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Correction About Natural-Born Citizen Law:

I'm afraid that I made a legal error in a conversation I had with a Chicago Tribune reporter several weeks ago, and the error understandably made its way into print. Now that I realize I've made this error, I need to try to correct it. Just to make things clear up front, I have no reason to doubt that President-Elect Obama was born in Hawaii, and is therefore a natural-born citizen. The legal issue I discussed here is a based on the purely hypothetical question of what would be the law if President-Elect Obama were not born within the U.S. Nonetheless, I commented on this hypothetical question, in a way that I now believe was incorrect, so I think I need to correct my error.

The relevant passage is in a Chicago Tribune story from Oct. 30, 2008:

Any person born in the U.S. automatically is a "natural born citizen," said University of California Los Angeles law professor Eugene Volokh.

Even if a person is born outside the United States, ... [a]t the time Obama was born, the law stated that a person would be considered a "natural born citizen" if either parent was a citizen who had lived at least 10 years in the U.S., including five years after the age of 14 — in other words, 19.

Dunham was three months shy of her 19th birthday when Obama was born. But subsequent acts of Congress relaxed the requirement to five years in the U.S., including just two years after the age of 14, meaning Dunham could have been 16 and still qualified even if Obama was born in another country, Volokh said. Congress made the law retroactive to 1952, doubly covering Obama.

Any legal challenge would have to argue that Congress can't make someone retroactively a citizen at birth, and prove Obama was born outside of the U.S. after all.

My error came in misreading the last sentence in 8 U.S.C. § 1401(g):

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of Title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of Title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;
I foolishly read the last sentence as applying to the entire provision, § 1401(g); but the last sentence refers to the "proviso," and thus just to the clause that begins with "Provided." Public Law 89-770 enacted both the "Provided" and the last sentence mentioning the "proviso," without repeating the first clause — this supports the view that the "proviso" refers only to the "Provided" clause.

Moreover, the change to "at least two of which were after attaining the age of fourteen years" was made by Public Law 99-653, Nov. 14, 1986, which was enacted after the "Provided" clause and the last sentence were added: "SEC. 12. Section 301(g) (8 U.S.C. 1401(g)) is amended by striking out 'ten years, at least five' and inserting in lieu thereof 'five years, at least two.'" Two years later, the Immigration Technical Corrections Act of 1988, Public Law 100-525, Oct. 24, 1988, provided:

(r) EFFECTIVE DATES. — INAA [the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653)] is further amended by adding at the end the following new section:
"EFFECTIVE DATES
"SEC. 23....
"(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.
So, as I now read 8 U.S.C. § 1401, "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States" before Nov. 14, 1986 is a natural-born citizen only if the citizen parent "was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years" — the same rule that was in place in the early 1960s. See also United States v. Flores-Villar, 497 F. Supp. 2d 1160, 1162-64 (S.D. Cal. 2007) (taking the same view and concluding the change from ten years/five years to five years/two years only applied to people born after 1986), aff'd, 536 F.3d 990 (9th Cir. 2008) (so assuming but not discussing it in detail); Rico-Ibarra v. Mukasey, 281 Fed. Appx. 694, 695 n.1 (9th Cir. 2008) (not precedential).

I stress again that I post this only to correct what I now think was my legal error. I am certainly not trying to assert that this law even applies on the actual facts (as opposed to the hypothetical discussed at the end of the newspaper article).

Please let me know whether my correction is itself incorrect, though I hope I've gotten it right this time.

JoelP:
Out of curiosity, does Congress even have the power to write laws regarding eligibility for the Presidency (without actually Amending the Constitution)?
12.1.2008 12:34pm
Jon Roland (mail) (www):
"Natural born" is not synonymous with "naturalized at birth", and the statute naturalizes at birth. An act of Congress cannot amend the Constitution, and we still have to look to what the term "natural born" meant in 1789. Blackstone, Vol. 2, seems to be clear it meant being born on the soil of a country. The English Parliament could change that, because it has been a kind of ongoing constitutional convention, but the U.S. Congress is not supposed to be an ongoing constitutional convention. The only remaining issue is what is the territory of a country for that purpose, and that would seem to be the "incorporated" territory, as "unincorporated" territory, while it might be possessed and administered by the U.S., is not "owned" by it. Hawaii was incorporated territory. The Panama Canal Zone was not.
12.1.2008 12:36pm
Brian Mac:
*slaps wrist*
12.1.2008 1:03pm
PatHMV (mail) (www):
Jon, can you provide any support for your distinction between "natural born" and "naturalized at birth." I've seen many, many people make that assertion, but I've yet to see any citation to authority for it. If you look at Blackstone, it cites the ancient rule, and then cites a number of acts of Parliament which had been passed over the centuries, expanding the definition of "natural born subject" to children born of ambassadors and later to children born of two subjects of the crown while traveling abroad. There's no indication I know of that the Framers (or the legislatures which ratified the Constitution) believed the phrase "natural born citizen" to mean only the most ancient use of the phrase described by Blackstone.
12.1.2008 1:11pm
Jam:
Dies this mean that a Puertorrican, born in Puerto Rico to parents born in Puerto Rico after the Jones-Shafroth Act (1917), is elegible for POTUS?
12.1.2008 1:23pm
David Chesler (mail) (www):
So what would be the eligibility of a person born before 1986 in eg Kenya to an alien (eg Kenyan) father and an American mother who had not spent five years after attaining age 14 on account of the mother not having spent five years on earth after attaining age 14?
12.1.2008 1:31pm
anon5 (mail):
Echoing JoelP's comment above, I'm not sure the statutory provisions governing the citizenship of those born abroad is relevant to the question whether someone born abroad is a "natural born citizen" ("NBC") under the U.S. Constitution, and thus qualified for the presidency.

Assume arguendo that the original understanding of the phrase "natural born citizen" in the Constitution was "one born in one of the states of the United States of America," i.e., those born outside the US (no matter their parents' status) are simply not NBCs. If at some later date Congress passed a statute providing that anyone born of at least one US citizen parent (no matter the location of birth) is a citizen, or an NBC, would that change the analysis of whether that person is an NBC under the Constitution? I've never really looked into the question of whether a statute can alter or inform the meaning of a constitutional provision, but my instinct is no. It seems to me the relevant question is what the phrase "natural born citizen" in the Constitution means, not, "To whom do the federal statutes, passed 200 years after the Constitution was ratified, grant citizenship?"

(To be clear, I am NOT saying that Obama was born anywhere but Hawaii or that he is otherwise ineligible for the presidency.)
12.1.2008 1:39pm
◄Dave► (mail) (www):
I have followed this story with interest for some time, and common sense dictates that Obama is hiding something. Otherwise, he would not continue to expend resources fighting the several lawsuits in State courts across the nation (two of which have already landed in the SCOTUS' lap), rather than just produce the same document all the rest of us are required to provide when applying for a passport, security clearance, etc. Of course, it might just be some personal embarrassment regarding his parentage, etc.

These suits are generally being dismissed on grounds that a voter does not have standing to ask a candidate to prove he is Constitutionally qualified for the office he seeks. My first question is, who does?

I think there is an even more interesting question. Reportedly, before attaining the age of 21, he possessed the birthright to claim citizenship in two other countries besides ours; Kenya and Great Briton. Then, he was also officially adopted by his stepfather and was registered as an Indonesian citizen while attending school there as a child. While still in college, he traveled with friends to Pakistan at a time when doing so on a U.S. passport was virtually impossible. The question is, if he availed himself of one of these alternative passports, would that have nullified his status as a natural-born citizen of the U.S., if he ever had it? ◄Dave►
12.1.2008 1:41pm
Sarcastro (www):
Dave has a great point! If Obama weren't hiding something, he'd just answer each and every one of the endless questions the right has about him and his character and his past and the past of his friends and the past of the friends of his friends!
12.1.2008 1:51pm
dr:
I'm sorry, but I'm not a lawyer and all this "law" stuff confuuuses me.

Am I to understand that a child born in, say, Los Angeles, to an alien father and a 15-year-old American mother, is not a citizen of the United States by virtue of his mother's not having spent two years after her 14th birthday in the United States?

Do I have that right or have I missed the clause that mitigates what seems like a strange rule, to say the least?
12.1.2008 1:52pm
Cornellian (mail):

Am I to understand that a child born in, say, Los Angeles, to an alien father and a 15-year-old American mother, is not a citizen of the United States by virtue of his mother's not having spent two years after her 14th birthday in the United States?

Do I have that right or have I missed the clause that mitigates what seems like a strange rule, to say the least?


You've missed the rule that all persons born in the United States are automatically U.S. citizens (with the possible very narrow exception of the children of foreign diplomats). For a person born in the United States it doesn't matter what citizenship their parents are or how old they are or where they live. These rules were all created to determine the U.S. citizenship of a person born outside the United States. There's one set of rules to a person born outside the United States to two American parents. The situation EV is describing is the rules applicable to a person born outside the United States to one American parent and one non-American parent.

EV's corrected version is also my understanding of the law. The partial relaxation of the requirement that the American parent have lived in the United States for X number of years after the parent's Y'th birthday was not made retroactive. It's an incredibly unjust law, since it effectively means that young people cannot ever pass citizenship to their children born outside the United States if the other parent is not American.

I remember reading a case once of a young woman who had lived her entire life in Texas. She married a Mexican guy, then their kid was born while she was on vacation in Mexico visiting her husband's parents. The kid was held not a citizen because the mother was only 18, too young to have lived in the U.S. for five years after her fourteenth birthday.
12.1.2008 2:02pm
PersonFromPorlock:
A close reading of Article 2 Section 5:

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....

...shows that the phrase "at the time of the Adoption of this Constitution" modifies both "natural born Citizen" and "Citizen of the United States." Therefore, the last eligible person died sometime in the late Nineteenth Century. Of course, such a reading defies common sense but it is possible that the Founders put a limit on how long their criterion would last so that a later Congress, with more experience, would have to write a better one... and that later Congresses dropped the ball.

I wonder - not too seriously - if those who take commas in the Second Amendment so seriously will be as precise regarding their application here?
12.1.2008 2:03pm
Rohan:
dr, the rule discusses "a person born outside the geographical limits of the United States".

Doesn't apply to someone born in LA.
12.1.2008 2:03pm
◄Dave► (mail) (www):
Sarcastro, for what it is worth I am a libertarian. Further, most of the pixels I have seen on this issue have been on the angry Hillary supporter's Leftist websites pursuing it; not from the Right. ◄Dave►
12.1.2008 2:09pm
dr:
Cornellian, Rohan, thanks for the clarification. I knew I was missing something significant there. Cornellian's case with the young mother in Mexico is interesting. I guess the lesson for an expectant teen mother with a non-American partner is don't leave the country after about the fifth month, lest you risk your child being denied US citizenship...
12.1.2008 2:10pm
David M. Nieporent (www):
Do I have that right or have I missed the clause that mitigates what seems like a strange rule, to say the least?
You've missed the part where this discussion only applies to people born outside the country; people born in the country, such as Los Angeles, are natural born citizens by reason of jus soli.

The question is, if he availed himself of one of these alternative passports, would that have nullified his status as a natural-born citizen of the U.S., if he ever had it?
No.
12.1.2008 2:15pm
Sarcastro (www):
[◄Dave►

I can't read Free Republic anymore cause it's saturated with "Update on the BC issue" or "Obama causing a Constitutional Crisis" etc.

That being said, there is no zealot like the convert, so I expect the angry left may be more excited about this than the angry right.

I still don't think Obama is necessarily hiding something by fighting these lawsuits now rather than capitulating.]
12.1.2008 2:18pm
David M. Nieporent (www):
EV's corrected version is also my understanding of the law. The partial relaxation of the requirement that the American parent have lived in the United States for X number of years after the parent's Y'th birthday was not made retroactive. It's an incredibly unjust law, since it effectively means that young people cannot ever pass citizenship to their children born outside the United States if the other parent is not American.

I remember reading a case once of a young woman who had lived her entire life in Texas. She married a Mexican guy, then their kid was born while she was on vacation in Mexico visiting her husband's parents. The kid was held not a citizen because the mother was only 18, too young to have lived in the U.S. for five years after her fourteenth birthday.
Well, it's an easy path to naturalization for such a person, so except for the fact that said person would be ineligible to become president, is it really so "unjust"?
12.1.2008 2:20pm
FWB (mail):
Congress (nor the executive nor the judiciary) are not empowered to define ANY terms in the Constitution, for if Congress may define a single term, then Congress may define any and all terms and the Constitution becomes null and void, moot.

This would include defining "natural born citizen", etc. I've covered this for Militia under the Militia act whereby Congress restricted membership to those between 17 and 45. IF Congress held this authority, Congress could make the Militia everyone under age 4 or everyone over age 80. If you accept the first, 17-45, then you have no choice but to accept an alternative.

An honorable person would have simply made arrangements for proof of birth without blinking an eye.

And since the We the People are the boss, We the People have the authority to require proof.

Dominus providebit!
12.1.2008 2:23pm
PatHMV (mail) (www):
anon5... you can't just "assume arguendo" that "natural born citizen" means "citizen born in one of the U.S. states." The meaning of the phrase is what's at issue (not for Obama, because there's ample evidence he was born in Hawaii and no evidence he was born anywhere else), but for McCain. Some people believe that phrase means only 'born in a location which is geographically a part of the United States.'

I'm quite certain those folks are wrong, based on the accepted legal meaning of the phrase "natural born citizens" (or subjects) in 1789. Now, exactly what the precise definition is may well be unclear or in need of further examination, but it clearly extends farther than simply "jus soli," as I explained many months ago at Stubborn Facts.
12.1.2008 2:32pm
Cornellian (mail):
The question is, if he availed himself of one of these alternative passports, would that have nullified his status as a natural-born citizen of the U.S., if he ever had it?

No, it is virtually impossible for a natural born U.S. citizen to lose his U.S. citizenship. Holding a foreign passport isn't even in the ball park. There are cases out there of people who have served in foreign armies, run for election in other countries etc. without losing their U.S. citizenship.
12.1.2008 2:35pm
◄Dave► (mail) (www):
(not for Obama, because there's ample evidence he was born in Hawaii and no evidence he was born anywhere else)

Funny; I reckon the opposite. His paternal grandmother adamantly claims to be a first person witness to the event in Mombasa. The only document he has released does not state his place of birth. His half-sister, clearly born in Indonesia, has an identical document, which only acknowledges that their mother "registered" the fact of a live birth by a Hawaii resident (within the past year) with the Hawaiian authorities, and makes no representation as to where said birth occurred. ◄Dave►
12.1.2008 2:49pm
BZ (mail):
Could we please not be so cavalier about the citizenship requirement? I recognize recent Supreme Court cases on the topic, but if you actually look at the Fourteenth Amendment and Supreme Court cases interpreting the Citizenship Clause after the Civil War, it is certainly not clear that the citizenship issue is so clear-cut. From the Summary of Argument in an amicus brief in the Hamdi case:

The Citizenship Clause of the Fourteenth Amendment was added during Senate debate. During the debate, the authors discussed in great detail their purpose and intentions in adding the requirement that a person be born, not just in the United States, but “subject to the jurisdiction thereof.” Sen. Howard, sponsor and author of the Citizenship Clause, when questioned about the meaning of “jurisdiction,” responded that the phrase was intended to be read as meaning “not owing allegiance to anybody else.” Sen. Trumbull, Chairman of the Judiciary Committee, described persons who “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Chairman Trumbull noted that even “partial allegiance if you please, to some other government” is sufficient to disqualify a person under the jurisdiction requirement.
For three decades following the adoption of the Fourteenth Amendment, this Court recognized the jurisdiction requirement of the Citizenship Clause as including a non-geographical distinction between those with allegiance and those without. In The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1873), this Court noted that the jurisdiction clause was “intended to exclude from its operation . . . citizens or subjects of foreign states born within the United States.” In Elk v. Wilkins, 112 U.S. 94, 101 (1884), the Court described the jurisdiction clause as covering “all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power.”
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), however, Justice Gray wrote an opinion which eviscerated the jurisdiction requirement. Justice Gray felt that, once within a national territory, an alien gives up allegiance to all other governments, at least temporarily. 169 U.S. at 693 (alien’s “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.”). Thus, any alien born within the United States would automatically gain citizenship without reference to the jurisdiction requirement.
Yet this analysis of allegiance is foreign to American history, earlier precedent and logic. Under that analysis, for example, there would be no need to require aliens to take an oath of naturalization renouncing all allegiances to foreign powers. Similarly, the naturalization cases continue to require some type of “talisman of dedicated attachment” on the part of an applicant for citizenship. Rogers v. Bellei, 401 U.S. 815, 834 (1971).
Unfortunately, Justice Gray’s faulty analysis of the jurisdiction requirement was cited in later decisions for the proposition that a child of alien parents “born in the United States, was a citizen of this country,” without further analysis. INS v. Rios-Pineda, 471 U.S. 444, 446 (1985). In fact, in Plyler v. Doe, 457 U.S. 202, 211 (1982), the Court went further, suggesting that the authors of the Citizenship Clause used the term “jurisdiction” in a “predominantly geographic sense.” Again, the Plyler opinion included no reference to or use of any allegiance analysis, even though the authors had made such an analysis central to the Citizenship Clause. The evisceration of the jurisdiction requirement creates a powerful magnet for “drive-by citizenship.”
12.1.2008 2:49pm
Dido:
Are people saying that the law of natural born blood citizenship (jus sanguines) did not exist in the eighteenth century? Really? That goes back to, at least, the Romans.
12.1.2008 2:53pm
◄Dave► (mail) (www):
No, it is virtually impossible for a natural born U.S. citizen to lose his U.S. citizenship. Holding a foreign passport isn't even in the ball park. There are cases out there of people who have served in foreign armies, run for election in other countries etc. without losing their U.S. citizenship.

Are you absolutely sure he would retain the "natural-born" status, though? One can only hold allegiance to one country at a time. I am given to understand that while one retains the right to be reinstated in circumstances such as you describe, one would need to formally renounce allegiance to the foreign country first, while in the process of becoming now a (re)"naturalized" citizen of the U.S. ◄Dave►
12.1.2008 3:03pm
Cornellian (mail):
Interesting post BZ. Odd that Sen. Howard seems to be saying he's using the word "jurisdiction" but really means something entirely different. I don't think anyone today (or in the 19th Century) would think that a foreign born citizen living here is "not subject to the jurisdiction" of the United States applying the usual meaning of the term "jurisdiction." He's bound to comply with every last statute and regulation as long as he's here, the same as a U.S. citizen.

I think a plain reading of the text gets a result closer to Justice Gray's view, though without the "owing allegiance" reasoning.
12.1.2008 3:07pm
David M. Nieporent (www):
Are you absolutely sure he would retain the "natural-born" status, though? One can only hold allegiance to one country at a time. I am given to understand that while one retains the right to be reinstated in circumstances such as you describe, one would need to formally renounce allegiance to the foreign country first, while in the process of becoming now a (re)"naturalized" citizen of the U.S.
Your understanding isn't correct; such a person does not "retain the right to be reinstated." Such a person retains his citizenship, no "reinstating" needed. The U.S. allows (but does not recognize) dual citizenship, so to the extent that you equate citizenship with "allegiance," your statement that one can "only hold allegiance to one country at a time" is wrong.
12.1.2008 3:10pm
◄Dave► (mail) (www):
Thanks BZ. That was most helpful. ◄Dave►
12.1.2008 3:10pm
BZ (mail):
@Cornellian:

They meant jurisdiction in a different sense:

In further remarks, Chairman Trumbull repeated his description of “Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Id. (emphasis added). Reminded that Supreme Court decisions treated Indians as “subjects” and not as citizens, Trumbull replied: “In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here.” Id.
After more discussion, Sen. Howard, the author of the original amendment, said:
I concur entirely with the honorable Senator from Illinois, in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, . . . . that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Id.
Sen. Howard summed up the debate by saying:
In one sense, all persons born within the geographical limits of the United states are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. . . . I understand the words here ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.
Id., 2897.

Of course, I am only quoting snippets. The whole brief can be found in the usual services, or for free at:
http://www.cfau.org/hamdi/amicusmerits.html.
12.1.2008 3:19pm
◄Dave► (mail) (www):
Your understanding isn't correct; such a person does not "retain the right to be reinstated." Such a person retains his citizenship, no "reinstating" needed. The U.S. allows (but does not recognize) dual citizenship, so to the extent that you equate citizenship with "allegiance," your statement that one can "only hold allegiance to one country at a time" is wrong.
Wow! If this is true, we live in a screwy place. If I could move to Cuba and swear allegiance to Castro; join their army and fight capitalism for twenty years; and then just casually move back here and run for POTUS, without ever renouncing my allegiance to Cuba, just because I happened to be born here - we have a serious problem. ◄Dave►
12.1.2008 3:24pm
SallyT:
Dave:

1) You would be liable for death as a trator, and a whole host of lesser punishments and sanctions for lesser crime.

2) Its obvious you don't understand much about any of this.
12.1.2008 3:31pm
Craig Oren (mail):
I can't understand the post-election fascination (read "obsession") with this issue. If there were really a legitimate case to be made that Obama was not a citizen, wouldn't we have heard it during the campaign from McCain and his supporters? Instead, only fringe groups are raising this.
12.1.2008 3:39pm
loquitur (mail):
In the case of Kenyan birth, many of us aren't concerned about the 1952 technicality in 8 USC 1401 about an underage U. S. citizen mother.

This is because Congress can (quickly?) change provisions in the codes
to become retroactive, just as they did for subsection (h)
[alien father + citizen mother before May 24, 1934].
12.1.2008 3:57pm
PersonFromPorlock:

...wouldn't we have heard it during the campaign from McCain and his supporters?

Well, to be fair we didn't hear about much of anything else from McCain et alia, either.
12.1.2008 4:07pm
Bruce McCullough (mail):
What does this tell us about the law? Even someone trained in the law takes multiple readings to try to figure out what the law means, and even then isn't quite sure that he's right?

Given that Eugene is probably smarter than the average judge, my faith in the ability of judges to intrerpret the law properly just fell by an order of magnitude (or more).

Bruce
12.1.2008 4:32pm
einhverfr (mail) (www):
John Rowland:

I am sure you then voted for Obama since McCain was not born on US soil.....
12.1.2008 4:35pm
einhverfr (mail) (www):
dr wrote:

Am I to understand that a child born in, say, Los Angeles, to an alien father and a 15-year-old American mother, is not a citizen of the United States by virtue of his mother's not having spent two years after her 14th birthday in the United States?


Not at all, just that this subparagraph doesn't apply. The 14th Amendment guarantees citizenship in your case (or even for a child of two illegal aliens born in the US).
12.1.2008 4:37pm
Alix Cavanaugh (mail) (www):
SallyT:

1) Possibly lesser crimes, but not treason. Cuba is not at war with the United States, and clearly not an "enemy" in the contemplation of the law. It is a state with which the U.S. does not maintain trade or diplomatic relations, but that's very different from a state of war. Merely serving in their army would thus not constitute treason either under the levying war or under the adhering prong of Article III's definition.

2) Indeed.
12.1.2008 4:40pm
Cornellian (mail):
Sen. Howard summed up the debate by saying:
In one sense, all persons born within the geographical limits of the United states are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. . . . I understand the words here ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.


Sen. Howard's summary seems to support what I thought was the proper reading of the amendment. By using Indians and ambassadors as his two examples, I don't read him as intending to say that someone born here isn't "fully and completely subject to the jurisdiction of the United States" just because one or both of his parents aren't citizens. Both Indians and ambassadors have a special legal status that an ordinary immigrant here from another country does not have.
12.1.2008 4:42pm
Cornellian (mail):
Wow! If this is true, we live in a screwy place. If I could move to Cuba and swear allegiance to Castro; join their army and fight capitalism for twenty years; and then just casually move back here and run for POTUS, without ever renouncing my allegiance to Cuba, just because I happened to be born here - we have a serious problem.

I don't see that as a problem at all. The American public is free to reject you and vote for someone else if they think your Cuban connection is an issue. I don't see the need to short circuit that process by having a court stop you from standing for election in the first place.
12.1.2008 4:44pm
einhverfr (mail) (www):
I think the key thing to remember in these cases is that the purpose of the wording "natural-born citizen" is to exclude foreign subjects who were then naturalized, possibly under false-pretences from holding this office. This public policy consideration is a valid one, and would not preclude John McCain from serving as president, nor would it preclude my son, born in Indonesia from so serving our republic once he attains the minimum age.

Nor would it prohibit the child of a US diplomat, say stationed in Saudi Arabia, and his American wife from being eligible. Note that children of foreign diplomats born in the US are not eligible for citizenship under the 14th Amendment because of considerations related to diplomatic immunity and jurisdiction.

There is a movement among some people to restrictively interpret citizenship as much as possible. This is a real shame. Nothing would please the Know-Nothings more than requiring proof of citizenship of parents prior to birth certificates being applied for..... About to give birth? Bring your passport!
12.1.2008 4:47pm
einhverfr (mail) (www):

I don't see that as a problem at all. The American public is free to reject you and vote for someone else if they think your Cuban connection is an issue. I don't see the need to short circuit that process by having a court stop you from standing for election in the first place.


Cornellian:

That is an interesting question. I am not sure at all that this would be the case. Personally I think that if you do something for which you could be stripped of your citizenship (joining Castro's army) you ought to be ineligible for the POTUS office. My reading of natural-born citizen would be tied to the citizenship rather than the person, and hence renaturalization would make one ineligible.
12.1.2008 4:50pm
einhverfr (mail) (www):
Also a note on Senator Howard's points..... I think some Know-Nothings tend to deliberately misread them.

In general, certain classes of individuals are citizens and certain classes are by definition not. Aliens were neither born nor naturalized here, and so are not citizens, for example.

Children of foreign diplomats or ministers are not subject to our jurisdiction by reasons of diplomatic immunity and therefore are not eligible for automatic citizenship.

The fact though is that children of most aliens (illegal or otherwise, exceptions for children of foreign government officials) are fully subject to our jurisdiction while they are on US soil. If the child commits a crime or a tort, our courts can step in without jurisdictional problems. If they are born here, they are citizens.

Howard's points support a standard reading of "jurisdiction" not the fantasy reading that the Know-Nothings wish for.
12.1.2008 4:55pm
einhverfr (mail) (www):
Cornellian:

You've missed the rule that all persons born in the United States are automatically U.S. citizens (with the possible very narrow exception of the children of foreign diplomats)


This is splitting hairs but the exception isn't quite as narrow as it appears. There are other cases where treaties cede US jurisdiction to individuals (for example, the case of foreign soldiers serving in the US, possibly for joint training exercises). Native Americans were another example for a long time, again largely due to treaty considerations.

Of course, this doesn't mean what Know-Nothings want it to mean either. So this really is splitting hairs.
12.1.2008 4:59pm
Cornellian (mail):
Personally I think that if you do something for which you could be stripped of your citizenship (joining Castro's army) you ought to be ineligible for the POTUS office.

If you are a natural born citizen (as opposed to a naturalized one), you cannot be stripped of your citizenship for serving in Castro's army. The U.S. government could impose any number of other penalties on you for doing so, both civil and criminal, but not loss of citizenship.
12.1.2008 4:59pm
Cornellian (mail):
The fact though is that children of most aliens (illegal or otherwise, exceptions for children of foreign government officials) are fully subject to our jurisdiction while they are on US soil. If the child commits a crime or a tort, our courts can step in without jurisdictional problems.

And that is exactly what is generally understood to be meant by the term "jurisdiction." On that basis, virtually everyone born in the United States is a U.S. citizen, regardless of the citizenship of his or her parents, and even if the parents are here illegally.
12.1.2008 5:01pm
einhverfr (mail) (www):
BZ quoting senator Howard:

In one sense, all persons born within the geographical limits of the United states are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. . . . I understand the words here ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.


Ok... Looking at this once again, your view, BZ, is not upheld by Howard's actual statements. The key is:

Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect...


What Howard appears to be stating is that if there are cases where an individual is exempted from jurisdiction in the normal legal meaning of the term in any way, that individual is not eligible for citizenship.

Children of ambassadors may qualify for diplomatic immunity in any case where parental oversight is involved. Same with Native Americans (but due to treaty considerations of the day).

Nowhere in this post do we see anything about allegiance, though this clearly was a consideration in the POTUS requirement.
12.1.2008 5:06pm
einhverfr (mail) (www):
BZ BTW, neglected to quote Howard on the following (from the link he provided):


Sen. Howard said that “this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.


Ok, so the following are not citizens according to Howard:
* Foreigners (by definition)
* Aliens (also by definition, aliens are not citizens)
* Family members of ambassadors or foreign ministers accredited to the Government of the US (because they are not subject to the jurisdiction of the US by reason of diplomatic immunity).

He seems to also treat Native Americans as foreigners due to treaty considerations (later superceded). The same logic applies today to a few other classes of individuals who, by treaty, are exempted from the jurisdiction of the US (children of foreign soldiers serving in the US, for example).

Note "family members of" does not apply to aliens or foreigners.
12.1.2008 5:16pm
SallyT:
Alix

1) I took Dave to mean when he said: 'join Cuba's army and fight against capitalism' that his hypo included armed conflict with the US -- thus, the traitor analysis.

With respect to reality, your analysis appears correct but Dave is not dealing in reality.
12.1.2008 5:18pm
einhverfr (mail) (www):
One more point where BZ is wrong:


Thus, any alien born within the United States would automatically gain citizenship without reference to the jurisdiction requirement.


Not quite true. They still have to be subject to the jurisdiction of the US, which might not apply for reasons of treaty or diplomatic immunity. This is entirely in line with Senator Howard's statements.
12.1.2008 5:22pm
Kris (mail) (www):
Dave

There is no taxpayer standing. The responsibility for ascertaining Obama's eligibility to be on the ballot lies with each state's Secretary of State. Given they are not all Democrats, it's difficult to imagine they were all in the tank for Obama.

Having said that, I've got a copy of my birth certificate with the name of the hospital etc on it. Why not cough it up and end this? Why doesnt Obama tell Hawaii he's happy for anyone to get a copy of his certificate if they apply in the usual manner?

Because he hasn't, he is fueling this. The only reason I can think why he would withhold is because there's something on it that would raise more questions than answer...
12.1.2008 5:54pm
Tony Tutins (mail):

If Obama weren't hiding something, he'd just answer each and every one of the endless questions the right has about him and his character and his past and the past of his friends and the past of the friends of his friends!

Sarcastro has an excellent point. Rather than try to dismiss suits for purely technical reasons, like "lack of jurisdiction," or "failure to state a claim on which relief can be granted," anyone who refuses to go to trial when sued by any person for any reason whatever is a cowardly chump whom we all despise.

Real men stand and fight to the death on all issues.

But, why do I suspect that, ironically, in other contexts "Dave" decries "frivolous lawsuits"?

If there were really a legitimate case to be made that Obama was not a citizen, wouldn't we have heard it during the campaign from McCain and his supporters?

Normally yes, but as a native of Panama, McCain was hardly in a position to hit Obama's natural born status. (The US statute that created the Canal Zone from the newly recognized, secessionary Panama, acknowledged that Panama retained sovereignty over the Canal Zone. McCain was thus a natural born citizen of Panama, by virtue of being born in the Canal Zone, because Panama recognizes ius soli.)
12.1.2008 6:17pm
einhverfr (mail) (www):
Cornellian:

Regarding losing one's citizenship, you may find the following legal section interesting: 8 USC 1481

This might well provide for someone swearing allegiance to Castro to be stripped of citizenship. It is by no means a foregone conclusion that this would actually happen but it looks to my mind like a possibility. My passport also mentions a number of other ways I could give up my citizenship.

Interestingly, serving in Castro's army, absent armed hostilities, would not be grounds unless the service was as a commissioned officer. So swearing allegiance to Castro of one's own free will might allow for the loss of citizenship. Being conscripted into Castro's army would not.
12.1.2008 6:21pm
Tony Tutins (mail):

I've got a copy of my birth certificate with the name of the hospital etc on it.

Good for you. Try to replace it, and see how far you get. Although this may be hard for Internet users to understand, Departments of Vital Statistics "computerized" their records. There are no longer shoe boxes full of photostats any more.

Why not cough it up and end this? Why doesnt Obama tell Hawaii he's happy for anyone to get a copy of his certificate if they apply in the usual manner?

Obama's posted on his website the only official birth certificate currently available to anyone.

For people who keep bleeting about this: Get a fresh copy of your birth certificate and post it to your website.
12.1.2008 6:22pm
Cornellian (mail):
Regarding losing one's citizenship, you may find the following legal section interesting: 8 USC 1481

This might well provide for someone swearing allegiance to Castro to be stripped of citizenship. It is by no means a foregone conclusion that this would actually happen but it looks to my mind like a possibility. My passport also mentions a number of other ways I could give up my citizenship.


That statute provides for loss of US citizenship upon voluntarily doing various things "with the intention of relinquishing United States nationality." There are lots of cases of people doing the various things listed in that statute without losing their US citizenship for lack of intention to relinquish. It is basically impossible for a US citizen by birth to lose his US citizenship unless he walks into a US embassy and says "I hereby relinquish my US citizenship." The government can imprison you, even execute you, for doing various things it doesn't like, but it can't deprive you of your citizenship if you are a citizen by birth.

Naturalized citizens are an entirely different situation.
12.1.2008 6:31pm
einhverfr (mail) (www):
Cornellian: The question then would be a matter of fact rather than law-- did the individual intend to lose his/her citizenship? I suppose the question would be who decides these matters of fact? Would one be charged and subjected to a trial by jury? Sued by the government in civil court?

I guess the question comes down to procedure regarding who is responsible for determining this factual matter.
12.1.2008 6:38pm
Jam:
Does all this means that someone born in Puerto Rico is elegible to become POTUS?

I am really curious about what y'all think.

I was born in Puerto Rico and my citizenship is by law (treaty?) No, I am not going to run for POTUS but I cannot imagine that I would elegible.

Can Puerto Rican's uS citizenship be revoked by doing away with the law that instituted it? When does the prohibition against ex post facto laws kicks in? It seems that the uS Congress seems be concerned with that prohibition when it suit it.

Just asking.
12.1.2008 6:40pm
einhverfr (mail) (www):
One more point to BZ:

One of the most confusing and unfortunately ambiguous statements on the meaning of jurisdiction in the 14th amendment came from Senator Trumbull. Here is the full quote from the brief that BZ referenced.


What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.



I am not a lawyer and I was initially confused by this. However, in the complete context, Senator Trumbull's statement once again supports a standard legal definition of jurisdiction rather than the fantasy reading that some fringe-folk want to use. They take one sentence out of the entire statement and assume that it is the whole thing.

That sentence is "Not owing allegiance to anybody else." However, in context his position seems to be more nuanced than that. I think it is better defined by the following portion:

Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.[emphasis mine]


Note here that Trumbull once again moves back to the standard definition of jurisdiction as involving actionable court cases and excludes Indians largely because of treaty considerations.

So, you can sue an illegal alien in court and he/she is under the complete jurisdiction of our court system. It seems therefore that Trumbull may mean "owing allegiance" to mean "compellable by the courts."
12.1.2008 6:49pm
Cornellian (mail):
The question then would be a matter of fact rather than law-- did the individual intend to lose his/her citizenship? I suppose the question would be who decides these matters of fact? Would one be charged and subjected to a trial by jury? Sued by the government in civil court?

That is what happened. The US government went to court to try to revoke the US citizenship of various people who had done things like hold dual citizenship, serve in a foreign military, stand for election in a foreign country etc. But after losing a bunch of these cases the government decided to stop wasting money on them and gave up. Now they grudgingly accept that they can't revoke the citizenship of a citizen-by-birth, something they should have understood from the outset just by reading the Constitution.
12.1.2008 7:58pm
einhverfr (mail) (www):
One more point about reading "Natural-Born Citizen" as a non-evolving term.....

One of the interesting problems one has by trying to define "natural-born citizen" by 1789 terms is that citizenship law is not tied to this definition, and there are a number of cases where this provision, if interpreted by 1789 standards could even allow foreigners who are not even naturalized or recognized in any other way to hold the office of POTUS.

Basically, one has to look at what "natural-born citizenship" entailed in 1789, which in the British empire included a set of legal rights including the right to hold some offices which naturalized citizens could not hold. The question was who was a natural-born citizen? Well, apparently, there were a series of laws passed from the 14th century onward which defined this beyond the basic bounds of being born on British soil. Even prior to these laws, however, children of ambassadors of the king were considered natural-born citizens.

Note that in 1350 a law was passed extending full (natural-born) citizenship to children born on foreign soil of two British parents, and in 1772, this was further extended to children of a British father. If having an American father is all that is required, then a half-Vietnamese child of an American serviceman during the war would be eligible to run for the office even if the individual was not recognized as a citizen for any other purpose. Worse still, the child of a foreign ambassador, born abroad, but with a US teenage father would be eligible to run despite close ties with foreign governments!

Finally, the definition of "natural-born citizen" changed a mere four years before the war of independence, so it seems unlikely that the founders meant to tie the Constitution to the state of law which was clearly evolving in the late 18th century. I would argue that the definition really should be seen to mean what its core meaning was in 1789 and in 1771, which was "a birthright citizen as defined by law." That meaning hasn't changed, it is a simple, plain reading, and it is compatible with changing statutory requirements.
12.1.2008 8:21pm
einhverfr (mail) (www):
As to whether the correction is accurate, I don't think so.

I think the residency requirements don't apply in with the same limits if the citizen parent is the mother. See 8 USC 1401(h)
12.1.2008 8:53pm
Richard Aubrey (mail):
Sally T.
What percentage of the voting public would think fighting for Castro against the US was a disqualifier?
I can see SNL with some goofs with big beards talking like Cheech and Chong and the whole thing evaporates as some right-wing obsession.
12.1.2008 8:55pm
einhverfr (mail) (www):
I.e. if the mother is a US citizen, any prior residency is sufficient under 8 USC 1401(h). The time limits of (g) then only apply to cases where the citizen parent is the father.
12.1.2008 8:57pm
einhverfr (mail) (www):
IANAL, so if I am misreading 8 USC 1401(h), please correct me.
12.1.2008 8:58pm
einhverfr (mail) (www):
I was wrong about 8 USC 1401(h), having read "after" instead of "before."

Here is something really funny: for children born out of wedlock, the residency requirements are still the same for the father, but the residency requirements for the mother are reduced to 1 year (see 8 USC 1409(c)). Way to push for "family values....."
12.1.2008 9:58pm
Smokey:
Regarding the Oath of Citizenship mentioned above, the following cut 'n' paste from the United States Citizenship & Immigration Services has prospective applicants for citizenship swear the following oath:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

In some cases, USCIS allows the oath to be taken without the clauses:

". . .that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by law. . ."

Compare that to 0bama.
12.1.2008 10:25pm
einhverfr (mail) (www):
Smokey:

I was raised as a silent-meeting Quaker (the Herbert Hoover variety, not the Richard Nixon one, right-wing one) and we always considered saluting the flag to be a religious thing barred by the first commandment. You can't read too much into such a thing.

I have since changed my mind and abandoned the 10 Commandments in part because I think that worshipping the ideal of what our great republic should be about is Right. The fact that I no longer recognize the authority of the Bible makes that easier.....
12.1.2008 10:36pm
SallyT:
"Sally T.
What percentage of the voting public would think fighting for Castro against the US was a disqualifier?
I can see SNL with some goofs with big beards talking like Cheech and Chong and the whole thing evaporates as some right-wing obsession."

Richard, dear, do you dislike the American people, that much?
12.1.2008 10:37pm
J. Aldridge:
Sen. Howard also said two years later the accident of birth by a foreigner does not bestow U.S. citizenship under the amended Constitution. In 1874 a joint congressional report stated the United States does not recognize double allegiances.

The Wong Kim Ark court violated both the treaty of 1868 with China and 22 Stat. §14: “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.”
12.1.2008 11:21pm
einhverfr (mail) (www):

Sen. Howard also said two years later the accident of birth by a foreigner does not bestow U.S. citizenship under the amended Constitution.


In some cases it doesn't. For example, children of foreign ministers or diplomats, or those who by virtue of treaties (as with Native Americans at the time) are exempt from some forms of jurisdiction.
12.1.2008 11:24pm
einhverfr (mail) (www):
BTW, here is another interesting question.....

Suppose a child is born to a US citizen abroad married to an alien and the child is not eligible under 1041(g) for US citizenship.

Suppose further that the country of birth does not recognize citizenship by virtue of birth in its territory.

Suppose further that the nation of which the mother is a citizen also does not make the child eligible for citizenship.

What happens to such a child? Is the child doomed to be a non-person?

This is not quite as far-fetched as it may seem. Until very recently (a couple of years ago), Indonesia recognized citizenship only through the father's line. Hence if a US man who did not meet the 1041(g) residency requirements married an Indonesian woman and they lived on Indonesian soil, neither Indonesian nor US law would grant citizenship.....

Sounds like a real bummer.....
12.1.2008 11:28pm
Ricardo (mail):
Suppose further that the country of birth does not recognize citizenship by virtue of birth in its territory.

Suppose further that the nation of which the mother is a citizen also does not make the child eligible for citizenship.

What happens to such a child? Is the child doomed to be a non-person?


I would imagine that if the American parent chose to move back to the U.S., the child could become a naturalized citizen of the U.S. eventually.

Jam:

I was born in Puerto Rico and my citizenship is by law (treaty?) No, I am not going to run for POTUS but I cannot imagine that I would elegible.

I'm not a lawyer but I think Puerto Ricans are eligible as the law not only declares them U.S. citizens but, I believe, even uses the phrase "natural born citizen."

People born to non-citizen parents in American Samoa, on the other hand, are considered U.S. "nationals", not U.S. citizens. Nationals can live and work in the 50 states without the need for a visa but cannot hold certain government jobs where citizenship is required. So it seems that if Congress wanted to exclude Puerto Ricans from being eligible for the Presidency, they could change the law to declare them non-citizen nationals of the U.S.
12.1.2008 11:46pm
J. Aldridge:
einhverfr,

Was it customary to refer to foreign ministers or diplomats as "foreigners"?
12.1.2008 11:58pm
einhverfr (mail) (www):

Was it customary to refer to foreign ministers or diplomats as "foreigners"?


Yes, but they are also exempt from jurisdiction on treaty grounds, and Senator Howard referred to them separately in his congressional testimony in the sense that their children were not eligible for citizenship, while he did not say the same thing about other foreigners.
12.2.2008 12:05am
einhverfr (mail) (www):

I would imagine that if the American parent chose to move back to the U.S., the child could become a naturalized citizen of the U.S. eventually.


You would imagine, but how would the child get a passport to enter the US?
12.2.2008 12:06am
BZ (mail):
Ah, well, not to prolong this further, but . . .

@einhverfr: I see where you can interpret the Chairman's and author's phrases as reflecting a particular view of "jurisdiction" as meaning only subject to the laws of a country. After all, both Senators said just that.

But they, unlike you, chose to define, expressly, their meaning of jurisdiction as having an additional component, beyond just being subject to the laws of the U.S.

The additional component was "allegiance." In The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1873), the Supreme Court noted that the jurisdiction clause was “intended to exclude from its operation . . . citizens or subjects of foreign states born within the United States.” In Elk v. Wilkins, 112 U.S. 94, 101 (1884), the Court described the jurisdiction clause as covering “all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power.” Note: "owing no allegiance."

Justice Gray, the author of Elk, was also the author of the later United States v. Wong Kim Ark, 169 U.S. 649 (1898). It was in Wong Kim Ark that Justice Gray eviscerated the jurisdiction requirement, by manipulating not the "subject to laws" theory, but the "allegiance" one. Justice Gray felt that, once within a national territory, an alien gives up allegiance to all other governments, at least temporarily. 169 U.S. at 693 (alien’s “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.”). I'm not sure that Justice Gray's later description of temporary and shifting "allegiance" comports with a general understanding of the term, either then or now. Certainly it does not in the case of the Korean "drive-by citizens" described in the linked brief.

You posit that "allegiance" means "compellable in court." And somehow you seem to think this is a meaning of "jurisdiction." But aren't you saying the same thing as "subject to the laws?" This circular argument doesn't fit the distinction made by the authors of the Fourteenth Amendment, who attached particular significance to "allegiance," as indicated by the Trumbull passage you quoted.

Check Pages 9-15 in the linked Hamdi brief, for a fuller discussion of allegiance and its importance to the authors of the Fourteenth Amendment. You will find that "allegiance" is the flip side of "not being subject to a foreign power," which obviously the child of a "sojourner" would be.

And I, too, was raised in the Quaker tradition, with parents who met at the Kissing Bench at Swarthmore. And I have kept the tradition of speaking truth to power, even in the face of unbroken Supreme Court cases since Wong Kim Ark, which nonetheless do not seem to reflect the authors' intention. Perhaps you might want to limit your "Know Nothing" and "fringe" comments?
12.2.2008 10:00am
David Schwartz (mail):
The meaning of NBC is not frozen in time as of 1789, just as the meaning of "speech" and "due process" are not frozen either. As new forms of expression are understood to be speech, they too are protected. As new forms of process are determined to in fact be due, they are then required. And, of course, the right to bear arms would only apply to what were then considered arms.

It's perfectly reasonable (in fact likely) that what the framers meant by "natural born citizens" are what are then statutorily considered natural born citizens, within reason.
12.2.2008 10:31am
loquitur (mail):
Earlier I wrote that 8 USC 1401(h) provides an example of how
Congress has already made changes such as this subsection
retroactive to birth.

This can readily been seen in the amendments to the statutes, but
there's a nice rundown by immigration attorney Henry Chang
about the rationale for many of the changes. Links don't seem
to work in commentary here, but if you Google

americanlaw chang citizen birth abroad

the first reference will be the rationale, including neat info
on out-of-wedlock births, already noted as conferring the
mother's U.S. citizenship more readily than marriage hampered
by the infamous "must-be-19" stricture, as well as discussion
of the twisty bogus "retention" rules concerning the child's residency,
now redacted as obsolete.

In case of a Kenyan birth, maybe the best fix is to retroactively annul
any marriage on some technicality. Either that or have the lame
duck Congresss quickly add a subsection (i), to modify (h)
to read "a person born before noon (Eastern Standard Time) May 24, 1934
*or on August 4, 1961* ....
12.2.2008 3:15pm
loquitur (mail):
Earlier I wrote that 8 USC 1401(h) provides an example of how
Congress has already made changes such as this subsection
retroactive to birth.

This can readily been seen in the amendments to the statutes, but
there's a nice rundown by immigration attorney Henry Chang
about the rationale for many of the changes. Links don't seem
to work in commentary here, but if you Google

americanlaw chang citizen birth abroad

the first reference will be the rationale, including neat info
on out-of-wedlock births, already noted as conferring the
mother's U.S. citizenship more readily than marriage hampered
by the infamous "must-be-19" stricture, as well as discussion
of the twisty bogus "retention" rules concerning the child's residency,
now redacted as obsolete.

In case of a Kenyan birth, maybe the best fix is to retroactively annul
any marriage on some technicality. Either that or have the lame
duck Congresss quickly add a subsection (i), to modify (h)
to read "a person born before noon (Eastern Standard Time) May 24, 1934
*or on August 4, 1961* ....
12.2.2008 3:15pm
einhverfr (mail) (www):
BZ: It is not that your facts are wrong or that we differ as to factual issues relating to past cases, but rather we differ as to how these are applied today.


In The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1873), the Supreme Court noted that the jurisdiction clause was “intended to exclude from its operation . . . citizens or subjects of foreign states born within the United States.”


Sure. That would be accurate to some extent. However, let's take this into the real world.

After my wife and I got married and moved to the US, Indonesian citizenship law changed. This means that our second child is eligible for Indonesian citizenship from birth despite the fact that my wife is a permanent resident of this country, I am a citizen of this country, and our child was born here. Are you really saying that under these conditions, my child is not a citizen?

Taking this further still, if the government of Mexico decided that they wanted Texas back, and they would recognize all Texans as Mexican citizens, would that preclude infants born in Texas from being US citizens? Before you laugh, look at the situation with Russia, Georgia, and South Ossetia....

Every one of your cases and the congressional testimony supports the idea that my child would be guaranteed US citizenship as would the citizens born in my hypothetical Texas.

So the question is what is really meant by this provision. The only practical test offered by Senators Trumbull and Howard was whether the authority of the courts was abridged beyond what would be the case for a normal citizen of the US. In short "owing allegiance" does not imply a loyalty test, but rather the same sort of "debt of gratitude" relating to being protected by the law an subject to it from birth that common-law citizenship customer have entailed since ancient times.

I have read the entire brief you mentioned, but everywhere they quote the congressional record, they are, IMO, deliberately misreading it. The only practical test offered is that of jurisdiction in the normal legal sense and this is offered again and again by the senators they quote. Slaughterhouse Cases also were primarily an anti-monopoly case and probably not as commanding a precedent as Elk v. Wilkins IMO (IANAL).

Now, Elk v. Wilkins was a special case because it held that the courts did not have full jurisdiction over Elk of the US because there were treaties which abridged that jurisdiction. The "allegiance test" in that case had to do with questions relating to whether Congress was forbidden from regulating some behaviour of Native Americans due to treaty considerations. This idea that jurisdiction relates even here to common court power is present in Elk as well.


And somehow you seem to think this is a meaning of "jurisdiction." But aren't you saying the same thing as "subject to the laws?"


Yes. What I am saying is that "owing allegiance" is synonymous with "subject to the laws" and furthermore that it has had this meaning in this context since times when citizenship was primarily governed by common law.


Perhaps you might want to limit your "Know Nothing" and "fringe" comments?


I would have assumed that one who was raised as a Quaker would not be bothered to be referred to as "fringe."

As for "Know-Nothing" I am referring to a particular branch of the Republican Party which continues the political aims of the Know-Nothings (American Party or American Republican Party) who were later absorbed into that party. The term came about because the party membership was secret and so when asked about such matters members were expected to say "I know nothing."
12.2.2008 3:56pm
einhverfr (mail) (www):
that should be "common-law citizenship customs" rather than "customer"
12.2.2008 3:57pm
einhverfr (mail) (www):
David Swartz:

The meaning of NBC is not frozen in time as of 1789, just as the meaning of "speech" and "due process" are not frozen either


I don't know.... My viewpoint is that the substantive meaning of the free speech and press clauses, the due process clause, and natural-born citizenship have not substantively changed.

The question is not whether "due process" has the same requirements today as it did in 1789 but whether it means substantively the same thing. I would further argue that words like "cruel" and "unusual" substantively mean the same thing today but are sufficiently context-oriented that they may encompass different sets of cases. I am pretty sure the electric chair was "unusual" in 1789, but just because it no longer qualifies doesn't mean that "unusual" has change in meaning.
12.2.2008 4:06pm
einhverfr (mail) (www):
Just to clarify, I suggesting separating the meaning from the test. Tests can evolve as confronted with new challenges. However, we don't want people deciding that "liberty" now means "the freedom to do good deeds in the eyes of the state."

The idea of what qualified a person to be a natural born citizen in 1786 and what the definition of such a person was would be different. On one level the standards evolve, and on another they do not. Same thing with freedom of the press and freedom of speech. One of the problems the strict constructionists run into is that there is an obsession with trying to assume knowledge of what the Framers would think about an issue today rather than trying to apply the structures created in a way which is applicable today.

So back to the natural-born citizen.... If this had meant "only someone born on jus soli" for hundreds of years prior and then only in common-law tradition, I might agree that the conservatives on this matter, but the fact that this was something that was changed numerous times prior to the Revolution including just before suggests that the Framers had in mind a "birthright citizen" and that Congress could effectively shape the scope of this just as the British Parliament did in 1772. So I would ask anyone to show me how this definition has substantively changed....

Now in some cases, tests have changed significantly. Anyone who has studied the development of freedom-of-speech jurisprudence probably is aware that the degree we protect freedom of speech is unusual and perhaps even unparalleled. On one level, it would seem obvious that this was an evolution of standards but did the meaning of the amendment change significantly since the Founding? I am not convinced that it has.

BTW, I do argue that the Bill of Rights was intended to provide some level of self-autonomy as evidenced both by the due process guarantee and the search and seizure clause.
12.2.2008 7:27pm