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by paralegalnm, blogging at Paralegalnm’s Blog

(Feb. 24, 2011) — The concept of birthright U.S. citizenship by native-birth alone is a carryover from English law as practiced by the American colonies, but superseded by the 1790 Uniform Naturalization Act that relied on the ‘Law of Nation’s’ § 212 description of “those born in the country, of parents who are citizens.”

The reason ‘native-born citizen’ is so terribly conflated in the American psyche as synonymous with ‘natural born citizen’ is because of over a century of the judiciary ignoring U.S. statute.

The Lynch case (1844) violated the 1790, 1795, 1798, 1802, and 1804 uniform naturalization acts through semantic gymnastics and false logic, implying law and intent that went beyond the clear language of the acts themselves.

Wong Kim Ark (1897) side-stepped the existing requirements of legislated Act by creating a special ‘constitutional’ citizenship-at-birth. Ark’s violation of jurisprudence (neglecting to address treaty and equity issues actually within the court’s jurisdiction) completely ignored the 1866 Civil Rights Act’s “not subject to any foreign power” as precursor to the 14th Amendment’s “under the jurisdiction thereof” clause. Ark continues in its effect to this day, causing the courts to ignore the conflicts of dual nationality at birth and, through Plyler vs. Doe (1982), forcing states to treat children of even illegal aliens as citizens.

The Judiciary versus Congress; Removing the Redundancy

The constitution clearly enumerates congressional plenary power over uniform naturalization law. However, while Minor vs. Happersett (1874) commented in dicta that a ‘natural born citizen’ was without doubt a child born of U.S. citizens, the judge in Ark intentionally fabricated a ‘constitutional’ citizen out of reach of congressional Article I powers.

The judiciary’s misguided reliance on English jus solis principles for citizenship at birth was belied by English law itself, that relied on both ‘descent’ and ‘otherwise than by descent,’ i.e., of patrilineal inheritance, or just born within English dominion. The courts compounded their error by creating the ‘birthright’ native-born citizen, which has burdened the states by encouraging illegal immigration.

In addition, judicial error has created a constitutional crisis, for it has justified the son of a British subject, Barack Hussein Obama, to erroneously claim Article II eligibility to the presidency through native-birth alone.

Congress has the power to correct over one-hundred years of judicial ‘legislation’ simply by clarifying Title 8, U.S.C. § 1401(a) with a definition that “under the jurisdiction thereof” is extended from the 1866 Civil Rights Act’s “not subject to any foreign power.” The legislative history supports this amendment.

In addition, the current misinterpretation is a gross redundancy; a child ‘born in the United States’ is obviously within its territorial jurisdiction. The reality is, as defined in the rest of the Aliens and Nationality Act, is the effect of one alien or non-citizen parent who introduces alienage through foreign jurisdiction.

For a more complete, fully-cited legal analysis, please forward your request to the address below.


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