Yick Wo v. Hopkins (1886), 118 U.S. 356

Borderraven argued that the Court in US v Wong Kim Ark required the parents to be permanently domiciled in the United States but the Court’s references do not lead to such a narrow interpretation. Remember that the requirement is ‘subject to jurisdiction’ and the Court referenced Yick Wo v Hopkins to observe that those who are resident (temporarily or permanently) are entitled to the protection of our Laws and thus ‘subject to our Jurisdiction’

Those subjects of the Emperor of China who have the right to temporarily or permanently reside within the United States, are entitled to enjoy the protection guaranteed by the Constitution and afforded by the laws.

Source: Yick Wo v. Hopkins (1886), 118 U.S. 356;

Thus the Court in US v Wong Kim Ark found that

Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are ” subject to the jurisdiction thereof” in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886), 118 U.S. 356; Law Ow Bew v. United States144 U.S. 47, 61, 62; Fong Yue Ting v. United States (1893), 149 U.S. 698, 724;Lem Moon Sing v. United States (1893), 158 U.S. 538, 547; Wong Wing v. United States (1896), 163 U.S. 228, 238.

Citizenship and the 14th Amendment – Debate

Two legal experts discuss the question if the US Constitution grants citizenship to anyone born on US soil. Edward J. Erler, from the Claremont Institution, a conservative think tank,  and Garrett Epps, Professor of Law at the University of Baltimore.  Erler makes the argument against and Epps quickly exposes some major flaws in the accuracy of Erler’s comments. Since I have seen several people on this forum make similarly confused argument, it would serve them well to read the 4 postings in this debate carefully.

Educating the Confused – KBOA – Trumbull

KBOA claims that Trumbull’s comments during the debates somehow support his position that children born to alien parents are excluded. To support this, he quotes from the debates where Trumbull is dealing with a narrower issue: are children born to Native Americans/Indians natural born or are they born on soil but not owing allegiance to the US. It’s clearly the latter

Trumbull explains his position on children born to aliens as follows during the 1866 debates about the Civil Rights Act:

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Four- teenth 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.”

Matthew Ing – Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause

Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause

The Citizenship Clause of the Fourteenth Amendment is typically understood as granting birthright citizenship to U.S.-born children of illegal aliens. This view, however, is disputed by “consensualists” who argue that the original meaning of the Clause’s qualifier, “subject to the jurisdiction thereof,” would have excluded such children. This “consensualist interpretation,” however, is incorrect on originalist grounds. Evidence from before, during, and after the  Fourteenth Amendment’s enactment demonstrates that the Citizenship Clause’s original meaning is consistent with birthright citizenship for illegal aliens’ children

Educating the Confused – Protectio trahit subjectionem et subjectio protectionem

In fact, being under the protection of the State where they are, they owe an allegiance to it according to the maxim protectio trahit subjectionem et subjectio protectionem (Proctection begets Subjection, Subjection begets protection ed: Coke, Littl. 65.). Webster, when Secretary of State, in his report on Thrasher’s Case in 1851 declared: “Independently of a residence with intention to continue such residence, independently of the taking of any oath of allegiance, or of renouncing any former allegiance, it is well known, that by the public law an alien, or a stranger bor,n for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be unless his case is varied by some treaty speculations.”

Which is why Justice Gray observed in US v Wong Kim Ark

It is entirely clear that one who resides in a country assumes a certain relationship to it which differs from that assumed toward any other foreign nation and that on its part the nation in which he resides stands in a relationship toward its alien residents different from that which it has toward nonresident aliens. The relationship existing between a country and an alien resident was explained by Mr Chief Justice Gray in United States v Wong Kim Ark, 1897, 169 US 649, 655 as follows:

Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem et subjectio protectionem– and where not restricted to natural-born subjects and naturalized subjects or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.

Educating the Confused – Allegiance, protection and territorial limits

Thanks to Dragging Canoe at Dr C’s Obamaconspiracy.org blog we have another great reference:

The municipal laws of most nations establish the rights of perpetual allegiance, but not of universal allegiance. Allegiance in fact is limited by space, and not by time. The power of a government is only co-extensive with its territorial limits, and the extension of its territorial power. Beyond these it can neither enforce duties nor extend protection. Now, the basis of allegiance is protection ; and all legal duties must suppose, at least in theory and in the nature of things, an ability to enforce them : but beyond the territorial limits and the extension of the territorial power of a government, neither of these exist,nor can,in the nature of things, exist; and, of course, beyond these, allegiance must cease. Out of these dominions the citizen cannot be subject to a power which in its nature can only exist within them.

There are some who ‘argue’ that since President Obama was born to a father who held a non-US citizenship, that Obama thus had conflicting allegiances. This is based on a flawed understanding of the concept of allegiance. Allegiance, as the above quote shows,  depends on protection. While within the territorial limits of the United States, Obama is fully bound by the laws and protection of the United States and thus owes allegiance to the United States. Since the country of Obama’s father’s citizenship holds no rights over the United States, Obama is therefor outside its territorial limits and thus does not owe allegiance to this foreign country. In other words, President Obama was born under full jurisdiction of and owing full allegiance to the United States. As such he was born on United States soil, and under its jurisdiction and therefor not just a citizen, but a natural born citizen.

“subject to the jurisdiction thereof” explained

Borderraven wants to discuss the meaning of ‘subject to the jurisdiction thereof” as found in the 14th Amendment. Let’s see if he can make a coherent, reasoned argument for his side which I presume involves the flawed argument that children born to aliens, especially illegal aliens, are not citizens of the United States, contrary to the rulings of the Courts and the history of Citizenship in our Country.

Border, I expect you to present the argument in your own words based on legal precedent, not based on Fox “News”. Educate yourself…Do not embarrass yourself.

For this we need not go further than the discussions surrounding the 14th Amendment where it was accepted that under this definition, children born to alien parents were born under jurisdiction of the United States, unless the parents were diplomats, invading military or Indians not paying taxes as the children born to such parents were not born subject to the jurisdiction of the United States

Judge Gray explained in Wong Kim Ark

It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.

When President Johnson vetoed, unsuccessfully the Civil Rights bill of 1866 he observed

By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.

US Congress – Mr Dowdy reports on the meaning of Natural Born

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

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.

Edward Bates on citizenship: 1862

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.

Lynch v Clarke – Natural Born Citizen and allegiance

Lynch vs Clarke 1 Sandf Ch NY 583 1844 where the Vice Chancellor declares at the close of an exhaustive review of the authorities

I can entertain no doubt but that by the law of the United States every person born within the dominions and allegiance of the United States whatever were the situation of his parents is a natural born citizen

But see the very able opinion of the late Vice Chancellor Sandford in Lynch vs Clarke 1 Sandf 583 where he says p 654

In my judgment there is no room for doubt but that to a limited extent the common law or the principles of the common law as some prefer to express the doctrine prevails in the United States as a system of national jurisprudence. To what extent it is applicable I need not hazard an opinion either in general terms or in particular instances beyond the case in hand but it seems to be a necessary consequence from the laws and jurisprudence of the colonies and of the United States under the articles of confederation that in a matter which by the Union has become a national subject to be controlled by a principle coextensive with the United States in the absence of constitutional or congressional provision on the subject it must be regulated by the principles of the common law if they are pertinent and applicable.

In The Naturalization laws of the United States, we find an important admission that is relevant to the arguments by Mario Apuzzo, who insists that British subjects can never shake their citizenship. In this case we observe how through a mutual treaty between the United States and Great Britain, people were given the liberty to chose which citizenship to accept.

At the Revolution In 1776 every man was at liberty to choose between the United States and Great Britain “whom he would serve”. He might yield an express or a tacit and implied assent to the Declaration of Independence. The evidence of this election and of the time of making it is to determine to whom his allegiance is due. Vice Chancellor Sandford in the interesting case of Lynch vs Clarke 1 Sand Chy Rep 681 says, “The doctrine settled by these authorities is that on the separation of the colonies the United States and Great Britain became respectively entitled as against each other to the allegiance of all persons who were at that time adhering to the governments respectively and that those persons became aliens in respect to the government to which they did not adhere In our decisions the time fixed for the application of the rules is the Declaration of Independence In the British authorities it is applied at the date of the treaty of peace in 1783. Chancellor Kent fixes the date of the treaty referred to as the proper period for the application of the rule.

14th Amendment and 'subject to jurisdiction thereof' – Attorney General Ellis

Citizenship Persons born in the allegiance of the United States Term born in allegiance defined(pdf)

A young man was born and always resided in this State His mother was a native of Pennsylvania. His father was an unnaturalized Swede. Held, that such a person is a citizen of the United States and of the State of Michigan and if twenty one years of age would be entitled to register and vote.

A person to be born in allegiance of the United States should not only be born on American soil but on soil that was within the control of the United States at the time of his birth.

Wong Kim Ark – Reply Brief of the Appellee

William Peere – Natural Allegiance

It appears from Braclan lib 3 cap 9 and Fleta cap 2 and Stamford fo 37 that the King is protector of all his subjects; that in virtue of his high trust, he is more particularly to take care of those who are not able to take care of themselves, consequently of infants, who by reason of their nonage are under incapacities; from hence natural allegiance arises as a debt of gratitude which can never be cancelled though the subject owing it goes out of the kingdom or swears allegiance to another prince

Source: William Peere Williams, Great Britain. Court of Chancery, Samuel Compton Cox, John Boscawen Monro, William Loftus Lowndes, James Randall, Great Britain. Court of King’s Bench, Reports of cases argued and determined in the High Court of Chancery: and of some special cases adjudged in the Court of King’s Bench [1695-1735] , 1740-49, Page 123

Note: William Peere was cited by Thomas Jefferson in his note clarifying the meaning of natural born.

Reasonable doubt?

BHO COLB

There is now reasonable doubt that Mr. Obama meets the U.S. Constitution’s requirement of “natural born” citizenship. This means that there is also reasonable doubt that he is qualified to be President of the United Sates and commander in chief.

Source: Colonel Harry Riley (US ARMY Ret.)

The problem with this argument is two fold. First of all the concept of ‘reasonable doubt’ and secondly, whether reasonable doubt disqualifies Obama from being the President of the United States.

Under the ‘De Facto Officer‘ Doctrine, the President would still be ‘de facto’ President and his orders and actions remain binding until the President has been found ineligible. The question now becomes one of determining the eligibility of the President. The 2oth amendment clearly places the power to qualify the President in the hands of Congress, the separation of powers, as exemplified in the Constitution through the principle of impeachment, place the power to find a President eligible in the hands of Congress and the power to remove a duly elected President, through the principle of impeachment, also clearly in the hands of Congress. Alternatively, in 2010, the people can vote into power a Congress who may be interested in an impeachment procedure, or finally, in 2012, the voters can decide to elect a new President. In the mean time, the suggestions that the Court, perhaps through Quo Warranto, can decide the eligibility of a sitting President, ignore the clear separation of powers implications as well as legislative and legal history which deny that a Quo Warranto can be used against a sitting President, since this would circumvent the clear Constitutional principles. Common law never trumps the Constitution.

So now that we have addressed the qualification issue, the issue of ‘reasonable doubt’ is irrelevant but still worth addressing. Since Obama by any reasonable standard is shown born on US soil per his COLB and since additional data support these findings, there is little doubt that the President is a citizen as well as a natural born citizen due to being born on US soil under jurisdiction of the laws of the United States. His temporary ‘dual citizenship’ cannot be disqualifying especially since the President Obama had returned to the United States well before reaching the age of majority.

The meaning of 'born within the allegiance of'

Thanks to Dr Conspiracy we now know that in Look Tin Sing the court ruled that

By being born within the allegiance of a government is only meant being born within the protection of its laws, with a consequent obligation to obey them when obedience can be rendered. … McKay v. Campbell,2 Sawy.118; U. S. v. Osborne, 6 Sawy. 406; Worcester v. Georgia, 6 Pet. 515.

But that’s not where the case ends as Dr Conspiracy explains

In the court’s ruling (which affirmed Look’s citizenship), they a cited a case from the Supreme Court of New York, Lynch v. Clarke (1844) as follows:

In that case one Julia Lynch, born in York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind.

2008-03-29 – Orly Taizt – James v Obama – Part 1

Comment: A fascinating collection of previously shown flawed claims, arguments and assertions. Not surprisingly they have still made it in the next filing of Orly. My prediction: As with Holder, the DOJ will ignore her and Orly will call for the resignation of yet another Federal Officer. This is a work in progress in which I intend to address all the claims made. As others, who are much more informed that I, have pointed out, Orly has filed a court case in DC without proper local representation. That’s going to be interesting to see. In addition, the document contains several spelling errors such as Vatall and errors of fact such as “fn. 192 Hollister v. Soetoro, 2d Cir. D.C. Cir. No. 1:08-cv-02254-JR, Motion to Dismiss Jan 26, 2009.”  Contrary to the citation “Hollister was neither in the Second Circuit nor the District of Columbia Circuit”, it was in the US District Court for the District of Columbia. Sloppy researcha and proof-reading.

1No. _______________
In The
United States District Court, District of Columbia
In re
ALLEN C. JAMES, US Army, active duty
RAYMOND REFITT, Commander, Submarine, US Navy
HARRY RILEY, Colonel, US Army, Silver Star Recipient
ALLEN C. JAMES, US Army, active duty in Iraq
CHARLES E. MILLER, Lt. Col. US Air Force
TIMOTHY KENNEY, Citadel Instructor, US Marine Corps veteran, Virginia Army National Guard
RALPH JENKINS, Capt. Marine Corps
ERIC SWAFFORD, State Representative from Tennessee
CYNTHIA DAVIS, State Representative from Missouri
LARRY RAPPAPORT, State Representative from New Hampshire
Petitioners/Relators
v.
BARACK HUSSEIN OBAMA, II, a/k/a BARRY SOETORO, President, USA;
LINDA LINGLE, as Governor of the State of Hawai’i; &
HILLARY CLINTON, as Secretary of State, USA.
Respondents

Motion for Leave to File Writ of Quo Warranto on  Barack Hussein Obama II, President of the U.S.A., and Writs of Mandamus on Hawai’i Governor Linda Lingle, to provide evidence, and on Secretary of State Hillary Clinton, to provide and request evidence from the  United Kingdom, and Republics of Kenya, Indonesia, and Pakistan.

Exploring the ""subject to the jurisdiction thereof" clause Part II

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.

Russ: Exploring the Evidence

The following is a work in progress in which I explore the claims left in the comments by a poster name Russ. Since his comments seem to be repeating typical assertions found on the web, assertions which in many cases are contrary to fact, I have decided to take his claims and show ‘the rest of the story’. I encourage anyone interested to contribute their observations, comments and suggestions.

Exploring the "subject to the jurisdiction thereof" clause

Source: Constitutional Law: General Conceptions, Fundamental Rights, Liberty and Property, Powers of Congress, Federal and State Jurisdiction, By James Parker Hall, Published by deBower-Chapline co., 1910

§80. Persons excluded as not “subject to the jurisdiction.” What qualification upon citizenship by birth is introduced by the phrase, “and subject to the jurisdiction thereof?” This has been judicially explained to exclude from citizenship five classes of persons who have been actually born within the territorial limits of the United States. The exclusion of four of these classes results from the rules of public international law in view of which the Fourteenth Amendment was adopted and in the light of which it has to be interpreted. The fifth class is one peculiar to our own government, but having an origin and history that as fully entitle it to exclusion as the other four.