Sunday, January 27, 2013

Presidential Eligibility
In the 2008 election both major parties nominated candidates whose eligibility is dubious. For Barack Obama the question was whether he was born in Hawaii, which is U.S. soil. For John McCain the question was whether the panama Canal Zone, where he was born, was U.S. soil. It is not, and being born of parents both of whom were U.S. citizens did not make him a "natural-born" citizen, although a statute was later adopted naturalizing such persons at birth.
The U.S. Constitution provides as follows:
Article II Section 1 Clause 5:
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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Amendment XIV Section 1:
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.
The main authority for the original meaning of "natural born" is William Blackstone, in his Commentaries on the Laws of England, Volume II, edited by St. George Tucker, a Founder, published in 1803, especially Chapter 10:
As to the qualifications of members to sit at this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement,l that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.
... the king has also the prerogative of conferring privileges 53 upon private persons. Such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom:g or such as converting aliens,54 or persons born out of the king's dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. Such also is the prerogative of erecting corporations;55 whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter;
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England;
... the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.
Thus allegiance, then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour:
The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.10 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.c
St. George Tucker, the editor, says this in a footnote:
Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States. Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2.
Blackstone uses the term "subject" rather than "citizen", so are citizens the same as subjects for this purpose? We have from Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813):
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.
Before Blackstone, the leading authority for the meaning of constitutional language is Edward Coke, who explains in Calvin's Case, 7 Coke Report 1a, 77 ER 377, that a child born on the soil of England to a foreign national visiting the country who is not an invader is a "natural born subject" of England:
[A foreign national]... so long as he was within the King's protection; which [though] but momentary and uncertain, is yet strong enough to make a [natural bond] he hath issue here, that issue is (g) a natural born subject;
The subject of whether jus soli or jus sanguinis applies to the United States came up in a debate in the U.S. House of Representatives, May 22, 1789, when James Madison said:
It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.
That was not on the point of presidential eligibility, but it does show which rule applies.
Sometimes miscited is Emmerich de Vattel, in his work Les Driot des Gens (Law of Nations), taking out of context the words from Book I:
§ 212. ... The natives, or natural-born citizens, are those born in the country, of parents who are citizens.
But he was writing of the rule of jus sanguinis that was municipal law (not the law of nations) for countries on the European Continent. A little further down, he explains:
§ 214. ... there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
The rule of jus soli goes back to at least 508 BC in Athens, when it was used to establish citizenship in districts called demes. The Romans mainly used jus sanguinis to organize the empire into national groups each with its own legal system (although they had to introduce the office of praetor peregrinus to adjudicate disputes between members of different groups). However, the Edict of Caracalla in 212 AD made jus soli the rule for the entire Empire. The rule was carried to France and England under Roman domination, and the Normans adopted it and spread it to Scotland, Wales, and Cornwall.
However, jus sanguinis prevailed in many Eastern and Central European countries at the time Vattel wrote, and spread to other countries on the European continent. It displaced jus soli in Britain in 1983 and in France in 1993, mainly in response to immigration of persons of different ethnicity.
On July 25, 1787, John Jay wrote to George Washington, presiding officer of the Convention:
Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.
There is no proof that deliberations took place at the convention on the subject of the letter. While the Committee on Detail originally proposed that the President must be merely a citizen as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen" without explanation. The Convention accepted the change without further debate.
In an 1825 treatise, A View of the Constitution of the United States of America, William Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania (1791-1799), wrote that
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. ... [He] who was subsequently born the citizen of a State, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. .... Under our Constitution the question is settled by its express language, and when we are informed that ... no person is eligible to the office of President unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.
The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898):
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, 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.

III. 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.
The closest the U.S. Supreme Court has come to addressing eligibility to be president was in Perkins v. Elg, 307 U.S. 325 (1939):
There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States;
However, some who argue against Obama's eligibility bring up the issue of the citizenship of his parents, saying that even if he were natural born on U.S. soil, he would not be a citizen because he would not be "subject to the jurisdiction" of the United States, as provided in the Fourteenth Amendment. At the time of adoption of that amendment, that would have excluded the children of unassimilated Amerinds, foreign diplomats, and foreign invaders, discussed in the opinion in Ankeny v. Governor, which although not a precedent, provides an excellent compilation of the arguments pertaining to this topic. Amerinds have since all been brought within the jurisdiction of the United States. There is no claim that either of Barack Obama's parents was a foreign diplomat or invader at the time of his birth.
Some mis-cite the opinion in Minor v. Happersett, but it only states, in dictum, that natural birth and U.S. citizen parentage would be sufficient to establish U.S. citizenship at birth, not that U.S. citizenship parentage was necessary for the child to be a U.S. citizen.
Most of the confusion over the eligibility of John McCain seems to stem from the mistaken notion that "citizen at birth" has the same meaning as "natural born citizen". The meaning is not the same. A naturalization statute can make a person a citizen at birth, but that does not make him "natural born".
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401
§ 1401. Nationals and citizens of United States at birth
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;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
These first two correspond to "natural born". The rest are all "naturalized by statute". The Code lumps both into the same section, which is not uncommon. Don't look to the U.S. Code for subtle distinctions. It is not, in general, the law. It is evidence of the law. The Code is derived from the statutes by an office in the House of Representatives, the Office of the Law Revision Counsel, established for that purpose. They don't include all the statutes, and don't always get it right.
8 U.S.C. §1101(a)(23) naturalization defined
(a)(23) The term ''naturalization'' means the conferring of nationality [NOT "citizenship" or "U.S. citizenship", but "nationality", which means "U.S. national"] of a state upon a person after birth, by any means whatsoever.
The qualifier "after birth" doesn't mean by an official act done after birth. It means from the moment of birth, or in other words, not before birth. A fetus is not naturalized by statute. Most statutes conferring nationality/citizenship at birth were passed before most of the individuals to whom they apply were born. Some, however, were retroactive. An example of that was the statute that made McCain a U.S. citizen at birth, passed after his birth. But that is naturalization, not natural birth.
One might think that while all citizens at birth may not be natural born citizens, all natural born citizens are also citizens at birth. However, it is possible for someone to be natural born without being a citizen at birth, or even being a citizen. Being a child of foreign diplomats or invaders is one way, but it is also possible that someone might be natural born on territory not incorporated into the United States at the time. For example, natural born citizens of Puerto Rico are not natural born citizens of the United States, eligible to be president, while it remains a protectorate or dependency. However, citizens of Puerto Rico have been naturalized by statute to be citizens of the United States at birth. Now if Puerto Rico were admitted as a state, its natural born citizens would then become natural born citizens of the United States, eligible to be president, if otherwise qualified. If it later seceded (with the consent of Congress) its natural born citizens would cease to be natural born citizens of the U.S.
Natural born citizenship could also be lost by someone who was natural born on a territory initially claimed by the United States as part of its incorporated territory, but later ceded to the other nation that claims it. The boundary between the U.S. and Mexico was adjusted as the result of shifts in the path of the Rio Grande River, ceding some territory to Mexico that had some people living on it, who were given a choice whether to become U.S. citizens. There are also some disputed territories between the U.S. and Canada, although there may not be any people born or living on them. Other territories disputed between the U.S. and some other nation are not considered incorporated by the United States, but protectorates or dependencies.
There is nothing about the concept of "naturalization" that requires some "process", other than the enactment of a declaratory statute. A statute can make a person a citizen at birth of territory that does not include the location where one is born. That is the naturalization process. But it is not "natural birth", which depends only on the location of birth on a particular spot on the Earth. Whatever anyone might later want to call that spot or the territory surrounding it, the child is natural born to that spot. He is not naturalized to that spot. He may be naturalized to another spot, or territory that does not include that spot. That is a change of status, and it is called "naturalization".
The concept of citizenship is derived from denizenship, which requires a spot but not a government.
Eligibility for office
The burden of proof is on the claimant to office. The presumption must be ineligibility unless it is proved otherwise.
That direction of presumption is not, by the way, the same as for citizenship for individuals already on U.S. soil, for whom the burden is on someone seeking to deport them. On the other hand, one seeking to vote, or to re-enter the U.S. from outside, has the burden to prove citizenship, although it has historically been sufficient to do this by a notary who knows the individual. There is no constitutional authority to require anyone to present any particular form of identification, especially one issued by the government, that one is not constitutionally required to have, and there is no constitutional authority to require anyone to even have a name, much less any particular form of identification. Names are applied to us by other people. No one owns his name. All anyone can say is that "some people call me xyz". But other people can call anyone anything they please. That includes government authorities. And there is no authority to require anyone to know or say what other people call him. Not that government actors don't try anyway.
Summarizing:
  1. Only the location of birth on U.S. soil makes one "natural born", but not necessarily a citizen. The present exceptions would be if a parent is a foreign diplomat representing a foreign nation (it is possible to be a U.S. citizen serving as ambassador from a foreign nation) or a foreign invader (not just someone who overstays a visa). Originally when the 14th amendment was adopted it also excluded Native Americans who were not assimilated, but regarded as "domestic nations" within the territory of the U.S. but not part of U.S. society. They are all considered assimilated and part of society now.
  2. U.S. soil for this purpose means "incorporated territory". That is territory that is not a protectorate like Puerto Rico or Guam, or a leasehold like the Panama Canal Zone or Guantanamo. That does not include U.S. military bases abroad, the grounds of foreign embassies abroad, territorial waters, or the space within U.S. flag vessels on or over international waters or Antarctica. A person born in Arizona, Hawaii, or Alaska before those territories became states would be eligible, because it is "incorporation" and not statehood that makes them U.S. soil.
  3. "Citizen at birth" is not "natural born citizenship". Many people are made citizens at birth by statute. That is what the statute did that retroactively made John McCain a U.S. citizen at birth, or the statute that makes persons born in Puerto Rico U.S. citizens at birth, or 8 USC 1401, but those are naturalization statutes, and one can be naturalized at birth. It doesn't have to be done after birth.
  4. No Supreme Court opinion has "defined" natural born citizenship for purposes of presidential eligibility. The cases cited were either dictum or concerned ordinary citizenship sufficient to vote or hold office other than that of president.
  5. The evidence we have of the original meaning of "natural born" citizen (although they used the term "subject") come from the commentaries of William Blackstone and Edward Coke. Vattel is not a correct source on this point, because he was a Swiss writing about the rule used on the European Continent, jus sanguinis, not the different rule used in Britain and its colonies, jus soli.
  6. The burden of proof of eligibility is on the candidate, not on one challenging eligibility, and he must be presumed to be ineligible unless or until he can produce the proof. The image of the document that has been offered is clearly fraudulent, no matter who may attest otherwise, because the original image can be viewed in the tool used to produce it, Adobe Illustrator, which shows the separated edit layers that reveal the history of how it was composed using pieces of image from different sources.
  7. The Congressional Research Service is not a reliable scholarly source. They are like Wikipedia, a place to start but not authoritative. I have worked with the CRS and they harbor a lot of what historians call "law office history".
  8. Although one could seek a declaratory judgment from a court, there is no point at which one can get injunctive relief. The only point at which eligibility can be effectively challenged is at the point Congress counts the electoral votes, and no court has jurisdiction to tell Congress how to do that. At that point it is up to the members of Congress to voluntarily comply with the Constitution. It does not work to try to exclude an ineligible candidate from the ballot because people are not voting for the candidate, they are voting for electors, and it is only the eligibility of the electors that matters at that point.
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