election of Chester Arthur and Barack Obama, they have made clear that one does not need 2 US citizen parents to be President. They also said McCain was a natural born citizen, so you don’t need to be born on US soil either.

              “I am still not certain, despite reading all of your essays on Wong Kim Ark, that the case established a binding precedent that a child born on U.S. soil is a natural born citizen.” No disrespect to you, but the courts have followed Wong for 120 years, whether bound to do so or not. THEY have ruled that anyone born in the US is eligible to be President (Ankeny and other following cases). Simple reality trumps your belief.

              “I am also of the opinion that parentage is far more indicative of where a child’s allegiances will lie than the soil on which he is born.”

              I can tell you from personal experience that neither birth nor parentage is dominant in the minds of children. Rather it is the place they are raised. I moved with my wife and US-born pre-school-aged children to France for a few years for my job. Neither my wife nor I are French. Yet, after 6 months, my kids were little Frenchies in every way, culturally, socially and gastronomically. Had we remained in France, they would be proud French adults today. No question about it.

          • Ballantine says:

            Sorry Tony, you don’t understand how to read case law. The Court held WKA to be a citizen. However, that is not all that is precedent. What is also precedent is the rationale saying why he was a citizen. You simply have not read or understood the case if you think the definition of natural born citizen wasn’t necessary to reach such conclusion. The court spent the first half of the opinion saying a native born child of aliens was a citizen under the original Constitition since the definition of natural born subject was incorporated into the NBC clause. It spend the next half of the decision saying the 14th Amendment restated the definition of natural born citizen simply making clear that such definition applied to blacks. So, whether before or after 1868, it was the definition of natural born citizen derived from English law that determined native citizenship and nationality. To think such discussion was unnecessary is just ignorant. I guess you can hope and pray the court re-visit the issue. However, the court does address issues for which there is disagreement amongst judges and scholars and, no, there is no authority of any significance in 220 years to support the Vattel nonsense.

          • nbc says:

            Tony: Without a doubt, it was not necessary that Wong Kim Ark had to be a natural born citizen to re-enter the country.

            No, he could also have been a naturalized citizen but in case of WKA that path was precluded through legislation prohibiting people of the Chinese race to be naturalized. The court observed that the Constitution speaks of citizens and natural born citizens and showed how natural born citizens include any child born on soil, with few exceptions.
            Thus the court found that WKA indeed was a citizen.

            The case is quite simple if you have read it, as well as the lower court ruling and the briefs filed.
            If you need any links, let me know.

    • nbc says:

      Tony : The first paragraph following the summary of the specifics of the case in the majority opinion in Wong Kim Ark states:

      Yes a summary is helpful but the ratio decidendi is far more relevant in understanding how the Court came to its ruling. That’s where one gains insight into the case not easily gotten by reading the syllabus.

  8. Scientist says:

    Tony and everybody else as well: All these Supreme Court cases are very nice, but how about THE PEOPLE? Don’t they count? If they vote for someone to represent them, doesn’t that carry some weight?

    The US sends soldiers all over the world to defend DEMOCRACY. That is, the premise that Afghans and Iraqis and Lybians and Syrians have the right to CHOOSE their leaders. I agree with that premise (even when I might not agree with sending US or other foreign troops). But don’t Americans have that right too? Just because you don’t like whom your fellow citizens have chosen doesn’t mean courts ought to overturn their choice.

    I am as firm as anyone on protecting the basic human rights of minorities. But elections are about determining the will of the majority. In fact, that is ALL elections are about. And frankly, the courts ought to stay the hell out, beyond ensuring that everyone who is eligible gets to cast a vote and that the votes are counted accurately.

  9. John Woodman says:

    Tony,

    [I am going to start another comment thread here, given that the previous thread has gone as deep as it's allowed to go -- ]

    John, I haven’t read all of it, but I read enough to realize that you have done a very thorough job of researching. Contrary to your – and others – assertions that my mind is made up and I am unable to accept evidence to the contrary, I am more convinced that natural born citizen may in fact have been understood by the framers to mean a person born on U.S. soil, regardless of parentage.

    I am glad to hear that you are not as closed-minded as many others I’ve dealt with, and apologize for perhaps having over-assumed that you fit that mold.

    I would also recommend to you the research of, and quotes mentioned by, Ballantine, and others such as nbc. Those two persons, in fact, are mentioned and credited in my final post of this “historical meaning” series, as nbc some time back compiled a list of quotes on natural born citizenship from around 70 legal authorities, and Ballantine similarly compiled a list of quotes on the meaning of “natural born citizen” from Google books.

    In my own research, I deliberately made a “working assumption” that both Ballantine or nbc were utterly biased (no offense to either — it was the proper skeptical method to validate your work).

    So I then went out to specifically look for any and all quotes I could find that might contradict them. I came up about as dry as a sun-bleached cow skull in the Arizona desert.

    More info on that particular search is available in Part 7, the conclusion to this series of posts.

  10. nbc says:

    In my own research, I deliberately made a “working assumption” that both Ballantine or nbc were utterly biased (no offense to either — it was the proper skeptical method to validate your work).

    It’s a good assumption anytime one takes someone else’s data. Double check…

    No offense taken.

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