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14 March 2013

Just Say "No!" To Birtherism!

"Since “natural born citizen” has no absolute definition (so far), we’re all left to look at the range of influences that have set colloquial understandings of the term rolling.

It may not be “good law”* but it’s defined a functional reference to what “natural born” actually means. And that is:
The contrapositive is that anyone who needs the 14th Amendment in order to be considered a citizen is not a natural born citizen."

Lourdes on March 14, 2013 at 2:00 AM

There are only two types of American citizens: Natural-born and naturalised. 

George Romney (born to two American parents in Mexico, but registered immediately with the American consulate and never a Mexican citizen), Senator John McCain (born to two American parents in the Panama Canal Zone), Barack Obama (born to an American woman in Hawaii – or, if you believe he was born in Kenya, born to an American woman on foreign soil), Senator Marco Rubio (born to two legal, permanent residents on American soil), Senator Ted Cruz (born in Canada to an American mother), Governor Nikki Haley (born to two immigrants [I'm unsure if they were LPRs or naturalised at the time] on US soil), Senator Michael Bennett (born in India to two American parents), Congressman Chris Van Hollen (born in Pakistan to two American parents employed by the State Department), Governor Bobby Jindal (born to two legal, permanent residents) were/are ALL eligible to be President of the United States. In fact, even though Puerto Rico doesn’t have any votes in the Electoral College, its former Governor Luis Fortuño and present its present Governor Alejandro García Padilla are both eligible to run for the Presidency, too (Puerto Ricans were awarded US citizenship under the Jones–Shafroth Act of 1917).

Rubio, Cruz, Haley, Bennett, Van Hollen, Jindal, Fortuño, and Padilla are ALL eligible to run for the Presidency because they will ALL be 35 years of age or older in 2016 and are natural-born citizens.

On the other hand, former National Security Advisor Zbigniew Brzezinski (born in Poland to two Polish parents), the late Congressman Tom Lantos, a Holocaust survivor (born to two Hungarian parents in Hungary), former Secretary of State Madeleine Albright (born in Czechoslovakia to two Czech parents), former Governor Arnold Schwarzenegger (born in Austria to two Austrian parents), former Governor Jennifer Granholm (born in Canada to two Canadian parents) and myself (born in the UK to two British parents) will never be eligible to become President without amending the Constitution, which I am not advocating. 

Here’s the controlling law:


The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person:

(A) honorably serving with the Armed Forces of the United States, or

(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Source:  (June 27, 1952, ch. 477, title III, ch. 1, § 301,66 Stat. 235; Pub. L. 89–770, Nov. 6, 1966, 80 Stat. 1322; Pub. L. 92–584, §§ 1, 3, Oct. 27, 1972, 86 Stat. 1289; Pub. L. 95–432, §§ 1, 3, Oct. 10, 1978, 92 Stat. 1046; Pub. L. 99–653, § 12,Nov. 14, 1986, 100 Stat. 3657; Pub. L. 103–416, title I, § 101(a),Oct. 25, 1994, 108 Stat. 4306.)

Ted Cruz was never a Canadian citizen for one, simple reason:  Canadian birthright citizenship is covered in Section3(1)(a) of the Citizenship Act. It states that:

3. (1) Subject to this Act, a person is a citizen if

(a) the person was born in Canada after February 14, 1977;

Ted Cruz was born on 22 December 1970...long before birthright citizenship was established in Canada.  He NEVER had a green card and returned to the US forever at the age of 4.  Furthermore, the Cruzes never registered his birth with the Canadian officials as anything other than his being born with an American nationality.  Mrs Cruz was an American citizen.  Mr Cruz was a Cuban citizen, but one with permanent residency in the US, which the Supreme Court held was sufficient to convey natural born citizenship on a child with permanent resident parents in United States v Wong Kim Ark, 169 U.S. 649 (1898).  One must not be so obtuse as to think that one American and one permanent resident parent would not have conveyed citizenship at birth, also known as natural-born citizenship, upon their children.

The Founders would have been familiar with Blackstone’s Commentaries. James Madison, the Father of the Constitution, described Commentaries as ‘a book which is in every man’s hand’ when he was at Virginia’s ratification convention. In Commentaries, Blackstone wrote:

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

. . .

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves.

. . .

When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the ambassador.

To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. (enacted in 1351) that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants.

But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

So, even in Commentaries, there was no requirement to be born on sovereign soil; provided, the issue was allegiance to the king and there was no requirement for both parents to be citizens since Blackstone addresses fathers only.

Seemingly, Blackstone’s understanding of citizenship law was derived from the line of common law that originated with Calvin’s Case, which was a decision by the Court of Common Pleas and reported by Lord Coke in 1608.   Calvin’s is a complex and complicated case, which was summarized by FB Edwards in an article he wrote in 1914 entitled Natural Born British Subjects at Common Law.  Edwards wrote:

The question before the Court [in Calvin's Case] . . . was whether Robert Calvin, the plaintiff, a Scottish Subject of King James I., who was born after James's accession to the English throne, was an alien; the unanimous finding of the judges was that he "was no alien . . . ." It is important to remember that at the time when that case was decided the feudal or territorial conception of nationality was practically universal throughout the world; or, at least, that that conception was operative in both England and Scotland as far as the acquisition of the local nationality at birth was concerned.

Edwards continued:

The concept of allegiance to the sovereign at birth (as noted by Blackstone), then, was the fundamental criterion for who was-and was not-a natural born subject. The notion of natural born subjects under British law was tied to the idea of natural allegiance to a sovereign. Natural allegiance was based primarily on being born within the territory subject to the sovereign's rules. But it could also be based on being the children of Ambassadors or children of Sovereigns themselves: members of these groups were considered to have a natural allegiance to the sovereign.

James Madison, who is considered to be the ‘Father of the Constitution, was one of many signatories to the Declaration of Independence, who were in Congress and voted for the Naturalisation Act of 1790 that passed and was signed into law by President George Washington.  For purposes of this discussion, the pertinent part read:

‘the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…’

There was NO NEED for naturalisation because a child born to an American was considered to be a natural citizen FROM BIRTH. 

As Lawrence Sollum wrote in Originalism and the Natural Born Citizenship Clause:

Those learned in English law, however, understood another aspect of the concept of "natural born subject." Children of the sovereign were natural born subjects wherever their birth occurred. The issue of the king owed a natural obligation to their father; likewise, the children of the king's ambassadors were deemed to owe a similar obligation to their parents' monarch. But in republican theory the people are sovereign, suggesting that the republican conception of natural born citizens would naturally treat the children of citizen-sovereigns as equivalent to the children of a monarchical sovereign or king. This understanding may have been reflected in the first naturalization act of 1790 "An Act to Establish a Uniform Rule of Naturalization," which provided "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens." Because the First Congress passed this act, it arguably reflects the original understanding of "natural born citizen" as encompassing those born of the citizen-sovereigns on foreign soil.

With regard to the oft-cited case, Minor v Happersett, 88 U.S. 162 (1875), it is no longer good law because it was, effectively, overturned by the Nineteenth Amendment and should also not be cited as dispositive in any way, shape, or form on the matter of the definition of natural-born citizenship since the Court, specifically, stated:

‘These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.’

Thus, the acknowledgement by the Court in 1875 of the debate over what constitutes a natural-born citizen in a case involving a woman, who was born on American soil to two United States citizens and who was making an Equal Protection argument for suffrage, should not be looked to as controlling law on matters of citizenship.  First, the holding - the Fourteenth Amendment did not confer upon women a right to vote - was overturned by the passage of the Nineteenth Amendment, women's suffrage.  Secondly, even if the case was still good law, the most that could possibly be said of the discussion of natural-born citizenship is that it was dicta and is not controlling law.   Finally, in actuality, the Court's passing reference to natural-born citizenship does NOTHING to further the arguments made by ‘Birthers’ considering the FACT that the Court, SPECIFICALLY AND WITHOUT RESERVATION, ruled that it was unnecessary to settle the debate and solve the doubts held by those that believed natural-born citizens had to be born on United States soil to two American citizens.

From the Congressional Research Service:

‘Considering the history of the constitutional qualifications provision, the common use and meaning of the phrase "natural-born subject" in England and in the Colonies in the 1700s, the clause's apparent intent, the subsequent action of the first Congress in enacting the Naturalization Act of 1790 (expressly defining the term "natural born citizen" to include a person born abroad to a parents who is an American), as well as subsequent Supreme Court dicta, it appears that the most logical inferences would indicate that the phrase "natural born Citizen" would mean a person who is entitled to U.S. citizenship "at birth" or "by birth.’

From Citizenship of the United States, written by Frederick van Dyne, the Assistant Solicitor of the US Department of State in 1904:

"There is no uniform rule of international law covering the subject of citizenship. Every nation determines for itself who shall, and who shall not, be its citizens.... By the law of the United States, citizenship depends, generally, on the place of birth; nevertheless the children of citizens, born out of the jurisdiction of the United States, are also citizens.... The Constitution of the United States, while it recognized citizenship of the United States in prescribing the qualifications of the President, Senators, and Representatives, contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866.... Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed natural-born citizens."

In 1971, the Supreme Court in Rogers v Bellie, 401 U.S. 815, 829 ruled:

‘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.

Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.’

Let's "Just say 'No!' to Birtherism"!!!   

It makes everyone look nuts.

1 comment:

Sophie Ro, PHUP said...

Canadian birthright citizenship is covered in Section 3(1)(a) of the Citizenship Act, which states that:

3. (1) Subject to this Act, a person is a citizen if

(a) the person was born in Canada after February 14, 1977;

Ted Cruz was born on 22 December 1970. He was not a Canadian citizen at birth.