nbc wrote:
brygenon wrote:
Loren wrote:
Early in my study of birtherism, I happened across an
article in Slate that explained "natural born citizen" to lay audience thus:
The Constitution's rule that the president be "a natural born citizen" focuses not on where a person became a citizen, but when. To be eligible, one must be born a citizen rather than naturalized at some later date.
At the time I did not know who this
Akhil Reed Amar guy was, but after Googling him up I decided to quote that bit a lot.
Somewhat poorly supported by legal precedent but it serves to get the message across. Under Wong Kim Ark it is all about when and where. At birth on soil. And what about those who are granted citizenship by statute at birth? Since Congress can only provide for uniform rules of naturalization, what does this make people who are granted citizenship under statute? Amar's position is at odds with the Supreme Court here.
There are no Supreme Court cases on presidential eligibility, as birthers keep reminding us. This thread is about expert opinion. In his book,
America's Constitution: A Biography (ISBN-13: 978-1400062621), Amar cites Jill Prior's 1988 article in the
Yale Law Journal, which is in on-line several places including:
http://www.scribd.com/doc/9655857/Jill- ... rn-CitizenCitizenship in
U.S. v. Wong Kim Ark was all about birth on U.S. soil because, as Charles Gordon explains, "The question before the Court concerned children born in the United States, and it was not asked to pass on the status of children born abroad." That Wong was born in the U.S. was undisputed. The issue was whether, as the son of Chinese parents excluded from citizenship, he met the second prong of the 14'th Amendment test: "subject to the jurisdiction thereof". See: ''Who Can be President of the United States: The Unresolved Enigma".
http://www.law.umaryland.edu/academics/ ... t/#archiveGordon's paper is particularly interesting here under the Fogbow because a federal court cited it in an opinion on a birther case, albeit in a footnote in dicta. The U.S. District Court for the Central District of California wrote:
Plaintiffs presume that the words of Emmerich de Vattel, John Jay, and John Armor Bingham alone empower this Court to define the natural born citizen clause. The Complaint conveniently chooses to ignore Congress’ long history of defining citizenship, whether naturalized or by birth. See Charles Gordon, '
Who Can be President of the United States: The Unresolved Enigma,' 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150 years of active Congressional legislation against judicial restraint).
http://www.scribd.com/doc/21808122/Judg ... ing-on-MTDRepeating NBC's questions:
nbc wrote:
And what about those who are granted citizenship by statute at birth? Since Congress can only provide for uniform rules of naturalization, what does this make people who are granted citizenship under statute?
John S. McCain III, the 2008 Republican nominee for President, was born in Panama and received U.S. citizenship by statute. I'm aware of one expert holding that McCain was not eligible: Gabriel J. Chin, who wrote a paper published by the
Michigan Law Review arguing that John S. McCain is not eligible. Chin's thesis was:
Even Chin seems to accept that a citizen from birth is a natural-born citizen. Chin's paper drew rebuttals in the literature of the field. Did any expert take the position that Chin did not go far enough, and even if the the statutes at the time made McCain a citizen at birth he would still be ineligible? I think not, but I've not read all the papers so I don't really know; let me know if I'm mistaken on that.
Markham Robinson petitioned the the United States District Court for the Northern District of California for a preliminary injunction to remove John McCain from the ballot on the grounds that McCain was not eligible [
Robinson v. Bowen]. To rule on the motion, the Court assessed the likelihood of Robinson winning on the merits:
At the time of Senator McCain’s birth, the pertinent citizenship provision prescribed that “[a]ny child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States.” Act of May 24, 1934, Pub. L. No. 73-250, 48 Stat. 797. The Supreme Court has interpreted the phrase “out of the limits and jurisdiction of the United States” in this statute to be the converse of the phrase “in the United States, and subject to the jurisdiction thereof,” in the Fourteenth Amendment, and therefore to encompass all those not granted citizenship directly by the Fourteenth Amendment. Under this view, Senator McCain was a citizen at birth. In 1937, to remove any doubt as to persons in Senator McCain’s circumstances in the Canal Zone, Congress enacted 8 U.S.C. 1403(a), which declared that persons in Senator McCain’s circumstances are citizens by virtue of their birth, thereby retroactively rendering Senator McCain a natural born citizen, if he was not one already. This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen. Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks.
http://docs.justia.com/cases/federal/di ... 206145/39/The Court accepted that citizenship from the time of birth is natural-born citizenship, and went even farther by allowing that Congress could grant citizenship from birth retroactively. That's a district court ruling on a preliminary injunction for "drastic remedy"; nevertheless, it is a real court addressing the question actually at issue. The judiciary has shown little interest in adjudicating the merits of Article II eligibility challenges, so that may be as close to a definitive court ruling as we ever get.
I happen to have these citation at the ready because of a recent and
far-too-long thread on Dr. C's site.
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That's interesting. Of course Mario probably misquoted his reference to it anyway.
