In the late 19th-century debate over the citizenship of the children of aliens after the Fourteenth Amendment, there were two camps. The excellent paper by Mr. Woodworth, Citizenship in the United Sates Under the Fourteenth Amendment, in 1896 lays out the two opposing viewpoints which he describes as “common law” and “international law” or put using different terms, jus soli and jus sanguinis.
The same categories were used by George D. Collins who wrote the Appellant’s Brief for the US Government challenging the citizenship of Wong Kim Ark, a US-born child of Chinese subject parents domiciled in the United States. Collins argued that international law, citizenship through parentage, was the correct rule to apply in the United States, not the English Common Law.
When Birthers today make their arguments about what a “natural born citizen” is, they cite a work on international law, The Law of Nations (short English title) by Emer de Vattel. The problem with citing Vattel (beyond issues of translation) is that such presumes that the rule in the United States is international law and not common law, and Collins supports the Birthers by arguing that international law is the correct rule.
Collins, describes the common law rule he opposes in his Brief, and what he says is instructive for the question of Barack Obama and two citizen parents. Collins wrote:
The alien father owing local allegiance, his child born on British soil was deemed to be born within that allegiance, and therefore a natural-born subject of the King. The same rule applied where the father had never been within the Kingdom; in that case the local allegiance of the mother was deemed sufficient.
Collins acknowledges that if the common law rule applies then not only does the father’s mere presence in the country generate sufficient allegiance to make the child a natural born subject, but also the local allegiance of the mother alone is sufficient. Sufficient allegiance can be generated by a single parent.
Collins would argue that feudal relationships such as the allegiance between a sovereign and the inhabitants of his kingdom, and the very notion of “subject” are inappropriate in a Republic such as the United States, but Collins would lose that argument before the Supreme Court in 1898. In fact, after the Revolution, state legislatures would continue to use citizen and subject language interchangeably. The Supreme Court in the Wong decision cites Chancellor Kent saying:
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.
The Court, citing the decision in Smith v. Alabama would say that terms in the US Constitution must be understood in the light of the English Common Law familiar to the Framers of the Constitution (citing also Minor v. Happersett, Moore v. United States, Ex parte Wilson and Boyd v. United States).
Citing Justice Swayne in US v. Rhodes:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
And so the United States Supreme Court ruled that Wong Kim Ark was a citizen of the United States based on the common law rule. The Court affirmed what the principal author of the United States Constitution, 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.
I was just looking for cite from you about Vattel to post on my Facebook and I see you provided me with one that was fresh of the press today. WOW! I’m in Phoenix, and our lousy sheriff (the one who makes inmates wear pink undies and live in tents in the desert in the winter) is announcing his findings of his investigation into the birth certificate, but get this… he’s going to wait until the first week of March to do so, which will be AFTER our GOP debate in Mesa, AZ tomorrow night and AFTER our GOP primary on Feb. 28th. Don’t you think the voters would benefit from having this information? WOW! What a tool that Arpaio is.
By the way, here’s the link to Arpaio’s announcement: http://www.buzzfeed.com/zekejmiller/americas-toughest-sheriff-to-reveal-result-of-o
“Ius sanguinis” is in no way “international” law.
It is only the law mostly used in continental Europe. Citizen-law is never “international”, each and every state decides for himself who is considered a citizen. That is why we often have dual citizenship.
There are no treaties between the nations to avoid this conflict, which would be typical for “international” law.
“We might possibly clear the president”
Dammit, where’s the SPOILER ALERT?
The silly birthers should know that America automatically rejects anything “international” (such as the metric system, socialized medicine, bidets) … they should know because they’re the ones doing the rejecting!
Perhaps referring to them as “Frenchies” will clue them in (No offense intended to Lupin, I am sure he will understand (nor to any others with ties to French culture)). Perhaps insist on using the metric system on them. Ask them if they pee standing or sitting. Then ask why they aren’t buying into the whole efféte, “anti-American” lifestyle.
The jus soli / jus sanguinis debate was a big ongoing in the 19th century. But courts, having descended from an English tradition, have consistently ruled based on English precedent—which is now long-established American precedent—and with Wong the last corner (I would think) was nailed shut.
Yes, Virginia, the birthers have always been with us. Just never realized the debate was over. They keep coming across old arguments, and resurrecting them. Age /= right. Talk about picking and choosing. If these guys had a leg to stand on, then I’d be out there hawking phlogiston futures. 😉
Oh, yes, bgansel, we’re all waiting! He’s moved that date more than once. I’d advise against holding your breath! Hold odd on the pre-emptive popcorn popping too. Stale popcorn only has so many uses, and unless you have a tree for St. Patty’s Day, you’ll be out of luck.
Sorry about that. It’s been a while since I stopped by (the site was offline for a while) and I came back to see a story in the sidebar about Taitz being barred from a Georgia Court and I just couldn’t help myself. I HAD to click on it IMMEDIATELY! Apologies!
My wife forces me to pee sitting …
JPotter:
Well, the bidets were a mistake and we should rethink them. 😛
There is a joke that went around, a riddle asking “why do you feel sophisticated in the bathroom?” and the answer is “because European”.
If you pee in a bidet, you got something wrong ….
Quite correct. All the countries of the Americas that I have looked at use jus soli. Besides the US that includes Canada, Brazil, Mexico and Argentina. It may have to do with the differences between countries that were open to large-scale immigration and those with long-resident, ethinically homogeneous populations.
Anyway, sanguinis only helps the birthers if one applies 19th century doctirnes of sexual inequality. Obama had a citizen mother and non-citizen father. In 1896, you could reasonably say that the child’s citizenship followed the father. However, by 1961 women and men were equal under the law. So which to follow? A modern court, if forced to choose, would almost certainly go with the custodial parent, causing Leo and Mario to weep…
Glenn Beck screams about the UN, and then goes running to an arbitration panel in Switzerland: http://newyorkleftist.blogspot.com/2009/09/open-letter-to-mario-apuzzo.html
[bada-bing] FIFY
“Collins would argue that feudal relationships such as the allegiance between a sovereign and the inhabitants of his kingdom, and the very notion of “subject” are inappropriate in a Republic such as the United States, but Collins would lose that argument before the Supreme Court in 1898.”
Collins was on point, and by the way, Collins, a real attorney, was not a “birther” and was not delusional…I wonder what anonymous lawyers have to say about this…
“…Justice Gray, in U.S. v. Wong Kim Ark, states that Calvin’s Case was the genesis of the English common law concept of natural allegiance.
But Justice Gray failed to mention that natural allegiance required one to be a Christian that recognized the King as the spiritual leader of Christ’s church. If one wasn’t a Christian, one denied the very nature of the King’s authority. Hence, simply being born on the soil of England did not make one a natural-born subject, unless one was a Christian.”
…
“The English common law’s uniquely Christian definition of natural law governs the English common law concept of natural subjection/natural allegiance. And that is why the English common law definition of “natural-born subject” can never be judicially recognized as synonymous with “natural-born citizen”. Such a construction of Article 2, Section 1, would be directly repugnant to the 1st Amendment.”
http://naturalborncitizen.wordpress.com/2012/01/24/the-english-common-law-definition-of-natural-law-is-not-part-of-the-law-of-nations/
Scientist, how right you are! Have you seen the “Center for Immigration Studies” (Read: Center for Wordy Xenophobia) website? Despite the agenda, it’s an interesting write-up, and a striking map at the bottom:
http://www.cis.org/birthright-citizenship
Very Old World / New World. Rumsfeld would love it.
____________________________
And the debate continues: “Time to End Birthright Citizenship?” Legislation in Congress as we speak.
http://www.huffingtonpost.com/howard-foster/birthright-citizenship_b_1236860.html
I think you just admitted you have dual citizenship and therefore can’t be natural born.
In your living room you’re American; in the bathroom, European.
Dr. Conspiracy:
“why do you feel sophisticated in the bathroom?”
“because European”
When you dig into the meaning of “subject to the jurisdiction thereof”, or “not subject to any foreign power”, or “not owing allegiance to anybody else”, one has to wonder, what does “parents” have to do with it Center For Immigration Studies birthers?
“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States”
Congressional Globe, Senate, 39th Congress, 1st Session, May 30, 1866. Pg. 2893 (statement of Sen. Johnson).
That’s right, Sen Johnson must be a birther too.
How long did you have to dig to find one senator out of all the rest who would say something like that?
Same legislation presented to almost every Congress. In 2007 and 2009, Nathan Deal did the honors of introducing the legislation and had more cosponsors than the current Steve King version. Yet, the language, as I mentioned to yutube, goes:
So, not even the anti-immigrant camp pushes 2 parent citizens. As some trivia, a few of the ones in the 1990s specially stated that the mother had to be the citizen, or special alien. Obama must have gotten to them back then.
*yawn*
Not being a lawyer, I can only speculate that they would say: Collins lost his case.
However, Collins isn’t making the full birther argument. Collins argued that Wong was not a citizen, not that he was a born citizen who couldn’t run for president.
Are you channeling Leo Donofrio?
I cannot think of any case I have ever seen where a court recognized such an argument. De Vattel said that there should be a state church and that no other religion should be permitted public practice, but pluralist liberty-loving Americans don’t say such things.
The map of countries that require 2 citizen parents would be blank. Because that would in effect amount to the state forbidding one to marry a non-citizen under pain of having stateless children. Who would stand for that?
You can base your life on what some Senator said in 1866. I don’t. This is 2012. The internet age has made everyone subject to the the laws of multiple jurisdictiions. This has happened-people have been sued for libel in British courts for posts they made in the US or other countries (British libel laws are very favorable to the injuured party). Since those posts can be read in the UK, the poster can be sued in UK courts.
All this 18th and 19th century stuff is of historical interest, but not deterrminative for us moderns.
Northland10, I knew these bills went back a few Congresses, but how far back? Let me guess, the 1994 ‘revolution’? I would guess similar bills have been floated all the way back to 1900, perhaps even farther. But how long has the continuous string been going?
Unless we get a really rabid, endemic far right going on (what we have is bad enough, thanks!) as some European countries have, this legislation isn’t going anywhere. My IANAL assures me it’d take an amendment to overcome all the accumulated judicial precedent (which includes multiple SCOTUS decisions)
Closed societies buying into an ideology of racial or ideological purity. A gov’t interested in created a divided society, similar to a caste system. Not anyone I’d want to be part of!
I used to bait Vattelites, asking them whether or not the 2-citizen parents had to also be two-parent NBCs. They’d generally take the bait, and then start tapdancing as you walked them through the implications! Good times.
As I said before, many countries in Europe now use a mixed system of ius soli and ius sanguinis. The days of pure ius sanguinis are gone. Most countries will provide (and have for some time provided) for ius soli citizenship at birth if otherwise the baby would remain stateless.
When Bobby Jindal was born in the USA, India did not have any provisions for granting citizenship to children born abroad.
Some countries try to avoid dual citizenship by basing citizenship for children born abroad on the mother, some base that one on the father – in such a case too, children could be born stateless, because their parents are the wrong combination. Not in Belgium, however. Neither in the USA.
Ius soli has the advantage of making sure that all children born on that soil are citizens of at least one country. It is a basic human right, by the way.
Blut und Boden. Reich-t das?
Probably no place on earth fits that description better than North Korea. So what is required to be born a North Korean citizen? If you’re born in North Korea, 1 parent must be a North Korean ciitizen. Not 2. No 2 parent rule even in North Korea. So the birthers are more extreme than Kim Jong Il and his son.
http://www.multiplecitizenship.com/wscl/ws_NORTH_KOREA.html
How does that make any sense at all? So he fairly argued that WKA was not a citizen but you’re saying that it was not the same argument as being born a citizen? what?
The Jetsons rules in USA
That yawn must be RC Radio blog debate..I admit this guy is making me sleep.
Birthistan is lagging behind the Flintstones.
Jean-Luc Dehaene, multiple times prime minister of Belgium had French citizenship until the late fifties, when he was called up for the French Army – he would probably have joined it, if that had not meant being sent to Algeria. He refused the call and was stripped of French citizenship.
So why did he (also) have French citizenship? In May 1940, his parents fled the German invasion. They would probably have returned to Belgium like all the other refugees at the end of July, but since the wife was highly pregnant they decided to stay in Montpellier and have the delivery there. Jean-Luc was born on the 7th, a few weeks later the family returned to Belgium.
Unless your name is Sarah Palin, you do not undertake a difficult trip when you are eight months pregnant.
And yes, France was very ius soli until racists started to be afraid of Muslims.
7th of August, of course, should have been clear from the phrase ënd of July”, but still.
http://en.wikipedia.org/wiki/Jean-Luc_Dehaene
Thomas.loc.gov only goes back to 1989-1990 and searching can be difficult, unless you want to sift through thousands of unrelated results. I did find a Constitution Amendment from May 1991:
Probably many more out there but I am not ready to find all of them right now. I believe Sen. Vitter has, at times, proposed a Constitutional Amendment for the same purpose. Obviously, as the others before them, they came to naught.
On the Amendment issue, Has anybody noticed that amendments that purposely restrict the rights of an individual are few and far between and have not always worked well (i.e. prohibition)? The only other individual restriction amendment I can remember is limited the term of the President (and by that point, he is part of the government). Everything else restricts government. Despite the birthers thinking that restricting a person, Obama, is desirable, it is out of character for America (even more so after the civil rights movment).
A ringing endorsement! Heehee. I was thinking about tribal groups, pre-industrial societies, etc., but they wouldn’t have developed legal traditions with what we think of as “citizenship”, that I can think of. More like one of “us” or one of “them”. Even the OT Hebrews didn’t require two Hebrew parents to be Hebrew! Well, depending which book you’re going with. They didn’t require two Hebrew parents, but also railed against marrying ‘foreign’ wives. Those seem to be universal tribal rules; there are gypsy clans here that follow a similar pattern. Gypsy boys can marry whoever they want, and the wife and children are gypsies. But gypsy girls aren’t even allowed to date ‘foreign’ boys, much less finish high school. The boys can finish school if they like, but most opt for grand theft auto and chop shop management.
In terms of civics, these are the people the birthers are crawling under!
The Constitution is pretty old u know.
Well, when a radio show is built around a debate requested by an individual who doesn’t bother to even show up… it sort of takes a lot of steam out of the show… *DUH*
Hey yutube, why don’t you offer to crawl out from behind your keyboard and go on the show, tough guy? I bet you chicken out just as Scott did…
Old is a relative term. 224 years is a good run for a Constitution, sure. But as nations go, that is still extremely on the young side.
But then again, you are someone making this meaningless non sequitor quip in response to a Flinstone’s comment. You are probably one of those folks who is dumb enough to think that people actually had dinosaur pets and that the Earth is only 6000 years old….
Why would you need a court for that? It’s calvin’s case interpretation. What’s your rebuttal?
The only necessary rebuttal to horse sh*t like yours is to sweep the stable. Really, yutube, if you lack the stamina and/or ability to explain and defend your silly assertion, then don’t submit it.
The Government’s argument was that the lower court had ruled incorrectly and WKA was not a citizen period. No specific reference was made to natural born citizen one way or the other in the Government’s case.
However, a dissenting judge pointed out that if WKA was a citizen, then he could only be a Natural Born Citizen and eligible for President. This is so because the only other possibility is a naturalized citizen, and obviously WKA was not naturalized.
Since the Court finding was that lower court had found correctly that WKA was indeed a citizen, that ruling implied that WKA was NBC.
Well there is footnote (1)
“(1) The position in the text seems to have been a common error founded on a groundless opinion of Justice Brooke, Anon. 1 Salk. 46, and has long since been exploded, Omichund v. Barker, 1 Atk. 21, S.C. 1 Wils 84, S.C. Willes’s Rep. 538” The Report of Sir Edward Coke” 1826 edition
Footnote 1 goes along with the passage “All infidels are in law…”. It’s the passage on which Leo based his interpetation of the Calvin’s Case.
FWIW according to French Wiki, as I suspected, bidrets are increasingly less common in France.
Apparently in 1993 only 42% of new bathrooms were equipped with one, and that % must have kept coming down.
http://fr.wikipedia.org/wiki/Bidet
“When Birthers today make their arguments about what a “natural born citizen” is, they cite a work on international law, The Law of Nations (short English title) by Emer de Vattel. The problem with citing Vattel (beyond issues of translation) is that such presumes that the rule in the United States is international law and not common law, and Collins supports the Birthers by arguing that international law is the correct rule.”
Issues of translation are, in fact, at the core of what is wrong here.
I’m not competent to argue whether or not what Vattel wrote is relevant to your legal system. I am however competent to discuss what he did write, and in no way does it support the birthers’ contention — quite the contrary, in fact.
That excellent report by your Congressional analyst (or whatever he was called) got to the bottom of it and completely agreed with what I or Paul have been saying for a long time.
If I read Santorum correctly, I think you’re getting there.
What the ‘2 citizen parents’ birthers are trying to do is to create a third class of citizens in addition to ‘natural born’ and ‘naturalized’. Therefore what they need to do is to bring evidence that anyone, at any point in the history of the United States (or any other state) has ever taught this.
I think they will find this exceedingly difficult. First of all, English Common Law has never been called to decide the matter, since the UK has never, to my knowledge, had any positions that have been limited to natural-born subjects (the royal family are German, after all!). British history has been full of laws giving religious restrictions (until the 1870s you could not graduate from Oxford or Cambridge unless you were an Anglican), but the great issue here has been religion, not circumstances of birth.
So again, the real question is this: When and where has anyone ever recognised a third class of citizens in addition to ‘natural born’ and ‘nationalized’?
US Constitution, Article VI, paragraph 3: “…no religious test shall ever be required as a qualification to any office or public trust under the United States.”
What does South Carolina governor Nikki Haley say about this?
Is Nikki a Christian? http://www.nikkihaley.com/truthinfacts/question-is-nikki-a-christian
In Nikki’s words: “My faith in Christ has a profound impact on my daily life and I look to Him for guidance with every decision I make. God has blessed my family in so many ways and my faith in the Lord gives me great strength on a daily basis. Being a Christian is not about words, but about living for Christ every day.”
Gag me with two spoons.
Yes, and it could use an update. Your thinking is symptomatic of a bigger problem. When the US threw off colonial bonds, it was in the forefront of progress. When it devised the Constitution, it was in the forefront of nations. The US in 1788 didn’t pretend that all the answers were in some document from 1550; instead, it looked to the future. Now in 2012, people like you have to stop pretending that history stopped in 1788.
I do think I am competent enough to say that Vattel’s work is a philosophical essay on Völkerrecht (“an eighteenth century treatise by Emmerich de Vattel titled “The Law of Nations,” Ankeny described it), but the birthers are treating it as if it were an actual legal statute with binding value. The actual Law of Nations.
The sentence with “citizen parentS” that they have all been quoting for nearly three years now (ie the sentence that Donofrion googled up in 2008) is in fact part of a logical argument. The author explains how things are according to Natural Law. You are only a native citizen of the Patrie if you are born there and already have a citizen relative, who can teach you the ways of the world in those lands. (using Patrie and lands, because under Natural Law, there is no State and thus there can be no state borders and no statelessness)
He then goes on the blood tangent and argues that under Ius Gentium it is the father who provides that blood.
Case closed? Of course not, he later says that in England, birth in the jurisdiction is the only thing necessary – and we must accept that practice.
Linguists will know the difference between a normative grammar and a descriptive grammar. Vattel’s work is not a compendium of law, it is merely a description of law systems, with emphasis on how they do things in the German Empire.
I always enjoy pointing out to our poor deluded Birfoons, when they pray at the grave of Saint Vattel of No Blacks in the White House, that in Section 214, guess what he, also says in countries such as England, birth in the nation alone, even to a foreigner is sufficient…..
Tap dance, dodge and pathetic goal shifting then occurs…. 😎
Unlike Alice in Wonderland, Leo saying it is so, does not make it so.
I think at least some of them are rather trying to fit their view in the existing one by claiming that native-born people are “naturalized at birth” (in their view, something different from “born a citizen”) and thus fall into the second category (“naturalized citizens”), thus effectively redefining “naturalization”.
The question could also be asked how the fact that the USA is not a Christian nation could translate into Christian foreigners no longer be granted protection, rather than the expectable opposite, ie that infidel foreigners would be granted the same protection.
Leo Donofrio is playing with loaded dice here, since he always comes up with a result that disfavours Obama.
It usually shuts them right up when I do it, Ox.
Donofrio is wrong as usual as he doens’t understand the common law. The holding of Calvin’s case and his definition of ligeance was followed by later courts and hence became the common law rule. There was dicta in Calvin’s Case about excluding infidels. Such dicta was rejected by later courts in the harshest of terms. Littleton called it a mistake and Mansfiled and others said it was an embarrassment. Such was not the state of the English common law in 1787. Maybe if Donofrio leeps trying he might get something right. I doubt it though.
Why do you think such quote helps you. Aliens are obviously subject to the authority of the United States. Do you have trouble reading? And you do know that Johnson was the winning lawyer in Dred Scott. Not a great reference. However, Johnson made clear that jus soli was the universal rule:
“Mr. Justice Curtis held that the Constitution of the United States assumes that citizenship can be acquired by nativity. That is the common law, that is the law of the civilized world, that he would is born in a country, and not made a slave at the moment of birth by any municipal law, becomes, by virtue of his birth, a citizen…” Senator Johnson, Cong. Globe, 39th Cong., lst Sess. 1776 (1866).
His thoughts on what the Civil Rights Act language meant:
“What I said then I say now, that as far as the United States are concerned, all persons born within the limits of the United States are to be considered as citizens, and that without reference to the color or the race; and after the abolition of slavery the negro would stand precisely in the condition of the white man….Now, what does this bill propose? All born within the United States are to be considered citizens of the United States, and as such shall have in every State all the rights that belong to any body else in the State as far as the particular subjects stated in the bill are concerned. ” Senator Johnson, William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. ___ (1868)
His clear statement that the Amendment made children of aliens citizens (Chinese were not allowed to be naturalized and hence all were aliens):
“The Amendments to the Constitution now pending seek to make citizens of the United States of all men born in the country of lawful age…It makes citizens not only of the pet negro but also of the filthy Chinese.” Sen. Johnson, The Congressional Globe, 3rd Session, 40th Congress pg. 1067 (1868)
Lovely person, huh? His opinion on Presidential eligilbity:
“No one who is not a native born citizen of the United States, or a citizen at the time of adoption of the Consitution, can be voted for.” Sen. Johnson, The Congressional Globe, 2nd Session, 38th Congress, pg.552 (1865)
Feel stupid yet?
Birthers are so clueless about the 1866 Civil Right’s Act debates or the debates surrounding the 14th Amendment and are jumping on a foolish bandwagon. KBOA was one of the latest victims 🙂
Reverdy Johnson was an interesting character. He not only won Dred Scott, he is credited with giving his good friend Justice Taney his winning argument. He was the highest paid lawyer in the nation, but did Dred Scott pro bono. However, he then lead the fight against his home state of Maryland from seceding. Perhaps that is why they tolerated him in Congress though one Senator went after him when he suggested setting aside funds for a statute of Taney. Talk about tone deaf. A clever lawyer, in the debates, when he talked of Dred Scott, he generally cited Justice Curtis’ dissent, not Taney’s majority, knowing its was Cutris’ opinion that the Republicans praised. The “pet negro” and “filthy chinese” comment seems to make clear what he really was.
The birther’s latest hero?
Yeah, it is certainly “loaded dice” in all of these types of statements. But trust me, the racial and religious bigots out there know exactly what type of argument they are making…and yes, they really *do* want to “go there”…