Yesterday, Paul Ingrassia published his more detailed argument disputing the eligibility of Nikki Haley to run for President on "natural born citizen" grounds.
He's correct that the 1898 SCOTUS decision in U.S. v. Wong Kim Ark is not directly on point regarding the meaning of "natural born Citizen" in the Presidential eligibility clause, because ruling on that point was not necessary to decide whether Wong Kim Ark was a citizen of the United States (i.e. the mention of "natural born citizen" in the case was dicta, not part of the holding).
The prior 1874 SCOTUS case cited by Mr. Ingrassia, Minor v. Happersett, in which the unanimous Court interpreted the recently-adopted 14th Amendment in the context of womens' right to vote, contains dicta questioning whether being a "natural born citizen" (one of only two categories recognized by the Court -citizens by birth, or by naturalization) requires being born of parents that are citizens, or merely born within the territory of the United States, and says that the former theory would be the one most familiar to the framers of the Constitution. While this isn't a holding either, it's some powerfully persuasive dicta, considering the unanimity of the Court in the Minor case. and in my opinion further evidence that Wong Kim Ark was incorrectly decided, and that birthright citizenship for the children of aliens merely present in the United States is not what the authors of the 14th Amendment intended (any more than they intended American Indians --who were legally considered by Europeans as analogous to members of foreign nations-- to become citizens as a result of its adoption).
The Court in Minor also discusses the 1790 Naturalization Act, passed by the First Congress, which provides that for aliens who become U.S. citizens by naturalization, all their minor children (under age 21) are made citizens at the time of their naturalization, providing in law for an "inheritance-like" effect of the naturalization (similar to the jus sanguinis theory) --additional evidence that citizenship was understood by the Framers to arise both from territorial jurisdiction, and patrimony.
This is supported by the citation of the 1758 treatise of Emmerich de Vattel, The Law of Nations, which described "natural-born citizens" as "those born in the country, of parents who are citizens."
I find, to my chagrin, that under this analysis, Sen. Cruz, who I supported in the 2016 Republican primary ( https://darulharb.substack.com/p/interesting-times ), would not be have considered eligible to run for President, because although he's a citizen of the United States by virtue of being born to a U.S. citizen abroad, he's not a "natural born Citizen" for purposes of the Presidential eligibility clause, due to not having both elements (being born in the United States of U.S. citizen parents) due to being born in Canada.
Mr. Ingrassia sees some injustice in this, writing: "It is intuitive how an American born overseas to two citizen parents, whether on military assignment or simply on vacation, should not be disqualified for serving as President simply because such a person was not born on U.S. soil. This is why the Founders, and common sense, favored jus sanguinis for natural-born citizenship as a requirement of Presidential Eligibility."
But even under Mr. Ingrassia's interpretation, with the requirement of two U.S. citizen parents, Sen. Cruz would still be constitutionally ineligible, as Ingrassia argues Amb. Haley is.
At "far right" 😉 above is a photo of Sen. Ted Cruz (R-TX) as a child, who actually had his "natural born citizen" status adjudicated back in 2016 (he was born in Calgary, Alberta, Canada), when he was running in the GOP primary as President Trump's main challenger.
The New Jersey court's opinion is here [PDF link].
More on the meaning of "natural born citizen" in the context of the children of American citizens born abroad, from Profs. Paul Clement, and Neal Katyal, in Harvard Law Review (2015):
Don't you need a Form DS-2029 filled out, approved and then when you get a FS-240 the requirement is meet.
A child born abroad to a U.S. citizen parent or parents may acquire U.S. citizenship at birth if certain statutory requirements are met. The child’s parents should contact the nearest U.S. embassy or consulate to <b>apply for a Consular Report of Birth Abroad (DS-2029) to document that the child is a U.S. citizen. If the U.S. embassy or consulate determines that the
child acquired U.S. citizenship at birth, a consular officer will approve the CRBA application and the Department of State will issue a CRBA, also called a Form FS-240, in the child’s name.
Found this while discussion of The Big 0 & Teddy from TX was in the discussion.
births to migrant mothers—whose anchor babies are automatically awarded U.S. citizenship.
For anyone using the 14th Amendment argument. A Question - if the 1868 passage of the 14th Amendment gave anyone born on American soil citizenship, why was the 1924 Native American Citizenship Act required? After all they were born here too.
Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny - July 2008 • Volume 37, Number 7 • Edward Erler
Dual Citizenship and Decline
Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution, with the ratification of the Fourteenth Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. We have somehow come today to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction. But this renders the jurisdiction clause utterly superfluous and without force. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would simply have said that all persons born or naturalized in the United States are thereby citizens.
Indeed, during debate over the amendment, Senator Jacob Howard of Ohio, the author of the citizenship clause, attempted to assure skeptical colleagues that the new language was not intended to make Indians citizens of the U.S. Indians, Howard conceded, were born within the nation’s geographical limits; but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, rose to support his colleague, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” Jurisdiction understood as allegiance, Senator Howard interjected, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S.
The same kind of confusion that has led us to accept birthright citizenship for the children of illegal aliens has led us to tolerate dual citizenship. We recall that the framers of the Fourteenth Amendment specified that those who are naturalized must owe exclusive allegiance to the U.S. to be included within its jurisdiction. And the citizenship oath taken today still requires a pledge of such allegiance. But in practice dual citizenship—and dual allegiance—is allowed. This is a sign of the decline of American citizenship and of America as a nation-state.
Thomas Jefferson, in his letter to William Johnson, dated June 12, 1823 from Monticello, wrote:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
“In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. The many discussions which have taken place upon the construction of the Constitution have proved the correctness of this proposition and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning, and this principle of construction applies …”
>"A Question - if the 1868 passage of the 14th Amendment gave anyone born on American soil citizenship, why was the 1924 Native American Citizenship Act required? After all they were born here too."
The status of the Native American tribes in U.S. law was considered like that of a foreign nation, so they're a special case. Also, as the article you quoted notes, the 14th Amendment includes the requirement that the persons who are U.S. citizens are those "subject to the jurisdiction" of the United States. Since Indian tribes were considered foreign nations, the Indians were not legally "subject to the jurisdiction" of the United States in the same way as people legally recognized as citizens. "Jurisdiction" is a rather complex concept in law, snd there are several types of jurisdiction, so excluding the Indians from being "subject to the jurisdiction" of the United States (until Congress later chose to make them citizens) was a convenient way of dealing with their unusual status.
I mentioned the disparate treatment of naturalized citizens vs dual citizens in footnote 7 above.
The 1898 Supreme Court case which established birthright citizenship, U.S. v. Wong Kim Ark (169 U.S. 649), although not strictly on point regarding the meaning of "natural born citizen," draws heavily on the British common law tradition to argue that Mr. Wong (who was born in California to lawful resident parents who were subjects of the Guangxu Emperor) was a U.S. citizen by virtue of his birth in the United States.
Reading then-Chief Justice Melville Fuller's dissent in Wong Kim Ark is interesting. Fuller notes that British common law made anybody born in Britain a subject of the Crown, a status that they were legally unable to renounce, whereas American law recognized the right of expatriation as a component of individual liberty, and citizenship was derived from an individual's consent to be governed by that particular government. Fuller essentially made an argument from judicial restraint, that the Court's majority, in conferring automatic birthright citizenship on children of aliens who may only be here temporarily, diminished the Congress power under the Constitution to establish a uniform rule of naturalization, and "puts that rule beyond the control of the legislative power."
The Court in Wong Kim Ark imported the British rule and made it virtually impossible to change it (given the difficulty of amending the Constitution).
The judicially recognized "right to abortion" is similarly a topic which was "constitutionalized" for all the years Roe v. Wade was in effect, which severely limited what Congress could do about the issue.
Chief Justice Fuller's dissent makes note of provisions in the laws passed by Congress on the subject of naturalization prior to the adoption of the 14th Amendment, and the requirement that in order to become a U.S. citizen, one had to not be subject to another foreign power. This exception was made, writes Fuller, because "there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would. [...] it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted."
Chief Justice Fuller takes the words "subject to the jurisdiction of the United States" in the 14th Amendment to mean the same thing as the words "and not subject to any foreign power." The Court's majority went with a territorial definition of "jurisdiction," rather than, as with the Native Americans, finding that owing one's allegiance (even if indirectly) to another sovereign (in that instance, tribal governments) made one not "subject to the jurisdiction of the United States" for purposes of the 14th Amendment's citizenship clause. The result in Wong Kim Ark does seem to be in conflict with the status of American Indians prior to the Congress passing the Indian Citizenship Act in 1924.
I'd forgotten, but I've discussed this issue before...
https://darulharb.substack.com/p/what-if-kamala-harris-is-ineligible
Yesterday, Paul Ingrassia published his more detailed argument disputing the eligibility of Nikki Haley to run for President on "natural born citizen" grounds.
https://paulingrassia.substack.com/p/no-the-constitution-does-not-allow
He's correct that the 1898 SCOTUS decision in U.S. v. Wong Kim Ark is not directly on point regarding the meaning of "natural born Citizen" in the Presidential eligibility clause, because ruling on that point was not necessary to decide whether Wong Kim Ark was a citizen of the United States (i.e. the mention of "natural born citizen" in the case was dicta, not part of the holding).
The prior 1874 SCOTUS case cited by Mr. Ingrassia, Minor v. Happersett, in which the unanimous Court interpreted the recently-adopted 14th Amendment in the context of womens' right to vote, contains dicta questioning whether being a "natural born citizen" (one of only two categories recognized by the Court -citizens by birth, or by naturalization) requires being born of parents that are citizens, or merely born within the territory of the United States, and says that the former theory would be the one most familiar to the framers of the Constitution. While this isn't a holding either, it's some powerfully persuasive dicta, considering the unanimity of the Court in the Minor case. and in my opinion further evidence that Wong Kim Ark was incorrectly decided, and that birthright citizenship for the children of aliens merely present in the United States is not what the authors of the 14th Amendment intended (any more than they intended American Indians --who were legally considered by Europeans as analogous to members of foreign nations-- to become citizens as a result of its adoption).
The Court in Minor also discusses the 1790 Naturalization Act, passed by the First Congress, which provides that for aliens who become U.S. citizens by naturalization, all their minor children (under age 21) are made citizens at the time of their naturalization, providing in law for an "inheritance-like" effect of the naturalization (similar to the jus sanguinis theory) --additional evidence that citizenship was understood by the Framers to arise both from territorial jurisdiction, and patrimony.
This is supported by the citation of the 1758 treatise of Emmerich de Vattel, The Law of Nations, which described "natural-born citizens" as "those born in the country, of parents who are citizens."
I find, to my chagrin, that under this analysis, Sen. Cruz, who I supported in the 2016 Republican primary ( https://darulharb.substack.com/p/interesting-times ), would not be have considered eligible to run for President, because although he's a citizen of the United States by virtue of being born to a U.S. citizen abroad, he's not a "natural born Citizen" for purposes of the Presidential eligibility clause, due to not having both elements (being born in the United States of U.S. citizen parents) due to being born in Canada.
Mr. Ingrassia sees some injustice in this, writing: "It is intuitive how an American born overseas to two citizen parents, whether on military assignment or simply on vacation, should not be disqualified for serving as President simply because such a person was not born on U.S. soil. This is why the Founders, and common sense, favored jus sanguinis for natural-born citizenship as a requirement of Presidential Eligibility."
But even under Mr. Ingrassia's interpretation, with the requirement of two U.S. citizen parents, Sen. Cruz would still be constitutionally ineligible, as Ingrassia argues Amb. Haley is.
At "far right" 😉 above is a photo of Sen. Ted Cruz (R-TX) as a child, who actually had his "natural born citizen" status adjudicated back in 2016 (he was born in Calgary, Alberta, Canada), when he was running in the GOP primary as President Trump's main challenger.
The New Jersey court's opinion is here [PDF link].
http://media.philly.com/documents/Judge's+ruling+Ted+Cruz+to+remain+on+NJ+ballot.pdf
A Washington Post story about the decision [archive link]:
https://archive.ph/ln636
Sen. Cruz's "natural born citizen" status was adjudicated twice, actually. A case was also heard in Pennnsylvania, which is referenced in the NJ case.
https://caselaw.findlaw.com/court/pa-commonwealth-court/1733401.html
More on the meaning of "natural born citizen" in the context of the children of American citizens born abroad, from Profs. Paul Clement, and Neal Katyal, in Harvard Law Review (2015):
https://harvardlawreview.org/forum/vol-128/on-the-meaning-of-natural-born-citizen/
Don't you need a Form DS-2029 filled out, approved and then when you get a FS-240 the requirement is meet.
A child born abroad to a U.S. citizen parent or parents may acquire U.S. citizenship at birth if certain statutory requirements are met. The child’s parents should contact the nearest U.S. embassy or consulate to <b>apply for a Consular Report of Birth Abroad (DS-2029) to document that the child is a U.S. citizen. If the U.S. embassy or consulate determines that the
child acquired U.S. citizenship at birth, a consular officer will approve the CRBA application and the Department of State will issue a CRBA, also called a Form FS-240, in the child’s name.
https://travel.state.gov/content/travel/en/records-and-authentications/requesting-a-vital-record-as-a-u-s--citizen/replace-amend-CRBA.html
And is Dual Citizenship, which Cruz only relinquished in 2014, not an indication of "intended to protect the nation from foreign influence"?
It is up to the candidate to prove he is a natural born citizen, not the voters. Did Ted ever prove it by show us his FS-240.
Found this while discussion of The Big 0 & Teddy from TX was in the discussion.
births to migrant mothers—whose anchor babies are automatically awarded U.S. citizenship.
For anyone using the 14th Amendment argument. A Question - if the 1868 passage of the 14th Amendment gave anyone born on American soil citizenship, why was the 1924 Native American Citizenship Act required? After all they were born here too.
Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny - July 2008 • Volume 37, Number 7 • Edward Erler
Dual Citizenship and Decline
Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution, with the ratification of the Fourteenth Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. We have somehow come today to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction. But this renders the jurisdiction clause utterly superfluous and without force. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would simply have said that all persons born or naturalized in the United States are thereby citizens.
Indeed, during debate over the amendment, Senator Jacob Howard of Ohio, the author of the citizenship clause, attempted to assure skeptical colleagues that the new language was not intended to make Indians citizens of the U.S. Indians, Howard conceded, were born within the nation’s geographical limits; but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, rose to support his colleague, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” Jurisdiction understood as allegiance, Senator Howard interjected, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or American courts. It means owing exclusive political allegiance to the U.S.
The same kind of confusion that has led us to accept birthright citizenship for the children of illegal aliens has led us to tolerate dual citizenship. We recall that the framers of the Fourteenth Amendment specified that those who are naturalized must owe exclusive allegiance to the U.S. to be included within its jurisdiction. And the citizenship oath taken today still requires a pledge of such allegiance. But in practice dual citizenship—and dual allegiance—is allowed. This is a sign of the decline of American citizenship and of America as a nation-state.
http://imprimis.hillsdale.edu/birthright-citizenship-and-dual-citizenship-harbingers-of-administrative-tyranny/
Thomas Jefferson, in his letter to William Johnson, dated June 12, 1823 from Monticello, wrote:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
Holmes v. Jennison, 39 U.S. (14 Peters) 540 (1840)@ 570-571 http://supreme.justia.com/us/39/540/case.html
“In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. The many discussions which have taken place upon the construction of the Constitution have proved the correctness of this proposition and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning, and this principle of construction applies …”
A few comments:
>"A Question - if the 1868 passage of the 14th Amendment gave anyone born on American soil citizenship, why was the 1924 Native American Citizenship Act required? After all they were born here too."
The status of the Native American tribes in U.S. law was considered like that of a foreign nation, so they're a special case. Also, as the article you quoted notes, the 14th Amendment includes the requirement that the persons who are U.S. citizens are those "subject to the jurisdiction" of the United States. Since Indian tribes were considered foreign nations, the Indians were not legally "subject to the jurisdiction" of the United States in the same way as people legally recognized as citizens. "Jurisdiction" is a rather complex concept in law, snd there are several types of jurisdiction, so excluding the Indians from being "subject to the jurisdiction" of the United States (until Congress later chose to make them citizens) was a convenient way of dealing with their unusual status.
I mentioned the disparate treatment of naturalized citizens vs dual citizens in footnote 7 above.
The 1898 Supreme Court case which established birthright citizenship, U.S. v. Wong Kim Ark (169 U.S. 649), although not strictly on point regarding the meaning of "natural born citizen," draws heavily on the British common law tradition to argue that Mr. Wong (who was born in California to lawful resident parents who were subjects of the Guangxu Emperor) was a U.S. citizen by virtue of his birth in the United States.
Reading then-Chief Justice Melville Fuller's dissent in Wong Kim Ark is interesting. Fuller notes that British common law made anybody born in Britain a subject of the Crown, a status that they were legally unable to renounce, whereas American law recognized the right of expatriation as a component of individual liberty, and citizenship was derived from an individual's consent to be governed by that particular government. Fuller essentially made an argument from judicial restraint, that the Court's majority, in conferring automatic birthright citizenship on children of aliens who may only be here temporarily, diminished the Congress power under the Constitution to establish a uniform rule of naturalization, and "puts that rule beyond the control of the legislative power."
The Court in Wong Kim Ark imported the British rule and made it virtually impossible to change it (given the difficulty of amending the Constitution).
The judicially recognized "right to abortion" is similarly a topic which was "constitutionalized" for all the years Roe v. Wade was in effect, which severely limited what Congress could do about the issue.
Chief Justice Fuller's dissent makes note of provisions in the laws passed by Congress on the subject of naturalization prior to the adoption of the 14th Amendment, and the requirement that in order to become a U.S. citizen, one had to not be subject to another foreign power. This exception was made, writes Fuller, because "there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would. [...] it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted."
Chief Justice Fuller takes the words "subject to the jurisdiction of the United States" in the 14th Amendment to mean the same thing as the words "and not subject to any foreign power." The Court's majority went with a territorial definition of "jurisdiction," rather than, as with the Native Americans, finding that owing one's allegiance (even if indirectly) to another sovereign (in that instance, tribal governments) made one not "subject to the jurisdiction of the United States" for purposes of the 14th Amendment's citizenship clause. The result in Wong Kim Ark does seem to be in conflict with the status of American Indians prior to the Congress passing the Indian Citizenship Act in 1924.
Very weak article, lacking in detail and historical content. Shame on the person posting this, well, garbage, to put it mildly as I possibly can.