Aug 312009
On Obama Conspiracy, Greg explains
In Wong, Justice Gray cites Pothier’s Traite des Personnes for the law of France. (p. 666 of the decision) Here’s the reference he was citing, pages 17-18. And, here’s one of the quotes, in the original French:
“Les citoyens, les vrais et naturels Français, suivant la definition de Bacquat, sont ceux qui sont nes dans l’etendue de la domination francaise…”
Gray translates it as “citizens, true and native-born citizens…” I think as likely a translation is “The true and natural-born citizens of France…”
It continues, “are those born within the lands under French dominion.”
Paragraph 45 of that Treatise explains that except for those born in countries that later come under French control for everyone else, it doesn’t matter whether their parents were citizens or aliens, or whether they had established a domicile there:
Au reste, pour que ceux qui sont nés dans les pays de la domination française soient réputés Français, on ne considère pas s’ils sont nés de parents français, ou de parents étrangers; si les étrangers étaient domiciliés dans le royaume, ou s’ils n’y étaient que passagers. Toutes ces circonstances sont indifférentes dans nos usages : la seule naissance dans ce royaume donne les droits de naturalilé, indépendamment de l’origine des père et mère, el de leur demeure.
That was the law of France at the time of the founding, not Vattel’s conception of it. France did not change their definition of citizenship until the Code Napolean of 1807.
In Wong Kim Ark we learn that:
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
Aug 312009
08/31/2009 Text Order DENYING 2 Motion to Appear Pro Hac Vice entered by Judge Xavier Rodriguez. The Court denies the application as moot. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ajr) (Entered: 08/31/2009)
We have some other evidence from Maryland as to how they considered the concept of native/natural born to affect the election to the position of Governor, mirroring the same concerns about foreign influence where naturalized citizens could rule the state.
Mr. Abbott. I would like to know whether the committee intend that a foreigner shall become the governor of this State, after having been here five years?
Mr. Miller. After being five years a naturalized citizen, certainly. That has always been the provision of the constitution, and he must be here five years before he can be naturalized.
Mr. Thuston. The fifth section requires amendment, unless there is some part of the article which requires a person to be a citizen of this State in order to be eligible. He can be a resident without being a citizen. He may be a citizen of the United States, and for five years a resident of this Slate, and not be a citizen of this State. A great many people come here and reside and do not become citizens. It would relieve the section from all ambiguity to say that a person to be eligible I for governor shall be for five years a citizen of the United States and of this State, and a resident of this State for five years next preceding the election. However, I merely make the suggestion, and do not propose any amendment.
Aug 312009
Arguing that Vattel and not common law guided the Founders, the Birthers proclaim that
The answer to this lies with none other than Thomas Jefferson, who penned Virginia’s Citizenship statue in 1779,
“Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.” As can be seen Jefferson is equating citizenship of the child to that of the parents, and not the land.
Strangely enough they omit the 1783 Virginia statute
SECT. 2. Be it therefore enacted by the General Assembly, That all free persons, born within the territory of this Commonwealth ; all persons, not being natives, who have obtained a right to citizenship under the Act, intituled, ” An Act declaring who shall be deemed citizens of this Commonwealth;” and also all children, wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children, shall be deemed citizens of this Commonwealth,
However, in both statutes, the case is clearly not Vattel but rather Common Law, mimicking English Common Law which declares anyone born on its soil a citizen including children born to fathers abroad. The 1783 statute extends this right to fathers and/or mothers.
Aug 312009
Donofrio argued
St. George Tucker, Justice of the Supreme Court of Virgina, wrote a version of the authoritative Blackstone’s Commentaries: With Notes of Reference to the Constitution… which became a recognized resource for determining the framers’ original intent. In his Volume 1 — Appendix; Note D, he explained that the Article 2 “natural born Citizen” requirement was purposed to avoid competing allegiances:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, whereever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
And nothing about competing alliances either, but rather about allowing ‘foreigners’ through naturalization to become a US President.
Aug 312009
Source: The authority of Vattel by Charles Fenwick in , The American political science review, Volume 8, American Political Science Association, 1914 (Editors: Westel Woodbury Willoughby, John Archibald Fairlie, American Political Science Association, Frederic Austin Ogg)
Coming to the broad question of the jurisdiction of a state over the persons within its borders and over the territory subject to it we find that Vattel is, except in a few instances, fairly in accord with the modern principles of international law. After a rambling a priori argument which suggests the influence of Rousseau, Vattel adopts the jus sanguinis and expressly rejects the jus soli as the test of citizenship, but he practically admits Great Britain’s adoption of the jus soli when he says that “there are countries, such as England, in which the mere fact of birth within the country naturalizes the children of an alien.”
FULLER, C.J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
169 U.S. 649
United States v. Wong Kim Ark
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. 18 Argued: March 5, 8, 1897 — Decided: March 28, 1898
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting.
Aug 312009
Note: Obama returned to the United States well before reaching the age of eighteen and thus the only possible ways for him to have lost his birthright citizenship is through 1481(a)(3), serving in the foreign armed forces, 1481(a)(5), formally renouncing his citizenship to a consular representative, 1481(a)(6), making a formal written statement while in the United States in time of war or 1481(a)(7), treason. Per 1481(b), it’s up to the party asserting that a loss of nationality occurred to present the necessary evidence.
In other words, lacking any evidence that Obama renounced his citizenship, he continued his US birthright citizenship when reaching the age of majority.
The current nationality laws of the United States do not specifically refer to dual nationality. The automatic acquisition or retention of a foreign nationality does not affect U.S. citizenship; however, under limited circumstances, the acquisition of a foreign nationality upon one’s own application or the application of a duly authorized agent may cause loss of U.S. citizenship under Section 349 (a)(1) of the Immigration and Nationality Act [8 U.S.C. 1481 (a)(1)].
In order for loss of nationality to occur under Section 349 (a)(1), it must be established that the naturalization was obtained voluntarily by a person eighteen years of age or older with the intention of relinquishing U.S. citizenship. Such an intention may be shown by the person’s statements or conduct (Vance v. Terrazas, 444 U.S. 252, 1980), but as discussed below in most cases it is assumed that Americans who are naturalized in other countries intend to keep their U.S. citizenship. As a result, they have both nationalities.
United States law does not contain any provisions requiring U.S. citizens who are born with dual nationality to choose one nationality or the other when they become adults (Mandoli v. Acheson, 344 U.S. 133, 1952). While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government does not endorse dual nationality as a matter of policy because of the problems that it may cause. Claims of other countries upon dual-national U.S. citizens often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts to provide diplomatic and consular protections to them when they are abroad.
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