Lynch did not cite to any authorities that supported its outlandish position on the meaning of the naturalization acts. The court basically just made things up about the meaning of what Congress plainly wrote. What a shameful display of judicial workmanship, all for the purpose of arriving at a preconceived result. The damage that Lynch did to citizenship jurisprudence in the United States is inestimable. Even Wong Kim Ark cited to and blindly relied upon its decision.
We have seen that the plain language of the acts does not show that Congress, when it came to children born of alien parents, made any distinction for children born in or out of the United States. Moreover, the historical record shows that Lynch and Obama’s supporters are wrong.
Support for my position is found in an old article that has just recently surfaced. An internet researcher by the name “rxsid” of Free Republic has recently found this article and provided it to Attorney Leo Donofrio who published the article at his blog at
- http://naturalborncitizen.files.wordpress.com/2011/12/alexandria-herald.pdf .
This old article was published by Publius on October 7, 1811, in The Alexandria Herald, concerning the “Case of James McClure,” which “made a great deal of stir in the U. States.”
“Publius” was the pseudonym used by Alexander Hamilton, James Madison, and John Jay in the Federalist Papers. We cannot be sure who Publius was 1811, although we know that Hamilton was dead and Jay retired. We might not know who “Publius” is, but we do know that the McClure case was decided by the James Madison Administration and that Madison most likely had a say in how the matter was eventually resolved.
The Publius article states that McClure was born in the United States on April 21, 1785. His father was a British subject at the time of his birth. On February 20, 1786, his father naturalized to be a citizen under the laws of South Carolina. McClure remained in the United States until 1795 when he was sent to England for his education.
He never returned to the United States. His father also returned to his country, Great Britain. In 1807, McClure dispatched from England the ship, the Horizon, for Lima. The ship became wrecked on the sea rocks of Morlaix and never reached Lima.
The incident resulted in the Berlin Decree being first put into effect against the United States. Even though McClure had a U.S. passport issued to him by the “American minister in London,” showing that he was a “native citizen of the United States,” the French Minister of War, based on information that he received from the French police and the “Minister plenipotentiary of the U. States,” issued an order on April 12, 1810 directing that McClure be detained in France as an “English” prisoner of France (emphasis in the original).
Pursuant to that order, McClure was “placed under surveillance at Tours” (emphasis in the original). A John Rodman then took up the cause of having McClure released, contending that McClure was a “citizen” of the United States, and he wrote a letter from Paris dated July 4, 1811 to that effect to the Editor of the “United States Gazette.”
The names of James McClure and John Rodman appear as names existing in Chester County, South Carolina in the estate papers of Thomas Gillespie, who died in 1808.
“Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U. States’ act does not go so far. A man must be naturalized to make his children such.”
Here are the articles from the Alexandria Herald and Richmond Enquirer.
- http://naturalborncitizen.files.wordpress.com/2011/12/oct-1-1811.pdf .
If children born in the United States were not covered by this naturalization act because they were already “citizen” under the “common law,” why would Publius say that McClure’s citizenship fell within the act and that the act even made him a naturalized citizen?
Publius even said that in the United States, birth in the country was insufficient to make anyone a “citizen.” He said that a child needed to be born to “citizen” parents in order to be a “citizen.”
Given these comments by Publius in 1811, there was no such “common law” rule based on the English common law prevailing in the United States after July 4, 1776. Hence, Publius had to resort to the 1802 act for resolution of the question of whether McClure was a “Citizen of the United States.”
James McClure was born in South Carolina on April 21, 1785. His father, a British subject, naturalized in South Carolina under that state’s naturalization statutes on February 20, 1786. Even though born in the United States, the James Madison Administration did not find James McClure to be a “natural born Citizen.”
What is critical to understand about the McClure case and how Publius resolved the question of whether McClure was a “Citizen of the United States” is that it supports my position in which I have steadfastly argued that the early naturalization acts (Naturalization Acts of 1790, 1795, 1802, and 1855) applied not only to children born out of the United States but also to children born in the United States and treated any child born in the United States to alien parents to be an alien also.
Given these Congressional statutes, we can reasonably conclude that our nation did not adopt the English common law jus soli concept of citizenship, but rather the law of nation’s jus sanguinis. There was not doubt that McClure was born in the United States.
But he was not considered a “Citizen of the United States” by the force of being born on the soil of the United States. He was not declared to be a “Citizen of the United States” because as the English common law had provided that any child born within the King’s dominion, not born to any diplomat or military invader, was a “natural born subject,” and so too any child born in the United States under similar circumstances was a “Citizen of the United States.”
Rather, he was considered a “Citizens of the United States” under the Naturalization Act of 1802 only because his father naturalized to be a U.S. citizen after McClure was born when McClure was still a minor and McClure was “dwelling in the United States” with his father at the time of his father’s naturalization.
Indeed, Publius explained that under the statute, the child, whether born in the United States or out of it, had to be “dwelling in the United States” with the father at the time of his father’s naturalization, the idea being that if he was with the father at that time he probably would remain in the United States for the rest of his or her life.
So we can see from the McClure case that any child born in the United States to alien parents was born an alien and only became a “Citizen of the United States” upon his father’s naturalization if done during the years of minority and only if the child was dwelling in the United States at the time of the father’s naturalization.
If the father did not naturalize within that time, the child would have to petition for naturalization on his or her own upon reaching the age of majority.
In discussing how to interpret “dwelling in the United States,” Publius made reference to a Dr. Franklin. He said that the law naturalizes minor children with the parents’ naturalization “by saying grace over them,” as long as the children are together with the parents at the time of the parents’ naturalization and not left behind in the parents’ native country.
Hence, Franklin, too, looked at children born in the United States to alien parents the same as did Publius or else Publius would not have used Franklin as a reference on the question of citizenship.
What is also important to note is that Secretary of State James Monroe ruled that James McClure was a “Citizen of the United States.” He so stated in his letter dated November 27, 1811 which he wrote to Joel Barlow, Esq., who was located in Paris. The National Archives has a copy of this Monroe letter which reads:“Joel Barlow Esq. Department of StateParis Nov. 27, 1811Sir
I have the honor to enclose several affidavits and certificates just handed to me by Mr. Cheves the Representative in Congress from the City of Charleston proving that James McClure now detained in France as a British Prisoner of War was born in Charleston since the Revolution.
To these Papers is annexed a Certificate of W[illiam] Johnson Esq. one of the Justices of the Supreme Court of the United States before whom the affidavits were taken stating “that agreeable to the laws and usage of the United States, the said affidavits and Certificates are sufficient to establish the fact that James M McClure above named is a Citizen of the United States.”
As such he must be considered by this Government. You will therefore interpose your good offices in his behalf and obtain his release from confinement as soon as possible.
I have [the honor]
In his letter to Barlow, Monroe states that he had just been given “several affidavits and certificates” by “Mr. Cheves the Representative in Congress from the City of Charleston.” From these documents, Monroe concluded that James McClure was born in South Carolina, that his father naturalized less than one year after James’ birth, and that James was dwelling in the United States when the father so naturalized. All these factors made James a naturalized “Citizen of the United States.”
Even though there was no question that McClure was born in the United States, neither Justice Johnson nor Monroe ruled that he was a “natural born Citizen.” It appears that Mr. Cheves must have had some interest in the matter and that he favored finding James McClure to be a “Citizen of the United States.” But even if that were the case which it probably is, we know that Mr. Cheves himself did not view James McClure to be a “natural born Citizen.”
James Monroe in his letter of November 27, 1811 said that it was “Mr. Cheves the Representative in Congress from the City of Charleston” who handed to him the “affidavits and certificates,” which included the “Certificate” of Justice Johnson.
- Joe Biden : Serial Liar, Exaggerator, Buffoon, Banking Cronie For New World Order!
So it appears that Representative Cheves also became involved in the matter and supported finding James McClure a “Citizen of the United States.” Let us see if there is any information on Representative Cheves which can lead us to conclude whether he would have found McClure to be a “natural born Citizen” or a “Citizen of the United States.” The Speaker of the House of Representatives, Langdon Cheves, in February of 1814, made the following speech:
“The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth.”
Speech of Rep. Langdon Cheves, in the House of Representative in 1814, reported in The Historical Register of the United States, Vol 3, Part 1, Sec. 7, p. 174 (Philadelphia 1814), accessed at
- [url=http://books.google.com/books?id=6qC1NICFYR0C&pg=PA174&dq="children+have+a+natural+attachment"&hl=en&sa=X&ei=cvtoT-PyEuiB0QHiscmLCQ&sqi=2&ved=0CDwQ6AEwAQ#v=onepage&q=children have a natural attachment&f=false]http://books.google.com/books?id=6qC1NICFYR0C&pg=PA174&dq=%22children+have+a+natural+attachment%22&hl=en&sa=X&ei=cvtoT-PyEuiB0QHiscmLCQ&sqi=2&ved=0CDwQ6AEwAQ#v=onepage&q=children%20have%20a%20natural%20attachment&f=false[/url] .
(citing and quoting Vattel, Book 1, Chapter 19, Sec. 220).
It can be readily seen that Cheves borrowed his ideas from Vattel, The Law of Nations. This was the Speaker of the House who in 1814 adopted Vattel’s definition of citizenship and not that of England’s common law. Cheves also said:
“Perpetual allegiance, said he, is alleged to be founded on natural law, the positive law of nations, or the municipal law of each state. We will examine each; and first, the law of nature. In this view we are able to discover but two principles or pretences on which the duty of perpetual allegiance is affirmed, or the right of expatriation denied.
—These are, the necessities of the state and the gratitude of the subject. These are the only grounds stated by Vattel, to whom alone I shall refer as my authority for positions of natural and national law, because I can refer to no better authority, the more especially as on the points for which I shall use him, I believe he agrees with all other writers” (footnote which quoted Vattel’s explanation on the right to expatriate).
The Historical Register of the United States, Volume 3, Part 1, 174 (Thomas H. Palmer ed. 1814). Here, Cheves explains that on natural and national law, there was no better authority than Vattel.
There also exists evidence showing how Justice Johnson defined U.S. citizenship. We learn from then Secretary of State James Monroe’s letter of November 27, 1811 to Joel Barlow, Esq., that U.S. Supreme Court Justice, William Johnson, found that, based on “several affidavits and Certificates” and “agreeable to the laws and usage of the United States,” James McClure was a “Citizen of the United States.”
Under the 1802 Act, the clerk of the court granted each applicant a “certificate” that could be exhibited to the court as evidence of time of arrival in the United States. Hence, one of the “Certificates” given to Justice Johnson would have been the “certificate” that McClure’s father obtained when he naturalized.
In his ruling, Justice Johnson also used the exact language that is contained in Article I and II, i.e., “Citizen of the United States.” Even though McClure was born after July 4, 1776 in the United States, Justice Johnson did not say he was a “natural born Citizen.”
If the United States after the Revolution had adopted the English common law jus soli rule of citizenship as Justice Gray said it had in Wong Kim Ark, Justice Johnson would have ruled that McClure, born in the United States after July 4, 1776, was a “natural born Citizen” (a “citizen” “natural born”) and not just a “Citizen of the United States” (a “citizen” naturalized). But Justice Johnson only said he was a “Citizen of the United States.”
We also know from a legal opinion that Justice Johnson wrote in 1830 in a case while sitting on the U.S. Supreme Court that he would not have ruled 19 years earlier that McClure was a “Citizen of the United States” simply because he was born in the United States.
In Shanks v. Dupont, 28 U.S. 242 (1830), the Court through Justice Story, reversing both state courts of the State of South Carolina which found Ann Shanks to be a citizen of South Carolina, ruled that Ann Shanks was born in South Carolina before the revolution a British subject, also became a “citizen” of South Carolina upon the Declaration of Independence, but then later adhered to the British which ultimately made her a British subject.
Justice Johnson, dissenting, ruled that Ann Shanks, was born before the revolution in South Carolina to native born parents. He ruled, based on principles of the law of nations and the “common law” of the State of South Carolina, that, being born into a community whose allegiance was by the Declaration of Independence transferred to the free and independent states, was a “citizen” of South Carolina and that she was not able to throw off that allegiance and citizenship and to elect to become a British subject. Justice Johnson gave great deference to South Carolina to decide for itself questions of alienage and inheritance of real property. He said:
“By an act of the state passed in 1712, the common law of Great Britain was incorporated into the jurisprudence of South Carolina. In the year 1782, when this descent was cast, it was the law of the land, and it becomes imperative upon these appellants after admitting that their parent was a native born citizen of South Carolina, daughter of a native born citizen of South Carolina, to show on what ground they can escape from the operation of these leading maxims of common law. Nemo potest exuere patriam — and proles sequitur sortem paternam.”
Id. at 252. Justice Johnson did not prescribe to an absolute denial of the right of expatriation. Rather, he looked to the law of nations and to the “writers on public law” (which undoubtedly included Vattel) for guidance on the matter. He explained that the law of nations left it up to each individual nation to decide by its own positive law under what circumstances it would grant to an individual the right of expatriation. He ruled that South Carolina had adopted the English common law with rules of allegiance which provided for the indelibility of allegiance (meaning natural allegiance was unalienable).
He said that South Carolina had not by any statute altered that rule. He also considered whether Acts of Congress passed in 1790 and thereafter abrogated the South Carolina rule. Given that those acts did not make any express statement on the subject, he was not willing to declare that those acts by “inference” abrogated the law of South Carolina.
But what is important in Justice Johnson’s discussion on the right of expatriation is how he shows what the basis of citizenship in the new nation was in the first instance. The ideas that he presents on why a person should not have an absolute right to throw of his or her allegiance comes directly out of Vattel, Section 220-33, where Vattel explains how the right to expatriation should be qualified depending on the needs of both the individual and the nation. Here is what Vattel said:
“The children are bound by natural ties to the society in which they were born: they are under an obligation to shew themselves grateful for the protection it has afforded to their fathers, and are in a great measure indebted to it for their birth and education. They ought therefore to love it, as we have already shewn (§122),—to express a just gratitude to it, and requite its services as far as possible by serving it in turn. We have observed above (§212), that they have a right to enter  into the society of which their fathers were members.
But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth.
If he does not find it advantageous to remain in it, he is at liberty to quit it on making it a compensation for what it has done in his favour,* and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it.
A man’s obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law, or by violence.
2. As soon as the son of a citizen attains the age of manhood, and
acts as a citizen, he tacitly assumes that character. . . . “
Vattel, Section 220.
And here is what Justice Johnson said:
“Nor have we anything to complain of in this view of the subject. It is a popular and flattering theory that the only legitimate origin of government is in compact and the exercise of individual will. That this is not practically true is obvious from history, for, excepting the State of Massachusetts and the United States, there is not perhaps on record an instance of a government purely originating in compact.
And even here probably not more than one third of those subjected to the government had a voice in the contract. Women, and children under an age arbitrarily assumed are necessarily excluded from the right of assent and yet arbitrarily subjected. If the moral government of our maker and our parents is to be deduced from gratuitous benefits bestowed on us, why may not the government that has shielded our infancy claim from us a debt of gratitude to be repaid after manhood? In the course of nature, man has need [28 U. S. 263] of protection and improvement long before he is able to reciprocate these benefits.
These are purchased by the submission and services of our parents; why then should not those to whom we must be indebted for advantages so indispensable to the development of our powers, be permitted, to a certain extent, to bind us apprentice to the community from which they have been and are to be procured?
If it be answered that this power ought not to be extended unreasonably or beyond the period when we are capable of acting for ourselves, the answer is obvious — by what rule is the limit to be prescribed unless by positive municipal regulation?”
Id. at 262-63.
Note how Justice Johnson emphasized the “moral government of our maker and our parents” and that children inherit their right to protection and advantages due them them from the society in which they are born based on the submission and services that the children’s parents gave to that society. He stated that infants during their years of minority are not capable of giving consent as to what allegiance or citizenship to choose.
He also stated that their condition follows that of their “parents” and that children are indebted to the society to which they parents belonged and from which they gained benefits and protection which also benefited the children. He explained that it is a child’s parents’ “submission and services” to the society which earned for the child the society’s “protection and improvement.”
He added that children upon reaching the age of majority should repay their parents’ society in which they were born and from which they received protection and benefits during their years of minority. These are ideas that come directly out of Vattel at Sections 220-33.
Here we see that Justice Johnson under the circumstances existing in South Carolina not only accepted indelibility of allegiance (“Nemo potest exuere patriam”—“no man can renounce his own country.” Black’s Law Dictionary 936 (5th ed. 1979)) but also the maxim that the children follow the condition of their fathers (“proles sequitur sortem paternam”—“the offspring follows the condition of the father.” Black’s Law Dictionary 1091 (5th ed. 1979)).
So, having adopted the maxim that children followed the condition of their fathers, there is no way that Justice Johnson would have ruled that a child born in the United States to alien parents, was a “natural born Citizen” or even a “Citizen of the United States” from birth.
So, having adopted this maxim that children followed the condition of their parents, there is no way that Justice Johnson would have ruled that James McClure, born in South Carolina to alien parents, was a “natural born Citizen” or even a “Citizen of the United States” from birth.
Rather, in keeping with his position expressed in Shanks, he would have found that McClure at birth was a British subject because he was born to a British subject father. Then when his father naturalized, McClure the son would have followed his father’s condition and Justice Johnson would have declared him a “Citizen of the United States” (he did not say “natural born Citizen”). And this is exactly what he did for James McClure.
Justice Johnson said that McClure is a “Citizen of the United States” per “laws and usage of the United States.” He did not say according to any state law, whether common law or statutory. The case of Ross v. Rittenhouse, 2 U.S. 160, 162 (1792) gives us insight was Justice Johnson meant by “laws and usage of the United States.”
- Cost Of Military Paid By The U.S. Taxpayer: Used For Establishing Rothschild Central Banks In Iraq, Libya, Next Syria & Last Holdout Iran.
In 1792, the supremacy of the law of nations within the United States was affirmed by Chief Justice McKean in Ross v. Rittenhouse where he said: “The Congress on the 15th of January, 1780, resolved (inter alia) ‘that the trials in the Court of Appeals be according to the usage of nations, and not by Jury.’
This has been the practice in most nations, but the law of nations, or of nature and reason, is in arbitrary states enforced by the royal power, in others, by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered.”
Hence, “the laws and usage of the United States” did not refer to the English “common law.” Rather it could have meant only a treaty, statute of Congress, or the law of nations. Since there was no treaty involved, we know he was referring to the Naturalization Act of 1802.
Also, “usage of the United States” referred to the law of nations and not the English common law which only applied on the state level. The states continued to naturalize persons until the Naturalization Act of 1790, which under Article I, put the power of naturalization solely in the hands of Congress. So states made “citizen,” natives and naturalized, under their laws until they gave that power to the national government.
Again, Justice Johnson spoke of the “laws and usage of the United States.” He did not mention the laws of the state of South Carolina where McClure was born or any other state law. In 1811, there was only the Naturalization Acts of Congress that were “laws . . . of the United States.”
But if McClure’s birth alone made him a “Citizen of the United States,” he would not have gained that status under any naturalization act of Congress. He would have had to rely upon the “common law” as both Minor and Wong Kim Ark say applied to define a “natural born Citizen” and a “citizen of the United States.”
McClure simply could not be a “natural born Citizen” under any “law of the United States,” for none existed other than the common law. So, in the words of Justice Johnson, McClure was declared a “Citizen of the United States” under a Congressional Act (the Naturalization Act of 1802) or the law of nations and not under any English common law.
And being declared a “Citizen of the United States” under the Naturalization Act of 1802 proves that McClure was not a “natural born Citizen.” This historical record clearly proves Justice Gray wrong when he said in Wong Kim Ark that the English common law prevailing in the United States on matters of citizenship after July 4, 1776 and under the Constitution as adopted.
The McClure case it convincing evidence of who the Founders and Framers would have considered a “natural born Citizen,” and such a citizen was surely not one who was born in the United States to alien parents.
These early Congressional statutes show that a “natural born Citizen” could not have been a child born in the United States to alien parents, for at best that child could naturalize to become a “Citizen of the United States” and we know that naturalized citizens were not “natural born Citizens.”
This evidence further supports my position that a “natural born Citizen’ could only be a child born in the United States to citizen parents and could not be a child born in the United States to alien parents.
What is also noteworthy about the McClure case is that no one argued that the laws of the state of South Carolina, whether statutory or common law, provided McClure with any relief on the question of whether he was a “citizen of the United States.” Publius stated that South Carolina did not have a statute like Virginia which would have allowed McClure to be a citizen by simply being born on the soil or what he called a “son of the soil.”
The fact that he used this expression “son of the soil” shows that Publius was well aware of the jus soli doctrine of citizenship but clearly rejected it as being some outdated way of granting anyone citizenship. Everyone argued that the only way that McClure could be a “citizen of the United States” was if he satisfied the then-existing Naturalization Act of 1802.
This further confirms that no one expected that the English common law provided the rules of decision for resolving the question of who was a “Citizen of the United States,” regardless of what any state law may have provided.
Publius, in 1811, living when the acts were passed by Congress, would know what Congress intended when it passed the naturalization acts. In that connection, Publius told us that it did not matter where a child was born. Regardless of the child’s place of birth, if the child’s parents were aliens, the child was an alien. Regardless of where the child was born, the child’s parents had to naturalize in order to make their children citizens.
The historical record tells us that Secretary of State, James Monroe, eventually declared McClure to be a “citizen,” not because he was born in South Carolina on April 21, 1785, but because a few months after he was born, his British father naturalized as a “citizen of the United States.”
Publius’ and the James Madison’s Administration’s word in 1811 on what the early naturalization acts meant is very convincing evidence of what Congress intended by its language in those acts.
How does this apply to understanding how the Founding generation defined a “natural born Citizen?” They did not consider a child born in the United States to alien parents even a “citizen.” Then they surely would not have considered such child a “natural born Citizen.”
McClure was declared to be a “citizen of the United States” under an Act of Congress. He was naturalized under that act after birth even though he was born in the United States. He had to be naturalized because he was born with alienage (he had alien parents when he was born). A child needing naturalization in order to be a “citizen of the United States” could not possibly be a “natural born Citizen.”
The James Madison Administration’s view of national citizenship is consistent with Emer de Vattel, The Venus (Chief Justice John Marshall concurring), Shanks, Inglis (the majority of the United States Supreme Court), Dred Scott (Justice Daniels concurring), and Minor (the unanimous United States Supreme Court.
What is critically important about the James McClure citizenship case as elucidated by the writings of St. George Tucker, is that it provides incontrovertible evidence that after the adoption of the Constitution and passing by Congress of the Naturalization Act of 1790, the United States no longer followed the English common law practice of jus soli citizenship (citizenship by birth in the territory).
These naturalization acts (national law) now abrogated any existing English common law on the question of national citizenship. Now, only birth in the United States to citizen parents (a union of jus soli or citizenship by birth in the territory and jus sanguinis or citizenship by parentage) gave one “a state of perfect citizenship, under the Constitution and laws of the union” (St. George Tucker, Blackstone’s Commentaries: With Notes of Reference (1803) Vol. I, Note D, Part 5, Para. 4. http://www.lonang.com/exlibris/tucker/tuck-1d5.htm .
There is no doubt that what Tucker referred to as this “perfect citizenship” was a “natural born Citizen,” or those persons who “inherited” the “civil right” to be elected President by being born to “citizen” parents. All other “citizens,” who were “Citizens of the United States,” did not enjoy this state of “perfect citizenship,” but rather just that of being a “Citizen of the United States,” made so by naturalization through any Act of Congress or treaty and later even by the Fourteenth Amendment.
This evidence demonstrates that there was prevailing in the United States after the Revolution no English common law jus soli rule. Rather, Congress had put in place naturalization acts which abrogated that English common law. These naturalization acts followed American “common law” that developed from the law of nations which put forth the jus sanguinis rule of citizenship. Indeed, we can see from the writing of these persons who were intimately connected to the Founding that the citizenship of children followed that of the parents and that they could under proper circumstances throw that allegiance and citizenship off upon reaching the age of majority. And under these congressional acts, children born in the United States to alien parents were themselves born aliens.
Many of the members of the early Congress were Founders and Framers. Hence, the early Congress knew what the Framers meant when they wrote the “natural born Citizen” clause. Given what the early Congress wrote in the naturalization acts, we can safely conclude that a “natural born Citizen” excluded any child born in the United States to alien parents, for under those acts such a child had no birthright citizenship and could only become at best a naturalized citizen after birth either at the time his or her parents naturalized or by his or her own naturalization petition processed upon becoming an adult. From these same acts, we can also safely conclude that a “natural born Citizen” only included a child born in the United States to citizen parents.
VI. THE CIVIL RIGHTS ACT OF 1866
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) held that “the class of persons who had been imported as slaves, [or] their descendants . . . free or not,” were not “citizens of the United States,” even though they were born in the United States, because of their ancestors were slaves and their current or past condition of servitude. To overcome the prohibition on blacks being “citizens of the United States,” Congress passed the Civil Rights Act of 1866 (C. 31, § 1, 14 Stat. 27) which provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
In matters of citizenship, the Constitution in Article I, Section 8, Clause 4 gave to Congress only the power of naturalization. Hence, Congress does not have the constitutional power to define a “natural born Citizen” in any manner that is not consistent with its definition under what as we shall see Minor calls “common-law.” So, consistent with the Third Congress which removed “citizen of the United States” from its naturalization act and replaced it with “citizen of the United States,” Congress knew that it had no constitutional power to define who may be the “natural born Citizens,” and so in the 1866 Act limited itself to using the clause “citizen of the United States.” Hence, Congress referred to persons born in the United States and “not subject to any foreign power” only as “citizens of the United States” and not as “natural born Citizens.” Additionally, Congress did not require in the text of this Act that the child be born in the United States to “citizen” parents. Hence, it chose to not even just confirm (rather than create any new definitions) that any child who should gain membership in the United States under the Civil Rights Act was a “natural born Citizen.”
This act was passed to make sure that blacks born in the United States were recognized as “citizens of the United States.” But the selection of the “citizen of the United States” language would have been consistent with the other purpose of the act which included making children born in the United States to alien parents U.S. citizens. Cong. Globe, 39th Cong., 1st Sess. 573-574 (1866). The effect of the act included naturalizing children born in the United States to alien parents.
- The Bleak Outlook For 2012: Orchestrated Wars For Banking Interests, Have Severely Damaged The US Economy!
During the debate on the Civil Right Act of 1866, these exchanges occurred: Cowan, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Senator Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.” Cong. Globe, 39th Cong. 1st Sess. 498 (1866). So, members of Congress understood that there is such a thing as being born in the United States and being naturalized. Hence, it would have been proper that Congress called those children “citizens of the United States” and not “natural born Citizens.”
Finally, the act made no mention of naturalized persons and so we know that the clause “citizen of the United States” was not chosen to covered persons who would have been naturalized after birth. Rather, there is little doubt that person covered by the act would have been “citizens of the United States” from the moment of birth who Congress nevertheless called “citizens of the United States” and not “natural born Citizens.”
VII. THE FOURTEENTH AMENDMENT
The early naturalization acts and Minor inform us that the “natural born Citizen” clause had a settled meaning when the Founders and Framers adopted the Constitution and when it was ratified by the States. The question then becomes whether that meaning was ever changed by any constitutional amendment or even the U.S. Supreme Court. As we shall also see below, that Wong Kim Ark interpreted the Fourteenth Amendment so as to declare a person who is born in the United States to domiciled and resident alien parents a “citizen of the United States” at birth does not mean that the Fourteenth Amendment altered the original meaning of an Article II “natural born Citizen” as found under American “common-law.”
The Fourteenth Amendment was proposed by Congress because Dred Scott held that slaves or free blacks were not “citizens” because their parents were not “citizens” and being of African descent could not naturalize under any Act of Congress. The amendment was passed because some members of Congress believed that it did not have the power under the Civil Rights Act to naturalize blacks who were born in the United States to become “citizens of the United States” and to prevent later Congresses from changing the U.S. citizenship status blacks obtained under the Civil Rights Act.
The amendment provides in pertinent part: “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.”
Obama’s supporters argue that the Fourteenth Amendment makes one born in the United States and “subject to the jurisdiction thereof” a “natural born Citizen.” But a plain reading of the amendment’s text shows that it does not say that. The clause “natural born Citizen” appears nowhere in the amendment. Rather, like the Civil Rights Act of 1866, it uses the clause “citizen of the United States” which we know from Article II is a different class of “citizen” than “natural born Citizen.”
There is no indication in either the text or debates on the amendment that it was designed to repeal, alter, or amend the definition of an Article II “natural born Citizen” which we know from that article is one of the requirements of presidential eligibility.
The “normal rule of statutory construction is that identical words used in different parts of the same act are intended to have the same meaning.” Sullivan v. Stroop, 496 U.S. 478, 485 (1990) (quoting Sorenson v. Secretary of the Treasury, 475 U. S. 851, 475 U. S. 860 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 293 U. S. 87 (1934)) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 286 U. S. 433 (1932)).
Hence, when Congress wrote “citizen of the United States” in the Fourteenth Amendment, it must have intended to give the “citizen” that it defined under the amendment the same constitutional status of a “citizen of the United States” found in Article II, rather than that of a “natural born Citizen” also found in the same Article II. The Fourteenth Amendment, therefore, does not define a “natural born Citizen” and cannot be used for that purpose. Rather, with the passing of the Fourteenth Amendment, the definition of a “natural born Citizen” remained to be found in the “common-law” with which the Framers were familiar and to which Minor referred.
Recently, Hassan v. Federal Election Commission, No. 11-2189 (EGS) (D.D.C September 28, 2012), has again affirmed that neither Fifth or Fourteenth Amendment explicitly or implicitly alter the meaning of a “natural born Citizen” as provided by Article II as originally adopted. The court found:
“Hassan’s challenge to the Fund Act rests on his contention that the natural born citizen requirement has been implicitly repealed by the Fifth and Fourteenth Amendments. The Court need not repeat the thorough and persuasive opinions issued by its colleagues in at least five other jurisdictions, all of whom determined that the natural born citizen requirement has not been implicitly repealed by the Fifth and Fourteenth Amendments. See Hassan v. Colorado, 2012 WL 1560449, at *5-8, aff’d, No. 12-1190, 2012 WL 3798182, *1 (10th Cir. Sept. 4, 2012); Hassan v.Montana, slip op. at 3-5; Hassan v. Iowa, slip op. at 7-11; Hassan v. New Hampshire, 2012 WL 405620, at *2-4; Hassan v. United States, No. 08-CV-938 (NG), slip op. at 3-6 (E.D.N.Y. June 15, 2010) (Docket No. 28), aff’d on other grounds, 414 F. App’x 10.
Briefly, the Court notes that Article 5 of the Constitution provides an explicit method to amend the Constitution. See U.S. Const., Art. V. Even if a constitutional provision could be implicitly repealed in the same manner as a statute, the implicit repeal of statutes is disfavored and will not be found absent clearly expressed congressional intent. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007); Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936) (holding that “[w]here there are two acts upon the same subject, effect should be given to both if possible”).
Repeals by implication are only found where provisions in two statutes are in “irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273 (2003)(internal quotation marks and citation omitted). Plaintiff has not pointed to any such manifest intent 9 or irreconcilable conflict, and therefore he has not carried the high burden necessary to demonstrate that the natural born citizen requirement has been implicitly repealed.
Moreover, the Supreme Court has consistently held that the distinction between natural born citizens and naturalized citizens in the context of Presidential eligibility remains valid. See Schneider v. Rusk, 377 U.S. 163, 165 (1964) (“The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”); see also Knauer v. United States, 328 U.S. 654, 658 (1946) (same); Baumgartner v. United States, 322 U.S. 665, 673-674 (1944) (same).
Plaintiff essentially asks this Court to declare that a provision of the Constitution is itself unconstitutional. It is beyond this Court’s authority to do so.
“[T]his Court lacks the power to grant the relief sought because the Court, as interpreter and enforcer of the words of the Constitution, is not empowered to strike the document’s text on the basis that it is offensive to itself or is in some way internally inconsistent.” New v. Pelosi, No. 08-Civ.-9055(AKH), 2008 WL 4755414, *2 (S.D.N.Y. Oct. 29, 2008) (internal quotation marks and citation omitted), aff’d, 374 F. App’x 158 (2d Cir. 2010).
Because the natural born citizen requirement has not been explicitly or implicitly repealed, Hassan’s challenge to that provision, and the Fund Act’s incorporation thereof, must fail.
9 Indeed, in the few years following the ratification of the Fourteenth Amendment, Congress considered and rejected numerous proposals to amend or repeal the natural born citizen requirement. See Hassan v. New Hampshire, 2012 WL 405620, at *3-4 (citing secondary authorities).”
Id. at 15-18.
The Fourteenth Amendment does not use the clause “natural born Citizen” when it defines U.S. citizenship. Rather, the amendment defines that class of U.S. citizenship that the Constitution calls “citizen of the United States.” The amendment therefore does not define a “natural born Citizen.”
Additionally, if neither the Fifth nor the Fourteenth Amendment explicitly or implicitly amended or repealed the “natural born Citizen” clause, then the meaning of that clause must still exist as originally drafted and intended by the Founders and Framers when they adopted the Constitution and when the States ratified it and which Minor defined under American “common-law” as a child born in a country to parents who were “citizens” of that country when the child was born.
The amendment’s citizenship sentence as initially proposed by Senator Howard of Michigan used the clause “citizen of the United States,” but did not included “or naturalized.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Hence, we know that the clause “citizen of the United States” was not chosen so that the amendment could cover not only “natural born Citizens,” but also person who would have been naturalized after birth, for the clause “citizen of the United States” was chosen even when the citizenship sentence did not include those who were naturalized after birth.
Hence, there is little doubt that, like the Civil Rights Act, persons covered by the amendment would have been “citizens” from the moment of birth who Congress still called “citizens of the United States” and not “natural born Citizens,” because the amendment was designed to grant birthright citizenship also to persons who were not born to “citizen” parents like the natural-born children born in the United States to “citizen” parents.
I have maintained that citizenship conferred upon a child born in the United States to alien parents is the product of naturalization at birth which automatically confers upon that child the status of a U.S. “citizen” at the time of his or her birth. For children born in the United States, the Fourteenth Amendment calls this class of citizenship “citizen of the United States.”
For those children born out of the United States, Congressional Acts also call this class of citizenship “citizen of the United States.” Neither the Fourteenth Amendment nor any Congressional Act calls these “citizens” “natural born Citizens.” This class of citizenship is to be distinguished from the class Article II calls “natural born Citizen,” who is born in the United States of “citizen” parents and who needs no naturalization at birth for such status.
- James Carville Predicts Democratic Scandal Streak: But Tea Party Is A Bunch Of Bloodthirsty Sadists aka; Vampires.
The Fourteenth Amendment is consistent with Coke’s, Blackstone’s, and Vattel’s analysis regarding naturalization at birth. The Fourteenth Amendment can be used to naturalize a person “at birth.” Its power in this regard was recognized by Justice Fuller who in his dissent in Wong Kim Ark had this to say about the amendment collectively naturalizing free blacks “at birth:”
“In providing that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment undoubtedly had particular reference to securing citizenship to the members of the colored race, whose servile status had been obliterated by the Thirteenth Amendment and who had been born in the United States, but were not and never had been subject to any foreign power. They were not aliens (and, even if they could be so regarded, this operated as a collective naturalization), and their political status could not be affected by any change of the laws for the naturalization of individuals.”
Id. at 727 (J. Fuller, dissenting). The Amendment makes those who are born in the United States to one or two alien parents or who are naturalized in the United States after birth, provided they are “subject to the jurisdiction thereof,” a “citizen of the United States,” not a “natural born Citizen.” Hence, the amendment recognizes that if one is not born in the country to citizen parents and is in need of the amendment to become a “citizen” “at birth” or in need of a Congressional Act to become a “citizen” after birth, the person shall be considered a “citizen of the United States,” but not a “natural born Citizen.”