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Wednesday, September 19, 2012

Naturalization, Schmaturalization

Returning now to our new birther lawsuit, I was really struck by a particular assertion in the complaint (leaving aside myriad other dubious claims):

24. Congress, through the Naturalization Acts of 1790, 1795, 1802,
and 1855, showed us through a process of elimination that only a child bom
in the country to “citizen” parents did not come within the naturalization
reach of any of those laws which means that it was only that child which
Congress deemed to be a “natural bom Citizen.”

This "logic" fascinated me because it purports to have found some way around all that silly settled law stuff.  As with most such things, it's too clever by half, but I thought I'd tackle it because of its uniqueness, and try to do so in my own unique fashion (which likely flies in the face of actual conlaw, but that's okay because I'm fighting fire with fire).

First of all, I found this part of Vattel to be germane:

[C]hildren naturally follow the condition of their fathers, and succeed to all their rights...The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent...By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise.

Notice that while there's an appeal to natural law, which surely our Founders understood, statute still clearly plays a role in citizenship issues, even according to the birthers' newfound friend.  So it's perfectly permissible to, say...change how citizenship is inherited.  

For example, in 1934 the United States finally recognized that citizenship status could be passed down not only from fathers, but mothers as well (see Montana v Kennedy).  Go figure.

It's interesting that the birthers can accept change to a fundamental component of Vattel's treatise: morphing citizenship derived from only fathers to requiring two parents.  Oddly flexible on that point, particularly when Obama's father is the alien in this case.

Anyway, the Framers in Congress ultimately relied on their own very proximate constitutional judgements when they passed the Naturalization Act of 1790, which in part said:

[T]he children of citizens of the United States, that maybe born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens...

The Act was modified by new legislation in 1795, which reads a bit differently:

[T]he children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens...

Now, do the birthers really suppose that in the intervening 5 years, the Framers who remained in Congress decided to deny such children the right to be President?

Isn't it more likely that it was not necessary to include "natural born" because it was understood that if you're born to US citizens outside the limits of the country, and citizenship were conferred upon you by statute, you were obviously still "natural born"?  And isn't also more likely that the Framers used 'citizen' as an all encompassing term, with 'naturalized citizens' being a subset that enjoys all privileges and immunities, save one that is explicitly prohibited by the Constitution?

So when the Nationality Act of 1940 was passed, provisions of which still exist in the US Code, and said...

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

...it equally clearly meant these "nationals and citizens at birth" were "natural born citizens"?  And while we can appeal to Vattel and natural law and common law and whatnot, does the Constitution not grant Congress the power to define citizenship, to wit:

To establish an uniform Rule of Naturalization...

Which would suggest that Congress decides who can and needs to be naturalized to enjoy citizenship rights.  A parallel of which can be found in Amendment XIV:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Given all of this, I'm afraid the "process of elimination" in the complaint isn't very compelling.  I guess that's why the Congressional Research Service writes:

The overwhelming evidence of historical intent, general understandings, and common law principles underlying American jurisprudence thus indicate that the most reasonable interpretation  of “natural born” citizens would include those who are considered U.S. citizens “at birth” or “by  birth,” either by the operation of the strict “common law” of jus soli derived from English common law (physically born in the United States and subject to its jurisdiction, without reference to parentage or lineage), or under existing federal statutory law incorporating longstanding concepts of jus sanguinis, the law of descent, including those born abroad of U.S. citizen-parents. This general historical understanding and interpretation is supported, as well, by specific federal case law in the United States, and in official legal opinions of U.S. officers.
Although the Supreme Court has not needed to rule specifically on the presidential eligibility clause...numerous federal cases, as well as state cases, for more than a century have used the term “natural born citizen” to describe a person born in this country and under its jurisdiction, even to parents who were aliens in the U.S.  Additionally, several Supreme Court cases, as well as numerous constitutional scholars, have used the term “native born” citizen to indicate all of those children physically born in the country (and subject to its jurisdiction), without reference to parentage or lineage, and employed such term in reference to those citizens eligible to be President under the “natural born” citizenship clause, as opposed to “naturalized” citizens, who are not.

No fucking shit, right?  SCOTUS has rejected birther suits 22 times because even the Roberts Court would be hard pressed to rule against settled law, common sense and, you know, plain English.  Now THAT'S a process of elimination...

ntodd

September 19, 2012 in Constitution, Schmonstitution | Permalink

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Comments

Yeah, but was John McCain's "natural born" status ever litigated?

Posted by: Snarki, child of Loki | Sep 20, 2012 6:12:22 AM

8 times out of 156, usually in conjunction with Obama. So a few people are sorta consistent, even if they ignore even clearer statutes and Vattel. Bottom line: I'm surprised these folks can even manage to file, given their obvious inability to read.

Posted by: NTodd Pritsky | Sep 20, 2012 6:32:59 AM

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