by Joseph DeMaio, ©2022
(Mar. 18, 2022) — First, let us agree to disagree, but without being rancorous. There is a big difference between an honest, if ill-informed, debate and a heated argument…., unless the latter is preferred. With apologies for the length of this offering, there are many points to cover.
Messrs. Becker, Fremick, Marshall, Polhaus and Sherman – no, Virginia, not, as far as we know, a powerhouse D.C. law firm – have all separately and independently commented and replied in opposition here, here and here to the proposition that the Founders intended that the presidency of the Republic be restricted exclusively to a “natural born Citizen” as that term is defined by Book I, § 212 of the Swiss jurist and philosopher Emmerich de Vattel’s treatise, The Law of Nations.
As best can be discerned, and distilled to its essence, these commenters believe that the term “natural born Citizen” found in the Constitution is, and was by the Founders deemed to be, synonymous with the term “native-born citizen.” This belief obtains despite the fact that unlike the term “natural born Citizen” found in Art. 2, § 1, Cl. 5, the latter term is nowhere to be found in the Constitution. Rather, it can be found only in correspondence, notes of debates and similar exchanges among persons of that era.
To the commenters, a “natural born citizen” means simply any person born in the United States and subject to its jurisdiction – thus excepting the offspring of foreign diplomatic personnel or hostile occupying forces – without reference to the U.S. citizen or foreign alien status of the person’s parents at the time of birth. This is colloquially termed “birthright citizenship” and under some interpretations, even extends to persons born other than on U.S. soil if one or both parents are U.S. citizens.
Under this theory, when born here, one becomes a “citizen at birth” or a “citizen by birth,” either of which is claimed to satisfy the constitutional requirement that one be a “natural born Citizen.” Adherents to this theory support their position by referencing, among many others, the 14th Amendment (1868); the Supreme Court’s majority opinion in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (hereinafter “WKA”) interpreting that amendment; and the Indiana Court of Appeals decision in Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (App. 2009) (“Ankeny”).
On the other side of the debate, which includes your humble servant, the “de Vattel § 212” definition posits that a “natural born Citizen,” – the term selected and used by John Jay in his July 25, 1787 “hint” letter to George Washington – is a person who is born on U.S. soil to a mother and father who at the time of the birth are already citizens of the United States.
Whether or not Jay subscribed to that definition and whether or not the Philadelphia Constitutional Convention delegates – who were in possession of the de Vattel treatise and continually consulted it as the proceedings unfolded – adopted it in crafting the Constitution remains at the core of the debate.
In support, adherents of this definition rely on, among others, the unanimous Supreme Court decision in Minor v. Happersett, 88 U.S. 162, noting that there had never been any doubts that a person born here to citizen parents was a “natural born citizen,” but also noting that doubts existed as to whether a similar conclusion could be reached for those born here to foreign or alien parents.
They rely as well on the verbiage used by the Founders in fashioning the “citizen grandfather clause” in Art. 2, § 1, Cl. 5, under which a “Citizen of the United States, at the time of the adoption of … [the] Constitution” would be time-limited deemed eligible to the presidency notwithstanding the fact that they became a “citizen” by operation of law (i.e., naturalization via the Declaration of Independence) and not birth here.
Those who reject the materiality of § 212 and its claimed influence on either John Jay or the Committee of Eleven which drafted the “Eligibility Clause” posit that in the linguistic nomenclature of 1787, the terms “native-born” and “natural-born” when referring to “citizens” were used interchangeably, as if the two were “synonyms.”
Your humble servant, among others of course, disagrees: the citizen grandfather clause differentiates between the natural born status of one category of citizen and the naturalized status of those to be conditionally grandfathered as eligible. Both categories of citizens may be “eligible” to the presidency, but they are different and not “synonymous.”
The Founders’ use of the unmodified term “Citizen” in the “grandfather clause” – describing time-constrained individuals not meeting the additional criteria of a “natural born Citizen” under a de Vattel § 212 analysis – merely underscores the distinction drawn by them between the two categories of “citizens.” Recall Humpty Dumpty’s observation: “When I use a word, it means just what I choose it to mean…, neither more nor less.” By equating the terms “native-born citizen” with “natural born Citizen,” the WKA/“non-de Vattel” camp confirms the validity of Humpty Dumpty’s statement.
Accordingly, to state the obvious, one camp supports the de Vattel theory as informing the Founders’ intent; another camp supports rejection of the de Vattel interpretation, relying instead on the majority opinion in WKA. Both camps offer their supporting arguments and authorities, some of which are congruent, but most of which are diametrically in opposition.
Lamentably, because much of the actual recorded history of the meaning and import of the “Eligibility Clause” of the Constitution has vanished into history or was never recorded in the first place, much, but not all, of the information supporting one or the other of the “debating” camps’ claims arises by inference, implication and indirect “circumstantial” evidence of intent. Little, if any, “smoking gun” direct evidence has yet been found, which evidence could shed helpful light on the issue.
If, for example, a letter were to be unearthed from George Washington back to John Jay after Jay’s “hint” letter saying; “John, I am most humbly constrained to ask, in your ‘hint’ to me, by ‘natural born Citizen,’ do you mean as that individual is defined by Vattel?” and signed, “With best wishes for Mrs. Jay, and great affection for yourself I am – Dear Sir Yr Most Obedt Servt… Go: Washington,” that would be interesting. Moreover, if Jay’s response to Washington replied: “Yes, that of course is what I mean…,” that would be even more interesting.
On the other hand, of equal or even greater interest would be a response from Jay saying: “Oh, no… I simply mean a native-born Citizen regardless of the citizenship status of that person’s parent or parents. And who is this ‘Vattel” you mention?” Alas, none of those hypothetical exchanges have surfaced, nor are they likely to emerge in the future.
But does not WKA “settle” the dispute? Respectfully, no, it does not. Read on…
The WKA Anomalies
- Justice Gray’s Blunder
The reliance placed by the “non-de Vattel” camp in the WKA decision is largely misplaced. Many anomalies burden the majority opinion in WKA. Quite apart from the fact that all of the “natural born citizen” discussion in the WKA majority opinion has been deemed “dicta, pure and simple…,” (See C. Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968)), of the major remaining anomalies, Justice Gray’s obvious blunder stands out.
That blunder – erroneously asserting that Congress re-enacted in 1795 “in the same words” the “children born beyond sea are considered natural born citizens” language of the 1790 Naturalization Act – is addressed here and won’t be repeated.
However, the statement of the Indiana Court of Appeals in Ankeny that it based its own decision on “the guidance provided by Wong Kim Ark…,” coupled with the fact that WKA’s discussion of the “natural born citizen” issue in a case involving only naturalization is dictum calls into serious question the substantive weight to be accorded to Ankeny. The flawed reasoning of Ankeny is discussed here and won’t be repeated in this offering.
Suffice it to say that because the matter in Ankeny never proceeded to a trial on the merits, but was dismissed for a purported “failure to state a claim upon which relief could be granted,” the court’s abstract discussion of the eligibility issue is itself either dictum or, at minimum, of limited precedential weight on the federal constitutional eligibility topic, even in Indiana.
However, your humble servant is still waiting for a rational answer as to why Justice Gray’s blunder does not undermine the WKA majority opinion’s conclusion. Moreover, any claim that the blunder is not material is belied by case law decisions: if it was a careless error, such would be one thing. But if it constituted a deliberate or intentional act, that would negate any conclusion that it was a “mistake,” “typo” or “blunder.” Instead, it could qualify as a false statement under 18 U.S.C. § 1001.
Memo to faithful P&E readers: your humble servant is not asserting that Justice Gray consciously and/or intentionally meant to misrepresent the language of the 1790 and 1795 Naturalization Acts, 1 Stat. 103, and 1 Stat. 414, respectively. But the question presented is whether that “mistake” was (or was not) “material” to the decision.
In other contexts, the Supreme Court has held that a materially false statement has “a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988). Supreme Court opinions are not generally seen as being “addressed” to a decision-making body. However, in WKA, it could well be argued that the decision was, in fact, directed to the “United States Collector of Customs,” which had denied Wong Kim Ark re-entry to the United States after a visit to China on the grounds that he was an “alien” and not a U.S. citizen.
The Supreme Court has also explained that a statement need not actually influence an agency for it to be “material” but that it need only have “a natural tendency to influence, or [be] capable of influencing” an agency function or decision. See United States v. Gaudin, 515 U.S. 506, 509 (1995). “Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.” United States v. Hansen, 772 F.2d 940, 949 (D.C. Circuit 1985).
Thus, for example, if the Ankeny court came to that point in the WKA majority opinion where Justice Gray related that the 1795 act repeated – purportedly – the 1790 act language deeming children of U.S. citizens born abroad to be “natural born citizens,” it might well have concluded it had enough “authority” to adopt the rest of the WKA majority’s reasoning with respect to the 2012 candidacy of Sen. John McCain, who was born in Colon, Panama, not the United States. The dispute in Ankeny involved a challenge to the candidacies of both Barack Hussein Obama, Jr. and Senator John McCain. Such an adoption by the Ankeny court would thus be an independent error on its part.
2. The “Osama bin Laden” Potential
Another anomaly of the WKA majority opinion is its effect “in real time.” Under WKA and the “native-born citizen” = “natural born Citizen” theory, if, for example, Osama bin Laden had been born in, say, Honolulu, Hawaii while his Saudi parents were vacationing there, he would have been a “natural born Citizen” eligible to the presidency.
As another example, if a foreign billionaire financier of terrorists or a foreign billionaire drug lord fathered children ultimately born in the United States, those children, regardless of the citizenship status of the mother, would be eligible to the presidency. So too if a Yemeni terrorist released from Guantanamo came illegally into Texas and fathered a child by his Iranian wife, previously transported into the nation’s interior, that person would be eligible as well.
Is it logical or even rational to believe that these types of outcomes were what the Founders intended back in 1787, over 80 years before adoption of the 14th Amendment? Moreover, they likely never in their wildest nightmares anticipated that a commander-in-chief would open the southern border to terrorists…, yet something close to that now exists.
And as for the hypothetical “drug lord” father, that too already exists. Joaquin “El Chapo” Guzman fathered – among many others – twin daughters, born in Los Angeles in 2011. Under the “birthright citizenship” protocols of the decision in the WKA decision, they are today U.S. citizens.
However, because the “sins of the fathers are not to be visited on the children,” the fact that Guzman was of less than commendable character would not, under the majority opinion in WKA, change the abstract eligibility of one or the other of the twins, upon reaching age 35 and residency for 14 years, to be president. As a caveat, no negative aspersions should be drawn from the example.
The question, however, is whether these outcomes would be consistent with the original intent of the Founders as opposed to the ruminations of Justice Horace Gray and others who subscribe to the theory that parental citizenship was irrelevant and immaterial to the Founders when they inserted the Eligibility Clause into the Constitution.
3. The Competing Claims of Allegiance Problem
Finally, regarding the issue of “non-renounceable” allegiance, in the WKA case, Justice Fuller notes in his dissent (169 U.S. at 725, fn. 2) that China purported to lay claim to perpetual and non-renounceable allegiance in its citizens and offspring. He further noted that the Chinese Penal Code which would otherwise apply to Wong Kim Ark provided: “All persons renouncing their country and allegiance, or devising the means thereof, shall be beheaded; and in the punishment of this offense, no distinction shall be made between principals and accessories.”
The penal code goes on, but the import is clear: regardless of what the majority opinion in WKA held, if ever Wong Kim Ark returned to China and the authorities knew of his return, their claim of his forfeited, but non-renounceable allegiance to the Emperor of China, could have resulted in a separation of his head from his torso.
This potential, of course, did not detain Justice Gray and other members of the majority holding that Wong Kim Ark – born to Chinese citizen parents residing in San Francisco, just across the bay from Oakland, the birthplace of Kamala Harris – was under the 14th Amendment a “citizen” of the United States and “subject to the jurisdiction” thereof…, Justice Gray’s prior holding to the contrary in Elk v. Wilkins, 112 U.S. 94 (1884) notwithstanding.
Stated otherwise, under WKA, the unilateral declaration by the United States that, under the 14th Amendment, any person born here and subject to the jurisdiction of the United States is a “citizen” – and under the “non-de Vattel” camp’s view, also a “natural born Citizen” under Art. 2, § 1, Cl. 5 – eligible to the presidency, regardless of another nation’s claim of citizenship to that same individual under its own laws.
Surely there must be an alternative. There is…, read on.
A Common Ground Answer?
There arguably exists, however, one common ground of agreement between and among the two debating camps. That common area of agreement is that if nothing else, the Founders were united in the goal of making sure that aliens and foreigners – and in particular, persons with titles and royalty, particularly from Western Europe – would be absolutely precluded from insinuating themselves into “our councils,” including the highest office of the new government, the presidency. The solution the Founders sought was the natural born Citizen constraint.
Quite apart from whether that entity was as defined by de Vattel or not, there is nearly unanimous concurrence that the potentials for “foreign influence” and “divided allegiance” were of utmost concern to the Founders, twin evils to be avoided at all costs. And divided allegiance can arise not only from the claims and actions of the birthing nation, but also from the claims and actions of other nations, including nations purporting to have non-renounceable citizen or subject allegiance laws as discussed above with regard to the WKA opinion.
Stated otherwise, two nations with differing citizen allegiance laws might make competing claims against the same individual, regardless of that individual’s own desires and actions. Indeed, one of the core disputes between the United States and Great Britain in the War of 1812 concerned Great Britain’s assertion of the right of “impressment” (i.e., compulsory drafting into military service) of men claimed by that nation to still be British subjects post-1776, even those with American citizenship certificates.
Vitally concerned that the potential for “foreign influence” and “divided allegiance” needed to be completely eliminated from the office of the “Chief Magistrate” of the newly formed nation – the presidency – the Founders sought to adopt the highest available barriers to such potentials, including restricting the “command in chief” of the American army – the president – to a “natural born Citizen” or “a Citizen of the United States at the time of the Adoption of this Constitution….”
This goal is clearly evidenced by Alexander Hamilton in Federalist 68, where he admonished that “every practical obstacle should be opposed to cabal, intrigue and corruption … [and that the] “… most deadly adversaries of republican government … [would come] … chiefly from the desire in foreign powers to gain an improper ascendant in our councils.” (Emphasis added)
And while Federalist 68 was directed primarily at the wisdom of the Electoral College as the preferred mechanism over the direct “popular” election of a president, its rationale is equally applicable to the issue of restricting eligibility to the presidency exclusively to a “natural born Citizen.” The question to be addressed, of course, is: did the Founders intend to linguistically equate a “natural born Citizen” with either a “native-born citizen” – a term not elsewhere appearing in the Constitution – or a “Citizen of the United States, at the time of the Adoption of this Constitution?”
Specifically, the Founders’ objective was not merely to construct a simple track and field hurdle which might be cleared by people intent enough upon making the attempt. Underscoring the Founders’ determination to eliminate “every” (i.e., all) potential for divided loyalty or allegiance from the person who would be the commander-in-chief, Hamilton reiterated in Federalist 74 that “of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” (Emphasis added)
Although the context of Hamilton’s words in Federalist 74 related chiefly to whether the government should be headed by a single president or by a “Chief Magistrate” tightly coupled with a council of advisors, the import of the language that the government should be guided – particularly where the military was concerned – by the “single hand” of a president completely unencumbered by divided loyalties or foreign allegiances – real or asserted by a foreign government – is self-evident. Stated otherwise, the president must be a person possessed of and exhibiting absolute and undivided allegiance to the United States of America, and to the United States exclusively and alone.
Accordingly, the issue boils down to this: if the Founders had the objective of erecting in their new Constitution a 100% impenetrable barrier – as opposed to a 50% barrier or a 75% barrier or even a 99% barrier – against the insinuation into the presidency of “foreign influence” as noted in Federalist 68 (and many others), ask yourself whether is it more likely that they would have selected a known, high barrier or a lower barrier “as to which there have been doubts?”
A high barrier would be one requiring both birth “in” the nation (jus soli) simultaneously coupled with the requirement that the birth be to two parents who were already its citizens (jus sanguinis) as known from § 212 of de Vattel’s treatise and as to which barrier there have never been any doubts, as noted in Minor. A lower barrier would be one not requiring birth to two parents who at the time of the birth were already citizens of the nation and as to which, as noted in Minor, “there have been doubts.”
One does not need a degree in rocket science to see which of the two options would present the higher barrier. And yet the Congressional Research Service, lower court (i.e., non-Supreme Court) decisions (e.g., Ankeny) and even the opinions of former U.S. Solicitor General Paul Clement and former Acting U.S. Solicitor General Neal Katyal suggest that the Founders – in 1787 –consciously intended to adopt and use the lower barrier for presidential eligibility instead of the known higher barrier. This makes no sense…, at all.
Moreover, as to John Jay’s mindset, it should be remembered that he favored an even higher barrier to foreign influence in the presidency than that proposed under a de Vattel § 212 approach and in his July 25, 1787 letter to Washington.
Specifically, after George Washington submitted Jay’s “hint” to the participants at the Constitutional Convention in Philadelphia, the actual language we now see in Art. 2, § 1, Cl. 5 appeared and was approved by the convention delegates for final inclusion. Thereafter, however, as the ratification process among the states was proceeding, on July 26, 1788 – exactly one year and one day following his “hint” to George Washington and during the ratification process in his home state of New York – John Jay personally proposed an additional amendment.
The proposed amendment to the “natural born Citizen” requirement would have further restricted the field – rather than expanded it – of eligible natural born citizens to those who, in addition to being “natural born citizens” or “Citizens of the United States, at the time of the adoption of this Constitution…” were “freeholders,” i.e., otherwise eligible citizens who also held title to land.
This proposed amendment seems plainly to support the conclusion that John Jay, if faced with the “higher barrier” or “lower barrier” options discussed above, would have chosen the former, higher barrier. In addition, there is nothing to suggest that his mindset and intent regarding the height of barriers to foreign insinuations into the presidency were any different when he composed his hint letter to Washington one year earlier.
However, Jay’s proposed amendment offered in the New York ratification process also sought to extend the natural born citizen “freeholder” restriction to “Members of either House of the Congress of the United States.” That amendment, as we know, failed, with the delegates settling on the language of Art. 2, § 1, Cl. 5 as we now see it.
The point, however, is that the genesis of the Constitution’s natural born citizen requirement – Jay’s July 25, 1787 “hint” to George Washington – originated with a Founder who seemingly clearly favored not only the “natural born citizen” restriction on the eligibility to the presidency provided by that concept as articulated by de Vattel in § 212, but who seemingly also meant to fortify and elevate even further the eligibility barrier with his “freeholder” amendment.
Some constitutional scholars have suggested that the amendment ultimately failed because it sought to extend the natural born citizen eligibility restriction to the members of the Congress. While the delegates were plainly in favor of retaining the natural born citizen restriction for the chief executive, extending the restriction to all the members of Congress may have been seen as “a bridge too far.” If Jay’s amendment had passed, it likely would have disqualified many members of Congress.
In summary, the “higher barrier” posited under a de Vattel § 212 analysis seems to comport far more closely with the intent of the Founders than does a “WKA” approach.
Conclusion
Accordingly, for the foregoing reasons, your humble servant submits that a stronger case exists for the “de Vattel” camp regarding presidential eligibility than exists for the “native-born” = “natural-born” camp. That said, it is recognized that the likelihood of the U.S. Supreme Court accepting jurisdiction over a live “case or controversy” among parties with “standing” is, at least with the current composition of the Court, highly unlikely.
Stated otherwise, if in Laity v. Harris, USSC Docket 20-1503, certiorari denied June 1, 2021, not one single Justice deemed it prudent or necessary to compose an “Opinion Relating to Orders” – either dissenting from the denial of certiorari therein or concurring in the denial, and offering explanations and/or clarifications on the natural born Citizen issue – the question remains unanswered in the nation’s highest Court. And it appears that it will remain so for the foreseeable future. Move along… nothing to see here.
Meanwhile, your humble servant still searches for an answer to the question of why, if “native-born citizen” is synonymous with “natural-born Citizen,” the natural born Citizen “eligibility” phrase and the “citizen grandfather” phrase in Art. 2, § 1, Cl. 5 of the Constitution use different words, purported by some to be synonymous, in the same sentence and separated only by the term “or,” a “function word indicating an alternative,” rather than a “synonym.”
I’ll wait.
Speaking of James Madison and Dr. David Ramsay.
In 1836, Madison recalled the contested election case of William Smith.
“At the period of our Revoln it was supposed by some that it dissolved the social compact within the Colonies, and produced a state of nature which required a naturalization of those who had not participated in the revoltn. The question was brought before Congress. at its first session by Dr. Ramsay, who contested the election of Wm Smith; who, though born in S. C. had been absent on the date of Independence. The decision was, that his birth in the Colony made him a member of the society in its new as well as original state.” James Madison, 1835 in The Writings of James Madison: 1819-1836, page 570.
https://books.google.com/books?id=e5M5AQAAMAAJ&printsec=frontcover&dq=The+Writings+of+James+Madison&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&gbmsitb=1&sa=X&ved=2ahUKEwi-qK70qN_2AhVEJzQIHQ_HCeQQuwV6BAgLEAc#v=onepage&q&f=false
This indicates that Madison’s thinking on the case had not changed. Birth in the Colonies before July 4th, 1776 made the subjects of Great Britain into the citizens of the United States after that date. So too the natural born subjects of Great Britain became the natural born citizens of the United States on that date.
Madison appears to be in agreement with Justice Johnson’s dissent in Shanks v DuPont.
From the author:
—————————–
Mr. Fremick asserts: “DeMaio, Kerchner and Laity have still not shown that anyone refuted William Rawle’s unambiguous statement.”
It is uncontested that William Rawle – a Philadelphia lawyer, but neither a member of the Continental Congress, nor a delegate to the Constitutional Convention, nor a signer of the Constitution – claimed, in his 1829 work “A View of the Constitution of the United States” that “[T]herefore 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.” Fitisemanu v. United States, (Fitisemanu v. United States, No. 20-4017 (10th Cir. 2021) :: Justia) holds otherwise, but that is another story beyond the scope of this offering.
The fact that Rawle uttered those words, however, does not mean that the delegates to the Constitutional Convention agreed or adopted that view, one not articulated by Rawle until 1829. To contend otherwise is a non sequitur.
Moreover, Benjamin Franklin’s 1775 letter to Charles Dumas, extolling the importance and utility of Emmerich de Vattel’s work to the Continental Congress, further supports the conclusion that, at minimum, the Continental Congress was well aware of the de Vattel treatise, including the meaning of the words “les sujets natureles” taken from the 1781 “Treaty of Amity and Commerce” between the United States and France. Rawle’s work was still 42 years in the future when the Founders fashioned the Eligibility Clause.
Indeed, the phrase being relied upon is prefaced by the word “therefore,” signifying that the conclusion Rawle expressed arose from his predicate assertion that: “[t]he 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.”
Even if one assumes, for example, that “birth” alone bestows “citizen” status as discussed in Wong Kim Ark, Ankeny and the 14th Amendment, that has nothing to do with recognition of the different status of being a “natural born Citizen” for presidential eligibility purposes: that is why the “citizen grandfather clause” exists as a necessary “or” exception to the otherwise applicable restriction.
Stated otherwise, Rawles’ conclusory “therefore” assertion is ipse dixit: “it is so because I say it is so.” That may have sufficed for a Philadelphia lawyer in 1829, when his book appeared, but it should not suffice for serious Art. 2, § 1, Cl. 5 analyses. Like the Supreme Court’s observation that “dictum settles nothing, even in the Court that utters it,” ipse dixit thrice repeated is still ipse dixit.
To repeat, if the core objective of the Founders was to erect the highest barrier against the insinuation of foreign influence into “our councils,” including the presidency, why would they have selected the lower barrier – birth in the country alone regardless of parental citizenship, and as to which “there have been doubts” as noted in Minor – as opposed to selecting the known higher barrier – birth in the country to parents who are already citizens and as to which there have never been doubts? Answer: they would not have done so. And they did not.
Finally, consider this: under a “non-Vattel” or “pro-Rawle” analysis, it is posited that that “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.”
Following the Anglo-American Peace Treaty of 1783 – bringing to an end the hostilities between Great Britain and the United States (we won; they lost) – if the former Commander-in-Chief of the British land forces, William Howe, 5th Viscount Howe (William Howe, 5th Viscount Howe – Wikipedia) traveled to New York with his expectant wife, Frances Connolly, and there became a father to one of his four sons, that son would be eligible to the presidency, Great Britain’s claim of perpetual allegiance as a British “subject” notwithstanding.
Neither the “diplomatic” nor expired “hostile occupying force” exceptions would apply and thus, the son of the British general who had commanded soldiers responsible for killing some 6,800 Americans in battle … would now be eligible to the presidency. This, we are led by William Rawle (and others) to believe, is a potential that the Founders both recognized and intended when they inserted the natural born Citizen restriction into Art. 2, § 1, Cl. 5.
To merely state the hypothetical is to demonstrate its absurdity.
Mr. DeMaio, “claimed, in his 1829 work “A View of the Constitution of the United States”
First published in 1825.
Rawle, “It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. Except in one instance, it gives no definitions, but it acts in all its parts, on qualities and relations supposed to be already known.”
Mr. Rawle saying that the definition is “supposed to be already known.”
Perhaps he is referring to James Madison’s statement in the William Smith case that place of birth determines allegiance in the United States.
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.”
Madison’s statement, “it is what applies in the United States” is restated by Rawle.
“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.”
Madison also says about the Smith case “Then, with respect to those natives who were minors at the revolution, and whose case is analogous to Mr. Smith’s”.
And Madison finishes with, “Mr. Smith was a citizen at the declaration of independence.”
So maybe Rawle is depending on the 37 year history of the US to that point. Remember Framer Oliver Ellsworth’s statement in US v Williams, “The common law of this country remains the same as it was before the Revolution.”
https://law.resource.org/pub/us/case/reporter/F.Cas/0029.f.cas/0029.f.cas.1330.pdf
I wouldn’t get excited about Fitisemanu and Rawle unless of course you have researched birthright citizenship in the US territories prior to 1825 when Rawle wrote his treatise.
For example, under the Louisiana Purchase Treaty of 1803 and the Adams – Onis Treaty of 1819, inhabitants of the Louisiana Territory and the Florida Territory became US citizens. But what about birthright citizenship? Certainly if a child was born to US citizens in those territories but what about alien parents?
And what was the policy for the Northwest Territories formed under the Northwest Ordinance of 1787?
Ah questions for another day.
Adams – Onis Treaty
https://www.ruhr-uni-bochum.de/gna/Quellensammlung/04/04_adamsonis_1819.htm
Louisiana Purchase Treaty https://loveman.sdsu.edu/docs/1803LouisianaPurchaseTreaty.pdf
A child born in a territory that is not FULLY incorporated in the U.S. even if born to two U.S. citizens is NOT born on U.S. Soil and cannot be an NBC. This was the case for McCain. PCZ was never fully incorporated. McCain was not born in the PCZ. He was born in Panama.
DeMaio – “William Rawle – a Philadelphia lawyer, but neither a member of the Continental Congress, nor a delegate to the Constitutional Convention”
Neither are DeMaio, Laity or Kerchner. But Rawle was uniquely situated to understand the meaning of the term natural born citizen.
He was one of the founding members of the Society for Political Inquiries. A group of prominent Philadelphia residents that met twice a month on Ben Franklin’s house. The first meeting was in February, 1787. Along with Franklin there was Thomas Paine, George Clymer, Benjamin Rush, Trenches Cox and Gouverneur Morris.
James Wilson (his objections led to the grandfather clause) and Robert Morris (signer if the Declaration of Independence, Articles of Confederation and in September, the Constitution) who benefitted from the grandfather clause.
BTW, one of the first oral presentation given to the Society was a treatise on immigration and it’s effects on the citizens. It was given by Rawle.
This Philadelphia lawyer was also picked by President Washington to be the US Attorney for Pennsylvania.
DeMaio – “the Continental Congress was well aware of the de Vattel treatise, including the meaning of the words “les sujets natureles”
Yes they were. They were very aware that they were “sujets natureles” They even complained to the King in their October, 1774 Declaration of Colonial Rights that they were “entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.”
The Framers picked the barrier They were most familiar with.
Joseph DeMaio’s response to this comment and that of 11:01 p.m., 3/24/2022:
——————————–
In support of the “non-Vattel” viewpoint that jus soli alone should determine what the Founders intended when inserting the “natural born Citizen” clause in the Constitution, Mr. Fremick comments that California Circuit Judge “Fields” [sic: should be “Field”] in the case of In re Look Tin Sing cited with approval New York Chancery trial court Judge Sandford’s decision in Lynch v. Clarke, 1 Sand. Ch. 582 (1844). Lynch was cited as support for Fields’s decision that Look Tin Sing was a U.S. citizen, although being born in California to Chinese citizen parents.
Sandford’s trial court decision in Lynch was never subjected to appellate review. Nonetheless, it is frequently cited by the “non-Vattel” camp in support of his dictum hypothetical question: “Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not.”
Lynch is frequently cited in support of the claim that jus soli – place of birth – should alone determine whether one is a “natural born Citizen,” regardless of parental citizenship (jus sanguinis). Much like the discussion of the term “natural born citizen” in Wong Kim Ark (“WKA”) – a habeas corpus case involving only an interpretation of the 14th Amendment – the “I think not” comment of a single trial court judge in Lynch – a case involving only an adjudication of the rights of inheritance between “citizens” and “aliens” – is “dicta, pure and simple.” See C. Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968).
At the time he wrote his article, Charles Gordon was the General Counsel, U.S. Immigration and Naturalization Service and Adjunct Professor of Law, Georgetown University Law Center. While “dictum” appearing in a case may be interesting, it is neither “holding” nor “precedent” and those who contend that WKA, Lynch or Ankeny – all clearly post-dating the drafting and adoption of the Constitution – “settles” the eligibility question are, respectfully, wrong. There is no such thing as “precedential dictum.”
As for the question of why the “non-Vattel” camp believes the Founders would have selected the lower barrier to the insinuation of foreign influence into the presidency – and as to the efficacy of which “there have been doubts” – Mr. Fremick contends: “The Framers picked the barrier [t]hey were most familiar with,” likely implying an intentional selection of the “common law” barrier of exclusive jus soli analysis to determine status as a “natural born Citizen” to the exclusion of a parallel or coupled jus sanguinis analysis as posited by de Vattel’s § 212.
Respectfully, this result makes zero sense. At all. It presumably also suggests that at one or more of those bi-weekly meetings of the “Society for Political Inquiries” taking place at Benjamin Franklin’s house in 1787, the participants may have addressed whether the lower barrier – jus soli birth alone, regardless of parental citizenship status – was to be preferred to the higher barrier in blind adoption of a “common law” approach inherited from a nation we had just defeated in the Revolutionary War. Stated otherwise, it was “familiar” and “convenient.”
Under this scenario, one can imagine hypothetical exchanges not unlike this:
William Rawle: “I say that any person born here is a natural born citizen, the foreign or alien status of the parents notwithstanding, and thus, eligible to the presidency. The common law dictates it.”
Benjamin Franklin: “But William, now that hostilities with Great Britain are over, would not your definition allow, for example, British General William Howe…, responsible for nearly 7,000 battlefield deaths of our fellow patriots…, to visit New York or even here, Philadelphia, on holiday with his expectant wife? And if their son were born here, in Philadelphia, of all cities of the United States, would that not have created an individual of British parents eligible to the highest office in our government, the teachings of Vattel aside? Do you think that the Committee of Eleven and the other delegates over at Independence Hall would agree to that?”
Rawle: “Well…, the common law, with which we are all familiar, must prevail…, sometimes you must break a few eggs to make an omlette. And the likelihood of your General Howe example taking place is remote.”
Long pause… furtive glances among the participants… then:
Franklin: “With respect, Mr. Rawle, ‘likelihood’ and ‘remote’ are not the same as ‘impossible,’ which is the goal I thought we were pursuing in shielding absolutely the presidency from foreign influence. It is what Vattel teaches and what I think is needed.”
Thomas Paine: “I agree with Dr. Franklin. Familiarity with the common law and convenience aside…, it is only common sense.”
Cmdr. Kerchener, Donald Harris applied for Naturalization years after Kamala was born. He applied under section 316 (a) of the I & N Act. This application required that he be “Lawfully admitted” to the US as a Permanent resident.
https://www.thepostemail.com/2021/06/22/laity-acquires-certified-naturalization-documentation-for-donald-j-harris-father-of-kamala-harris/
Hello Robert: At what point in time did Donald Harris change his status from being in the USA temporarily on a student VISA to that of being officially in the USA as a recognized permanent resident, which I believe is called a “green card holder”? Do you have the date of his application to be a “green card holder” and was that date before or after Kamala was born? I have no doubt that Donald Harris was “lawfully admitted” to the USA. But I have read previously that he was not a “green card holder” when Kamala Harris was born. At some point in time as part of becoming a U.S. Citizen, which he did do, he must have applied for and obtained a Green Card, obviously. But I don’t know that date. If you have proof/documentation for when he became a “green card holder”, and that that date was before when Kamala was born, please share it with me. You can find my contact email link at my website URL below my signature.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
I will send you what I have. BTW, Permanent residents are NOT citizens of the US. Harris was born way before Donald Harris naturalized. Green card holders are not US Citizens.
Rob: Yes, I received those documents before and understand that information. But the key data is when did the parents get Green Card “permanent resident” immigrant status, not when did Donald Harris apply to become a U.S. Citizen. And of course the mother never did apply for U.S. Citizenship, to my knowledge.
The legally defined resident status of both parents while they were in the USA when Kamala Harris was born in Oct 1964 is a key piece of data in this debate. Where is that documentation? Were they still here under temporary student F-1 VISAs? I believe so. Kamala’s mother did not apply for a “permanent resident” immigrant Green Card until 1965, many months after Kamala was born. I think her father did in 1965 or 1966. But I don’t have documentation for him as to when he applied to change his status from temporary student F-1 VISA to a permanent resident Green Card.
Changing from F-1 student VISA to a Green Card permanent resident VISA. This is how they must do it now. It may have been a bit different back in the mid and late 1960s, Changing from F-1 student VISA to a Green Card permanent resident VISA: https://gldlaw.com/immigration/visas/f-1-visa/
So the key question is, what year did Donald J. Harris do this process? That is the key question and fact that must be determined to settle the debate as to the status of the parents when Kamala Harris was born in Oct 1964.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Hi Robert:
I found this article online on changing one’s status from a student VISA to a permanent resident, green card holder: https://visaguide.world/tips/f1-to-green-card/ So the question remains, when did Donald Harris do that? That is did he change his status before or after Kamala Harris was born? Getting permanent status for people here on student VISAs (F-1 status per the article) appears in the article to be related to getting a permanent job offer and sponsor in the USA after completing his education here for which he got his student VISA to come here lawfully, that is to get an education and being here as a foreign student on a student VISA. The green card date is what is needed to learn as to when he became a legal “permanent resident” and thus legally “domiciled” for legal purposes in the USA.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Kamala Harris was born on 20 Oct 1964 per her birth certificate.
See this article titled, “Were Kamala Harris’s Parents “Immigrants” when she was Born?” : https://www.thepostemail.com/2020/10/21/were-kamala-harriss-parents-immigrants-when-she-was-born/ From the documents presented in that article we can see that Kamala’s mother was still in “nonimmigrant” status in Apr 1965 when she applied to change her F-1 student VISA status to “immigrant” status in that month. Note, that is several months after Kamala was born.
We also know that her father was listed on Kamala’s birth certificate as a “student and teaching fellow”. From that I deduce and conclude that he was in the USA on a student F-1 VISA and in “nonimmigrant” status at that time, the time of Kamala Harris’ birth. And we know from his naturalization records that he did not become a U.S. Citizen until circa 1981. When he applied to change his status in the USA from “nonimmigrant”, i.e., from an F-1 student VISA to that of “immigrant” status was also likely after Kamala’s birth in 1964. Possibly when the mother applied to change her status to “immigrant” status in 1965. I have read in the past that he was classified as in “nonimmigrant” status when Kamala was born. But I don’t have access at this time for the record of same. Possibly someone reading this has access to the same records for the father that were shown in the above article for her mother. If so, please share them here.
Thus until documents are provided proving otherwise Kamala Harris’, I believe parents were not “permanent residents” in an “immigrant” status when she was born.
Also see: http://www.kerchner.com/protectourliberty/Kamala-Harris-petition-not-constitutionally-eligible-for-VP-or-Pres.pdf
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
The Five Citizenship Kinds Mentioned in the U.S. Constitution: http://www.scribd.com/doc/11737124/Citizenship-Terms-Used-in-the-US-Constitution-The-5-Terms-Defined-Some-Legal-Reference-to-Same
To learn all about the “natural born Citizen” term in our U.S. Constitution’s Presidential Eligibility Clause, see: The Who, What, When, Where, Why, and How of the “natural born Citizen” Term
In Our United States Constitution — http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf
See this Euler Diagram which visually shows the various kinds of Citizens of the United States. Natural born Citizen is the largest kind of Citizen and is a subset of all those born in the USA, i.e., a subset of the native-born category in modern colloquial language. See: https://cdrkerchner.wordpress.com/tag/euler-diagram/
And do remember that the use in Vattel was “natives” not “native-born”. And Vattel defined what he meant by “natives” in the very sentence he used that word in in section Volume 1, Chapter 19, Section 212 of his legal treatise, The Law of Nations or Principles of Natural Law, which the founders and framers were using extensively to create the new country and write the founding and framing documents.
Also see “Of Trees and Plants and Basic Logic: Trees are plants but not all plants are trees. “natural born Citizens (NBC)” are “native born Citizens” or “Citizens at birth (CAB)” but not all “native born Citizens” or “CAB” are “NBC”!”: https://cdrkerchner.wordpress.com/2011/07/07/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc-2/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
DeMaio, Kerchner and Laity have still not shown that anyone refuted William Rawle’s unambiguous statement.
“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.”
https://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships23.html
Rawles statement, if he made it, is not legally binding. He was clearly making an erroneous statement. The US Supreme Court has now settled any controversy. An NBC IS one born in the US to parents who are both US Citizens. I “REFUTE” Rawles statement as quoted, if he made it.
To Robert Laity:
Very good test and example regarding “natural born Citizen” using logic, chemistry, and poetry”. I cut and pasted your test and example, with your name and date stamp included for due credit, into a JPG file and a PDF file and uploaded it to my servers, for your convenient and repeated use at any time without the need to retype it. Bravo Zulu! Keep up the good work.
Here are the links:
http://www.kerchner.com/naturalborncitizen/The-H20-Test-for-Natural-Born-Citizen-by-Rob-Laity.jpg
http://www.kerchner.com/naturalborncitizen/The-H20-Test-for-Natural-Born-Citizen-by-Rob-Laity.pdf
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Thank you Sir. What happened to Johnny when he drank what he THOUGHT was water can be compared to what is happening now to the USA when “We the People” voted for a dangerous usurper and fraud, traitor and spy thinking that he was an Natural Born Citizen of the US when in actuality he is a Natural Born Subject of the Queen of England.
The Three Legged Stool Test for “natural born Citizen” of the United States to Constitutional Standards: https://cdrkerchner.wordpress.com/2014/02/15/the-three-legged-stool-test-for-natural-born-citizen-of-the-united-states-to-constitutional-standards/
Absolute Proof the Founders Knew and Accepted Vattel`s French “naturels” to Mean “natural born”, not “native born”, in the American English Language, Years Before the U.S. Constitution Was Written: https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
CDR Charles Kerchner, (Retired)
https://cdrkerchner.wordpress.com
http://www.scribd.com/user/52640192/protectourliberty/lists
http://www.protectourliberty.org
The founders and framers were breaking from the monarchy and England and were founding a new country and a new form of government and laws for the new Federal Constitution and Government the likes of which the world had never seen before. English Common Law does not deal with the founding of a Republic and a new nation. Volume 1 (of which Chapter 19 section 212 wherein Citizenship and a “natural born Citizen” is defined) of Vattel’s treatise The Law of Nations or Principles of Natural Law does deal with the founding of a Republic and a new nation.
That is why the 13 newly independent and sovereign states via their delegates to the Continental Congress and later at the Constitutional Convention looked to Vattel and the Holy Bible to justify their revolution and write the founding and constitutional framing documents. They did NOT look to English Common Law to break from the King and England to found the new nation and frame the laws for the federal government via the U.S. Constitution when it came to uniting the 13 newly sovereign and independent states and in using the term “natural born Citizen”. They used English Common Law for common and prior legal issues within the states but not for new federal constitutional laws and legal terms at the federal level such as being a “natural born Citizen” of the United States.
The U.S. Constitution was entirely new law and their was no federal common law when it was written. Common law only existed within the 13 several states. The Law of Nations is even mentioned in the U.S. Constitution. See Article 1 Section 8. So those who say The Law of Nations was not used in writing the U.S. Constitution, or those who choose to ignore it, they are wrong and engaging in gas-lighting.
To learn all about the “natural born Citizen” term in our U.S. Constitution’s Presidential Eligibility Clause, see: The Who, What, When, Where, Why, and How of the “natural born Citizen” Term
In Our United States Constitution — http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf
CDR
In Wong Kim Ark, the U.S. Supreme Court stated that terms in the U.S. Constitution are to be defined by English Common Law.
There’s no evidence that “Law of Nations” in the U.S. Constitution is a reference to Vattel’s book. And a chapter in Blackstone’s Commentaries is titled “Of Offences Against the Law of Nations.”
From Blackstone’s Commentaries Book 4, Chapter 5 “Of Offences Against the Law of Nations”
“…therefore the law of nations (wherever any question arises which is properly the object of it’s jurisdiction) is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land.”
“THE principal offence against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds ; 1. Violation of safe-conducts ; 2. Infringement of the rights of ambassadors ; and, 3. Piracy.”
That third one “Piracy” is interesting.
“THE offence of piracy, by common law, consists in committing those act of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there”
Compare that to the US Constitution,
“To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations” Article 1, Section 8,Clause 10
It would appear the Framers we’re familiar with Blackstone’s Book 4, Chapter 5.
Not so. Wong Kim Ark was naturalization case Ark was a Citizen per opinion in this case. He was not, a Natural Born Citizen of the United States. Any such US Court ruling that defined OUR Constitution “by English Common law” makes that ruling null. See; Marbury v. Madison, USSCt. (1803) “ANY law that is repugnant to the Constitution is null”. NO ONE, not even the US Supreme Court can make an NBC out of anyone else but “One born IN the US to parents who are both US Citizens themselves”.
Selective reading of reading of Vattel and court opinions bolsters one position or the other.
Vattel was Swiss, a jus sanguinis country. In section 212, he goes much beyond the single sentence in contention in describing the jus sanguinis doctrine. He does not mention the English common law doctrine of jus soli at all. Taken as a whole, section 212 emphasizes the jus sanguinis doctrine with extra emphasis in multiple places on the role of the father’s blood.
The best exposition of the English common law doctrine of jus soli is in the Wong Kim Ark opinion. The jus soli doctrine excludes citizenship to foreign diplomats (in country legally) and invaders (in country illegally).
While Vattel describes natives (or natural-born citizens) under jus sanguinis, the clause in the constitution, like the entire document, invokes principles of English common law. What native (or natural-born citizen) under jus soli means must be a definition without the blood of the parents coming into play.
Born on the soil is a discoverable fact, unless it’s being hidden. The parentage makes no difference except for diplomats and invaders.
Where Obama was born is in dispute. Cruz was born in Canada. McCain was born in Panama. Harris was born in California. Was the father a diplomat or an invader? Are foreign visitors like diplomats or invaders? Are foreign refugees like diplomats or invaders?
I would proffer that a father in the country legally is akin to a diplomat and that a father in the country illegally is akin to an invader. A father that is in the country legally for the purpose of naturalization is in a no-man’s land, even though he has subjected himself to the jurisdiction.
Any form of written law, whether it be a constitution or act of government, that naturalizes people excludes the possibility of children born before the completion of naturalization being natives (or natural-born citizens).
Was Harris’ father a naturalized citizen when Kamala was born?
Neither of Harris’ parents was a U.S. citizen when she was born in the United States.
But courts already have ruled all those born in the United States, except those born to foreign diplomats and invaders, are natural-born citizens.
Obama was born in Hawaii, which is part of the United States.
Where can the verbiage be found in the US citizenship laws that states those born to foreign diplomats and invaders are “natural-born” citizens?
Silly me. I looked all over and I could not find that phrase, except in the repealed Naturalization Act of 1790.
No one ever said those born to foreign diplomats and invaders are natural born citizens.
In Wong Kim Ark, the U.S. Supreme Court stated those born to foreign diplomats and invaders are never U.S. citizens.
Even the latter has reportedly been clouded: https://cis.org/Report/Birthright-Citizenship-Children-Foreign-Diplomats
The courts have NOT ruled that “all those born in the United States…are ‘natural born citizens'”. They are not. People merely born in the U.S. are “citizens”. Those born in the US to two US citizen parents are NBCs. ONLY those born in the US to two US Citizen parents are NBCs.
As this article notes, in Ankeny v. Governor of State of Indiana, the court ruled, minor exceptions aside, those born in the United States are natural born citizens.
And other courts have cited and adopted Ankeny. No court expressed disagreement with Ankeny.
Not so. The courts say that they are “Citizens”. Such persons merely “born” in the USA are NOT NBCs.
No, courts have not ruled that. They have ruled that such individuals are “citizens.” They have not ruled that they are “natural born citizens.”
Harris’s Father was NOT naturalized. I have provided absolute proof of this fact, in a signed, certified and stamped, document from the Director of the U.S. National Archives. Sharon has a copy, which I provided to her. I will also resend it today.
Neither of Harris’ parents were US Citizens.
You say the “clause in the Constitution invokes…principles of english common law”. That is your opinion. An opinion that does not comport with the unanimous opinion in Minor v. Happersett. Namely, an NBC IS one born IN the US to parents who are both US Citizens themselves.
Correction: Donald Harris was not a US Citizen when Kamala was born. Neither was Kamala’s mother.
Furthermore, they were both “permanent residents” (not Citizens) when Kamala was born. They were not however, in the US long enough in 1964 to apply for US Citizenship.
Kamala is the daughter of two BRITISH SUBJECTS. One from India and one from British Jamaica. Both India and British Jamica are members of the British Commonwealth of Nations and as such, under the British Law that non-Vatellists like to cite, THAT makes Kamala Harris a Natural Born BRITISH subject/citizen under the British Nationality Act of 1941 which applied to Harris in 1964.
Under this same british law, Barack Obama, born to a british subject in Hawaii (Hawaii is a former colony of Britain and Senior was a british subject.citizen) BHO is ALSO a Natural Born British Subject/citizen.
Kamala Harris’ parents were NOT “permanent residents” in the United States when Kamala was born. Her parents were merely sojourning here attending college on student VISAs. Thus constitutionally and under our federal laws and regulations, and the Law of Nations as to their status in consideration of their mother/birth countries, they were not legally “domiciled” in the United States, nor had they declared themselves to be at the time of Kamala’s birth. They were only at that time declared as temporary sojourners in our country, temporary foreign college students attending college here. Kamala Harris is a classic example of “birthright citizenship” gone completely off the rails.
See and read: U.S. Senator Kamala Harris was born a dual-Citizen and thus is NOT a “natural born Citizen” of United States with Unity of Citizenship and Sole Allegiance to USA. She was a Citizen of Jamaica at Birth. http://www.kerchner.com/protectourliberty/Kamala-Harris-petition-not-constitutionally-eligible-for-VP-or-Pres.pdf
CDR Kerchner (Ret)
See more, much more at:
http://www.ProtectOurLiberty.org
Both Jamaica and India had achieved independence when Harris was born in the United States.
And the “British Commonwealth of Nations” no longer existed; it was just the “Commonwealth of Nations” by then. Citizens of commonwealth nations were not automatically granted British citizenship.
Regardless, Harris is a natural-born citizen of the United States because she was born in the United States.
No it’s not my opinion about the English common law. It’s the opinion of every court that has addressed the issue of citizenship. The first several pages of the Wong Kim Ark opinion contain a litany of court opinions that look to the English common law for the determination of what citizen means. Your favorite case, Minor, is included in that litany with a direct quote.
Minor v. Happersett is a Privileges and Immunities Clause case. What was before the court was whether Minor, a woman, was entitled to vote in Missouri based on that 14th Amendment clause, despite Missouri’s constitution granting suffrage only to men. The holding (the important part of the case) is three-fold: 1) that Minor, a woman, is a citizen; 2) that the Privileges and Immunities Clause did not add suffrage as a privilege of citizens of the United States; and 3) that citizenship and suffrage were not coextensive within any State (not all citizens were entitled to vote). As a result, Minor was not entitled to vote in Missouri.
The Minor court made the observation that “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” It described the trivial and most common situation — that children of citizens born in the country are also citizens.
That observation was neither a holding nor a definition of the term natural-born citizen.
The Minor court further clarified exactly what it was deciding: “The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.” That language is directly from the 14th Amendment. The court did not decide that Minor was a natural-born citizen because that issue was not necessary to its holdings.
In its discussion of naturalization laws, the court noted that Congress had changed the naturalization laws to allow children of citizen fathers born outside of the country were also citizens. The incident of birth of birth outside the country, therefore, was never considered part of the jus soli doctrine. Those children were made citizens by a law and not natural born.
Minor neither adds to nor detracts from the English common law jus soli doctrine. In fact, the jus soli doctrine wasn’t even discussed. Wong Kim Ark held that a person, regardless of parentage, born on the soil of the country “and subject to the jurisdiction” was a citizen under the 14th Amendment. WKA went into a lengthy discussion of the jus soli doctrine.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Did the Citizenship Clause of the 14th Amendment change the English common law recognized by the United States? I have found no court opinion that suggests that. Wong Kim Ark discusses, in excruciating detail, the jus soli doctrine. If a child is born in the country, even of alien parents in amity, the child is a natural born citizen. There are only two exceptions — the children of diplomats and the children of invaders.
McCain and Cruz were, at best, naturalized by law. Obama (Hawaii) and Harris (California) were born to an alien, in amity, father.
In my opinion, the presidential natural-born citizen clause has been settled by dicta. It’s dicta because no court opinion has faced the controversy of the Natural-Born Citizen Clause in the context of a presidential candidate. If the Citizenship Clause is merely a restatement of the English common law jus soli doctrine, and the courts appear to agree, then it is the definition of natural-born citizen.
I suggest that a better issue is whether illegal aliens, both border crossers and visa overstayers, are “in amity” or invaders and whether their children are 14th Amendment (natural-born) citizens or not citizens at all.
Under our English common law jus soli doctrine, it appears that just about all children born in the United States are natural-born citizens.
Purveyors of a contrary opinion rely on parentage — jus sanguinis (Roman civil law) — as the determinator. We didn’t get our law from Rome. We got it from England, thank God.
Richard Michael: “Purveyors of a contrary opinion rely on parentage — jus sanguinis (Roman civil law) — as the determinator. We didn’t get our law from Rome. We got it from England, thank God.”
As to key nations they looked to contemporaneously, they looked to France (our allies) and not England for assistance … thank God for that. France relied on “jus sanguinis” laws for natural citizenship.
Sorry, but the founders and framers looked to Natural Laws, the Laws of Nature and Nature’s Creator, and European writers on same such as Vattel and others, not only Roman Civil law origins of jus sanguinis. They looked to the governments and laws over all written history and of course Natural Law which predates them all. Read the Federalist Papers if you don’t understand that point. They did not found the nation and write its new federal constitution looking to English Common Law, which said laws they just fought a revolution against many of them.
Read about the original intent of the “natural born Citizen” term when it was written in the founding and framing time frame, not over 100 years later when it was being abrogated by the poorly decided split decision (even more poorly interpretation of the poorly decided case since) of the Wong Kim Ark WKA (1898) court decision written by a Justice appointed by a constitutionally ineligible de-facto President and Commander in Chief, Chester Arthur. For more on that subject see the book, Imposters in the Oval Office: https://www.iuniverse.com/BookStore/BookDetails/775911-Imposters-in-the-Oval-Office
The Who, What, When, Where, Why, and How of the “natural born Citizen” Term In Our United States Constitution: http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf
Absolute Proof the Founding Fathers Knew and Accepted the Definition of Vattel’s Use of the French Naturels was Natural Born in English Not Native-Born !!!! by: Teo the Bear | TheBirthers.org | June 2010 : https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Around a dozen presidential eligibility cases pertaining to Obama ruled on the merits that he is a natural-born citizen.
All that hot air. The courts SAID that those born in the US to two citizen parents are NATURAL BORN citizens. All NBCs are citizens but not all citizens are NBCs.
ALL connections and application of British Law upon the jurisprudence of the USA, our NEW nation, independent and sovereign from Britain, ended on July 4, 1776.
British law does NOT apply in the USA nor does its jurisprudence.
We also did not get our law from England. The founders created a totally new nation. They may have referenced English Law for their deliberations on how to develop a new nation’s laws but they were no longer bound by English Law. They weeded out what they wanted to retain and dismissed provisions they did not want to retain. English Jurisprudence is FOREIGN law in the USA.
Richard Michael, “He [Vattel]does not mention the English common law doctrine of jus soli at all.”
Technically, Vattel mentions it in Section 214 and characterized it as a form of naturalization.
“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.”
https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/
Richard Michael, “Where Obama was born is in dispute.”
Only by those who refuse to accept a certified copy of a birth certificate and several statements by Hawaiian officials charged with preparing the certified copies.
“I would proffer that a father in the country legally is akin to a diplomat”
You can proffer it but you would be wrong as a student on a student visa is subject to the jurisdiction of the United States.
Mr. DeMaio, “why, if “native-born citizen” is synonymous with “natural-born Citizen,” the natural born Citizen “eligibility” phrase and the “citizen grandfather” phrase in Art. 2, § 1, Cl. 5 of the Constitution use different words”
Mr. DeMaio is still insisting that those claiming native-born is synonymous with natural-born must for some reason explain why the grandfather clause uses “Citizen of the United States”.
The Framers had this debate only three weeks before the natural-born Citizen requirement was added to the Constitution. Like John Jay, there were members of the Convention who wanted to limit membership in Congress to natives [natural-born] citizens. But as James Wilson pointed out that would prevent some of the Framers from being members of Congress, including Robert Morse, who signed the Declaration of Independence, the Articles of Confederation and eventually the Constitution. So of course they added a grandfather clause to accommodate foreign-born Founders like him. They incorporated Jay’s hint and Wilson’s objections into Article II, Section 1, Clause 5.
If you accept that then all the various statements where people described eligibility as requiring a native or a native-born or a natural-born citizen makes sense.
St. George Tucker’s – the President has to be native born citizen.
James Iredale’s – the President has to be a native.
James Kent’s – the President has to be a native.
Senator Trumbull – the President has to be a native-born citizen.
Senator Sherman – the President has to be a native-born citizen.
All make sense and you don’t have to make up any excuses for why they used that those different terms.
So here is my question to Mr. DeMaio.
In 1777 George Washington requested that his personal guards be natives not foreigner born.
Which definition of natives was he using English Common Law or Law of Nations?
All the five key question types are addressed and answered in this White Paper on the subject and term of “natural born Citizen” in the presidential eligibility clause of our U.S. Constitution. Dual-Citizens and Tri-Citizens at and by Birth, those not born with unity of citizenship and sole allegiance at birth to the United States, are … Not Constitutionally Eligible to be the President and Commander in Chief of Our Military per the Founders and Framers.
The Who, What, When, Where, Why, and How of the “natural born Citizen” Term In Our United States Constitution: http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf
And for the disinformation specialists here who are apparently logically challenged, see this Euler Diagram explaining the kinds of Citizens in the USA: https://cdrkerchner.wordpress.com/tag/euler-diagram/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Here is another Euler Diagram.
Draw a circle then draw a smaller circle inside of the first circle. Now label the inside of the larger circle “All US Citizens” and label the inner circle “native/native-born/natural-born citizens”.
Done.
To Fremick: Your attempt at logic as to the truth or falsity of an argument using, circles inside circles as you put it, which are known in logic analysis as a Euler Diagram, is only partial and faulty.
See this Euler Diagram which visually shows the various kinds of Citizens of the United States. Natural born Citizen is the largest kind of Citizen and is a subset of all those born in the USA, i.e., a subset of the native-born category in modern colloquial language. See: https://cdrkerchner.wordpress.com/tag/euler-diagram/
And do remember that the use in Vattel was “natives” not “native-born”. And Vattel defined what he meant by “natives” in the very sentence he used that word in in section Volume 1 Chapter 19 Section 21 of his legal treatise, The Law of Nations or Principles of Natural Law, which the founders and framers were using extensively to create the new country and write the founding and framing documents.
Also see “Of Trees and Plants and Basic Logic: Trees are plants but not all plants are trees. “natural born Citizens (NBC)” are “native born Citizens” or “Citizens at birth (CAB)” but not all “native born Citizens” or “CAB” are “NBC”!”: https://cdrkerchner.wordpress.com/2011/07/07/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc-2/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
What would a Euler Diagram for English subjects in 1770 look like?
You got natural born/native subjects and naturalized subjects.
Any others?
Absolute Proof the Founding Fathers Knew and Accepted the Definition of Vattel’s Use of the French Naturels was Natural Born in English Not Native-Born !!!! by: Teo the Bear | TheBirthers.org | June 2010 : https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Response from the author:
————————–
Now we’re getting somewhere. CDR Kerchner (Ret) correctly reminds us that in the correspondence surrounding the 1781 “Treaty of Amity and Commerce” between the United States and France, as well as in the text of the treaty itself, and memorialized in the Journal of the Continental Congress for July 27, 1781 here (Journals of the Continental Congress –FRIDAY, JULY 27, 1781 (loc.gov)), it is plainly revealed that the parties – including members of the Continental Congress – knew and understood that the French term “les sujets naturels” meant “the natural born subjects.”
The English translation from French was done by one Charles Thomson and was the paper considered by the Congress when evaluating the treaty. The translation is archived in the “Papers of the Continental Congress, No. 25, II, folio 21.” It seems likely to have come from Charles Thomson, the Secretary of the Continental Congress for its entire 15-year existence.
Thomson was a contemporary of Benjamin Franklin and was renowned for his “dedication to recording the debates and decisions” of the Continental Congress and has been described as, in effect, the “Prime Minister of the United States” during that period and who in addition to his clerical duties took “a direct role in the conduct of foreign affairs.” (Charles Thomson – Wikipedia). Accordingly, translating the treaty from French to English would seem to be a task “right up his alley.” There is no record of any member challenging Thomson’s translation…, and today’s challengers don’t count.
The actual authorship of the translation aside, and stated otherwise, the members of the Continental Congress – many of whom participated in the drafting of the Constitution and participated in the various convention committees – were aware well prior to 1787 that the French term “naturels” was being translated by Thomson as “natural born” and, seemingly, without question or objection by the members. This translation parallels the definition of “les naturels ou indegenes” found in § 212 of de Vattel’s Law of Nations being now hotly discussed.
This issue was addressed back in 2012 here (Of Presidential Eligibility, Doubling Down and Linguistic Torts, Part 2 – The Post & Email (thepostemail.com), where the obfuscations of the Congressional Research Service (“CRS”) Report of November 14, 2011 (“CRSR”) (Of Presidential Eligibility, Doubling Down and Linguistic Torts, Part 2 – The Post & Email (thepostemail.com)) – entitled “Qualifications for President and the ‘Natural Born’ Citizenship [sic] Eligibility Requirement – are dismantled. And yes, Virginia, the “[sic]” refers to the fact that the Constitution uses only the term “natural born Citizen,” the term “Natural Born Citizenship” being a CRS neologism…, conveniently dovetailing with the decision in the Wong Kim Ark case dealing with “citizenship” under the 14th Amendment, not Art. 2, § 1, Cl. 5.
From that prior 2012 P&E post, and à propos CDR Kerchner’s observations, is this: “The CRSR dismisses in toto even the potential that this provision of de Vattel’s tome [i.e., § 212] had anything to do at all with the Founders’ intent in placing into the Constitution the “natural born Citizen” eligibility requirement. The report makes much ado over the fact that, at the time of the Constitutional Convention in 1787, there was, purportedly, no French word or phrase equating with “natural born Citizen” and that therefore, the Founders, in using the term, must have meant to adopt the analogous term “natural born subject” from the English “common law.
“The CRSR argues that the French terms “Les naturels ou indegenes” as appearing in de Vattel’s original work in French could not, at least in 1787, be accurately translated as the equivalent of “natural born Citizen.” The problem with the CRSR analysis, however, is that it ignores the words following that phrase, and whether evaluated in French or in English.
“Specifically, and without regard to what the proper translation of “naturels” or “indigenes” may be, de Vattel explains that whatever meaning one assigns to those terms, collectively they mean “… sont ceux qui sont nés dans le pays, de parens citoyens….” or, in English: “are those who are born in the country, of citizen parents.” Stated otherwise, whether denominated a “naturel,” an “indegene,” a “natural born Citizen” or a parrot, the entity at issue – in order to match its antecedent – needed to be born in the country to parents who also were citizens. Disputable nomenclature and labels aside, that concept is the crux of § 212, so that, whether one is called “natural born,” “indigenous” or some other term, in order to qualify as such, one needed to be born in the country where the parents were also, at the time of birth, citizens.
“In addition, the CRSR ignores the seventh and final sentence of § 212, which reads in French thusly: “Je dis que pour être d’un pays, il faut être né d’un pere citoyen; car si vous y êtes né d’un étranger, ce pays sera seulement le lieu de votre naissance, sans être votre patrie.” Translation: “I say that in order to be of the country, it is necessary to be born of a citizen father; for if [you] are born there of a foreigner, it will be only the place of your birth, without being your country.”
Accordingly, CDR Kerchner’s reference to Charles Thomson’s 1781 translation of the Treaty of Amity and Commerce, translating the French term “les sujets naturels” to mean “the natural born subjects,” can lead to but one conclusion: the members of the Continental Congress, prior to the time many of them participated in the drafting of the Constitution in 1787, highly likely knew and understood that the term “naturels” as found in § 212 meant “natural born” and that “natural born” meant “… sont ceux qui sont nés dans le pays, de parens citoyens….” or, in English: “are those who are born in the country, of citizen parents.” And it makes zero sense to argue that by saying in the Constitution “natural born Citizen,” the Founders really meant to say “natural born subject,” this after violently throwing off the yoke of the “subject/liege” relationship in the Revolutionary War. We won. Great Britain lost. Again, rocket science this is not.
Finally, your humble servant still awaits an answer to the question: why, under a “non-de Vattel” approach to analysis of the Eligibility Clause, would the Founders have intentionally selected a lower barrier to the insinuation of foreign influence into the presidency when a known higher barrier was plainly available? Would John Jay have concurred in the lower barrier? Seriously?
DeMaio – “it makes zero sense to argue that by saying in the Constitution “natural born Citizen,” the Founders really meant to say “natural born subject,” this after violently throwing off the yoke of the “subject/liege” relationship in the Revolutionary War. We won. Great Britain lost. Again, rocket science this is not.”
“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.”
[Skip]
“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.” William Rawle in A View of the Constitution of the United States.
https://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships23.html
What was Rawle doing in the several months before the start of the Constitutional Convention?
He along with Benjamin Franklin was helping to form a political society in Philadelphia called “The Society of Political Inquiries.” The society met twice a month at Franklin’s house. Members include Thomas Paine, Robert Morris, George Clymer and James Wilson.
After the Convention, Rawle was picked by President Washington to be the US Attorney for Pennsylvania.
I know that the NBC issue is close to your heart, Sharon, as it featured heavily in the launching of your publication.
However, consider that Vattel was immersed in Roman civil law. He even wrote in French.
In Chapter XIX of his treatise, Vattel discusses all the known vagaries of citizenship. Section 212, read in its entirety, describes the jus sanguinis (Roman civil law) doctrine.
In section 213, he describes inhabitants. He ends with this: “Their [inhabitants’] children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity.” That is an application of the jus sanguinis doctrine.
In section 214, he describes naturalization. England is referred to twice directly and in the footnote. Here Vattel recognizes the difference between jus soli from jus sanguinis. “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.”
While Vattel describes the incident of “being born in the country” as naturalization, even the earliest naturalization laws enacted by Congress do not allude to this. The incident of being born in the country of alien parents required no naturalization.
Then read section 215 where he describes children born in a foreign country using the jus sanguinis doctrine — the “condition of their fathers” — further citing back to section 212. He continues that “the place of birth produces no change in this particular” because he subscribes to the jus sanguinis doctrine as preferred.
Cmdr. Kerchner’s Euler diagram makes a distinction between born and natural-born based on blood (jus sanguinis). Under English common law (jus soli) such a distinction does not exist. As described in the law review article (not a white paper) that Kerchner has discovered there are only two doctrines of citizenship. The other doctrines discussed in the article are proposals and have not been implemented anywhere.
Why would the Framers and the several states adopt the traditions of the English common law for all fundamental law, yet make an exception and adopt Vattel’s Roman civil law for citizenship? Kerchner likes to ascribe “logically challenged” to those who disagree with him. Where’s the logic in his position?
In summary, all children born in the United States are natural-born citizens (birth is natural, as opposed to parental political allegiance) excepting those of diplomats and invaders (who are not citizens at all). The rest of the citizens are naturalized under some legislative act. The Citizenship Clause describes both types — born or naturalized.
Here is the logic of my position:
The Five Citizenship Kinds Mentioned in the U.S. Constitution: http://www.scribd.com/doc/11737124/Citizenship-Terms-Used-in-the-US-Constitution-The-5-Terms-Defined-Some-Legal-Reference-to-Same
See this Euler Diagram which visually shows the various kinds of Citizens of the United States. Natural born Citizen is the largest kind of Citizen and is a subset of all those born in the USA, i.e., a subset of the native-born category in modern colloquial language. See: https://cdrkerchner.wordpress.com/tag/euler-diagram/
And do remember that the use in Vattel was “natives” not “native-born”. And Vattel defined what he meant by “natives” in the very sentence he used that word in in section Volume 1 Chapter 19 Section 21 of his legal treatise, The Law of Nations or Principles of Natural Law, which the founders and framers were using extensively to create the new country and write the founding and framing documents.
Also see “Of Trees and Plants and Basic Logic: Trees are plants but not all plants are trees. “natural born Citizens (NBC)” are “native born Citizens” or “Citizens at birth (CAB)” but not all “native born Citizens” or “CAB” are “NBC”!”: https://cdrkerchner.wordpress.com/2011/07/07/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc-2/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Did anyone dispute William Rawle when he wrote:
“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. ”
https://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships23.html
Just because he said it doesn’t make the statement true. Like many commenters on this thread who claim that one’s parents need not be US Citizens for their Child to be an NBC, Rawles was wrong.
As the Framers are all dead, there is no method to divine their intent, other than to look at their notes and other writings. And there’s no evidence in their notes and other writings that the Framers relied on Vattel when drafting the natural-born-citizen clause.
Regardless, the U.S. Constitution is full of compromises. Even assuming some, unnamed Framers wanted something more than requiring the president to have been a U.S. citizen since birth, that is still a stronger check than allowing naturalized citizens or non-citizens to become the president.
SCOTUS has already settled the issue. There are over seven cases that confirm the established fact that an NBC IS “One born in the US to parents who are both US Citizens themselves”. Minor v Happersett is not the sole case.
Consider the clarity of sentence #3:
Both “natives or natural-born citizens” are clearly “distinguished from aliens or foreigners”.
natives or (“or” = same as, not different from)
natural-born citizens …
distinguished from aliens
or foreigners (“or” = same as, not different from)
Observation: if “or” in both locations in sentence #3 does not = “same as” then “or” is incoherent.
The inclusion of “or” can’t imply BOTH”natives” AND those who are NOT “natural-born citizens”, right?
The inclusion of “or” can’t imply BOTH “distinguished” from AND also NOT “distinguished” from, right?
In the 1787 Article II Section 1 clause 5, “…a natural born Citizen, or a Citizen of …”, the word “or” = NOT same as = not the same type of “citizen”.
In the 1875 Minor v. Happersett the word “or” in sentence #3 listed previously = same as.
The perpetual relevance of “born” in “natural born Citizen” for eligibility to be president is natural law immutable. Only “… children born [natural law] in a country of parents [natural law plural] who were [already] its citizens [positive law “citizens” before a child is born] became themselves, upon their birth [natural law ], citizens [positive law] also [positive law “citizens” by natural law birth alone]”.
Neither an Article I positive law Naturalization Act of Congress (1790, 1795, 1802, 1855 … 1952 and updates since), nor an Article III positive law fiat “opinion” of the 1898 Supreme Court, nor an 1868 Article V positive law amendment to the constitution is able to “create” a child with eligibility to be president.
That makes Article II “natural born Citizen” with singular U. S. citizenship “created” by birth alone on U. S. soil to two U. S. citizens married only to each other before a child is born “natural law” common sense, right?
The Ankeny “opinion” is not “natural law” common sense. Right?
Art
Hi Sharon,
Whoops, correction from a previous comment of mine. Let’s try it again.
Neither the 1790 Naturalization Act use of “natural born citizen”, which implies eligibility to be president, nor the 1795 Naturalization Act single replacement word “citizen”, which implies NOT eligible to be president, were the source for the 1875 Minor Court “natural-born citizen” language. The 2000s Ankeny Appeals Court McCain “opinion” if dictum does not pertain to 1787 original genesis and original intent.
Minor v. Happersett, 88 U. S. 162, 167-68 (1875):
1) “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.
2) “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.
3) “These were natives or natural-born citizens, as distinguished from aliens or foreigners.”
Contemporaneous use of the term “natural born” in the USA during the founding and framing time frame, see this example from 1781, during the Articles of Confederation period, before the U.S. Constitution was drafted.:
Absolute Proof the Founders Knew and Accepted Vattel`s French “naturels” to Mean “natural born” in the American English Language Before the Constitution Was Written found in treaty correspondence between France and the Continental Congress: https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
And we know that Vattel was widely read and in use by the founders and framers. Benjamin Franklin in 1775 thanks Charles Dumas of the Netherlands for sending him 3 more copies of the newest edition of Vattel’s Law of Nations: https://cdrkerchner.wordpress.com/2010/04/27/benjamin-franklin-in-1775-thanks-charles-dumas-of-the-netherlands-for-sending-him-3-more-copies-of-the-newest-edition-of-vattels-law-of-nations/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Every English version of Law of Nations prior to 1787 translates “naturels” as “natives” even the 1797 English edition (when the term natural born citizen first appears) translates “naturels” as natives.
Some years ago, John Greschak researched the various editions of the Law of Nations. Here is a summary and link to his work:
1758 Original French edition – “Les Naturels, ou Indigènes “
1759 first English edition (London) – “natives, or indigenes,”
1760 English edition (London) – “natives, or indigenes,”
1787 first American edition (New York) – “natives, or indigenes,”
1792 English edition (Dublin) – “natives, or indigenes,”
1793 English edition (London) – “natives, or indigenes,”
1796 English edition (New York) – “natives, or indigenes;”
1797 English edition (London) – “natives, or natural born citizens,”
http://web.archive.org/web/20100404055353/http://www.greschak.com/essays/natborn/index.htm
Kerchner, “we know that Vattel was widely read”
As was Blackstone’s Commentaries.
John Adam’s personal library (housed at the Boston Library) has copies.
https://www.librarything.com/catalog/JohnAdams&deepsearch=Blackstone
Charles Cotesworth Pinckney (a Framer of the Constitution) studied law under William Blackstone.
“Pinckney received tutoring in London, attended several preparatory schools, and went on to Christ Church College, Oxford, where he heard the lectures of the legal authority Sir William Blackstone and graduated in 1764. Pinckney next pursued legal training at London’s Middle Temple and was accepted for admission into the English bar in 1769.”
http://www.let.rug.nl/usa/biographies/charles-cotesworth-pinckney/
Remember the dissent in Shanks v DuPont by Justice William Johnson? Johnson studied law under Charles Cotesworth Pinckney
“Johnson went on to read law under leading Charleston attorney Charles Cotesworth Pinckney, qualifying for the bar in January 1793.”
https://www.scencyclopedia.org/sce/entries/johnson-william-jr/
The question is still unanswered:
Which definition of natives was Washington using in 1777 when he said “You will therefore send me none but Natives” – English Common Law or Law of Nations?
Becker wrote: “Which definition of natives was Washington using in 1777 when he said “You will therefore send me none but Natives” – English Common Law or Law of Nations?”
Silly question and a diversion on your part. There were no “natural born Citizen” of the United States people of age to be of service to Washington in 1777. The “natural born Citizen” clause was put into the new Federal Constitution in 1787 to apply only to future Presidents and Commander in Chiefs after the founding generation was gone. So he was likely asking for “natives” of the several sovereign and independent states. And whatever Washington’s understanding of the word “natives” was in 1777 is not relevant to who can be President and Commander in Chief after the Federal Constitution was adopted in 1787 (said constitution not being common law of anything when it was adopted but in effect a writ issued by We the People through our newly sovereign and independent states to limit the power of the new Federal government). So they looked to the Law of Nations and/or Natural Law not English Common Law to unite the newly sovereign and independent states into a “more perfect union”.
The correct question to you is which interpretation of “natural born Citizen” is a “strong check” on foreign influence and when John Jay wrote his letter to George Washington, the President of the Constitutional Convention in 1787. What was their original intent when it was adopted then.
I say the meaning of “natives (the indigenous)” or “natural born Citizen (the naturels)” was as written by Vattel in the January 1775 Fench edition of Vattel’s Law of Nations or Principles of Natural Law and the 1797 English edition which just put into plain English that which was already understood the French to be read and translated as. The meaning was not simply invented for the 1797 English edition. It was what the French meant all along. And it is what “naturels” translated to, that is “natural born” in diplomatic correspondence as was documented in 1781. See: https://cdrkerchner.wordpress.com/2015/04/17/absolute-proof-the-founders-knew-and-accepted-vattels-french-naturels-to-mean-natural-born-before-constitution-was-written/
So whether Washington in 1777 meant when he wrote “natives” he meant it to mean “natives” as in native-born or as “natives” as in natural born per Vattel, is not relevant to what was written into the Presidential Eligibility clause in 1787 and is not relevant to who can be President and Commander in Chief of our military after the founding generation was gone. And Minor v Happersett (1875) U.S. Supreme Court holding told us clearly in its “holding” what “natural born Citizen” meant without any doubt.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Kerchner, “So whether Washington in 1777 meant when he wrote “natives” he meant it to mean “natives” as in native-born or as “natives” as in natural born per Vattel”
You are ignoring that natives meant natural born in English law.
Washington could only be using the English Common Law definition.
Kerchner, “The correct question to you is which interpretation of “natural born Citizen” is a “strong check” on foreign influence and when John Jay wrote his letter to George Washington, the President of the Constitutional Convention in 1787””
It doesn’t matter what we think is a strong check, it is what did they thought in 1787. Madison said the most certain criteria for allegiance is place of birth.
When the city of london has its hand in everything you get corruption at every govt & judicial level. Forget the NBC issue, too many do not agree, too much hair splitting. For barry go after the proven crime of forgery of the bc. The rest will come out.
Obama has not been president for over five years now.
Even assuming some law enforcement agency believed Obama had committed some sort of crime, a half-decade of inaction suggests no action ever will be undertaken.
On March 5, 2022 Alan Dershowitz corresponded in an Email addressed to Tom Arnold, a regular reader and commenter on the P & E.
In that Email, which Mr. Arnold forwarded to me, Professor Dershowitz is quoted as saying:
“It does not matter constitutionally where [Obama] was born, as long as he was born to a Mother who is a U.S. Citizen”. In saying this, Dershowitz joins his fellow errant Harvard “Constitutionalists” Clement and Katyal.
As I told Clement and Katyal years ago. I informed Professor Dershowitz that his assertion is not based in legal fact and long established jurisprudence and also told him that he is wrong. I understand that Mr. Arnold also replied to Dershowitz concurring with me that Dershowitz is not correct.
It would appear evidence-free beliefs about Vattel are not “stronger” because they have been rejected by at least three prominent attorneys associated with one of the premiere law schools in world, in addition to every judge who has considered the matter.
Even Professor Herb Titus (a Vattel believer) believed that Wong Kim Ark was authoritative on the question of natural born citizens.
From amicus brief in Rudy v. Lee
“It is well-established that there are two kinds of birth citizenships, one acquired by parentage of birth and the other by place of birth. As for the first kind, this Court stated assuredly in the 1875 case of Minor v. Happersett that:”
“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. [Id.]”
“Less confidently, this Court opined in that same case that:”
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. [Id. at 167-68]”
“However, 23 years later, this Court appeared to elevate this second view, asserting that citizenship acquired by birth was governed by the English common law rule that citizenship at birth was defined by place of birth, except in those cases where the parents owed an official allegiance to a foreign government. See Wong Kim Ark, 169 U.S. 649, at 655 (1898). In a cogent dissent, Chief Justice Fuller refuted the claim that the English common law of citizenry by place of birth applied in the United States, given its origin in “feudalism between the individual and the soil on which he lived, and the allegiance due was that of liegemen to their liege lord.” Id. at 707 (Fuller, C.J., dissenting). In the English monarchical rule’s stead, the Chief Justice drew on the international law of nations which held that “natives, or natural-born citizens, are those born … [of] parents
who are citizens.” Id. at 708.”
[skip]
“It is not necessary at this point to decide whether President Obama is a natural born citizen. Nor is it necessary now to endorse Justice Gray’s views over those of dissenting Chief Justice Fuller, or vice versa. Indeed, Mr. Rudy’s case against President Obama’s citizenship is based upon both views — that he is not a natural born citizen based either on his place of birth, or on the citizenship of his parents.“
https://www.lawandfreedom.com/site/constitutional/Rudy%20v%20Lee%20USJF%20Amicus%20Brief.pdf
He does not say that Minor v Happersett is a binding precedent.
Why didn’t Professor Titus tell the SCOTUS that the Wong decision only made Wong a native-born citizen, not a natural born citizen?
The definition in Minor v. Happersett was not dicta. It IS therefore a binding precedent. Obama was purportedly born to Barack Obama, Sr. (a Kenyan father who was still married to his Kenyan wife Kezia Obama when he claimed marriage to Stanley Dunham). Senior was not legally married to Stanley Dunham. Senior was a bigamist. Obama does not have 100% U.S. jus sanguinis. If Obama Senior is his Father (since Obama forged his BC no one can be sure) then Junior has 50% Kenyan jus sanquinis and since his BC is a proven forgery Obama may not even have US jus soli. Junior is NOT an NBC.
Minor v. Happersett did not provide an exclusive definition of natural-born citizen. Indeed, the ruling conceded this, and then proceeded to what the case actually was about, that is, voting rights.
Just as no court ever said two U.S. citizens parents are required, no court ever has said that Obama’s birth certificate was forged.
Those “three prominent attorneys” from Harvard are patently wrong. Harvard apparently has abrogated any proper respect for the law.
These attorneys’ beliefs are consistent with the judges who have ruled on eligibility cases. They’ve accurately described what the law actually is, as opposed to portraying one’s wishes as the law in actuality.
I too, got involved with an email exchange with Mr. Dershowitz. It wasn’t pretty. I told him essentially that he didn’t know what he was talking about. Making things up with no factual basis.
Harvard has become a leftist propaganda tool.
Mr. DeMaio, “However, Jay’s proposed amendment offered in the New York ratification process also sought to extend the natural born citizen “freeholder” restriction to “Members of either House of the Congress of the United) States.” That amendment, as we know, failed, with the delegates settling on the language of Art. 2, § 1, Cl. 5 as we now see it.”
Well, technically it made it through the New York Ratifying Convention and was included with the ratifying documents but not acted on by Congress.
“That no Persons except natural born Citizens, or such as were Citizens on or before the fourth day of July one thousand seven hundred and seventy six, or such as held Commissions under the United States during the War, and have at any time since the fourth day of July one thousand seven hundred and seventy six become Citizens of one or other of the United States, and who shall be Freeholders, shall be eligible to the Places of President, Vice President, or Members of either House of the Congress of the United States.”
https://catalog.archives.gov/id/24278854
https://avalon.law.yale.edu/18th_century/ratny.asp
What did not make it into the ratifying documents was Mr. Smith’s amendment that would create a sort of privy council made of natural born citizens.
“Resolved, as the opinion of this committee, that the Congress should appoint, in such manner as they may think proper, a council to advise the President in the appointment of officers; that the said council should continue in office for four years; that they should keep a record of their proceedings, and sign the same, and always be responsible for their advice, and impeachable for malconduct in office; that the counsellors should have a reasonable allowance for their services, fixed by a standing law; and that no man should be elected a counsellor who shall not have attained to the age of thirty-five years, and who is not either a natural-born citizen, or has not become a citizen before the 4th day of July, 1776.”
https://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=002/lled002.db&recNum=419&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28ed0027%29%29%230020217&linkText=1
Of course limiting Congress and the proposed council to natural born citizens follows along with the English system of not allowing naturalized subjects to be in parliament or the privy council.
“NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament,. No bill for naturalization can be received in either house of parliament, without such disabling clause in it.”
https://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp
“he is incapable, as well as a denizen, of being a member of the privy council, or parliament,.”
A good example of this in the Colonies was the 1771 case of Jonathan Hager (founder of Hagerstown). He was elected to the Maryland Assembly but his election was contested on the grounds he was neither a natural born subject or the son of a natural born subject. He was born in Saxon and after coming to the American colonies, naturalized in 1747. He was denied a seat in the Assembly based on both English and Maryland laws. But to show how the British colonists were begining to rethink naturalization, the Assembly quickly passed a law making naturalized subjects eligible to serve in the Assembly.
https://books.google.com/books?id=_LybcITVSE8C&pg=PA148&dq=jonathan+hager+natural+born+subject&hl=en&newbks=1&newbks_redir=0&source=gb_mobile_search&gbmsitb=1&sa=X&ved=2ahUKEwjwqtDHytL2AhUSKEQIHUH8AjQQuwV6BAgHEAc#v=onepage&q=jonathan%20hager%20natural%20born%20subject&f=false
Citing what the BRITISH did or did not do has no bearing on what U.S. jurisprudence has long since established. A Natural Born Citizen IS one born IN the United States to parents who are both U.S. Citizens themselves.
Actually what the BRITISH did and the English definition of “natural born” were important because the former colonies all adopted English common law into either their state constitutions or by enacting laws to do so.
That explains why the authors of the US Constitution felt no need to define the term when they included it since the meaning was already clear in the common law which they were all well versed. Had they changed it they would have taken the time to explain the new definition. But they did not.
This is all spelled out in the majority opinion in Wong Kim Ark. Justice Gray said that the 14th Amendment was merely stating what had been the practice from the founding of the country excluding the racist decision in Scott v Sandford.
Justice Gray wrote:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
This is why you cannot cite a single court decision where someone born a citizen on US soil was ruled ineligible based on parentage.
In Wong Kim Ark, the U.S. Supreme Court said to look to English Common Law for definitions of terms in the U.S. Constitution.
Mr. DeMaio, “However, your humble servant is still waiting for a rational answer as to why Justice Gray’s blunder does not undermine the WKA majority opinion’s conclusion.”
It is not material for several reasons.
1) The verbiage used in the 1790 and 1795 acts is immaterial to the facts in the case. Wong Kim Ark was not born outside the US to citizen parents so neither of the 1790s acts could impact the decision.
2) Justice Gray’s summary of the 1790, 1795, 1802 and 1855 naturalization acts was used to show that Congress never used their constitutional powers to restrict citizenship by birth in the United States.
“Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.”
“So far as we are informed, there is no authority, legislative, executive, or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country which have gone the furthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent, Comm. 39, 50, 53, 258, note; Lynch v. Clarke, 1 Sandf. Ch. 583, 659; Ludlam v. Ludlam, 26 N. Y. 356, 371.” Justice Gray at 48 in US v Wong Kim Ark.
https://www.law.cornell.edu/supremecourt/text/169/649
Mr. DeMaio, “Rather, it can be found only in correspondence, notes of debates and similar exchanges among persons of that era.”
Don’t those items give us an indication of the Founders understanding of the meaning of the terms?
One of the arguments has been that the Framers did not have to explain the mean of the term natural born citizen because everyone knew what it meant. Okay so where are the “correspondence, notes of debates and similar exchanges among persons of that era“ that indicate that knowledge?
In Blackstone’s Commentaries – natives is equivalent to natural born subjects.
In Vattel’s Law Of Nations – natives is equivalent to natural born citizens.
So in 1777 which definition of natives was Washington using?
“You will therefore send me none but Natives, & Men of some property, if You have them—I must insist that in making this Choice You give no Intimation of my preferance of Natives, as I do not want to create any invidious Distinction between them & the Foreigners.”
https://founders.archives.gov/documents/Washington/03-09-02-0301
Mr. Becker wrote: “In Vattel’s Law Of Nations – natives is equivalent to natural born citizens.” But Mr. Becker did not include the fact that Vattel in the same sentence were he equated “natives” and “natural born”, the Vattel defined what he meant in the use of those term, i.e., born in the country to parents who were both citizens of the country.
The word “natives” as used by Vattel is not equivalent to the term “native-born” as is being used today and in this forum to mean just born in the country. That is NOT what Vattel said his meaning of “natives” was. Vattel told us what he meant in the same sentence when he used that word.
I think that this is linquistic trickory and manipulation (Antonio Gramsci tactics) on the part of the non-Vattel arguers in conflating the words/terms “natives” as used by Vattel (and he told us what he meant in the same sentence) and the words/terms “native-born” as used today and more recent times and in modern dictionaries, than when Vattel wrote his legal treatise, The Law of Nations or Principles of Natural Law.
Vattel used the word “natives” as a synonym for “indigenous”, meaning like those that lived there for many generations, not just simply born there of a recent immigrant, tourist, or sojourner. Again, Vattel told us what he understood and meant by his use of the word “natives” in the very same sentence he used it.
And we also know that the Constitutional Convention was presented with an option by Hamilton to limit the Presidency to just being “born a Citizen”, and it was not accepted, as documented by Hamilton wanting his proposed constitutional language put in Madison’s record of events.
So we know that simply being “born a Citizen” without regard to how that status was obtained was not sufficient to the founders and framers. They instead chose “natural born Citizen” which is the much stronger protection of being born a Citizen of the country by being born in the country of parents who are both citizens. The adjectives “natural born” before Citizen mean something. They go to Natural Law and the parentage of the child. A “natural born Citizen” is one who is born with no divided allegiance and multiple citizenship at birth, i.e., one born in the country of parents who were both Citizens of that country, per the Law of Nations or Principles of Natural Law. See Vattel Section 212 … Of Our Native Country and Things That Relate to It: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/
See: https://cdrkerchner.wordpress.com/2021/11/18/a-lesson-from-history-is-being-a-born-citizen-of-the-united-states-sufficient-citizenship-status-to-be-president-the-founders-and-framers-emphatically-decided-no-it-is-not-by-cdr-charles-kerch/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Kerchner is conveniently ignoring that English Common Law also had a definition for natives and natural born.
Blackstone’s Commentaries:
“OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.”
“THE first and most obvious division of the people is into aliens and natural-born subjects.”
“But the oath of allegiance may be tenderedi to all perfons above the age of twelve years, whether natives, denizens, or aliens”
“THESE are the principal distinctions between aliens, denizens, and natives”
https://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp
So the question remains what definition of natives was Washington using in 1777?
““You will therefore send me none but Natives, & Men of some property, if You have them—I must insist that in making this Choice You give no Intimation of my preferance of Natives, as I do not want to create any invidious Distinction between them & the Foreigners.”
https://founders.archives.gov/documents/Washington/03-09-02-0301
Kerchner, “And we also know that the Constitutional Convention was presented with an option by Hamilton to limit the Presidency to just being “born a Citizen”, and it was not accepted, as documented by Hamilton wanting his proposed constitutional language put in Madison’s record of events.”
Hamilton never submitted his “born a citizen” to the Convention. He left the Convention on June 30th, returned for one day in August (the 13th), and returned on September 4th.
He told Timothy Pickering that he gave the draft to Madison a day or two after the Convention.
“In the plan of a Constitution, which I drew up while the convention was sitting, and which I communicated to Mr Madison about the close of it, perhaps a day or two after, the office of President has no greater duration than for three years”
https://www.consource.org/document/alexander-hamilton-to-timothy-pickering-1803-9-16/
English Common Law was NOT used to write the Federal Constitution. The Law of Nations or Principles of Natural Law was used to unite the 13 newly independent sovereign states under a Federal Constitution to create a more perfect union.
English Common Law was used at state levels for dealing with land and estates. But it was not used for the Federal Constitution.
What part of English Common Law deals with uniting 13 prior colonies, and now independent sovereign states, into a new country. There is no such English Common Law. The founders and framers looked to the Law of Nations and Natural Law to frame the Federal Constitution. Again, the other side is conflating the issues of where English common law applied and where it did not in the new country.
With regard to the Hamilton proposed Constitution I wrote in my essay https://cdrkerchner.wordpress.com/2021/11/18/a-lesson-from-history-is-being-a-born-citizen-of-the-united-states-sufficient-citizenship-status-to-be-president-the-founders-and-framers-emphatically-decided-no-it-is-not-by-cdr-charles-kerch/ :
“Another version of Hamilton’s proposed Constitution and which principles were stated during the convention’s deliberations per Madison notes and journal (see work of Farrand – pg 619), was given to Madison near the close of the convention for inclusion in Madison record of events for the convention. Hamilton’s proposed Constitution was not accepted.”
The written copies were presented to Madison for inclusion in the records since Hamilton said it’s principles were stated during the convention. Madison would not have included documents in his records if they were not stated during the convention at some point, as Hamilton said. Hamilton wanted his principles which were stated during the convention to be included in the official record which is why he presented a copy to Madison to include in his records of events.
Becker is trying to obfuscate and conflate various tidbits of information to confuse the readers. And obvious and long practiced tactic of the advocators of the weakening of the meaning of “natural born Citizen” to the founders and framers. Becker and his ilk do not want the “natural born Citizen” term in the Presidential Eligibility Clause to be a “strong check” against foreign influence per John Jay and George Washington. The meanings they put forward of “natural born Citizen” would allow people born with dual and triple Citizenship and allegiance to three countries at birth to be Commander in Chief of our military. That is not what the founders and framers intended when they chose the “natural born Citizen” requirement for future Presidents and Commanders in Chief, once the founding generation was gone. It was the Vattel definition which they were using and understood “natural born Citizen” to mean when they inserted “natural born Citizen” into our new Federal Constitution. As has been stated by many in the federal courts after the new Federal Constitution was written, there was no Federal Common Law. The new Federal Law was the new Federal Constitution itself.
Becker and others on his side should explain to us all how using their definition of “natural born Citizen” which allows Ted Cruz who was born in Canada to a Cuban Citizen father … or Obama whose father was not a Citizen or even an immigrant to this country and to which Obama looked to for fulfill his father’s dreams to weaken the USA .. or Kamala Harris who was born in the USA to two person only here in the USA temporarily on student Visas, to be able serve as President and Commander in Chief, is a “strong check” against foreign influence, which is why John Jay suggested it and George Washington got the convention to include it in the new Federal Constitution. Becker et al definition of the founders and framers understanding and meaning of the “natural born Citizen” term is not a “strong check” at all and is contrary to what John Jay and George Washington intended when they got it inserted into the Presidential Eligibility Clause, and that which the Constitution Convention meant it to mean: https://www.scribd.com/document/241491173/John-Jay-Letter-to-George-Washington-in-1787-Recommending-the-Natural-Born-Citizen-Clause-be-Added-to-Requirement-for-Future-Pres-CinC
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
The U.S. Supreme Court in Wong Kim Ark already explained English Common Law is the basis for defining term in the U.S. Constitution: “In this, as in other respects, [the U.S. Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.”
This is a reference to English Common Law because following this pronouncement the U.S. Supreme Court extensively examined English Common Law, starting with “Calvin’s Case.”
The majority ruling in Wong Kim Ark did not cite Vattel, but the dissent did.
Kerchner, “English Common Law was NOT used to write the Federal Constitution.”
And yet the Constitution is full of English legal terms and concepts.
Bills of Attender and ex post facto laws (Article I, Section 9, Clause 3) are English legal terms not found in the Law Of Nations. In fact Article I, Section 9, Clause 3 is proof that the Framers used Blackstone’s Commentaries at the Convention.
“Mr. DICKENSON mentioned to the House that on examining Blackstone’s Commentaries, he found that the terms, “ex post facto” related to criminal cases only” James Madison in Notes on the Debates in the Federal Convention.
https://avalon.law.yale.edu/18th_century/debates_829.asp
Hamilton wrote that the process of impeachment (Article 1 Sections 2 and 3) was model on the British process.
“The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it.” Hamilton in Federalist 65
https://avalon.law.yale.edu/18th_century/fed65.asp
Hamilton also wrote it was fair to seek the meaning of terms in the Constitution in English law.
“If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and not liable to apportionment; consequently not a direct tax.”
“An argument results from this, though not perhaps a conclusive one: yet where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
https://oll.libertyfund.org/title/lodge-the-works-of-alexander-hamilton-federal-edition-vol-8?html=true
Chief Justice Marshall, “As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.” US v George Wilson 32 U.S. 150
https://www.law.cornell.edu/supremecourt/text/32/150
“The written copies were presented to Madison for inclusion in the records since Hamilton said it’s principles were stated during the convention. Madison would not have included documents in his records if they were not stated during the convention at some point”
Pure speculation on your part. Hamilton himself said it was given to Madison several days after the end of the Convention.
Max Farrand described it this way, “The document that has just been discussed [June 18th draft plan] is to be distinguished from the following [draft constitution], which was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”
https://memory.loc.gov/ll/llfr/003/0600/06230619.tif
There is no record of this plan being discussed even in Hamilton’s notes of the Convention. Madison’s notes lists and describes the other plans including Hamilton’s June 18th plan. Since Hamilton missed all of July and all but one day in August when did he discuss this plan? There is no record of it.
Your explanations are right-on-target.
Thanks for your military service and thanks for your dedication to ferreting out the US Constitution, Article II fraud propaganda BULL horns.
Thank you Nikita for your kind words. You can read more of my writings at the links below.
CDR Kerchner (Ret)
https://cdrkerchner.wordpress.com
http://www.scribd.com/user/52640192/protectourliberty/lists
http://www.protectourliberty.org
Strangely, the New York State Board of Elections refuses to correct a misrepresentation it proffers by erroneously continuing to this day to cite “born a citizen” as one of the requirements to be President. As evidenced by articles in the P & E archives, This erroneous representation became part of my court briefs in Laity v. NY, & Barack Obama,USSCt. (2014) and also in Laity v. NY,Cruz,Rubio and Jindal, USSCt. (2018).
Every one of those court cases lost.
How many cases must one lose before concluding it isn’t the courts that are wrong?
“if the Ankeny court came to that point in the WKA majority opinion where Justice Gray related that the 1795 act repeated…”
To cite a popular saying “if ifs and buts were candy and nuts we’d all have a merry Christmas.”
The fact is the Appeals Court in their published opinion (precedential opinion in Indiana) did not examine the case for Senator McCain and therefore did not rely on WKA.
Footnote 10 “Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we therefore do not address Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 668.”
and
Footnote 15: “We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the only way one can receive natural born citizen status.”
DeMaio, “Suffice it to say that because the matter in Ankeny never proceeded to a trial on the merits, but was dismissed for a purported “failure to state a claim upon which relief could be granted,” the court’s abstract discussion of the eligibility issue is itself either dictum or, at minimum, of limited precedential weight on the federal constitutional eligibility topic, even in Indiana.”
I will leave it to the lawyers in the group to respond but my understanding of failing to make a claim upon which relief can be granted is a ruling on the legal sufficiency of the claims and is therefore a ruling on the merits.
A trial in Ankeny was unnecessary: the parties did not dispute the fact that Obama was born in the United States; no fact was in dispute in that case.
What was disputed was the legal effect of that birth. But trials and juries are not necessary to answer legal questions, as a judge alone resolves legal questions as to what the law is.
Because the Indiana courts concluded (minor exceptions aside) those born in United States are natural born citizens, and the parties didn’t dispute that Obama was born in the United States, there was no legal claim about his eligibility, so the case was dismissed.
There is absolutely no authentic legal documentation in the public domain that definitively establishes a birth in the United States for the anti-American fraud commonly referred to as Barack Hussein Obama.
Officials from Hawaii repeatedly certified and verified Obama was born there. In the United States, birth certificates are sufficient evidence of place of birth.
Regardless, the plaintiffs in Ankeny didn’t dispute that Obama was born in Hawaii. Which ultimately was wise on their part; if they did dispute where Obama was born, then they would have had to provide admissible evidence of Obama’s alleged birth elsewhere.
“STRONG CHECK”
We The People need to have the whole election process overhauled to include background checks for all personnel at all levels of government in the U.S.A. The whole election debacle in the U.S.A. has degraded into a three-ring circus operated by Mafia-style political committees, both on the right and on the left, plus the waffler Independent candidates that jump the fence when it financially benefits them. All sides violate election laws. Huge money donations corrupt all candidates. The electorate is not uneducated on their own right; they are uneducated due to NON-DISCLOSURES and massive obfuscations of and by all of the candidates.
If the electorate is expected to make sound decisions on the political candidates, overhaul the election system as follows:
All Article I and Article II personnel must be limited to only one term of office, bar none. A Constitutional Amendment must be added to limit U.S. Supreme Court members’ term of office to one 5-year term, no exceptions.
Government individuals, including U.S. presidents should receive no retirement benefits nor Secret Service protection upon completion of service. No one running for public office should receive more than one dollar ($1.00) donation from any one private U.S. citizen or from any one corporation during their campaign for office. All government salaries and raises should always be put to an electorate vote during the general election. Ban all foreign donations and if donated, disqualify candidate.
Anyone running for the presidency, the Congress, and the U.S. Supreme Court offices should be subjected to a background investigation using Standard Form (SF) 86 covering their entire lifespan and the results of this SF86 document should be made public to all constituents one year prior to election, understanding of course that U.S. Supreme Court nominee selections are done in the U.S. Senate. A lie detector test should be a mandatory requirement before being added to the ballot.
Additionally, the SF86 results should be used by an independent civilian organization to assess suitability for a top secret classified clearance. If a person is rejected for a classified clearance, they should also be rejected for the ballot.
Ban paid lobbyists. They are mostly shills with evil intentions.
McCain was born to two U.S. Citizens outside of the Jurisdiction of the United States as well as outside the parameters of the USA.
The Nationality Act of 1795 clearly repealed the provision that “considered” those born overseas to US Citizen parents as NBCs. McCain was a statutory “Citizen” not an NBC. McCain was NOT born on US soil. Panama is a sovereign foreign nation. By treaty it ceded certain areas to the USA to build the Panama Canal. It had a (5) mile parameter extending from both banks of the canal. McCain was born in Colon, Panama (OUTSIDE of the parameters of the Panama Canal Zone). Colon, Panama and Panama City, Panama were expressly excluded from the parameters of the PCZ by treaty. In any event, the PCZ was NEVER a fully incorporated territory of the USA. Birth in the PCZ did not constitute birth on US soil. It was only by statute that McCain gained US Citizenship. McCain was NOT an NBC.
Evidence-free beliefs about Vattel and actual courts’ rulings on the merits in eligibility cases are not in equipoise: unlike beliefs, courts’ rulings have real-world consequences and carry the force of law.
Due of Ankeny, it is the law of Indiana that Obama is a natural born citizen because he was born in the United States. On the other hand, evidence-free beliefs about Vattel have not changed any legal authority.
The persuasiveness of Ankeny is further demonstrated by other courts in other states agreeing with its analysis, coming to the same conclusion, and making additional rulings that Obama is a natural born citizen. Whereas no court has been persuaded by evidence-free beliefs about Vattel (or errant readings of Minor v. Happersett); on occasion, such beliefs have been expressly rejected.
So while anyone may believe evidence-free beliefs about Vattel are “stronger,” such strength is not being measured by the ability to shape courts’ rulings and the impact that flow from them.
I repeat no authentic legal documentation exists. It’s well known that there was corruption and a cover-up by officials in Hawaii. Nice try.
Officials from the State of Hawaii repeatedly certified and verified Obama was born there. And officials from other states have accepted that verification as legitimate.
So it is a curious assertion to say there’s no authentic documentation when officials from different states have offered and received Obama’s birth certificate for the very purposes of showing place of birth. State authorities view it as authentic.
There’s no evidence there was “corruption and cover-up” with respect to Obama’s birth certificate.
None of the hospitals in Hawaii verified that he was born in their facility. Furthermore, the fact that BHO’s BC has been proven by forensic examination that it WAS forged, belies the claims of any “officials from the State of Hawaii” that an Obama BC has been “verified”.
Regarding Supreme Court decisions: Repeating what Art Telles posted further up in this thread, and which you “natural born Citizen” abrogators posting here and in the progressive political movement in both major parties choose to ignore, is a U.S. Supreme Court decision and holding that has never been overturned:
Minor v. Happersett, 88 U. S. 162, 167-68 (1875):
1) “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.
2) “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.
3) “These were natives or natural-born citizens, as distinguished from aliens or foreigners.”
See more U.S. Supreme court cases telling us who a “natural born Citizen” is at this site: http://www.art2superpac.com/issues.html
And the U.S. Supreme Court today has been still evading taking up the issue of presidential eligibility directly, as they evaded it during the 2008-2010 time frame, out of political fear of the racist charge being thrown about re the constitutionally ineligible Obama, and have continued avoidance of this national security issue in regards to Kamala Harris and her constitutional ineligibility under the 12th Amendment, by the Roberts lead Supreme Court, as to who is constitutionally eligible to be Commander in Chief.
Did the founders and framers intend, after their generation was gone and the grandfather clause not longer applicable, to allow dual-citizens or tri-citizens by birth, born and raised with innate foreign influence and allegiance requirements on them, to enter into the highest national office of the land, i.e., President and Commander in Chief of our military? The answer is clearly NO! For more on that see: https://wordpress.com/post/cdrkerchner.wordpress.com/20886
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
When a court is in agreement unanimously, as it was in Minor v. Happersett, it does not constitute an “errant reading” of the case that concludes that the ENTIRE court agreed that there was “NO DOUBT” that an NBC is one born IN the US to parents who are themselves US Citizens. Judges that conclude otherwise are making law up as they go.
Literally no one doubts that the U.S. Supreme Court said that people born in the United States to U.S. citizen parents are natural-born citizens. And literally no one doubts that people born in the United States to U.S. citizen parents are natural-born citizens.
It is an errant reading of Minor v. Happersett, however, to say that it said ONLY those born in the United States to U.S. citizen parents are natural-born citizens. And this errant reading on occasion has been expressly rejected by judges who heard eligibility cases.
ONLY Water is composed of two Hydrogen atoms and one Oxygen atom. Any other formula it is NOT water. It is something else. An NBC is one born in the US to 2 US Citizen parents. Any other formula is NOT an NBC.
US2 +B=NBC
US1 +B= Citizen
No US + B= citizen
No US + no B= foreigner
“Johnny drank some H2O. Johnny ain’t no more. For what Johnny thought was H2O was H2SO4.”
The courts and prominent lawyers already have rejected this formulation.
1. I does not matter that Minor v Happersett was unanimous or not.
2. Minor does not say that the only natural born citizens are those born in the US to citizen parents.
3. It does say there are only two kinds of citizens, natural born and naturalized.
4. Minor was not a citizenship case and the entire discussion of Virginia Minor’s citizenship was dicta.
5. No court has accepted Minor as the definitive case defining natural born.
6. Courts have accepted Wong Kim Ark as the definitive case deciding natural born. The vast majority of legal scholars agree.
7. In our country courts interpret the Constitution not private citizens.
8. No court has every ruled anyone born a citizen to be ineligible to serve as president based on parentage.
9. Barack Obama and Kamala Harris are natural born citizens and were eligible to serve in the offices they were elected and inaugurated.
10. No one’s like or dislike of any particular candidate or private views on the meaning of natural born will change 1 through 9.
Response from Joseph DeMaio:
—————–
Mr. Muggs asserts: “7. In our country courts interpret the Constitution not private citizens.”
True, which is why the statement in Minor, as opposed to statements by William Rawle, about what constitutes a natural born Citizen — even if deemed dicta — articulates the factual reality that the Framers of the Constitution, being familiar with the “nomenclature of the day,” used the terminology they did and arrived at the conclusions they did regarding definitions as to which there were “doubts” as well as regarding definitions as to which there were “never any doubts.”
Moreover, if “courts” are the final interpreters of the Constitution, query: why is the Rawles ipse dixit statement being touted as the “be-all-end-all” of the issue? Because the court in Ankeny parroted Rawles’ statement, without even citing him? Really?
“True, which is why the statement in Minor, as opposed to statements by William Rawle, about what constitutes a natural born Citizen — even if deemed dicta — articulates the factual reality that the Framers of the Constitution, being familiar with the “nomenclature of the day,” used the terminology they did and arrived at the conclusions they did regarding definitions as to which there were “doubts” as well as regarding definitions as to which there were “never any doubts.”
What is important is that no court since Minor took the dicta seriously and interpreted the “doubts” as relevant.
If you can cite a single case where the Supreme Court or any court for that matter took any doubts the court in Minor might have expressed as to the current definition of natural born seriously then by all means cite the case. Obama survived over 225 challenges and a majority of them cited Minor. That dog will not hunt. That dog is dead.
The elephant in the room is that natural born citizens include anyone born a citizen. Thanks to lawsuits filed against Ted Cruz in 2016 that even includes citizens born abroad. There once was some controversy about the foreign born US citizens but that too seems to have been settled.
DeMaio – “the Framers of the Constitution, being familiar with the “nomenclature of the day,” used the terminology they did and arrived at the conclusions they did regarding definitions as to which there were “doubts” as well as regarding definitions as to which there were “never any doubts.”
I hope DeMaio is not implying that Justice Wait was referring to the Framers when he discussed the doubts. The “some authorities” he probably meant were the current members of the Court. Justice Miller in the Slaughter-House Case famously in dicta said “The phrase, “subject to the jurisdiction ” was intended to exclude from it’s operation children of ministers, consul, and citizens or subjects of foreign States born within the United States.” But Justice Fields (who was also on the Court in Minor) apparently had a different opinion as in 1884 in In re Look Tin Sing he ruled a child born in the US to Chinese parents was a citizen and he cited the Lynch v Clarke case to support his opinion.
“Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-chancellor SANFORD in Lynch v. Clarke”
“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.”
https://casetext.com/case/in-re-look-tin-sing
What Rawle gives us is “the universal impression of the public mind” amongst the founding generation.
BTW, Assistant Vice-chancellor Sanford cited the passage from Rawle.