Court: There is no controversy as the candidate admits to being younger than 35 years old.
Lindsay Argument: One can be qualified to be a candidate to be a President but not eligible to the office.
Court: Why not separate clear ineligibility standards from border line ones? Age is clear, residency may not.
Yesterday, a Mario Apuzzo and Professor Charles Kuck discussed the definition of natural born. While for some mysterious reasons Professor Kuch appeared to support Mario’s poorly argued position that natural-born requires two citizen parents in clear contradiction of US v Wong Kim Ark, the good Professor does know about the case, although he refers to the plaintiff/defendant as Mr Ark.
Mimi, on the Fogbow, reminded me of a hilarious episode with Momma E
oh you never heard mario before. A classic from the Momma-E show:
viewtopic.php?f=25&t=2728&p=127319&hilit=mario+momma+e+#p127316
A caller calls in and asks Mario & Charlie Kerchner about Wong Kim Ark and how it will affect their case, and they had never heard of it. Momma-E chimes in for awhile. In the end, they decide it was bad law.
Published in the Atlantic Reporter, Vol 32, West Publishing (1895),p. 696-698
BENNY v. O’BRIEN.
(Supreme Court of New Jersey. June 7, 1895.) CITIZENSHIP—PERSONS BORN IN UNITED STATES.
Persons born in the United States of parents who are domiciled here are citizens of the United States and of the state wherein they reside. Children born of persons resident here in the diplomatic service of foreign governments are excepted.
(Syllabus by the Court.)
Error to circuit court, Hudson county; before Justice Lippincott
Action by Allan Benny against William J. O’Brien to contest an election. Judgment for defendant, and relator brings error. Reversed.
Argued June term, 1895, before the CHIEF JUSTICE and VAN SYCKEL, J.
Charles C. Black, for plaintiff in error.
Thos. F. Noonan, for defendant in error.
Rogers v. Bellei, 401 US 815 – Supreme Court 1971
In this case both sides accept that children born abroad to citizen parents do so through naturalization by statute.
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing 830*830 rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U. S., at 688. Then follows a most significant sentence:
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Wong Kam Wo v. Dulles, 236 F. 2d 622 – Court of Appeals, 9th Circuit 1956
The Court decided whether or not children born outside the US to citizen parents, are in fact native born citizens. The Court observed that they were naturalized.
Updated
In this connection, our attention is called to more recent enactments on the general subject. In both the Nationality Act of 1940[6] and the Immigration and Nationality Act of 1952,[7] the term “naturalization” is defined as “the conferring of nationality of a state upon a person after birth * * *.” It is argued that these enactments indicate that Congress has intended all along that naturalization means acquisition of citizenship after birth.
We are not persuaded that the use of an expressly restrictive statutory definition of “naturalization” in the 1940 and 1952 enactments indicates that a similar, but unexpressed, restriction was intended in the 1900 act.[8]
Also
[1] The subject-matter of § 1993, substantially revised, is now in 8 U.S.C.A. §§ 1401, 1431-1433. As it existed when plaintiffs were born, § 1993 read as follows:
“All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”
In Re Chin King, 13 Sawy. 333, 35 Fed. 354
UNITED STATES CIRCUIT COURT.
DISTRICT OF OREGON.
Ex PARTE CHIN KING, ON habeas corpus.
Ex PARTE CHAN SAN HEE, ON habeas corpus.
A child born in the United States of Chinese parents is by the rule of the common law and the Fourteenth Amendment, a citizen of the United States; and when restrained of its liberty of locomotion therein, may be delivered there-from, on habeas corpus, by the proper national court.
1. In Re: Wong Kim Ark, 71 Fed1 382, US Dist Court, Northern Dist, California, No 11198 (3 Jan 1896)
Let’s start with the fundamental ruling on this: United States v Wong Kim Ark , 169 US 649 – Supreme Court 1898 for which we need to first look at the lower court’s findings, followed by the reply briefs filed with the Supreme Court.
The lower Court was faced with the claims that it was not Common Law but rather Natural/International Law which determines who is born a citizen. The differences is significant because, as the Court found, under Common Law practices the principle is jus soli, birth on soil, while under International Law, it was argued to be jus sanguinis, birth by blood. The former makes anyone born within the limits of a nation and subject to its jurisdiction, an automatic citizen of a nation, the latter reserves this for children born to US citizen parents, wherever born.
Mario is still trying to ignore his position has not long since been rejected. But I believe that for the wrong reasons, he still reaches a valid conclusion about the eligibility of Ted Cruz.
Still unfamiliar with the Common Law, Mario argues
A “natural born Citizen” is a child born in a country to parents who are its “citizens” at the time of the child’s birth. This is the settled definition of the clause under American national common law. See Emer de Vattel, The Law of Nations, Section 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758) (“The natives, or natural-born citizens, are those born in the country, of parents who are citizens”); The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring); Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830); Shanks v. Dupont, 28 U.S. 242, 245 (1830; Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857) (J. Daniels concurring); Minor v. Happersett, 88 U.S. 162, 168-170 (1875); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890); United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (all confirmed Vattel’s Section 212 of the The Law of Nations (London 1797) (1st ed. Neuchatel 1758) definition of the “natural-born citizens” who “are those born in the country, of parents who are citizens”).
There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;1 and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.2
and outlined in Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement by Jack Maskell
In Zimmer v. Acheson, the United States Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be expatriated under the provisions and requirements of the then-existing federal law:
There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.
Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”
If Werner Herman Zimmer [the appellant’s father], by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.
Since there appear to still be people who are unwilling to comprehend the simple arguments, I will spend some more time going through the rulings in question.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
THE PEACE AND FREEDOM PARTY, PETA LINDSAY, and RICHARD BECKER,
Plaintiffs,
v.
DEBRA BOWEN, in her official capacity as Secretary of State of California,
Defendant.
California Secretary of State Debra Bowen (“Defendant”) moves for an order under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) dismissing with prejudice the claims filed against her by The Peace and Freedom Party, Peta Lindsay, and Richard Becker (collectively “Plaintiffs”). Plaintiffs allege that the Secretary violated their First, Fourteenth, and Twentieth Amendment constitutional rights by failing to list Peta Lindsay on the presidential primary ballot for the Peace and Freedom Party. Defendant contends Lindsay was not entitled to be placed on the ballot since she is ineligible to serve as president of the United States due to her age.
Eastern District of California – Live System (Sacramento)
CIVIL DOCKET FOR CASE #: 2:12-cv-00853-GEB-AC
| The Peace and Freedom Party et al v. Bowen
Assigned to: Judge Garland E. Burrell, Jr Referred to: Magistrate Judge Allison Claire
Cause: 42:1981 Civil Rights |
Date Filed: 04/03/2012
Date Terminated: 12/11/2012 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question |
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United States v. Wong Kim Ark – 169 U.S. 649 (1898), the Court observes how the statutes, declaring children born abroad to subject parents were not declarative of common law.
The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,
“before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;”
The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
George Collins was an Amicus for the Government in the Supreme Court case United States v Wong Kim Ark 169 U.S. 649 (1898). His arguments were rejected by the Court.
CITIZENSHIP BY BIRTH.
There is probably no subject of equal importance with that of citizenship by birth, which has been treated more by what appears to be a studied perversity of opinion, inculcated at the start by the decision of an inferior court, and re-affirmed by a. decision of Mr. Justice Field in the Circuit Court of the United States for the Ninth Circuit, in which he merely reiterated a portion of his dissenting views expressed by him in the Slaughter House Cases,1 where he took occasion to differ with the Supreme Court of the United States on the law pertaining to this very subject. According to his decision, a child of Chinese parentage, both father and mother being subjects of the emperor of China, born within the territory of the United States, is ipso facto, a citizen, and becomes by the fact of birth, fully vested with the status of American citizenship.
From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)
United States v. Wong Kim Ark
It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38
From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)
United States v. Wong Kim Ark
It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38
From Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 Asian L.J. 33 (1995)
United States v. Wong Kim Ark
It was in the case of United States v. Wong Kim Ark,35 decided in 1898, that the fascinating doctrinal issues merely touched upon in Look Tin Sing would be fully explored. Wong Kim Ark was born in San Francisco in 1873. In the fall of 1895, he sought to land in that city after a visit to China, but he was prevented from doing so and was ordered detained aboard ship by the Collector of Customs. Thomas Riordan, a lawyer who represented the Chinese Consulate in San Francisco and the Chinese Six Companies (the coordinating council of the various mutual aid associations to which Cantonese immigrants in California belonged), sued out a writ of habeas corpus on Wong Kim Ark’s behalf.36 The question of Wong Kim Ark’s right to land was brought before Judge William Morrow of the federal district court in San Francisco. 37 Judge Morrow, citing the petitioner’s birth in this country and relying mainly on the authority of Look Tin Sing, ordered him discharged from custody.38
In re WONG KIM ARK.
(District Court, N. D. California. January 3, 1896.) No. 11,198.
CITIZENSHIP—CHILD OF CHINESE PARENTS.
A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook Sing v. U. S., 1 C. C. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.
Native and Natural Born Citizenship Explored 