It was handed down yesterday in Robinson v. Bowen. The key language (paragraph break added):
Article II states that “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.” Article II left to Congress the role of defining citizenship, including citizenship by reason of birth. Rogers v. Bellei, 401 U.S. 815, 828 (1970). Many decades later, the Fourteenth Amendment set a floor on citizenship, overruled the Dred Scott decision, and provided that all born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens. Nonetheless, subject to the floor of the Fourteenth Amendment, it has always been left to Congress to define who may be a citizen by reason of birth (or naturalization proceedings, for that matter). Id. at 829–30.
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. [Footnote: United States v. Wong Kim Ark, 169 U.S. 649, 687 (1898) (“The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the Congress which proposed the amendment ... [as] the converse of the words ‘out of the limits and jurisdiction of the United States,’ as habitually used in the naturalization acts.”)]
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.
The court goes on to say that the plaintiff ("a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best") also lacks standing to challenge McCain's qualifications, and also that
Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review -— if any -- should occur only after the electoral and Congressional processes have run their course.
All this makes the judge's views quoted above pretty much dictum rather than legally binding on anyone -- but then again the reasoning in many judicial opinions (for instance, most concurrences and all dissents) falls in the same category. The judge thought that his opinion on the subject would be helpful, so he rendered it.
Thanks to How Appealing for the pointer.
I see clearly that McCain is, by any statutory measure, a "citizen".
But from the excerpt cited (and forgive me for not reading the entire opinion, as I'm otherwise tied up with FDIC issues), where does the USDC state clearly what a constitutionally defined "natural born citizen" is as opposed to a statutorily defined citizen?
Again, sorry for the quick read and if I missed the answer.
That said, I have no idea what the heck "natural born citizen" actually means in this context and therefore no comment on the merits of the issue.
On the other hand, I would have been perfectly happy to let the judge strike this case down on standing without saying anything further about it.
While I agree with the ruling, its logic escapes me.
I am not sure. If someone has standing to challange a candidate he or she must do it before the election day.
"the will of the People" is not a clause in the Constitution thus any act to claiming to be the will of the People is not a constitutional act.
What the Framers viewed as a "natural born citizen" was different than a simple "citizen". My suspicion is that the requirement ties directly to being born on U.S. soil. For anyone who is in touch with oneself, there is a draw to the "soil" on which one is born that is outside the conscious mind.
As to McCain and the Congressional definitions, Congress doesn't have the authority to define any terms and McCain is getting different treatment than the children of other military personnel. For instance, my ex, the daughter of a military man stationed in France was born on the French side of the hospital and had to be naturalized when the family returned to the US since her birth certificate was French.
I plan to go through my Eliot's debates, my Tucker's Blackstone, and my Documentary History of the Ratification to see if there are any clues.
Bulgarian Constitutional Court had a similar case before it in 1996. Our Constitution require among other thingg that the President be only Bulgarian citizen and be гпажданин по рождение ("citizen by birth"). The Constitutional Court decided that this means "a person who at the of his birth acqures Bulgarian citizenry BY jus sanquin or jus soli ACCORDING TO THE BUGARIAN LEGISLATION THEN IN FORCE". This through the candidate of the socialist (who id now the Speaker of the House).
The Court decided (7-5) that this means that the candidate must have been actualy in the country at least 185 days a year, 5 years in a row. This was the end of our former tzar's, expelled in 1947 by the communists at age 10, hopes of being elected President. He was then elected prime minister.
Lawsuit Against Obama
Utter silence from the MSM so far.
Correct. Childeren of US mothers are citizens at birth, children of US fathers are not. This was found constitutional a few years ago.
Given the possibility with Barack Obama (www.americasright.com), that might be a reality!
That is why Obama's situation is more interesting to me. Was he really born in the U.S.? Or did his mother bring him back from Kenya as a newborn and register him then? And did claiming Indonesian citizenship when he was living there lose any natural born status?
Likely all losing arguments, but still, the public policy arguments are clearly more in McCain's favor than Obama's. Obama only had one U.S. born parent, his mother was voluntarily out of this country at least during her pregnancy with him, she was not defending the U.S. at the time, and he was later voluntarily out of the country while attending school in Indonesia, where he was apparently registered as having Indonesian instead of American citizenship.
Of course, the legal system is quite comfortable with lies, they call them 'legal fictions'. So it's unlikely that the judiciary is going to take exception to this impossibility.
Read literally, this means “No Person except a natural born Citizen...at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” That comma after "States" is a killer.
They're all dead, Jim. ;^)
This is just bizarre. Why on earth would it? American citizenship cannot be lost without a conscious and voluntary act of renunciation.
This is not correct. I'm going to quote from the excellent summary of the law at http://www.richw.org/dualcit/law.html You can find the original US Code provisions covering this at http://www.law.cornell.edu/uscode/8/1401.html
Under the current law, if both parents are US citizens and are married, then the child is a US citizen if either parent had a "residence" in the US at any time in his or her life prior to the child's birth. There is no specific minimum period of time in the law for how long a parent must have been in the US in order for his/her status to be accepted as having been "residence" in the US.
If one parent is a US citizen, and the other is not, and the parents are married, then the current law says the child is a US citizen if the American parent was physically present in the US for one or more periods of time totalling at least five years, at some time or times in his or her life prior to (but not necessarily immediately prior to) the child's birth. Additionally, at least two years out the required five years of physical presence must have taken place after the parent's 14th birthday; thus, for example, a parent who was born and grew up in the US, but who left before reaching age 16 and never returned, doesn't meet the requirement.
If a non-US-born child's parents are not married, the child's claim to US citizenship depends on whether the American parent is the mother or the father. Section 309 of the INA [8 USC § 1409] grants US citizenship at birth to an "illegitimate" child if his/her American mother had previously spent at least one continuous full year in the US. If the child's American parent is his/her father, however, the child has US citizenship at birth only if the father's paternity is formally established and the father agrees in writing to support the child financially. This sex-based disparity was upheld by the Supreme Court in 2001 (Nguyen v. INS).
It is important to note that a foreign-born child whose parents have fulfilled the residency or physical presence requirements is a US citizen by birth. This citizenship is automatic; it is not dependent on the parents' registering the child with a US consulate (though such registration is strongly encouraged) or getting the child a US passport.
That's just false. Legal status is not a physical attribute, and thus can be changed retroactively. If not for the ex post facto clause, Congress could even retroactively turn a perfectly legal act into a crime, and hang you for it. It's certainly capable of doing the opposite.
Australia even declared independence retroactively; the country's independence legally dates back to 3-Sep-1939, even though it didn't get around to actually declaring this until 1942.
Same here. Since the plaintiff lacked standing, the court was wrong to even discuss the merits (much less reach a conclusion). As far as I'm concerned, the parts of this decision dealing with the merits are dicta.
I also have a problem with idea that the Congress is able to statutorily change the meaning of the Constitutional phrase "natural born Citizen". If "natural born Citizen" means whatever the Congress wants it to mean, why was it written into the Constitution?
As a minor point, I think the proper analysans for "natural-born citizenship" is citizenship in virtue of birth and not citizenship at the time of birth. Consider the hypothetical case of a slave born after the date of the Dred Scott decision, but before the ratification of the Fourteenth Amendment, who subsequently reaches the age of thirty-five and decides to run for President. Is he eligible? I think the answer is clearly yes, although at the time of his birth he was not an American citizen. He became an American citizen in virtue of birth, and thus a natural-born citizen, with the ratification of the Fourteenth Amendment.
I think that this is ultimately right, but there is a colorable argument to be made to the contrary. It has often been held that the "common law" in this country encompasses not only English common law, but the such English statutes in force at the time of independence as were applicable. See, e.g., United States v. Reid, 12 How. 361, 363 (1851); Manoukian v. Tomasian, 237 F.2d 211 (D.C. Cir. 1956). It seems clear that the statute De natis ultra mare was amendatory, and not declaratory, of the common law of England (although Bacon argued to the contrary in Calvin's Case); a fortiori the statute of 7 Anne, c. 5. But nonetheless these might be part of American common law, as longstanding statutes of general effect not in conflict with the Constitution. But a fuller treatment of this question would have to discuss the status of such statutes in the federal common law after Erie ... which seems a lot of work for a hypothetical in a blog comment.
I agree that if there is no standing (a point I'm not sure about at the moment), the judge really shouldn't have addressed the merits.
But enough about the courts. What about us? If we choose to vote, are we required to reach the merits of this question?
I've generally been a strong believer that all public officials, not just the courts, have an obligation to follow the Constitution even in cases where the courts have not interpreted the constitutional provision in question and would be unlikely to review the officials' actions. So, my first reaction, was that I also have an obligation as a voter to vote only for persons I conclude are constitutionally eligible for the office.
On reflection, I'm not sure that's right (though I guess I would like to see if I signed some oath when I registered to vote). People vote for Mickey Mouse even though he's not eligible, and, while that may be foolish (or not, I've cast protest votes myself, though not for the Mickster) is it really unconstitutional (or, while not directly "unconstitutional," a violation of a civic duty) to do so? I guess the tougher case assumes a voter who (using McCain as an example) simultaneously a) concludes on the merits that McCain is not constitutionally eligible; b) believes that the courts would not address that question post-election; c) but for conclusion a) would vote for McCain; and d) expects that McCain might win (I'm not sure why this last condition is necessary other than to distinguish Mickey Mouse voting). May such a voter pull the lever for McCain?
Assuming that some voters do have to reach the merits of the residency issue, I thought that points Prof. Lindgren (I'm hoping I'm recalling right who made the comments) made a while back were persuasive. The Constitution does not have to be read as saying that McCain was at the time of his birth deemed a natural born citizen. It is just, or even more, plausibly read as indicating that his citizenship must arise out of the circumstances of his birth -- whether or not the legislation conferring citizenship as a result of such circumstances pre- or post-dated his birth -- rather than as a result of a non-birth event (naturalization). (Apologies to the professor for hashing up an explanation that made much more sense when he gave it.)
Would the plaintiff's standing have been different if he were a would-be elector for a more viable candidate? If so, is that fair?
Excuse me, the 14th amendment did no such thing as it was the doctrine of Natural Law that was established. Not one mention of common law doctrine was ever uttered. It was the government arguing in Wong Kim Ark against the common law interpretation. Congress completely trashed the common law belief with the 1868 expatriation act, leading Jacob Howard to declare birth alone to aliens does to create citizenship.
That may be true but I've read enough accounts about children of US military personnel born overseas that had to go through the naturalization process that this assumption apparently isn't applied equally by our laws.
Naturalization laws used the language within the limits and subject to the jurisdiction."
This can only mean being within the limits of the U.S is not enough to subject one to the jurisdiction of the United States.
I'm not entirely clear what you're arguing (I'm particularly unclear what you mean by "natural law" in this context), but I take it to be that Wong Kim Ark was wrongly decided and the Fourteenth Amendment did not give jus soli constitutional stature.
I'm not going to go through a long argument about this, so I'll just mention James C. Ho's "Defining 'American': Birthright Citizenship and the Original Understanding of the Fourteenth Amendment", 9 Green Bag 2nd 367 (2006), which marshals in great detail all the arguments why the first sentence of the Fourteenth Amendment means, as Justice Gray thought, just what it obviously seems to.
For what it's worth, I think Justice Gray's opinion in Wong Kim Ark is a superb example of how serious, historically-informed judicial interpretation of a constitutional provision should be performed.
Excerpt:
Did you bother to read the Ho piece?
In any case, I don't see how a consistently applied view that legislative history is not controlling qualifies as an "inept attempt [...] to rewrite the Constitution". It's a principled choice about interpretative methodology. Citing Stevens doesn't help: I think (as does Scalia and as would have Grey) that Stevens' claim is simply wrong.
In any case, Ho's arguments demonstrate, I think, that the legislative history actually supports the view of the majority in Wong Kim Ark. But, as I said, I don't have the time or the inclination to argue about this.
Sen. Trumbull preferred “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens.”
That was rejected because it would had made citizens of those who only owed a “temporary allegiance.”
Gray and Ho are peddling falsehoods.
McCain is going to win come November. Nothing would make me happier than to watch a lawsuit be filed over this, and then to watch Dems fume that another Republican was handed the White House by the Supreme Court. I'd love the spectacle.
And Wong Kim Ark did not consider these one and the same either. Straight out of the decision via the Ho article:
Saying someone isn't subject to the jurisdiction of the United States is to say that that person cannot be prosecuted for violations of Federal law. Is that what you are advocating for non-U.S. citizens or illegal aliens?
Sounds to me residing and under the jurisdiction is two different events. I think this distinction is made because aliens within a state are under the jurisdiction of the state and not the federal government.
That's great! Congress just need to retroactivly make Arnold "the Governator" a citizen at birth.
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