(Musings of your humble servant at Rerum Novarum)
When this website was suspended, your host continued involvement on Facebook and from time to time wrote notes on various matters. Some of them have been posted here after this website was reactivated and others have not but perhaps at some point will be. One of the subjects to which your host devoted a bunch of writing to was that of presidential eligibility back in 2012 when among the subjects treated were as follows:
On Natural Born Citizenship, Barack Obama, Marco Rubio, Etc.
On Natural Born Citizenship, the Supreme Court, Common Law, the Founders, and Birther "Champion" George D. Collins
On Birthers and Some Fundamental Problems With the Kenyan Birth Hypothesis
On Barack Obama II and His Post-Birth Citizenship Status
On the Issues of Eligibility, Birthers, Conspiracies, Various and Sundry "Posses", Methodologies of Interaction, Etc.
Dispatching With the Vattel Canard, Etc.
Some Rational Answers To A Few Additional Questions About Barack Hussein Obama II
This material was also revisited in 2016 with a reworked version of the second note's material from above:
Revisiting the Subject of Natural Born Citizenship For 2016 and Beyond
I already posted a reworking of the first thread above earlier in the week. This was necessary because material from that note was referenced in this one and I did not want to use Facebook links to the older material. As a consequence, all linked references to my previous note in the text below go to the website posting from earlier in the week.
What you are about to read is a reworking of the 2016 thread above originally posted on January 7, 2016 with some additions and omissions from the original thread where the material is not germane to this current revisiting of that material. As in the prior note's format, all words of my interlocuters were in bold font so I will leave that unchanged in this representation of that material here. Without further ado...
What you are about to read is a reworking of the 2016 thread above originally posted on January 7, 2016 with some additions and omissions from the original thread where the material is not germane to this current revisiting of that material. As in the prior note's format, all words of my interlocuters were in bold font so I will leave that unchanged in this representation of that material here. Without further ado...
Many folks make grandiose pronouncements on this matter based on either their lack of knowledge of the issues at hand or what they think should be the way things are rather than what they actually are. And as previous treatments on this matter involved dealing with very pompous and ignorant Birther sorts, it seems fitting to revisit the material in a more sober fashion at the present time and absent most of the prior polemics.
The material below was mostly written in 2012 except for a few fixed glitches in formatting, the addition of some intext links to previously written material on a few points, and the second to last paragraph before the footnotes which was changed to reflect the political reality of 2016. Beyond those points, what you see here if it looks familiar to longtime friends is largely a redaction of an interaction with the material located at the link below to address the claims of certain Birthers as per the eligibility of Barack Hussein Obama whereby the writer of said material sought to appeal to authority on the matter at the time. I note that at the outset because my disdain for Barack Obama did not prevent me from standing up for truth on this matter then and the same is the case here as my interest is in what is true, not whether said truth actually benefits or detracts from folks I may or may not dislike as opposed to the converse.
To begin with, I want to reiterate what I said in the 2016 thread repost that I do not ask anyone to accept something just because I say it but I do expect anyone who wants to make claims along these lines in my presence to upon being made aware of this material to objectively interact with it if they expect me or anyone else to take them seriously. Having noted that
Natural Born Citizenship Myths and the Law of Nations
Now I should note now as I did in 2012 that I love it when folks post the work of someone else as if that is somehow supposed to shut someone up. You see, that sort of thing may work with most other people but it never does with me as not a few folks in the apologetics field found out in years past to their dismay when a number of their pathetic attempts in this area were thoroughly exposed by yours truly. But as that is neither here nor there, let us move onto the examination in question. As is usually the case, my words will be in regular font throughout the balance of this note.
The article I am excited to bring you is titled:
ARE PERSONS BORN IN THE UNITED STATES IPSO FACTO CITIZENS THEREOF?
The article provides historical opposition for every single point raised by Obama eligibility pundits and destroys all propaganda in its path.
Oh this oughta be fun! :)
It’s an article from The American Law Review dated Sept./Oct. 1884. The American Law Review was a premier legal journal - the brain child of Supreme Court Justice Oliver Wendel Holmes.
This was not a law school publication. It was considered to be the state of legal art which utilized the most esteemed attorneys of the period.
To quote the little guy from the draft board to Daffy Duck in a 1944 war cartoon "well now, I would not say that!" Here is a biographical sketch on the person in question put together over a hundred years ago:
GEORGE D. COLLINS was born in San Francisco, Independence day, July 4, 1864. Our subject graduated in the law department of the State University, at the head of his class, in May, 1885, opened an office and since then has successfully practiced his profession throughout the United States. He is a member of the Bar of the Supreme Court of the United States, and has been prominent in cases of Federal cognizance. His State practice has been principally before the Supreme Court. He has an excellent reputation as a profound lawyer, and is an able and eloquent advocate. Mr. Collins's success is due entirely to his own efforts. He is an earnest Republican, and, is showing his interest in public affairs, when only 21 years of age he has was placed in nomination for Judge of Superior Court, and defeated the only four votes. In 1890, the Bar of San Francisco, irrespective of party, presented a memorial to the Republican State Convention, recommending his nomination to the office of Attorney General, but he withdrew his name. He has been Secretary of the Bar Association, and has become widely known by reasons of his articles on constitutional law, which have appeared at various times in the American Law Review, the leading law periodical of the United States. [Source: "The Bay of San Francisco" (and Its Cities And Their Suburbs) Vol 1. Lewis Publishing Company 1892. Page 456-457 Submitted by: Nancy Pratt Melton.]
Having dealt with that brief biographical sketch on George D. Collins up to 1892, we can see that the statements made by the article in bold font are at least half false because George D. Collins was not yet an attorney in the fall of 1884 and his article was published in the American Law Review nonetheless. How could he be an esteemed attorney in the fall of 1884 when he did not graduate law school until May of 1885? Obviously the publication requirements were not restricted to solely attorneys at least at the time Collins' article was first published but lest this get us too far offtrack, let us move onto the meat of the article now.
The article I am about to show you was published in The American Law Review, written by George D. Collins, Esq. Attorney Collins was the Secretary of the California Bar Association. His name was recognized nationally for cases in the federal courts and moreso due to his regular publishing of articles via The American Law review.
As my source above adequately confirms, this description was later true of George D. Collins, Esq. However, in 1884 when the article in question was written, he was just a law student who was going to graduate the following May. So at this point in his life -and where this article was concerned in 1884- he was just "Law Student Collins."
MYTH #1: Chester Arthur’s British birth was known and accepted by the American people.
This article was written in Summer 1884, while Chester Arthur was still President. Since The American Law Review was such an esteemed legal publication, old Chester must have been somewhat intimidated by the report of Mr. Collins. This is because the article makes perfectly clear that to be a natural born citizen one must have been born to a US citizen father.
Seriously, you have to love the way folks like this make their arguments -President Chester Arthur or old Chester as this snot-nosed punk of a writer{1} called him must have been somewhat intimidated by the report of Mr. Collins. Yes, I am sure that President Chester Arthur sat up at night sweating over the opinions of a law student in his final year before actually graduating in an article he had published in a legal journal out in San Francisco. If you have to rely on an article from a law student as your "Holy Grail" then you have no "Holy Grail" at all!
Before the above paragraph gets us off track, I should note that the article on the first so-called myth ("MYTH #1") advances a legal opinion by a law student that was at variance with the common law tradition. I dealt with this indirectly in my previous note, so I need not revisit it here at the present time. (Though I reserve the right to call the common law as a rebuttal witness later on.) The article also attempts to score cheap points by surrilous accusations against President Chester Arthur of nefarious behaviour{2} which it does not bother to try and prove first. Readers should account for that when considering anything that the presenter of the original article{3} says about President Chester Arthur.
If Attorney Collins – esteemed lawyer, Secretary of the Bar Association and nationally known legal journalist – had thought his current President at the time this article was published – Chester Arthur – was a British subject at birth, then the article would have required a discussion of that point.
Notice how the article on this point tries to puff up a law student{4} as if he is some super authority that trumps all others. The presenter of the original article{5} attempts to cash in on the later legal reputation of George D. Collins, Esq. by attaching his later reputation and achievements to an article he wrote as a law student. Remember that at all times for the balance of this examination and you will properly have the context that the presenter of the original article does not provide you. The truth on this however is anything but that -the Supreme Court itself admitted that the full purview of what constituted a "natural born citizen" was not completely settled at that time. Indeed the Supreme Court said this in Minor vs. Happersett when deciding on whether Virginia Minor was a citizen or not.{6}
Furthermore, the Court in Minor vs. Happersett {7} made it quite clear that they did not intend to go into the issue of natural born citizenship any further than they needed to in order to ascertain whether Virginia Minor herself qualified one way or the other. It was therefore highly inappropriate for Law Student Collins to try and claim certainty on a matter that up to that point in time was unresolved by the Supreme Court. And it is equally inappropriate for birthers today to act in the fashion that Law Student George Collins did. That suffices to dispatch with arguments against MYTH #1 from the article so let us move on now.
MYTH #2: Lynch v. Clark ( a New York State case, not federal) is legal precedent for Obama to be considered a natural born citizen.
Despite the fact that state court cases have absolutely no legal weight of authority in federal court, Obama eligibility supporters cite this case often. Attorney Collins tears the decision to shreds and exposes its faulty conclusions.
Okay, on this one to be fair a bit of leeway is needed. Law Student George D. Collins wrote his article in 1884 and to my knowledge the United States Supreme Court had not yet cited Lynch vs. Clarke as a precedent for a decision. So for that reason, his arguments on this matter in 1884 may very well have had some merit to them. However, subsequent to 1884, this was no longer the case as I will get to in a moment. But first we need to consider the likely reason why Law Student Collins sought to diminish Lynch vs. Clarke in his article for the American Law Review.
As we do not have Law Student George D. Collins here to specifically ask for his reasons, we are left to make an educated guess on this matter. Therefore, it is my hypothesis that the reason Law Student Collins sought to diminish Lynch vs. Clarke is because it directly refuted his claims and settled the citizenship question for Julia Lynch according to the principles set down by William Blackstone in his Commentaries on the Laws of England{8} and not by Emmerich Vattel's Law of Nations. And despite the article's claim that Attorney Collins tears the decision to shreds, that is a subjective opinion of which the presenter of the original article{9} presumes they can just assert and the readers of the piece will buy it. It was a nice try but with someone such as myself, a bluff like that is dangerous because I will call it!
Now again, it is in the interest of fairness that I note that to my knowledge Lynch vs. Clarke was not cited by the Supreme Court as a precedent on natural born citizenship cases at the time that Law Student Collins wrote his article.{10} However, it is not as if there was some "great mystery" on what the understanding was of the Founders and the legal tradition of the United States on these matters. Here are just a few examples prior to 1884, which could be noted to buttress this assertion of mine:
US v. Villato, 2 U.S. 370 (1797):
The case involved a prisoner, captured and charged with treason. The issue was whether he could be charged with treason, given that he was "by birth a Spaniard, and had never become a naturalized citizen of the United States" (cf. US vs. Villato). The Supreme Court in its ruling recognized only two kinds of citizenship: natural born and naturalized. Furthermore, the Supreme Court in this decision used the term "natural born citizen" in the context of general citizenship and did not make of it some special class applicable to the Constitution's Article II section.
Dred Scott v. Sanford, 60 U.S. 19 How. 393 393 (1856):
Yes, I am actually going to cite Dred Scott in this note! In this case, I am citing part of Justice Curtis' dissenting opinion for the reference it makes to both the concept of "natural born citizen" and also to the common law understanding that referred to the latter as one conferred by birth. To wit (all emphasis is mine):
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects.
Moving on, this brings us to the following birther chestnut case.
Minor v. Happersett, 88 U.S. 21 Wall. 162 (1874):
I went over this case in detail in my previous note and explained why it does not help the case of those who try to have recourse to it and who frequently pester others about it. I will not revisit here what I wrote there except to note that Minor vs. Happersett clearly made reference to the common law "with the nomenclature of which the framers of the Constitution were familiar" (cf. Minor vs. Happersett) and made the distinction of two types of citizens.{11} Furthermore, in the context of the phrasing of the Constitution's Article II, the Court clearly equates "native born" and "natural born" citizen with one another and does so in the context of general citizenship as was the case in US v. Villato from 1797.
Elk v. Wilkins, 112 U.S. 94 (1884):
This case was heard by the Supreme Court to settle the question of whether a Native American who was born a member of a tribe within the United States but who voluntarily separated himself from his tribe and resided off the tribal land (and never naturalized) was a citizen within the meaning of the 14th Amendment. The Supreme Court held that he was not but my purpose for pointing out this example is the following quote within the decision of the Supreme Court:
The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which
"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,"
and "The Congress shall have power to establish an uniform rule of naturalization." Constitution, Article II, Section 1; Article I, Section 8.
By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes (60 U.S. 73; Strauder v. West Virginia, 100 U.S. 303, 306.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."
Notice how the Supreme Court for the third time in these examples I have used{12} has made only two delineations of possible citizen of the United States: birth and naturalization. The exact language used is this: "[t]he distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution" (cf. Elk vs. Wilkins) whereby the Supreme Court then quoted the Constitution's Article II passage talking about natural born citizens. In other words, you are a citizen by birth (natural born) or a citizen by naturalization (naturalized). Again, there is no middle ground in the mind of the Supreme Court on this matter.
So while perhaps in 1884, Law Student Collins could take some issue with Lynch vs. Clarke as an interpretive hermeneutic for the issue of what constituted a natural born citizen or not, at the same time (i) there were other Supreme Court cases that made clear that Law Student Collins' understanding of what constituted a "natural born citizen" was too artificially constrained and (ii) the Supreme Court would eventually cite Lynch vs. Clarke as a precedent in decisions it handed down on these matters including a case that the later attorney George D. Collins, Esq. himself would play an influential role in!
So while for the most part this dispatches with the arguments against MYTH #2 from the article, at the same time, I have to note in the interest of fairness that the arguments against MYTH #2 are truly only fully dispatched from the vantage point we look at it today and not from the purview of 1884 when Law Student Collins wrote his article. There were a number of cases which pointed in a direction other than where he went in his article on these matters but not the sort of set-in-stone cases that would come later on. In other words, Law Student Collins was at least partially acquitted on this point in 1884 but the birthers today who have recourse to his essay from 1884 to try and prop up their feeble position do not. But enough on that one for now and let us move onto the next one in this sequence.
MYTH #3: Common law states that being born on the soil – Jus Soli – makes one a “natural born subject” and therefore every person born on US soil is a “natural born citizen”.
Attorney Collins takes this on directly and establishes clearly that there is no common law in the United States. He also explains that natural born citizens are in no way, shape or form, the same as natural born subjects.
Well, Law Student Collins and/or the presenter of his work in the article were being blatantly disingenuous here because the claim was never that there is a common law in the United States. Instead, the argument is that the Constitution in certain of its expressions (i.e. "natural born citizen") are only correctly understood by having recourse to the common law tradition to properly ascertain those terms' intended meaning. This was made clear by the Supreme Court in Minor vs. Happersett and also in other decisions handed down prior to the time Law Student Collins' paper was published. That is sufficient to dispatch with the first part of this point in question.
As far as the second point or the claim that natural born citizens are in no way, shape or form, the same as natural born subjects, the phrasing on this by the presenter of the original article{13} is quite clumsy. The only difference between the two is the use of the word "citizen" for Americans{14} and "subject" for the English as William Blackstone did. The common law principle of the two is exactly the same and on this matter, Blackstone was unequivocal in noting that:
"The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien."{15}
The Founders themselves were once British subjects and understood Blackstone's Commentaries on the Laws of England well and the concept of "natural born" that they embodied. And when independence had been declared against King George III, and a war successfully prosecuted to solidify America's independence, in a certain sense the men were taken out of the British Empire but the British was in many respects not taken out of the men. They were all thoroughly schooled in Blackstone{16} and in particular the barristers amongst the delegates to the Constitutional Convention knew his Commentaries like they knew their basic ABC's.{17} When you account for this and also that despite the many debates and discussions on different parts of the Constitution that were proposed for the final draft, there was no debate or discussion whatsoever about what the meaning of "natural born citizen" was intended to mean, there is no logical or rational reason to presume that they would on such a pivotal point and with a term that was capable of being understood in more than one way adopt without any debate a foreign concept of the term{18} into the mix rather than go with that which they were all so intimately familiar with already. That more than suffices to dispatch with the arguments against MYTH #3 and enables us to move us to the final one in the sequence.
MYTH #4: Vattell’s definition of a natural born citizen was not considered by the framers. Attorney Collins discusses Vattell in great detail.
Law Student Collins can talk about Vattel all he wants but there is not a shred of evidence that the Founders at the Constitutional Convention intended Vattel's understanding of "natural born citizen" to be the one they intended by their use of that expression in Article II. This is hardly the only problem that the hypothesis of Vattel as the source for the meaning of "natural born citizen" in the Constitution has but it is worth noting at the outset since it is of no small importance when considering these factors.
And Collins agrees that to be a natural born citizen one must be born on the soil of parents who were themselves citizens. Collins quotes Vattell.
See my previous comments.
But more important is the fact that Collins makes it clear Vattell’s definition of “natural born citizen” was not actually Vattell’s definition. This is very important.
See my previous comments.
The definition of “natural born citizen” was not created by Vattell in his treatise, “Law of Nations.” That treatise simply discussed the established body of law known as “the law of nations”. The definition of natural born citizen discussed in Vattell’s treatise was actually the definition established by the body of law known as “law of nations”.
Here is the other problem with this hypothesis: Vattel's work Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (Law of Nations) was not even translated into English until more than ten years after the Constitutional Convention! This means if Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains was utilized at all at the Constitutional Convention that it would have had to be consulted in its original French.
The term "natural born citizen" is an English translation of Vattel's French rendering of Les Naturels, ou Indigènes sont ceux qui sont nés dans le pays, de Parens Citoyens and it is not even the only possible translation from those words. So with that in mind, the idea that the Founders still would have resorted to Vattel's definition of the concept of "natural born" over the much more accessible and intimately familiar one used over centuries in England and cleanly presented in the work of Blackstone? Well, to say that such an assertion would be a monumental leap of Evel Knievalian proportions is no small exaggeration especially considering that:
- Blackstone's concept of "natural born" was from a work written in English that virtually all of the delegates to the Constitutional Convention knew and knew well.
- The exact phrase "natural born" was a standard term in the English common law and had been used in the same context for centuries in England and it had always been used to include all children born on the soil of the country regardless of parentage with only the exceptions of (i) children born to foreign royalty, (ii) ambassadors, and (iii) to members of a hostile or invading army.
- There was no debate whatsoever at the Constitutional Convention on what the Founders meant by "natural born citizen" and if they were to go outside the common law traditional understanding of this term as promulgated in Blackstone's magisterial Commentaries on the Laws of England, then there would have been some evidence of discussion on this at the Constitutional Convention. However, the complete silence and lack of debate on this matter at the Constitutional Convention is yet an additional piece of evidence that the Founders did not go against the English common law tradition in their understanding of the term "natural born" as it applied to Article II of the Constitution.
In fact, I would argue that the latter point is perhaps the one that tells most strongly against the idea that the Founders on this matter went beyond centuries of English common law understanding and imported a foreign meaning for the term into their understanding of how it was to be interpreted where the Constitution was concerned. Again, if the Founders at the Constitutional Convention had done this, where was the discussion on the matter, where was the debate? Sometimes silence can speak volumes and this is one of those deafening examples.
Attorney Collins makes all of this quite clear in the article below.
He means Law Student Collins.
Now please review Article 1, Section 8 of the US Constitution:
The Congress shall have power…To define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations;
The capital letters are not in reference to Vattell’s treatise, but theyare in reference to the body of law Vattell wrote about – the actual “law of nations”. And that body of law - according to Attorney Collins as well as Vattell – held that a “natural born citizen” was somebody with connections to the nation for having been born on the soil as well as having been born of citizen parents. In Article 1, Section 8, we therefore have a direct recognition that the framers respected the law of nations.
The idea that because there is similarity of language in one point or that the Founders made a reference to the "Law of Nations" means that the Founders were going against their own English common law tradition and going with the meaning of "natural born" that Vattell used has got to be (I must say it) perhaps the biggest crock of shit in the entire article! In spite of the myriad of problems noted above in bullet point, there are also this glaring problem with such a hypothesis:
- Nobody that I am aware of has ever produced a single quote from a significant historical figure that actually says the Founding Fathers or Framers of the Constitution relied for their definition of "natural born citizen" on the work of Vattel.
So to summarize the various points into a single paragraph, we are left with the facts that (i) Vattel's French phrase Les Naturels, ou Indigènes sont ceux qui sont nés dans le pays, de Parens Citoyens translated today as "natural born citizen" had never been translated into English at the time of the Constitutional Convention, (ii) the concept of "natural born" was a term that had been in long usage for centuries{19} to describe English subjects -in England and also in colonies of Great Britain including the American colonies prior to 1776, and (iii) there is no record whatsoever that states that any of the Founding Fathers ever had recourse to Vattel for the meaning of the term.
When you couple all of this with various exhortations by the Supreme Court to seek to have recourse to "common law" to understand various terms in the Constitution (including that of "natural born"), the arguments against MYTH #4 fall apart as unviable as well. As the rest of article is nothing but a bunch of hyper-emotionalist drivel masquerading as real arguments, I am not going to waste my time with it .
That brings us to the present day and the inescapable fact that over and above anything Law Student Collins wrote in 1884, the Supreme Court itself addressed the issue at hand in a landmark case known as United States vs. Wong Kim Ark. The case revolved around a man of Chinese descent (Wong Kim Ark) who was born in San Francisco to Chinese parents. After he was denied reentry into the US (claiming that he was a "native-born citizen of the United States"), the case made it through the court system and reached the Supreme Court in 1898 when it was heard and also decided. Not only was the Law Student Collins of 1884 familiar with the case when it reached the high court in 1898 but by that time, he was George D. Collins, Esq.{20} and he actually filed Amicus Curae briefs with the Supreme Court on behalf of the government in that case.
To my knowledge, United States vs. Wong Kim Ark was the first Supreme Court case to cite the 1844 case Lynch vs. Clarke from the New York court of appeals as a precedent to buttress their ruling on this matter. So since 1898, the arguments made by Law Student Collins in 1884 against referencing Lynch vs. Clarke as a precedent automatically become invalid and worthless because starting in 1898, that case became a Supreme Court-cited precedent case in support of a ruling they handed down.
From there, and in consideration of the fact that United States vs. Wong Kim Ark is one of the landmark cases of the late nineteenth century, let us consider some of the arguments made by the Supreme Court when they handed down their decision in that case and that will involve quoting from the text of the actual opinion itself (all emphasis is mine):
"It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established."{21}
Notice how the Supreme Court argues in their decision for the full franchise of the common-law tradition as enunciated by William Blackstone in his Commentaries on the Laws of England and also well understood by the British Empire born and educated Framers who wrote the Constitution. But there is more:
"The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, must be discarded. There is not, and never was, any such common law principle. Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203…Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty."{22}
In other words, the idea that a child born in a foreign country to parents who were native-born citizens could be naturalized was foreign to the concept of common law. Furthermore, the Supreme Court made it very clear above that the idea that there was some general rule of citizenship by blood or descent{23} that has displaced the common law principle that was at the foundation of the American and British law tradition on these matters is an argument that has no basis in fact or weight. But there is yet more:
"[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, 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."{24}
In other words, the Fourteenth Amendment affirmed the principles of the common law tradition of citizenship by territorial birth within the usual parameters that were as old as the rule itself{25} and expressly rejected the idea of natural citizenship being merely a matter of descent.{26} The only exception to the Fourteenth Amendment's affirmation of the common law tradition was the various Indian tribes due to certain jurisdictional questions at the time.{27}
And yet there is still more:
"[A]t the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, 'citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,' and 'mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;'
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion….Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty…..So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion."{28}
This is another statement striking down the notion of "general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty" (cf. United States vs. Wong Kim Ark) and another declaration that the lodestar on citizenship questions in the United States was the Englishman William Blackstone and the ancient English common law and not the Swiss Emmerich Vattel and his continental legal opinions on these matters. And finally, we come to this the decision of the Supreme Court on what does and does not constitute a "natural born citizen" under the Constitution of the United States and United States vs. Wong Kim Ark based their judgment on the foundation of the English common law:
"The Constitution of the United States, as originally adopted, uses the words 'citizen of the United States,' and 'natural-born citizen of the United States.' By the original Constitution, every representative in Congress is required to have been 'seven years a citizen of the United States,' and every Senator to have been 'nine years a citizen of the United States.' and '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.' The Fourteenth Article of Amendment, besides declaring that
'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,'
also declares that
'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
And the Fifteenth Article of Amendment declares that
'the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.'
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion,except insofar as this is done by the affirmative declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution."{29}
Insofar as what the common law had to say on these matters, that was further elaborated by the Supreme Court in United States vs. Wong Kim Ark as follows:
"The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called 'ligealty,' 'obedience,' 'faith,' or 'power'—of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, 'Protectio trahit subjectionem, et subjectio protectionem,'—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king."{30}
There were twenty-five references that the Supreme Court made in the decision handed down in United States vs. Wong Kim Ark to natural born citizens and natural born subjects in their delineation of the concept of "natural born citizen" (used seven times) in accordance with that of "native born citizen" (used nine times) in reference to United States citizens. There were also references to "natural born subject" (used twenty-two times), and "native born subject" (used twice) in reference to British subjects. It is patently obvious that in the mind of the Supreme Court and the English common law tradition, these terms were interchangable and referring to the same thing. Meaning: the English equivalent to a "natural born subject"/"native born subject" had its American equivalent in the references to a "natural born citizen"/"native born citizen."
In like manner, there is proof of the above statement in that the Supreme Court cited as support for their decision Lynch vs. Clarke handed down in 1844 by the First Circuit Court in New York. Here is what was said about the case in United States vs. Wong Kim Ark :
"That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844) 1 Sandf. Ch. 583."{31}
And again:
"So far as we are informed, there is no authority, legislative, executive, or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country which have gone the furthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent, Comm. 39, 50, 53, 258, note; Lynch v. Clarke, 1 Sandf. Ch. 583, 659; Ludlam v. Ludlam, 26 N. Y. 356, 371." {32}
So the Supreme Court in United States vs. Wong Kim Ark made it clear that they accepted the arguments from Lynch vs. Clarke on these matters and referred to the decision of Lynch vs. Clarke which declared children born to aliens in the United States as "citizens of the United States" and also made reference to "the citizenship of native born children of foreign parents." But Lynch vs. Clarke in its decision specifically used different wording in their ruling which is of no small significance here. Observe:
"It is an indispensable proposition, that by the rule of common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States and, indeed, before the discovery of America by Columbus. By the common law, all persons born within the ligeance of the crown of England, were natural born subject, without reference to the status or condition of their parents. So if a Frenchman and his wife, came to England, and had a son during their stay, he was a liege man. This was settled law in the time of Littleton, who died in 1492. And its uniformity through the intervening centuries may be seen by reference to the authorities, which I will cite without further comment [list of citations to cases/authorities]."{33}
And also this:
"Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegience of the United States, whatever were the situation of his parents,is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this case, and so far I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed and the position made morally certain, by such legislative, judicial, and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does itself constitute citizenship."{34}
Notice the interchangeable fashion in which Lynch vs. Clarke draws a parallel between the American "natural born citizen" and the English "natural born subject." By giving such a solid endorsement of the ruling in this case as they did, the Supreme Court in United States vs. Wong Kim Ark by logical extension made this argument their own and applied it directly to the case of Wong Kim Ark himself! Here are some additional sources which were influential on the matter of natural born citizenship.
The Supreme Court in United States vs. Wong Kim Ark in support of its decision, also referenced the work of James Kent:
"Chancellor Kent, in his Commentaries, speaking of the 'general division of the inhabitants of every country, under the comprehensive title of 'Aliens' and 'Natives," says: 'Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent.' 'To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state, while abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.' 2 Kent, Comm. (6th Ed.) 39, 42. And he elsewhere says: 'And if, at common law, all human beings born within the ligeance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.' "Subject' and 'citizen' are, in a degree, convertible terms as applied to natives; and though the term 'citizen' seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, 'subjects,' for we are equally bound by allegiance and subjection to the government and law of the land.' Id. 258, note."{35}
Here is more of what James Kent so approvingly cited by the Supreme Court in United States vs. Wong Kim Ark in support of their decision had to say about native citizenship:
"[N]atives are all persons born within the jurisdiction and allegiance of the United States."{36}
At first glance, this reference does not look like it is all that helpful but you need to consider the contents of the thirty-fifth footnote above. Furthermore, appended to the text is this additional clarifying note:
"This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with tho exception of the children of embassadors, who are in theory born within the allegiance of the foreign power they represent" Calvin's Case, 7 Coke, 1; Lynchv. Clarke, 1 Sandf. Ch. 584, 639.{37}
Now the citation to Lynch vs. Clarke in the appended note obviously came from an edition of Kent's Commentaries on American Law that was subsequent to 1827 -as Lynch vs. Clarke was itself handed down in 1844. But the real takeaway here is the reference to Calvin's Case, 7 Coke,1. That reference was obviously in the original edition from 1827 and is a reference to an English case from 1608 that that solidified in the most complete sense the applicability of the common law concept of a subject who was considered "natural born." This is a case in the common law tradition that all the Founders and Framers themselves would have been quite familiar with as they would have (at the very least) learned about it in their studies of Blackstone's Commentaries on the Laws of England.
Also supporting the decision handed down in United States vs. Wong Kim Ark by logical extension{38} was William Rawle who wrote an influential compendium in the 1820's titled A View of the Constitution of the United States which said this about the subject of "natural born citizens":
"Every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen within the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity."{39}
In other words, there is so much support in the common law tradition, in the writings of learned writers from the Founding generation, etc. for the decision handed down in United States vs. Wong Kim Ark that the decision will not be going anywhere at any time whatsoever. So with that noted here in brief, let us wrap up with looking at what happened to the Birther "Champion" George D. Collins whose position has been more than adequately steamrolled in the above thread.
I mentioned earlier that George D. Collins, Esq. filed an Amicus Curae brief with the Supreme Court on behalf of the government and the Supreme Court in United States vs. Wong Kim Ark rejected his brief's arguments and ruled against him. But that was not the only defeat/setback he was to receive that lessened the esteem he had spent a lifetime building. Indeed, within a period of seven years after losing in the United States vs. Wong Kim Ark case, his life went completely down hill and his reputation was in the process to suffer irreparable damage. I will relegate to a footnote what befell him subsequent to 1898{40} and will let that suffice to put a cap on this writing which more than adequately refutes the "natural born citizen" nonsense prattled about by various and sundry birthers.
The sad thing is, now that their "champion" has been vanquished, these birther sorts like other conspiracy crackpots at sundry times and in diverse manners will for the most part not have the integrity to admit it and merely look elsewhere for their latest supposed "smoking gun." That is after all the sort of thing that those with no ethics or integrity do.
I do hold out hope though that at least some of those who have wasted their time and energy chasing various birther issues like Captain Ahab chasing his elusive white whale will through reading this essay or via some other pathway come to realize how foolish they come off looking and sounding and what an overall detriment they are on the credibility of the conservative movement as it sought to oppose the policies and the re-election of Barack Obama. (The failure there was I am sure in part to the loons pushing Birther garbage who made conservatives look pretty stupid and desperate by comparison.) So far, these birther nuts as of mid 2012 at least were 0-202 in court cases challenging Barack Obama's and I have no doubt that number has grown in the past few ears. And for reasons well documented above, unless they draw a particularly stupid or otherwise legally-challenged judge, they are not going to win any of their challenges anytime soon.
I suggest they cease and desist on it especially since (i) they are embarrassingly ignorant and wrong and (ii) there are not a few conservatives who qualify as natural born who may or may not seek higher office in the future if they are not already doing so. (To list a few that come readily to mind: Marco Rubio, Ted Cruz, Nikki Haley, Bobby Jindal.)
As far as Leo Donofrio goes, I have heard through the grapevine that he plays poker professionally now and I cannot imagine he could possibly be any worse a poker player than he is a legal specialist. Actually, in the interest of disclosure, I have heard he is a pretty good poker player. Either way though, Leo Donofrio would be advised to leave the law alone and stick to poker because one thing you can do in poker and be successful at is win hands by bluffing. In the words of Cool Hand Luke "sometimes nothing is a real cool hand!" But if you try to bluff against someone who is willing to call your bluff, you better have the cards or you will lose. And that is the bottom line really.
Notes:
{1} Lest there is confusion here, I am not referring to George D. Collins with this statement but instead one Leo Donofrio who was presenting and commenting on Collins' work in the article referenced above.
{2} See footnote one.
{3} See footnote one.
{4} See footnote one.
{5} See footnote one.
{6} See my other note linked throughoutt this thread for more details on that. I will note here very briefly that Minor vs. Happersett was decided in 1875 or nine years before Law Student Collins' legal article was written.
{7} See my other note linked to the top of this thread for more detail on William Blackstone and his highly influentialCommentaries on the Laws of England first published in 1765.
{8} See footnote seven.
{9} See footnote one.
{10} And any legal specialists out there reading the present note who know otherwise, by all means please correct me in the comments below.
{11} Natural born and naturalized.
{12} As for whether this person was Law Student Collins or the writer presenting and summarizing Collins' work (the aforementioned Leo Donofrio in footnote one), I am off the top of my head not sure. In the interest of showing some charity towards the deceased, I will assume unless it is shown to the contrary that it is Donofrio responsible for the clumsy phrasing there.
{13} I reiterate anew at this point the request I made to legal specialists reading this article in footnote ten.
{14} As the Founders did in writing the term "natural born citizen" as a presidential prerequisite in the Constitution.
{15} Cf. William Blackstone's Commentaries on the Laws of England (circa 1765).
{16} While the barristers amongst the Constitutional Convention delegates would know Blackstone by far the best, even those Founders who were not legal specialists had some basic grounding in his work. For example, James Madison never practiced law. He did read on law though and the only record I am aware of that we have of what he studied is a single sentence from his pre-Constitutional Convention college years that read as follows: "Studying with Mr. E. Shippen, Blackstone's Commentaries on the Laws of England."
{17} There were 34 delegates from the Constitutional Convention who were barristers or otherwise had notable legal training and/or passed the bar. Here were the most significant or influential from that group:
Oliver Ellsworth, Roger Sherman, John Dickinson, Rufus King, Alexander Hamilton, Gouverneur Morris, James Wilson, Charles Pinckney, John Rutledge, George Mason, and Edmund Randolph.
{18} Such as that of the Swiss Emmerich Vattel.
{19} If memory serves, Blackstone traced the long-established understanding of "natural born" in the English common law tradition back to at least 1350 -even before there was statutory language codifying it in the common law itself -the most celebrated case of which was Calvin's Case as argued by Sir Edward Coke in 1608.
{20} And by that time he had achieved a reputation as a solid attorney of note -see the earlier biographical information on George D. Collins for more details on this.
{21} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{22} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{23} This is a veiled reference to the non-common law approach to "natural born" as promulgated by the Swiss political theorist Emmerich Vattel.
{24} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{25} Which in 1898 would have been at least 548 years if not older!
{26} See footnote twenty-three.
{27} This exception would change in 1924 when the Congress of the United States would grant all Indians citizenship through federal statute.
{28} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{29} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{30} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898)
{31} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898) citing approvingly the New York First Circuit decision of Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (circa 1844)
{32} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898) citing approvingly the New York First Circuit decision of Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (circa 1844)
{33} Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (circa 1844)
{34} Lynch v. Clarke, 3 N.Y.Leg.Obs. 236, 1 Sand. Ch. 583 (circa 1844)
{35} U.S. v. Wong Kim Ark,169 U.S. 649 (circa 1898) citing with approval James Kent.
{36} James Kent, Commentaries on American Law, 9th Edition (circa 1827)
{37} James Kent, Commentaries on American Law, 9th Edition (circa 1827)
{38} I say "logical extension" because I am not aware of the Supreme Court specifically using Rawle's source in U.S. v. Wong Kim Ark. However, the arguments made in Rawle's work have been used in at least a couple precedent cases and are synonymous with the decision handed down by the Supreme Court in U.S. v. Wong Kim Ark.
{39} William Rawle, A View of the Constitution of the United States, pg. 86 (circa 1829)
{40} Looking For Fugative in San Jose
