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District Court Decision on McCain's Being a Natural-Born Citizen:

It was handed down yesterday in Robinson v. Bowen. The key language (paragraph break added):

Article II states that "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828 (1970). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens. Nonetheless, subject to the floor of the Fourteenth Amendment, it has always been left to Congress to define who may be a citizen by reason of birth (or naturalization proceedings, for that matter). Id. at 829--30.

At the time of Senator McCain's birth, the pertinent citizenship provision prescribed that "[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States." Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase "out of the limits and jurisdiction of the United States" in this statute to be the converse of the phrase "in the United States, and subject to the jurisdiction thereof," in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. [Footnote: United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) ("The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the Congress which proposed the amendment ... [as] the converse of the words 'out of the limits and jurisdiction of the United States,' as habitually used in the naturalization acts.")]

Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain's circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain's circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.

The court goes on to say that the plaintiff ("a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best") also lacks standing to challenge McCain's qualifications, and also that

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review -— if any -- should occur only after the electoral and Congressional processes have run their course.

All this makes the judge's views quoted above pretty much dictum rather than legally binding on anyone -- but then again the reasoning in many judicial opinions (for instance, most concurrences and all dissents) falls in the same category. The judge thought that his opinion on the subject would be helpful, so he rendered it.

Thanks to How Appealing for the pointer.

Shertaugh:
EV:

I see clearly that McCain is, by any statutory measure, a "citizen".

But from the excerpt cited (and forgive me for not reading the entire opinion, as I'm otherwise tied up with FDIC issues), where does the USDC state clearly what a constitutionally defined "natural born citizen" is as opposed to a statutorily defined citizen?

Again, sorry for the quick read and if I missed the answer.
9.17.2008 7:05pm
Dilan Esper (mail) (www):
I think the standing holding is correct, and I would also add that I think the issue of McCain's qualifications is a political question, for much the same reasons. If someone who was not a natural-born citizen did get elected by the public, and the Congress did not intervene by declining to certify the election, the case for the courts going against the will of both the public and Congress seems quite weak.

That said, I have no idea what the heck "natural born citizen" actually means in this context and therefore no comment on the merits of the issue.
9.17.2008 7:09pm
Eugene Volokh (www):
The court takes the view that "natural born citizen" means "citizen at birth."
9.17.2008 7:12pm
Sum Budy:
I'm not sure I like the part about courts not taking a position until AFTER the election. In other words, a court would let citizens cast their votes for naught so that the people's choice (OK, the electoral college's choice) would then be struck down by a court? This language is troubling.

On the other hand, I would have been perfectly happy to let the judge strike this case down on standing without saying anything further about it.
9.17.2008 7:36pm
David Schwartz (mail):
The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment.
This simply defies logic. What if someone was born, as McCain in fact was, outside the limits of the United States but inside its jurisdiction? They are not "out of the limits *and* jurisdiction of the United States" but not "in the United States *and* subject to the jurisdiction thereof" either.

While I agree with the ruling, its logic escapes me.
9.17.2008 7:38pm
Lior:
When an unqualified candidate stands for election, and the administrative body in charge of elections nevertheless puts that candidate on the ballot, someone needs to have standing to challenge the administrative decision in court. I would say that every voter (at the very least) should have standing in this case.
9.17.2008 7:45pm
vassil petrov (mail):
Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review -— if any -- should occur only after the electoral and Congressional processes have run their course.

I am not sure. If someone has standing to challange a candidate he or she must do it before the election day.
9.17.2008 7:48pm
FWB (mail):
Congress is subordinate to the Constitution as are all governmental entities, having been created BY the Constitution. If one accepts the incongruous point that Congress may define "natural born citizen", one must then accept that Congress may define any and all terms of the Constitution, thus detroying any semblance a meaningful written document.

"the will of the People" is not a clause in the Constitution thus any act to claiming to be the will of the People is not a constitutional act.

What the Framers viewed as a "natural born citizen" was different than a simple "citizen". My suspicion is that the requirement ties directly to being born on U.S. soil. For anyone who is in touch with oneself, there is a draw to the "soil" on which one is born that is outside the conscious mind.

As to McCain and the Congressional definitions, Congress doesn't have the authority to define any terms and McCain is getting different treatment than the children of other military personnel. For instance, my ex, the daughter of a military man stationed in France was born on the French side of the hospital and had to be naturalized when the family returned to the US since her birth certificate was French.

I plan to go through my Eliot's debates, my Tucker's Blackstone, and my Documentary History of the Ratification to see if there are any clues.
9.17.2008 7:51pm
matt (mail):
Was the Canal Zone was considered U.S. soil at the time? Regardless, the child of two U.S. citizens, one of whom was serving in the U.S. military on overseas duty at the time, and who was born in a U.S. Naval hospital would for all intents and purposes meet the qualifications for the office of President, I imagine.
9.17.2008 7:52pm
vassil petrov (mail):
The court takes the view that "natural born citizen" means "citizen at birth."

Bulgarian Constitutional Court had a similar case before it in 1996. Our Constitution require among other thingg that the President be only Bulgarian citizen and be гпажданин по рождение ("citizen by birth"). The Constitutional Court decided that this means "a person who at the of his birth acqures Bulgarian citizenry BY jus sanquin or jus soli ACCORDING TO THE BUGARIAN LEGISLATION THEN IN FORCE". This through the candidate of the socialist (who id now the Speaker of the House).
9.17.2008 8:02pm
vassil petrov (mail):
He was not Bulgarian citizen according to the dicriminaring communist law in force at the time because he was born American citizen (Pirinski family was expelled from the US in 1953 as communists).
9.17.2008 8:06pm
vassil petrov (mail):
In 2001 the was another Constitutional Court case that decided what the requirement that the candidate for President must have lived at least 5 years in the coutry means.

The Court decided (7-5) that this means that the candidate must have been actualy in the country at least 185 days a year, 5 years in a row. This was the end of our former tzar's, expelled in 1947 by the communists at age 10, hopes of being elected President. He was then elected prime minister.
9.17.2008 8:13pm
p. rich (mail) (www):
And Obama's citizenship...? No mention here of papers filed weeks ago in federal court, by a Democrat, questioning The Chosen One's legitimacy. There is a pretty good summary at:

Lawsuit Against Obama

Utter silence from the MSM so far.
9.17.2008 8:20pm
FWB (mail):
Interesting. I've been looking over the McCain issue online. Seems he gets different treatment about being a "natural born citizen" than at least my ex-wife, b.1952. As I mentioned above, her father was stationed in France but the materinity side of the hospital was on the French side and so she was given a French birth certificate. She had to go through naturalization on the family's return to US soil.
9.17.2008 8:22pm
FWB (mail):
There is a similar provision in the NM constitution that requires the governor to reside continuously for 5 yrs preceding his election. I brought this up concerning our current governor, who hadn't lived in the state for many years and was not residing continuously for 5 yrs preceding his election. SOme people try to read this as being a "resident" but the terminology is clearly different from that of being a simple resident. If ya gots da dough, ya gots da power!
9.17.2008 8:26pm
Syd Henderson (mail):
FWB: Was her mother also an American citizen? It makes a difference in parts of the US Code.
9.17.2008 8:26pm
ARCraig (mail):
I'm no fan of Alan Keyes (the candidate of the would-be Elector who was the plaintiff), but the swipe at him was totally uncalled for and immaterial to the case.
9.17.2008 8:32pm
ShelbyC:

Was her mother also an American citizen? It makes a difference in parts of the US Code.



Correct. Childeren of US mothers are citizens at birth, children of US fathers are not. This was found constitutional a few years ago.
9.17.2008 8:37pm
cbernard:

If someone who was not a natural-born citizen did get elected by the public, and the Congress did not intervene by declining to certify the election, the case for the courts going against the will of both the public and Congress seems quite weak.


Given the possibility with Barack Obama (www.americasright.com), that might be a reality!
9.17.2008 8:41pm
Bruce Hayden (mail) (www):
I think that the McCain question will never fly. There is no way that a judge is going to prevent a child of two American citizens born in the canal zone, at a time when it was exclusively controlled by the U.S., and when his father was a serving active duty officer there at the time, from the presidency. Regardless of anything else, the public policy ramifications would be overwhelming. After all, McCain's parents were sent to the canal zone by the U.S. government in defense of our country.

That is why Obama's situation is more interesting to me. Was he really born in the U.S.? Or did his mother bring him back from Kenya as a newborn and register him then? And did claiming Indonesian citizenship when he was living there lose any natural born status?

Likely all losing arguments, but still, the public policy arguments are clearly more in McCain's favor than Obama's. Obama only had one U.S. born parent, his mother was voluntarily out of this country at least during her pregnancy with him, she was not defending the U.S. at the time, and he was later voluntarily out of the country while attending school in Indonesia, where he was apparently registered as having Indonesian instead of American citizenship.
9.17.2008 8:42pm
Brett Bellmore:
I don't believe we've invented time machines yet, and thus it's patently impossible for Congress, by dint of any legislation, to retroactively render somebody a citizen at birth who was not, at birth, a citizen. Altering history is beyond the power of any government, the most they can do is lie about history.

Of course, the legal system is quite comfortable with lies, they call them 'legal fictions'. So it's unlikely that the judiciary is going to take exception to this impossibility.
9.17.2008 8:43pm
PersonFromPorlock:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Read literally, this means “No Person except a natural born Citizen...at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” That comma after "States" is a killer.

They're all dead, Jim. ;^)
9.17.2008 8:45pm
Milhouse (www):

That is why Obama's situation is more interesting to me. Was he really born in the U.S.? Or did his mother bring him back from Kenya as a newborn and register him then?
This is no foundation for this. People didn't casually jet around the world back then, and AFAIK there's no reason to believe his mother ever visited Kenya, let alone in her late pregnancy!
And did claiming Indonesian citizenship when he was living there lose any natural born status?
This is just bizarre. Why on earth would it? American citizenship cannot be lost without a conscious and voluntary act of renunciation.
9.17.2008 8:53pm
ARCraig (mail):
It's all a moot point any way. John McCain is eligible by virtue of being a citizen at the time of ratification.
9.17.2008 8:54pm
asdfqwer (mail):

Childeren of US mothers are citizens at birth, children of US fathers are not. This was found constitutional a few years ago.


This is not correct. I'm going to quote from the excellent summary of the law at http://www.richw.org/dualcit/law.html You can find the original US Code provisions covering this at http://www.law.cornell.edu/uscode/8/1401.html

Under the current law, if both parents are US citizens and are married, then the child is a US citizen if either parent had a "residence" in the US at any time in his or her life prior to the child's birth. There is no specific minimum period of time in the law for how long a parent must have been in the US in order for his/her status to be accepted as having been "residence" in the US.

If one parent is a US citizen, and the other is not, and the parents are married, then the current law says the child is a US citizen if the American parent was physically present in the US for one or more periods of time totalling at least five years, at some time or times in his or her life prior to (but not necessarily immediately prior to) the child's birth. Additionally, at least two years out the required five years of physical presence must have taken place after the parent's 14th birthday; thus, for example, a parent who was born and grew up in the US, but who left before reaching age 16 and never returned, doesn't meet the requirement.
9.17.2008 8:55pm
asdfqwer (mail):
Whoops; missed this crucial part from my previous posting

If a non-US-born child's parents are not married, the child's claim to US citizenship depends on whether the American parent is the mother or the father. Section 309 of the INA [8 USC § 1409] grants US citizenship at birth to an "illegitimate" child if his/her American mother had previously spent at least one continuous full year in the US. If the child's American parent is his/her father, however, the child has US citizenship at birth only if the father's paternity is formally established and the father agrees in writing to support the child financially. This sex-based disparity was upheld by the Supreme Court in 2001 (Nguyen v. INS).

It is important to note that a foreign-born child whose parents have fulfilled the residency or physical presence requirements is a US citizen by birth. This citizenship is automatic; it is not dependent on the parents' registering the child with a US consulate (though such registration is strongly encouraged) or getting the child a US passport.
9.17.2008 8:56pm
Milhouse (www):

I don't believe we've invented time machines yet, and thus it's patently impossible for Congress, by dint of any legislation, to retroactively render somebody a citizen at birth who was not, at birth, a citizen. Altering history is beyond the power of any government, the most they can do is lie about history.

That's just false. Legal status is not a physical attribute, and thus can be changed retroactively. If not for the ex post facto clause, Congress could even retroactively turn a perfectly legal act into a crime, and hang you for it. It's certainly capable of doing the opposite.

Australia even declared independence retroactively; the country's independence legally dates back to 3-Sep-1939, even though it didn't get around to actually declaring this until 1942.
9.17.2008 8:57pm
Eugene Volokh (www):
P. Rich: I looked a few weeks ago at the complaint in the case you mention, and it struck me as sufficiently lacking in credibility that I decided not to blog about it. Among other things, when a complaint stoops to quoting Wikipedia entries -- on controversial topics -- as authority, it begins to look pretty fishy.
9.17.2008 9:02pm
Sasha Volokh (mail) (www):
Not like people really follow this rule consistently, but isn't it theoretically supposed to be improper (perhaps Steel Co. v. Citizens for a Better Environment) for a court to exercise "hypothetical jurisdiction" by ruling on the merits when there's no standing?
9.17.2008 9:29pm
Alix Cavanaugh (mail):
For what it's worth, I found the Berg lawsuit so lacking in credibility that I decided to blog about it.
9.17.2008 9:48pm
J. Aldridge:
It's interesting that the Wong Kim Ark court relied on the common law doctrine of citizenship while the the 39th Congress reaffirmed the doctrine of Natural Law. Pretty obvious the Wong Kim Ark court was out to cook the books sort of speak.
9.17.2008 9:50pm
Repeal 16-17 (mail):
I would have been perfectly happy to let the judge strike this case down on standing without saying anything further about it.

Same here. Since the plaintiff lacked standing, the court was wrong to even discuss the merits (much less reach a conclusion). As far as I'm concerned, the parts of this decision dealing with the merits are dicta.

I also have a problem with idea that the Congress is able to statutorily change the meaning of the Constitutional phrase "natural born Citizen". If "natural born Citizen" means whatever the Congress wants it to mean, why was it written into the Constitution?
9.17.2008 9:58pm
J. Aldridge:
In 1872 Congress argued over whether John Houard was a natural-born citizen. Bingham said he was, not because he was born in the United States, but because he father had been naturalized.
9.17.2008 9:59pm
J. Aldridge:
^^ he = his
9.17.2008 10:00pm
Alix Cavanaugh (mail):
The court's decision seems obviously correct: statutory citizens, as well as Fourteenth Amendment citizens, are citizens in virtue of birth and thus "natural born".

As a minor point, I think the proper analysans for "natural-born citizenship" is citizenship in virtue of birth and not citizenship at the time of birth. Consider the hypothetical case of a slave born after the date of the Dred Scott decision, but before the ratification of the Fourteenth Amendment, who subsequently reaches the age of thirty-five and decides to run for President. Is he eligible? I think the answer is clearly yes, although at the time of his birth he was not an American citizen. He became an American citizen in virtue of birth, and thus a natural-born citizen, with the ratification of the Fourteenth Amendment.
9.17.2008 10:09pm
Alix Cavanaugh (mail):
A much more interesting question, by the way, is the following hypothetical: would John McCain be eligible for President even in the absence of the cited statute? At first glance, the answer seems clearly no: the common law and the Fourteenth Amendment establish jus soli citizenship, and only statute law can establish other types of citizenship-at-birth.

I think that this is ultimately right, but there is a colorable argument to be made to the contrary. It has often been held that the "common law" in this country encompasses not only English common law, but the such English statutes in force at the time of independence as were applicable. See, e.g., United States v. Reid, 12 How. 361, 363 (1851); Manoukian v. Tomasian, 237 F.2d 211 (D.C. Cir. 1956). It seems clear that the statute De natis ultra mare was amendatory, and not declaratory, of the common law of England (although Bacon argued to the contrary in Calvin's Case); a fortiori the statute of 7 Anne, c. 5. But nonetheless these might be part of American common law, as longstanding statutes of general effect not in conflict with the Constitution. But a fuller treatment of this question would have to discuss the status of such statutes in the federal common law after Erie ... which seems a lot of work for a hypothetical in a blog comment.
9.17.2008 10:32pm
CiarandDenlane (mail):
I can't top ARCraig's post, but my thoughts FWIW anyway.

I agree that if there is no standing (a point I'm not sure about at the moment), the judge really shouldn't have addressed the merits.

But enough about the courts. What about us? If we choose to vote, are we required to reach the merits of this question?

I've generally been a strong believer that all public officials, not just the courts, have an obligation to follow the Constitution even in cases where the courts have not interpreted the constitutional provision in question and would be unlikely to review the officials' actions. So, my first reaction, was that I also have an obligation as a voter to vote only for persons I conclude are constitutionally eligible for the office.

On reflection, I'm not sure that's right (though I guess I would like to see if I signed some oath when I registered to vote). People vote for Mickey Mouse even though he's not eligible, and, while that may be foolish (or not, I've cast protest votes myself, though not for the Mickster) is it really unconstitutional (or, while not directly "unconstitutional," a violation of a civic duty) to do so? I guess the tougher case assumes a voter who (using McCain as an example) simultaneously a) concludes on the merits that McCain is not constitutionally eligible; b) believes that the courts would not address that question post-election; c) but for conclusion a) would vote for McCain; and d) expects that McCain might win (I'm not sure why this last condition is necessary other than to distinguish Mickey Mouse voting). May such a voter pull the lever for McCain?

Assuming that some voters do have to reach the merits of the residency issue, I thought that points Prof. Lindgren (I'm hoping I'm recalling right who made the comments) made a while back were persuasive. The Constitution does not have to be read as saying that McCain was at the time of his birth deemed a natural born citizen. It is just, or even more, plausibly read as indicating that his citizenship must arise out of the circumstances of his birth -- whether or not the legislation conferring citizenship as a result of such circumstances pre- or post-dated his birth -- rather than as a result of a non-birth event (naturalization). (Apologies to the professor for hashing up an explanation that made much more sense when he gave it.)
9.17.2008 10:37pm
corneille1640 (mail):

"a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best"

Would the plaintiff's standing have been different if he were a would-be elector for a more viable candidate? If so, is that fair?
9.17.2008 11:27pm
J. Aldridge:
Alix Cavanaugh said: "At first glance, the answer seems clearly no: the common law and the Fourteenth Amendment establish jus soli citizenship, and only statute law can establish other types of citizenship-at-birth."

Excuse me, the 14th amendment did no such thing as it was the doctrine of Natural Law that was established. Not one mention of common law doctrine was ever uttered. It was the government arguing in Wong Kim Ark against the common law interpretation. Congress completely trashed the common law belief with the 1868 expatriation act, leading Jacob Howard to declare birth alone to aliens does to create citizenship.
9.17.2008 11:28pm
TruthInAdvertising:
"Regardless of anything else, the public policy ramifications would be overwhelming. After all, McCain's parents were sent to the canal zone by the U.S. government in defense of our country."

That may be true but I've read enough accounts about children of US military personnel born overseas that had to go through the naturalization process that this assumption apparently isn't applied equally by our laws.
9.17.2008 11:46pm
J. Aldridge:
One final thought:

Naturalization laws used the language within the limits and subject to the jurisdiction."

This can only mean being within the limits of the U.S is not enough to subject one to the jurisdiction of the United States.
9.17.2008 11:57pm
Alix Cavanaugh (mail):
J. Aldridge:

I'm not entirely clear what you're arguing (I'm particularly unclear what you mean by "natural law" in this context), but I take it to be that Wong Kim Ark was wrongly decided and the Fourteenth Amendment did not give jus soli constitutional stature.

I'm not going to go through a long argument about this, so I'll just mention James C. Ho's "Defining 'American': Birthright Citizenship and the Original Understanding of the Fourteenth Amendment", 9 Green Bag 2nd 367 (2006), which marshals in great detail all the arguments why the first sentence of the Fourteenth Amendment means, as Justice Gray thought, just what it obviously seems to.

For what it's worth, I think Justice Gray's opinion in Wong Kim Ark is a superb example of how serious, historically-informed judicial interpretation of a constitutional provision should be performed.
9.18.2008 12:01am
Alix Cavanaugh (mail):
Incidentally, I'm also fond of Justice Gray's attitude to legislative history in Wong Kim Ark (169 U.S. 649 at 699):
Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.
There are many, many things about which I disagree with Antonin Scalia, but I find his allergy to legislative history quite admirable.
9.18.2008 12:10am
J. Aldridge:
Alix Cavanaugh: P.A. Madison has completely debunked both James C. Ho and Wong Kim Art.

Excerpt:


It is clear the Wong Kim Ark majority recognized the fact that the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: "Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words."

Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: "A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent."
9.18.2008 12:31am
Alix Cavanaugh (mail):
Mr Aldridge:

Did you bother to read the Ho piece?

In any case, I don't see how a consistently applied view that legislative history is not controlling qualifies as an "inept attempt [...] to rewrite the Constitution". It's a principled choice about interpretative methodology. Citing Stevens doesn't help: I think (as does Scalia and as would have Grey) that Stevens' claim is simply wrong.

In any case, Ho's arguments demonstrate, I think, that the legislative history actually supports the view of the majority in Wong Kim Ark. But, as I said, I don't have the time or the inclination to argue about this.
9.18.2008 12:40am
J. Aldridge:
Well, if Ho's arguments are correct, why then did just the oposite view prevail up until Wong Kim Art? Seems to me Congress, the AG and the court all understood what subject to the jurisdiction" meant. Would be silly if the purpose was to re-affirm the common law doctrine "subject to the jurisdiction" would be needed... especially in light of the fact statutes already did not consider physical presence and "subject to the jurisdiction" to be the one and the same.

Sen. Trumbull preferred “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens.”

That was rejected because it would had made citizens of those who only owed a “temporary allegiance.”

Gray and Ho are peddling falsehoods.
9.18.2008 1:05am
Brian G (mail) (www):
This decision is well-done and appropriate in all aspects. Of course, those who don't like it will feel otherwise. Berg's lawsuit is every bit as big a joke as this one was.

McCain is going to win come November. Nothing would make me happier than to watch a lawsuit be filed over this, and then to watch Dems fume that another Republican was handed the White House by the Supreme Court. I'd love the spectacle.
9.18.2008 1:30am
Ricardo (mail):
especially in light of the fact statutes already did not consider physical presence and "subject to the jurisdiction" to be the one and the same.

And Wong Kim Ark did not consider these one and the same either. Straight out of the decision via the Ho article:

with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.


Saying someone isn't subject to the jurisdiction of the United States is to say that that person cannot be prosecuted for violations of Federal law. Is that what you are advocating for non-U.S. citizens or illegal aliens?
9.18.2008 3:23am
J. Aldridge:
Title XXX, sec 2165 (1875): [Any] alien who was residing within the limits and under the jurisdiction of the United States...

Sounds to me residing and under the jurisdiction is two different events. I think this distinction is made because aliens within a state are under the jurisdiction of the state and not the federal government.
9.18.2008 3:40am
some dude:
Milhouse


I don't believe we've invented time machines yet, and thus it's patently impossible for Congress, by dint of any legislation, to retroactively render somebody a citizen at birth who was not, at birth, a citizen. Altering history is beyond the power of any government, the most they can do is lie about history.
That's just false. Legal status is not a physical attribute, and thus can be changed retroactively. If not for the ex post facto clause, Congress could even retroactively turn a perfectly legal act into a crime, and hang you for it. It's certainly capable of doing the opposite.
That's great! Congress just need to retroactivly make Arnold "the Governator" a citizen at birth.
9.18.2008 11:58am
Alix Cavanaugh (mail):
On retroactivity, I have now learned that there actually did occur a case, involving a U.S. senator, similar to the hypothetical I mentioned earlier: read Richard A. Primus's fascinating article "The Riddle of Hiram Revels", 119 Harvard Law Review 1680 (2006).
9.20.2008 4:31pm