Notice that in Section 3.24.2 "native- or natural- born citizenship" is used twice and "native- and natural- born citizenship" is used later. There is never any differentiation of the two in the document. I think that the use of "native- and/or natural- born" is to make sure that all cases of citizenship by birth are covered including the small subset of natural born citizens born to a US parent on foreign soil. I am getting tired of the self-appointed scholars like Leo who are Google mining every conceivable document for the last 400 years attempting to prove an invented lie.

Here is the link to Leo's misusing the van Dyne history review of citizenship law:

http://naturalborncitizen.wordpress.com ... -eligible/

Ballentine challenges Leo's misreading in the Leo Donofrio thread on 10/10/11. The birfer lawyers did not go to the source, but instead were taking the bizarro readings of Leo's and adopting them as historical fact. Leo creates the fiction which is making fools out of lawyers reciting that fiction in front of judges. (I don't know how to link to those Fogbow posts, but they are easy to find with the search)

Van Dyne is very clear that the common law understanding before the Civil War was that NBC -ship was at birth for the children of citizens and non-citzens alike. The Fourteenth Amendment (and the civil rights acts leading up to it) gave a constitution definition for the first time of what had been understood in common law. He also points out that when the Constitution was written, the framers considered that Asians were not a large enough of the population to be concerned about and when they became a large enough group to be concerned about, they were excluded from citizenship by naturalization.

I realized after reading Van Dyne that the parents of WKA and all similarly situated Chinese could not be naturalized and if their children born here could not be NBC's at birth or could not be naturalized either, you would end up with millions of stateless inhabitants...forever classifed as such. The judges could not over rule the power of Congress to determine the naturalization laws, but they could extend the coverage of NBC-ship to their children who were born here just as it did to the children of slaves and freedmen of African ancestry.

Does anyone know of an article (law review or otherwise) that discusses Lynch v. Clarke? Thanks.

There are a number of articles on the Native Born Citizen blog. If you mean something scholarly, I could look.

Scholarly preferred. Would take a source that is reliable.

See Ludlam v. Ludlam, 26 N.Y. 356, 362-72 (1863). "Our government ... extends its protection over its citizens when in foreign countries ... . It can hardly be doubted that it would protect the infant child of such citizen, though born abroad, to the same extent that it would protect the father." Id. at 370. See also Lynch v. Clarke, 1 Sand. Ch. 583, 659-62 (N.Y. Ch. 1844) ("With regard to the Act of 1802, I do not think that the children of our citizens born abroad are aliens.").

Even though, as discussed above, the 1802 statute arguably did not endow children born abroad to American parents between 1802 and 1855 with United States citizenship, one state supreme court nevertheless twice held that such persons were citizens through common law authority.

Does anyone know of an article (law review or otherwise) that discusses Lynch v. Clarke? Thanks.

Even the first United States case, Lynch v. Clarke, to directly address the subject of citizenship by birth, confirmed that the common law tenets of jus soli were based on national sovereignty and allegiance. The case concerned whether Julia Lynch who was born in New York of ―alien parents, during their temporary sojourn‖45 was a UnitedStates citizen. In conclusion, Judge Lewis H. Sandford held that by the current ―law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.‖46 By allegiance Sandford was referencing the ―general allegiance‖ owed to the ―confederated sovereignty of the United States‖ by aliens within its territorial limits.47
At no point did Sandford state or infer that citizenship by birth vested automatically upon territorial presence or that it was an unalterable constitutional right. In fact, Sandford expressly acknowledged the federal government‘s authority to prescribe rules affecting citizenship by birth:


To be clear, the holding in Lynch does not stand for the proposition that mere birth in the United States constitutionally vests citizenship.49 Sandford was clear to point out that the parties were in agreement that Congress had not yet legislated on the subject.

This paper is a “so what” rebuttal to those who hold the so-called birther view and argues that even if Barack Obama was born outside of the United States, he is still a natural born citizen because, under the laws of the United States, he was entitled to birthright citizenship through his mother, no matter where he was born. The essence of the article lies on simple logic: that there are two types of American citizens — natural-born and naturalized. Those entitled to birthright citizenship do not have to be naturalized, no matter where they are born; so it follows that they are natural-born.

He relies on a Congressional Act to define a “natural born Citizen,” looking to 8 U.S.C. 140, available at http://www.law.cornell.edu/uscode/text/8/1401. What is amazing about this argument is that he does not explain that when the Constitution was written in 1787, there was no such Congressional Act in effect, but yet we had the “natural born Citizen” clause. That same Constitution also only gives Congress in matters of citizenship the power to naturalize. Hence, the definition of the “natural born Citizen” clause cannot possible come from a law that did not exist when the clause was written. Furthermore, the definition of the clause cannot come from an Act of Congress which under the Constitution on matters of citizenship only has the power to naturalize.

[...]

But this is not the law that was in effect when Obama was allegedly born in 1961. A child born in wedlock and abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA, provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For births between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child). http://travel.state.gov/law/info/info_609.html.

[...]

He states: “My reading of the law prompts me to believe that those entitled to birthright citizenship must be deemed natural born citizens.” But Congress has the power to make persons from the moment of birth “citizens of the United States.” This is Congress’s naturalization power. Surely, the Founders and Framers did not give Congress, as part of its naturalization powers, the power to expand the class of persons who could be eligible to be President, all supposedly done without a Constitutional Amendment. No, indeed, for the Founders and Framers gave us only one definition of a “natural born Citizen,” i.e., a child born in the country to citizen parents. Congress has no power to change or add to that definition.

No, indeed, for the Founders and Framers gave us only one definition of a “natural born Citizen,” i.e., a child born in the country to citizen parents.

Really?? Wherezat?

Asst. Prof. at Penn. St. U. Salar Ghahramani: A Kenyan Birth? Still Natural Born: