MANDOLI v. ACHESON, 344 U.S. 133 (1952) November 15, 2009
Posted by Exploring the Natural Born Citizen Clause in Born in the USA, Citizenship, Dual Citizenship, Jus Soli, Loss of Citizenship, Natural Born, Natural Born.comments closed
(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.
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
Posted by Exploring the Natural Born Citizen Clause in 14th Amendment, Blackstone, Born in the USA, Born within the allegiance of, Citizenship, Common Law, Constitutional Terms, Jus Sanguini, Jus Soli, Native/Natural Born, Natural Born, Subject to the jurisdiction thereof.comments closed
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.
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.
Scalia on Wong Kim Ark September 8, 2009
Posted by Exploring the Natural Born Citizen Clause in Blackstone, Citizenship, Common Law, Jus Soli, Natural Born, Precedent Cases, Scalia, Supreme Court Justices, US v. Wong Kim Ark (1898).comments closed
From poster Greg at Dr C’s Obama Conspiracy blog we learn
Scalia wrote a concurrence in Nguyen v. INS, saying [1], very briefly, that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways he described in his concurrence in Miller v. Albright. You don’t have to read Miller very far to realize what Scalia’s talking about and also to realize what little hope you have of overturning Wong Kim Ark.
From Scalia’s concurrence in Miller v. Albright:
The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).
Yeah. Scalia’s not going to overturn Wong Kim Ark. (Here’s another clue in case you didn’t have your coffee this morning – citizenship by birth doesn’t have anything to do with naturalization!)
[1] I remain of the view that the Court lacks power to provide relief of the sort requested in this suit–namely, conferral of citizenship on a basis other than that prescribed by Congress. See Miller v. Albright,523 U.S. 420, 452 (1998) (Scalia, J., concurring in judgment). A majority of the Justices in Miller having concluded otherwise, see id., at 423 (opinion of Stevens, J., joined by Rehnquist, C. J.); id., at 460 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting); id., at 471 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting); and a majority of the Court today proceeding on the same assumption; I think it appropriate for me to reach the merits of petitioners’ equal protection claims. I join the opinion of the Court.
Edward Bates on citizenship: 1862 September 2, 2009
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Source: Edward McPherson “The political history of the United States of America“
Colored Men as Citizens.
OPINION OF ATTORNEY GENERAL BATES.
Attorney General’s Office, November 29, 1862 .
Hon. S. P. Chase, Secretary of the Treasury:
Sir : Some time ago I had the honor to receive your letter submitting, for my opinion, the question whether or not colored men can be citizens of the United States. The urgency of other unavoidable engagements, and the great importance of the question itself, have caused me to delay the answer until now.
Blackstone – Children of Aliens August 28, 2009
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11 Citizens born abroad - With the exception of those born of alien enemies who happen to hold a part of the country as enemies it is the allegiance not the soil that determines (7 Coke Rep 18 a). Whether a child born in the house of a foreign ambassador would be an alien or citizen seems doubtful. The dictum of the commentator as to French law is no longer true. A child born in France of foreign parents may claim French citizenship under certain conditions(Code Nap I 1 ,9). In both countries the citizenship derived by actual birth is probably now held to be conclusive if properly claimed (See Wooddesson Lect 1, 231).
Nicholas George Esq – Natural Born defined August 27, 2009
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On ObamaConspiracy, a poster named Greg provides us with a link to “a letter from 1798 from Nicholas George, Esq. about the alien and sedition act”
Prior to the adoption of the constitution, the people inhabiting the different states might have been divided into two classes; natural born citizens, or those born within the state and aliens or such as were born out of it. The first by their birth-right became entitled to all the privileges of citizens; the second were entitled to none, but such as were held out and given by the laws of the respective states, prior to their emigrating to them.
Native and Natural Born July 24, 2009
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Mr. CORNELL, like other gentlemen, had prepared an amendment to meet the case for which his friend from Kings had sought to make provision, and to that gentleman he tendered his thanks for the step he had taken. For himself, at present, he had but one remark to make. It was this, that although there was but one constitutional provision similar to this, and that was in the constitution of the U. S., he apprehended there wns a strong reason weighing on the minds of the Convention by which that instrument was framed for the adoption of such a provision, that could have no application to the election of the Governor of this state. It was that the President of the U. S., in the discharge of his official duties, was brought in contact with foreign governments, among which might be one of which the President might have been a native born citizen. It might therefore have been supposed that some undue influence might reach him in negotiating with such powers that would not reach him in treating with other governments. Bet in the case of a Governor of this state, that principle could not apply, inasmuch as the government of this state has no legal existence in reference to foreign governments. For that reason—and it was a very weighty reason—the provision in the constitution of the U. S. could have no authority or weight here.
Source: Debates and proceedings in the New-York state convention By New York (State). Constitutional Convention, Sherman Croswell, R. Sutton, 1846
and that when the Convention went into committee of the whole on that report a delegate from Saratoga made a motion to strike out the provision for 14 years residence and to substitute a provision that the Executive should be a natural born citizen of the US. That was adopted in committee of the whole unanimously. Afterwards however in Convention the words natural born citizen were stricken out and the word native was substituted as the original words might have left an uncertainty as to the meaning of the Convention for natural born citizen might have had some reference to the manner of birth while the word native would refer more particularly to the place of birth Mr A was not very pertinacious about the retention of the word native for it would cut off a considerable class of citizens that ought to be included. There were many brought here by their parents in infancy who would by a life spent here be as well acquainted with our institutions and as proper persons to fill the place of Governor as those born here
Source: p 148 ibid
Donofrio, the 14th Amendment and Marbury v. Madison March 19, 2009
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Leo Donofrio
Donofrio, who once again announced his retirement from the eligibility issues, describes a moment where he realized how Marbury v. Madison applies to the 14th Amendment and Article II, Section 1 eligibility
As I thought about it, Chief Justice Marshall’s voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:
“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”
This must kill the argument that being “a 14th Amendment citizen” has the same effect on Presidential eligibility as being a “natural born citizen”. If being a “citizen” had the same exact effect as being a “natural born citzen” then the clause would have no effect. As stated by Chief Justice Marshall, “such a construction is inadmissible.”
Holy cow. I just had one. It’s more like the proverbial elephant in the room.
While I am glad that Donofrio came to realize the relevance of what Judge Marshall said, the conclusion that this must kill the argument that being a “14th amendment citizen” has the same effect on president eligibility as being a “natural born citizen” is more one of wishful thinking rather than an insightful analysis
Exploring the ""subject to the jurisdiction thereof" clause Part II March 18, 2009
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Source: The American Law Register, Published by D.B. Canfield & Co., 1886
It is contended by some that under the Fourteenth Amendment children take their status from their parents, unaffected by the place of their birth, and that the children of aliens, though born in the United States, are not citizens of the United States. The contention is, that the words “subject to the jurisdiction of the United States,” do not mean under the actual authority of the United States and subject to their laws, but owing allegiance to the United States. And it is contended that as the alien parent, though within the territory of the United States, still owes allegiance to his sovereign, he is subject to the jurisdiction of that sovereign, and not to that of the United States, and that the child taking his status from the parent, is in the same manner and to the same extent, subject to the jurisdiction of the same foreign sovereign or nation. It is said that the words “subject to the jurisdiction thereof,” do not mean “territorial jurisdiction,” but national jurisdiction, that is, the jurisdiction ”which a nation possesses over ita citizens or subjects as such.” There is no such distinction between national and territorial jurisdiction as is here suggested. All jurisdiction is territorial.
Allegiance and Obedience – Natural Born March 14, 2009
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[b] “Allegiance bу birth, (1) Is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is, at the time, in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently, owe obedience or allegiance to the sovereign, as such, de facto. . . . There are some exceptions, which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean, is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So, the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.” Inglis v. Sailor’s Snug Harbor, 3 Pet. 99, 155, 7 L. ed. 617.
Source: Corpus juris: being a complete and systematic statement of the whole body of the law as embodied in and developed by all reported decisions By William Mack, William Benjamin Hale, Donald J. Kiser Published by The American Law Book Co., 1915
(more…)
Orly Taitz – She did it March 14, 2009
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Orly Update
Orly Taitz reports that she managed to get Robert’s attention and delivered a box full of documents to his security people. While I have to admire the tenacity of Orly, her posting also reveals an aspect which I personally find troublesome. And no it is not the lack of legal support for her claims, and it is not the speculative nature of her assertions, no it is the following statement
Why are you afraid to speak up, to stand up for you constitution? Why are you afraid to tell this arrogant jerk from Africa and Indonesia- You need to go home, you cannot be a president and commander in chief because you are not a Natural born Citizen. To be a Natural born Citizen you have to have both parents as citizens. Your father was never a US citizen and you don’t qualify and you also spit us in the face by refusing to unseal your vital records. There is no proof that you are even a citizen. For all we know, you need to go back to Kenya and wait for your green card, and that after we try you for all the crimes perpetrated upon American citizens.
As I and others have already pointed out, there is no credible evidence that President Obama is an Usurper. In fact, since he is the de facto and likely also the de jure President of the United States, we cannot make claims that lack in supporting evidence.
Vattel interpreted March 13, 2009
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So far as Mr. Vattel states the doctrine on the subject of citizenship in this section he states it correctly, but there are other questions on this subject, not noticed by him, which it would be well to state. These have reference to the following:
1. Children born of the subjects of one power in the territory of another. 2. Illegitimate children born of a foreign mother. 3. Foreign women who have married the subject of a State. Upon these points the doctrine in United States, is, 1, That children of foreigners born here are American citizens if they elect to declare themselves so, whilst the children of American citizens born abroad are themselves citizens of the United States, unless the I4th amendment has changed this doctrine, upon which there is a difference of opinion ; 2, Illegitimate children belong to the State of which the mother was the subject ; and 3, Except in the United States, the nationality of a wife is merged in that of her husband, so that in those countries, when a woman marries a foreigner she loses her own nationality and acquires his; but here a native woman marrying a foreigner remains the subject of the State, though an alien woman marrying a citizen of the United States becomes herself naturalized, unless she continue throughout her husband’s lifetime, a non-resident. Hall’s Inter. Law, secs. 68, 69, 70.
Source: James Houston Gilmore, Emer de Vattel, University of Virginia, Notes of a Course of Lectures on Vattel’s Law of Nations Published by J. Blakey, 1891
From International Law, By William Edward Hall, Published by Clarendon press, 1880
68: Under a custom, which was formerly so general as to subjects be called by an eminent French authority ‘ the rule of power Europe Y and of which traces still exist in the legislation within the of many countries, the nationality of children born of the territory of another subjects of one power w1th1n the terr1tory of another was dictated by the place of their birth, in the eye at least of the state of which they were natives. The rule was the natural outcome of the intimate connection in feudalism between the individual and the soil upon which he lived, but it survived the ideas with which it was originally connected, and probably until the establishment of the Code Napoleon by France no nation regarded the children of foreigners born upon its territory as aliens. In that Code however a principle was applied in favour of strangers, by which states had long been induced to guide themselves in dealing with their own subjects, owing to the inconvenience of looking upon the children of natives born abroad as foreigners.
Obama Natural Born Citizen Flowchart February 23, 2009
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For sake of reality let’s accept that Obama was born to Stanley Ann Durham, a US citizen. So let’s walk through the possibilities
