Educating the Confused – 14th Amendment and Bingham
When asked about the 14th Amendment, some, foolishly refer to John Bingham’s comments made during the debates on the Civil Right’s act.
“[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…. . . ”
Source – John Bingham in the United States House on March 9, 1866 (Cong. Globe, 39th, 1st Sess., 1291 (1866))
I already discussed this quote and the birther refused. Let’s see if others are more capable:
“Appellant inexplicably points to the statements of Congressman John Bingham in 1866 as authoritative as to the original meaning of “natural born citizen” in the Constitution. It is abundantly clear that this is because Bingham appears to be the first person they can find who makes a statement in accordance with their two-parent theory as he stated that “natural born citizens” were “of parents not owing allegiance to any foreign sovereignty….” Cong. Globe, 39th, 1st Sess., 1291 (1866). Let us put aside the somewhat bizarre notion that anyone would think that we should let foreign sovereigns decide who can be President as whether parents owed allegiance to a foreign sovereignty would be based upon the laws of allegiance and expatriation such sovereignty. Clearly the opinion of one congressman 79 years after the federal convention is not worth much weight with respect to the original understanding of the Constitution. This is particularly the case when multiple members of the same 39th Congress, as well as a multitude of other earlier authority discussed throughout this brief, contradict him and there is no evidence any other Congressman in such Congress agreed with him. For example, Rep. Wilson, the house judiciary committee chairman of such Congress, declared that “natural born citizen” was defined by the English common law, citing, amongst others, Blackstone and Rawle. Id. at 1115-17 (1866). Senator Morrill made clear that “natural born citizen” status is given by birth itself. Id. at ___. Senator Henderson, id. at pg. 387, Senator Davis, see, The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877), and Rep. Rep. Boutwell, see, Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913) all stated that the president must be native born. Senator Trumbull, author of the Civil Rights Act, also stated the president must be native born and made clear that “natural born citizen” should be defined in accordance with the English common. Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872). Bingham did not write the citizenship clause in either the Civil Rights Act or the 14th Amendment so it is not clear why his opinion should be given any extra weight. It is also worth noting that some of the most influential conservative scholars of the 20th century had seriously questioned Bingham’s views as being muddled, inconsistent and idiosyncratic or confused. See, Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949); Raoul Berger, Government by Judiciary, pg. 1445 (1978; Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 5 n. 13 (1955). Part of this was due to Bingham’s apparent belief that the bill of rights applied to the states prior to the adoption of the 14th Amendment. Such position was clearly inconsistent with the history and text of the bill of rights. The importance Appellants try to give to Bingham underscores the lack of authority they have for their position as it appears he is the first person they can find that seems to advocate their definition of “natural born citizen.”
James Ho explains:
The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity. But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text,
“ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?”
Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”
Source: Cong. Globe, 39th Cong., 1st Sess. 498.
Could someone please explain the meaning of Part of this was due to Bingham’s apparent belief that the bill of rights applied to the states prior to the adoption of the 14th Amendment. Such position was clearly inconsistent with the history and text of the bill of rights. in the posting. Why wouldn’t the bill of rights apply to the states from the date of their adoption?
Wikipedia explains:
From the ruling:
Thanks for the explanation. So the people who get their panties in a bunch about the 14th & carry on about the 2nd are being quite hypocritical. They would only be getting their federal SCOTUS 2nd rights due to the 14th. FUNNNEEE!
Rep. Wilson, the house judiciary committee chairman of such Congress,said this:
“It is in vain that we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born to temporary sojourners or representatives of foreign Governments, are native-born citizens of the United States.”
Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1117.
Note “temporary sojourners.” That is what Mr. Obama Sr was.
Direct quotes are nice. They are much better that someone’s interpretation of someone else’s words.
Senator Trumbull:
“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
Congressional Globe, Senate, 39th Congress, 1st Session Page 2893
US State Department:
“However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.”
Your serve.
You do not know much about the game of tennis either I notice.
Trumbull has already been shown what he means and that the interpretation given is that children born to alien parents are citizen. I am well aware of people trying to take his comments out of context, regrettably.
Trumbull’s statement is meant to exclude children born to invading military, children of foreign dignitaries and Indians not paying taxes.
As to allegiance, you still do not understand the concept it seems. I have gone through this foolishness already, if you want to revisit it, please let me know.
Temporary sojourner is what we now know as a transient or tourist. President Obama’s father was not a temporary sojourner and his mother was a US citizen.
Nobody during the debates of the 14th really doubted or disagreed that it would make citizens of children born on US soil, regardless of the status of the parents.
I have already shown how dual citizenship is dealt with by US law and shown that a dual citizen, native/natural born on US soil can return while being a minor and continue his birthright US citizenship, and that his parents cannot take away this right. In fact, even after reach the age of majority, the child, now an adult can decide to continue his natural born citizenship and run for president.
As I said, your abilities to play tennis are hindered by your handicap of playing blind.
If you like direct quotes then you have already admitted that you are wrong. Trumbull already had admitted that which everyone understood to be true
Indeed, the child of an Asiatic is just as much a citizen as the child of a European. Both are native citizens, but not natural born citizens unless the parents are citizens.
Resorting to insults implies that your arguments are weak.
I can’t blame you for trying but for goodness sakes, learn at least the rules of the game.
So we agree that the 14th Amendment extends citizenship to children born on US soil whose parents are not US citizens. It’s a first step towards understanding, and an important one.
Now your argument is that such children are not natural born but just native born. But I have already shown that native and natural are equivalent terms, and that a native born can run for president.
There are only two kinds of citizens: natural born and naturalized, the former because of birth on US soil, the latter because of statutory laws.
As to your claim of ‘resorting to insults’, there is a time and place to point out that if you want to play an adult game like tennis, you should come prepared or be called out for your foolishness.
The concept that there is a class of citizens, born on US soil, who is not a natural born citizen, is one that lacks in any real evidence and runs counter to judicial precedents. In fact, the fact that the terms are being used interchangeably indicates that they have the same meaning.
Even Bingham’s statement about parents not owing allegiance to a foreign souvereignty merely excludes those who are not under allegiance when residing in the United States, and these people include invading military, foreign dignitaries and for historical reasons, Indians not paying taxes.
While in the US these people were not bound by the laws of the United States, hence the term diplomatic immunity. However, anyone else, while in the United States was under full, though temporary, allegiance of the United States.
Such was the definition also found in Common Law practices which declared a child born on US soil to be natural born regardless of the status of the parents, unless the parents belonged to the above mentioned excepted classes.
This goes back to the Calvin’s case where the natural born subject, a concept for all practical purposes equivalent to natural born citizen, was a natural born citizen, regardless of the nationality of his parents by virtue of having been born under the allegiance of and owing allegiance to the King. This natural allegiance comes from birth on soil.
Yellow rose – you said “Both are native citizens, but not natural born citizens unless the parents are citizens.” I assume you mean that native born and natural born are not the same thing. Then explain the following:
James Kent, “As the President is required to be a native citizen of the United States” (Commentaries on American Law, 1826). James Kent was appointed by John Jay to the New York Chancery
Wiliams Rawle, “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” (View of the Constituion of the United States of America, 1829). Rawle was appointed by President Washington to be the United States District Attorney for Pennsylvania.
St. George Tucker, “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.” (View of the Constitution, 1803). St. George Tucker was a Revolutionary War hero, wounded at the battle of Yorktown. He was appointed by President Madison to United States District Court judge.
James Iredell, “No man but a native, or who has resided fourteen years in America, can be chosen President.” (North Carolina debates on the Constitution, July 30, 1788). James Iredell was appointed to the United States Supreme Court by President Washington.
Game, set and match.
Is Yellow Rose living up to its name and avoiding the finding that native and natural are used interchangeably?…
I agree that John Bingham isn’t an expert on citizenship. That’s evident when you read page 106 of the biography, “The Woman Who Ran for President: The Many Lives of Victoria Woodhull,” by Lois Beachy Underhill. Woodhull presented a memorial to Congress in 1871 claiming all women had the right to vote under the 14th amendment. Since “all persons born or naturalized in the United States…” were citizens under the 14th, and she considered voting a right or privilege of citizenship that can’t be denied, she argued women were could vote. Bingham’s response to Woodhull was, “Madam you are not a citizen.”
Bingham, the alleged citizenship expert, declared women weren’t citizens. His view of citizenship was so skewed that both the majority and minority reports of the House Judiciary Committee disagreed with Bingham’s view. The majority view was that women are citizens of the United States under the
14th, but that doesn’t give them the right to vote. They asserted state’s rights. It’s up to the states to determine who meets the qualifications to vote,
and the Congressmen referred her to the courts as the proper venue to decide if women have the right to vote. The minority view also claimed that women are citizens of the United States under the 14th amendment and that voting is one of the inalienable rights of citizenship that can’t be revoked arbitrarily based on gender. The minority view was that the House of Representatives is the proper venue to decide voter qualifications
Because the majority view referred Woodhull to the courts, the husband of fellow suffragist Virginia Minor filed the lawsuit known as Minor v. Happersett. The Supreme Court ruled that women were always citizens, even before the 14th amendment, a view in apparent conflict with Bingham’s understanding of citizenship. Of course, Bingham’s interpretation of citizenship may not phase the birthers. Birther Jon Christian Ryter claims that while the 19th amendment gives women the right to vote, it doesn’t give them the right to run for President of the United States. He claims both Clinton and Palin are constitutionally ineligible to serve as President. And the birthers wonder why the public doesn’t take their interpretation of the Constitution seriously?