Horace Binney – Alienegenae December 15, 2009
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In Alienegenae, Horace Binney, shows that there is no evidence of a common-law practice that children born abroad would follow the nationality of their fathers. In fact, in both England and the US, explicit legislation was needed to grant (natural born) status to children born abroad.
The state of the law in the United States is easily deduced.
…
But the common law principle of allegiance, was the law of all the States at the time of the Revolution, and at the adoption of the Constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the States before the Constitution, or since. that time, by virtue of an Act of the Congress of tile United States.
Collins – Are persons born within the United States Ipso Facto Citizens thereof December 15, 2009
Posted by Exploring the Natural Born Citizen Clause in Blackstone, Citizenship, Common Law, Dual Citizenship, Natural Born, US v. Wong Kim Ark (1898), Vattel.comments closed
Some have referenced the writings of George D Collins when attempting to make a case that Vattel and not Common Law determines who is a natural born citizen. However, these people forget to add that the same person argued many of these ‘arguments’ in front of US v Wong Kim Ark and that the Court rejected his arguments. Remarkably many of Collins’ same ‘arguments’ are to be found in the claims of the modern day birthers. With a minor difference, that since Collins made these arguments, they were rejected by the Courts.
ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEREOF
GEORGE D COLLINS
The American Law Review (1866-1906); Sep/Oct 1884; 18, American Periodicals Series Online pg.831
Post and Email – Misunderstanding Shanks v Dupont December 14, 2009
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Mr Charlton ‘argues’
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
In 16 years later the Supreme Court heard the case regarding the dispute over the inheritance received by two daughters of an American colonist, from South Carolina; one of whom went to England and remained a British subject, the other of whom remained in South Carolina and became an American citizen. At the beginning of the case, Justice Story, who gave the ruling, does not cite Vattel per se, but cites the principle of citizenship enshrined in his definition of a “natural born citizen”:
Ann Scott was born in South Carolina before the American revolution, and her father adhered to the American cause and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost, or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost and that she was capable of taking it at the time of the descent cast.
As however, Justice Grey observed in Wong Kim Ark:
The early States and English Common Law December 14, 2009
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One of our Friends of Politijab posted a very enlightening overview of Common Law, responding to
Note: Our friend updated his first sentence to read:
..[T]he first sentence needs toning down a bit. I wrote it all in one go, and didn’t go back to the beginning to correct the overstatement. After all, not all states immediately adopted constitutions, and of those which did, not all explicitly (without having to draw inferences) adopted English common law by name. Some adopted it implicitly, or explicitly abrogated small parts of it repugnant to new, American concepts of law, while explicitly retaining due process, jury trial, and other English common law artifacts. Some were more or less concerned with inadvertently upsetting property law, and others with ensuring that the new states captured the benefits previously owed to the Crown.
I think that’s an enormous part of it. It’s not uncommon to see birthers complain when people cite to English common law or Blackstone because they seem to be under the impression that the American Revolution was about purging the United States of all things British. They refuse to accept the proposition that much of our legal system is premised on the English system and that the common law remained almost entirely intact. These are concepts so basic that any first year law student could explain them, but it’s just an area where birthers very clearly do an eyes-shut-ears-plugged motion.
This isn’t even a matter of interpretation. The constitutions of every state, adopted after the Declaration of Independence, explicitly adopted English common law.
MANDOLI v. ACHESON, 344 U.S. 133 (1952) November 15, 2009
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(pdf)
The Supreme Court first observed that even though born of Italian Parents, he was a dual citizen at birth.
Petitioner Mandoli was born in this country, of unnaturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law.
Did he even have to elect citizenship when reaching the age of majority?
The Nationality Act of 1940, 9 though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill.
On Perkins v Elg
What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because [344 U.S. 133, 139] the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.
Your Turn: Can’t understand the complacency on Obama birth November 8, 2009
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The ContraCostaTimes.com has a guest commentary by Mike Postich
The only document he has made available is a Hawaiian Certification of Live Birth. This abbreviated form does not indicate the hospital where Obama was born, nor does it include the name of the attending physician or midwife. There is no official signature of any kind verifying its accuracy.
And yet, the document does not only have the raised seal but photographs reveal that the document is signed as well. Furthermore, the Department of Health in Hawaii has confirmed that Obama was born in Honolulu.
The form also has a revision date of November 2001 and is computer generated, which clearly demonstrates that it is not the original document of his birth.
What part of certification of live birth, which is prima facie evidence does Mike not understand?
Why is Mike refusing to acknowledge that the COLB is the official and only Birth Certificate of the State of Hawaii and that the document shows Obama born in Honolulu?
Keyes v Obama – CA – Docket October 31, 2009
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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division – Santa Ana)
CIVIL DOCKET FOR CASE #: 8:09-cv-00082-DOC-AN
|
Captain Pamela Barnett, et al v. Barack Hussein Obama, et al Assigned to: Judge David O. Carter Referred to: Magistrate Judge Arthur Nakazato
Cause: 28:1331 Fed. Question |
Date Filed: 01/20/2009 Date Terminated: 10/29/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question |
Plyler v Doe, 457 U.S. 202 (1982) October 24, 2009
Posted by Exploring the Natural Born Citizen Clause in 14th Amendment, Born in the USA, Born within the allegiance of, Citizenship, Common Law, Constitutional Terms, Jus Soli, Natural Born.comments closed
In Plyler v Doe, the Court observes
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase “within its jurisdiction.” [n10]
Footnote 1o explains the reasoning, referring to the Court’s ruling in Wong Kim Ark
US Congress – Mr Dowdy reports on the meaning of Natural Born October 23, 2009
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June 14, 1967
NATURAL BORN CITIZEN
Mr. VIGORITO. Mr. Speaker, I ask unanimous consent that the gentleman from Texas [Mr. DOWDY] may extend his remarks at this point in the RECORD and include extraneous matter.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Pennsylvania?
There was no objection.
Mr. DOWDY. Mr. Speaker, for a number of years, I have heard and read the discussions, pro and con, regarding the meaning or construction that should be placed on the phrase, “natural born citizen,” as used in the U.S. Constitution, limiting eligibility for the office of President. This has been a recurring discussion, as various persons, born outside the United States, of U.S. citizen parentage, have been mentioned as possible candidates for the offices of President and Vice President. The question is again current.
Full and Complete Jurisdiction September 30, 2009
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Some have argued that the discussion during the 14th Amendment or the Civil Right’s act suggested that jurisdiction over the child had to be “full and complete”. To truly understand the meaning of these terms, one has to take but a look at Justice Marshall in Schooner Exchange v. M’Faddon, 11 U.S. 116 (1812)
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction derived from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
Vattel: Natives and Indigenous September 28, 2009
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A well-known exposition of natural law theory with which the Founders were undoubtedly familiar is Samuel Pufendorf, The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003) (1691). The following excerpt is squarely on point to our story:
A State or Government being thus constituted, the Party on whom the Supreme Power is conferr’d, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a MONARCHY, an ARISTOCRACY, or a FREE STATE; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.
Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts.Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place: nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.”
Source: E Pluribus Unum: Well Maybe Not Everybody Towards A Re-Examination Of Birthright Citizenship by Gary Endelman
In other words, it seems likely that the term natives of indigenes as used by Vattel, who was surely influenced by Puffendorf referred to the original ‘founders’ and their descendents. A far more strict definition than natural born which even under Mario’s interpretations extend the right to run for presidency to anyone born to two US parents, while the above definition would restrict such only to the original founders and their direct descendents.
Furthermore
The Croatian nobility, in particular, occupied an important position among these latter. This nobility was also a member of the Sacra Corona and, by virtue of its noble rank, was directly Magyar1. Hungarian legal authorities have denned the admission of foreigners by saying that besides ” natives” (nativi), foreigners too (indigenae) received Hungarian ” citizenship ” (civitasy)
Source: Hungary in the eighteenth century, By Henrik Marczali
The Perfect Case September 28, 2009
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From our friends at Politijab
I can envision the PERFECT case to address the issue of “natural born” citizen in the appropriate context -i.e., distinguishing between natural born and naturalized. The PERFECT case would have something like the following facts.
* * *
After a historically horrendous terrorist attack on the United States, an enemy fighter is captured in the region where the group responsible for the attack resides, during a battle between US soldiers and the enemy (identified as the group responsible for the attacks). This enemy fighter is designated as an “enemy combatant.”
He (or, to be precise, his (foreign) father) thereafter challenges his “enemy combatant” status on the grounds that he is a (natural born) citizen (i.e., a citizen by birth, rather than a naturalized citizen whose post-citizenship actions may “strip” him of his US citizenship). Because this captured enemy soldier is a (natural born) citizen, he argues, he is entitled to the Constitutional due process protections afforded US prisoners.
He is deemed a (natural born vs. naturalized) US Citizen because he was born here while his parents, two Saudi nationals, were in Louisiana on a work visa, which expired shortly after his birth, whereupon he returned to Saudi Arabia as a toddler (where he was a citizen by virtue of his parents’ citizenship) and never returned to the US.
* * *
I mean, how much more ‘perfect’ of a case/set-up can be imagined????? How many (US) Americans (typically more focused on outcome than analysis) would not support a decision finding that a foreign enemy fighter, who was captured while battling US troops, was not, in fact, a citizen because, e.g., neither of his parents were US citizens/both of his parents were foreign nationals; or because he (and/or they) were not subject to US jurisdiction; or because he was a dual citizen at birth who returned to his home country; or any other of a number of reasons ????
Justice Scalia – Natural Born requiring Jus Soli September 27, 2009
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Tuan Anh Nguyen v. INS - Oral Argument
Justice Scalia: But has not been called natural born citizenship? I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England? They did not want that.They wanted natural born Americans.
Mr. Davis: Yes, by the same token…
Justice Scalia: That is jus soli, isn’t it?
…
Justice Scalia: Well, maybe.
I’m just referring to the meaning of natural born within the Constitution.
I don’t think you’re disagreeing.
It requires jus soli, doesn’t it?
International law chiefly as interpreted and applied by the United States September 27, 2009
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Source: Charles Cheney Hyde, International law chiefly as interpreted and applied by the United States, Volume 1, Little, Brown, and company, 1922.
§ 343 The Common Law
According to the common law every child born within the ligeance and jurisdiction of the King of England was regarded as his subject [1] It is not true that all persons born within the King’s domain were within his ligeance and jurisdiction Thus the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof likewise the child born within the realm whose father was an alien and at the time of the birth of the child a diplomatic officer accredited to the Crown by a foreign sovereign [2] As these were however the only instances where persons born within the royal domain failed to acquire English nationality it became natural to assert as a rule of law commonly known as the jus soli that subject to these exceptions a person became a natural born subject by reason of his birth within the King’s domain [3]
Rawle and Natural Born September 17, 2009
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“The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. 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. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that be so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”
Source: William Rawle A view of the Constitution of the United States of America also here
Mario Apuzzo – Vattel September 14, 2009
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Mario Apuzzo:
MA: That the “natural born Citizen” clause is based on undivided allegiance and loyalty can be seen from how the Founders distinguished between “citizen” and “natural born Citizen.”
Yes, citizens include both naturalized and natural born citizens. The Founders distinguished clearly between those who gained citizenship by Birth from those who received it via a Statute.
MA: This distinction is based on the law of nations which became part of our national common law. According to that law as explained by E. Vattel in, _The Law of Nations_ (1758), Vol.1, Section 212, Des Citoyens et Naturels, a “citizen” is a member of the civil society.
The suggestion that the Law of Nation guides citizenship is easily debunked by pointing out that no State would abandon its rights to establish who is and who is not a citizen to ‘Law of Nation’. In fact, it is clear that Municipal Law and not International Law guides citizenship. And the United States is no different here. This argument was made by the Plaintiffs in Wong Kim Ark and rejected by the court:
Wong Kim Ark: This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor,[p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions "or the law of nations"] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
MA: To become a “citizen” is to enter into society as a member thereof. On the other hand, Vattel wrote that a native or indigenes (written in French as /les naturels/ or /indigenes/) or “natural born Citizen” as the term later became translated from French into English, is a child born in the country of two citizen parents who have already entered into and become members of the society. Vattel also tells us that it is the “natural born Citizen” who will best preserve and perpetuate the society.
Vattel also said:
It is asked whether the children born of citizens in a foreign country are citizens. The laws have decided this question in several countries and their regulations must be followed. By the law of nature alone children follow the condition of their fathers and enter into all their rights the place of birth produces no change in this particular and cannot of itself furnish any reason for taking from a child what nature has given him. I say of itself, for civil or political laws may for particular reasons ordain otherwise. But, I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he has become a member of another society at least as a perpetual inhabitant and his children will be members of it also.MA:: This definition of the two distinct terms has been adopted by many United States Supreme Court decisions. (The Venus, 12 U.S. 253 (1814) and Minor v. Happersett, 88 U.S. 162 (1874) to cite just two.)
As I will show, neither Venus, nor Minor really help Mario, and in fact, Mario fails to acknowledge the many and more recent rulings by the US Supreme Court which disagree with his position. Such as US v Wong Kim Ark, 169 U.S. 649, 1898. First of all, the problem is that Vattel did not use the term natural born, but rather the term “naturels ou indigenes” translated as “Natives or Indigenes”. There is no evidence that Vattel meant to use the term “natural born”, although later translations made this leap, in spite of Vattel.
Pelosi, the DNC and the story of the two letters of Certification September 11, 2009
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Update: added South Dakota
Canada Free Press is making much of the discovery that Nancy Pelosi and the DNC, sent two kinds of letters to the States to certify the election as candidates for the presidency and vice-presidency. They claim that only one, the abridged form, was submitted to (all) the States, but we know that at least Hawaii, which has very specific requirements, received the “unabridged version”. Most of the documents come from lawsuits against the Secretary Of State of various states, but since much of the State Court filings are not available on Pacer, I have yet to track down various state case filings that may shed additional light on this issue. So far I have found filings in Hawaii, Texas, South Carolina and Washington which are relevant.
In fact, there appear not to be just 2 documents but perhaps as many as 50 documents, probably because every state would like an original, notarized document. The Washington State document and the South Carolina document are two different documents, as can be seen from the signatures.
A so the mystery becomes even less and less. There may very well have been 49 letters, and one, to deal with the special requirements of Hawaii. Then again, the RNC similarly had 50 separate letters to be sent to their state headquarters for filing.
The “long form” or “unabridged” version states:
THIS IS TO CERTIFY that at the National Convention of the Democrat Party of the United States of America, held in Denver, Colorado on August 25 though 28, 2008, the following were duly nominated as candidates of said Party for President and Vice President of the United States respectively and that the following candidates for President and Vice President of the United States are legally qualified to serve under the provisions of the United States Constitution:Presented: Hawaii
the “abridged version” states:
THIS IS TO CERTIFY that at the National Convention of the Democrat Party of the United States of America, held in Denver, Colorado on August 25 though 28, 2008, the following were duly nominated as candidates of said Party for President and Vice President of the United States respectively:Presented: South Carolina, South Dakota, Texas, Washington.
So how to explain the difference in text?
Simple really…
(more…)
Natural-born "sujets mixtes" (double nationality) September 9, 2009
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The concept of being a natural born dual citizen is explored in International law: a treatise By Lassa Oppenheim, Ronald Francis Roxburgh, 1920
310 Individuals owning double nationality bear in the language of diplomatists the name sujets mixtes. The position of such mixed subjects is awkward on account of the fact that two different States claim them as subjects and therefore claim their allegiance. In case a serious dispute arises between these two States which leads to war an irreconcilable conflict of duties is created for these unfortunate individuals. It is all very well to say that such conflict is a personal matter which concerns neither the Law of Nations nor the two States in dispute. As far as an individual has through naturalisation option and the like acquired his double nationality one may say that he has placed himself in that awkward position by intentionally and knowingly acquiring a second nationality without being released from his original nationality. But those who are natural born sujets mixtes in most cases do not know it before they have to face the conflict and their difficult position is not their own fault .
Les Sujets Naturels – International Law Thomas Baty September 9, 2009
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The term “sujets naturels” which we know to be translated as natural born and native born citizens is compared with the condition of aliens, suggesting that there exist two groups: Aliens and (natural born) citizens.
The treaties of the eighteenth century did not carry the matter much further In the Dano Sicilian treaty of 1748 indeed there now occurs a clause 27 providing that “la condition des etrangers et des sujets naturels sera égale et pareille tellement que dans toutes les occurrences, la justice leur sera administrée d’une manière prompte et impartiale; particulièrement dans les douanes et bureaux ils seront traités avec douceur et politesse.” As to whether this was due to previous experience of Baltic bluntness or of Southern arbitrariness history is silent
Source: International Law, Thomas Baty
Translation: The condition of aliens and natural born subjects shall be equal and particularly so in all occurrences, their justice shall be administered in a prompt and impartial manner; especially in the Customs and offices shall they be treated gently and politely.
Natural Born – Journals of the Continental Congress September 9, 2009
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Original French Text:
Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera. Tous seront appointés par leur souverain respectif, et ils ne pourront en conséquence faire aucun trafic ou commerce quelconque ni pour leur propre compte, ni pour le compte d’autrui.
And translated in the Journals of the Continental Congress volume 21, p. 804.
This memorial and plan of convention were entered only in the manuscript Secret Journal, Foreign Affairs. The following translation, in Charles Thomson’s hand, was the paper considered by Congress. It is in the Papers of the Continental Congress, No. 25, II, folio 21.
…
3
The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them. They shall all be appointed by their respective Sovereign, and in Consequence of such appointment they shall not exercise any traffic or commerce whatsoever either on their own account, or on account of any other
