I am a legal analyst who studied this topic almost exclusively over the course of three years. The law discussed below was debated heatedly on-line and discussed at length with two congressmen, Thaddeus McCotter (MI) and Michael Burgess (TX). As a paralegal I’ve done litigation and critical research for a few attorneys, as well as bestselling author Jerome Corsi.
So, prior to exposing you to my research, let me acknowledge that most Americans are biased cognitively that being born on U.S. soil makes any child a citizen, with a few traditional exceptions. I will prove that this is a misconception created by a flawed Supreme Court case in 1898, Wong Kim Ark.
From the first common law cases, British law was denied as having precedential value unless the high court of the state recognized that law. There are numerous court holdings to this effect, however I will only cite from a January 11, 1800 notice from the Virginia General Assembly to its Senators:
“Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts — To oppose the passing of any law, founded on, or recognizing the, principle lately advanced, “that the common law of England is in force under the government of the United States, excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; …. and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.” Tucker’s Blackstone, Appendix, page 438
I will add more citations showing the topic was one of opinion, but the debate over the power of foreign law influencing Supreme Court decisions is also a modern one, a recent justice explaining that foreign law may not be ‘followed, but is instructive nonetheless.’
Pa. 1897. The omission of a statute from the list of English statutes reported by the judges of the Supreme Court as in force in Pennsylvania, 3 Binn. 595, raises a strong presumption that such statute is not in force there. Gardner v. Keihl, 37 A. 829, 182 Pa. 194.
The above holding insists that because the English statute was not included in a ‘list of statutes’ reported, i.e., codified/approved by the Supreme Court, it had no power of stare decisis.
Pa. 1818. The construction of English statutes before the revolution will be given great weight in construing Pennsylvania statutes in pari material. Seidenbender v. Charles, 4 S. & R. 151, 8 Am.Dec. 682.
Again, those English statutes were given weight and were persuasive, but only in analog in construing existing Pennsylvania statutes.
The statutes passed in England before the emigration of our ancestors, which are in amendment of the law, and applicable to our situation, constitute a part of our common law. Pa. 1782. Morris’ Lessee v. Vanderen, 1 Dall. 64, 1 L.Ed. 38. O. & T. 1783. Republica v. Mesca, 1 U.S. 73, 1 Dall. 73. 1 L.Ed. 42.
This final citation is from 1782, prior to the first ratification of the constitution.
While British law is what lawyers studied, American law being in its infancy, the creation of precedent in cases and controversies not subject entirely to police or statutory enforcement was, obviously, the role of the courts. That is common law by definition.
However, when error in the courts, e.g., considering Calvin’s Case (1608) law is absurd. Yet, some jurists were so Anglo-centric that such was the case:
The opinion of the most celebrated jurist of our country, is, expressly in favour of my position. Judge Tucker, in his notes on Blackstone, not only considers the rule in Calvin’s case to be law, but applies it to the antenati Americans, who he says may hold lands in both countries McIlvaine v. Coxe’s Lessee, 6 US 280, 311 (1804)
2010 Code of Laws of South Carolina:
SECTION 14-1-50. Common law of England shall continue in effect. [SC ST SEC 14-1-50] All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section.
How about Virginia?
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. Code 1919, §2, §1-10; 2005, c.839
§ 1-201. Acts of Parliament. The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill Of Rights and Constitution of this Commonwealth and the Acts of Assembly. Code 1919, §3, §1-11; 2005, c.839
Note that the British law cited is respected, but cannot be in conflict with state statute.
This is the core of the debate over Natural Born Citizen viz. Jus Sanguinis vs. Jus Soli. Jus Sanguinis is statutory from 1790 to 1855, changed only by Wong Kim Ark in 1898. However, the constitution gave congress plenary power over naturalization law, not the judiciary. The judiciary cannot create, only enforce naturalization law. Indeed, Wong Kim Ark in even mentioning Calvin’s Case and feudal English common law (indeed, British statute was to the contrary) imposes the conflict warned against in the state codes I cited supra.
Wong Kim Ark was not only an error in its reasoning, but in direct violation of existing statute and constitutional law.
Why is this topic important?
The failure of the Wong Kim Ark court started a chain of events creating our serious immigration problems, the violation of our southern border, and loss of sovereignty in several Southwestern states, especially in their border regions. (Cf. Arizona’s HB 1070.)
Indeed, the clamor for Comprehensive Immigration Reform by McCain/Kennedy (supported by President Bush) cost the Republicans congress in 2006 which lead to the election of Barack Hussein Obama, the son of a non-immigrant alien who was a Muslim and a radical Marxist. In fact, this is not only Obama’s heritage, history will show it to be his legacy as well.
If the Republicans do not recognize this issue as vital and overcome their own cognitive dissonance and bias, comprehensive reform (i.e., abandoning existing laws because of the lack of will to enforce them) will be the death knell not just of the Republican Party, but our Constitutional Republic. How? If a nation allows massive influx of aliens who do not fully assimilate, it creates schism and chaos. Elections and the Welfare State will overwhelm the will of traditional citizens. In fact, the granting of drivers licenses in New Mexico is of such a number that they comprise 10% of the electorate. While they are technically not allowed to vote, nobody stops them.
While biblical prophesy is a sensitive subject, the Dream of Nebuchadnezzar interpreted by Daniel, continued in the Revelation of John, described a series of World Powers starting with Egypt and ending with Rome in Daniel, and a final World Power described by the angel to John in direct reference to the ‘feet of clay’ of Nebuchadnezzar’s vision of a statue made of many materials.
The ‘feet of clay’ was explained as the final World Power made of potter’s clay and iron, with the appearance initially of strength, but in the end an ineffective foundation. The iron parts represented ‘princes’ from all the nations who comprised the final nation’s citizenry, i.e., immigrants. In fact, the Chinese to this day call Chinese U.S. citizens ‘princes.’
Why I started studying the Aliens and Nationality Act
Starting with the 2008 Phil Berg lawsuit challenging Obama’s citizenship I began a reading of all things related to nationality law, i.e., naturalization, aliens, and nationality.
Phil Berg did not file a frivolous suit, but he did make one error in fact and the law which resulted in a false conclusion: he didn’t realize that because Obama, Sr. was a Muslim polygamist, already married in Kenya, that the marriage to Dunham was void ab initio, therefore Obama, Jr. was a ‘bastard’ (note: the terms of art bastard or illegitimate are not used in modern law). Berg posited in court that Obama was not a U.S. citizen; I pointed out to Berg (much to his chagrin) that statutes provided conferring of citizenship through the mother.
Sstarting with the 1922 Cable Act (Assoc. Justice Ginsberg is quoted noting these statutory provisions for abandoned or unmarried wives married to aliens being from the 1930’s) laws were created to give American women who married aliens the right to confer their ‘maiden’ citizenship to children if abandoned by the alien husband.
The $64,000 Question
Therefore, was Obama a citizen at birth (admitted in his own autobiography a dual national at birth) because of these statutory provisions, or being born in Hawaii?
Granted, being born on U.S. soil was a condition of the statute, but so were Dunham’s age and years of U.S. residency post age fourteen. Conversely, if the father was a U.S. citizen those provisions would not be necessary for citizenship at birth determination. That is a clue how vital the father’s nationality is in determining citizenship.
Place of Birth, or the Father’s Nationality?
The law as interpreted and adjudicated now puts an emphasis on Place of Birth. However, this is from an error in a 5 to 4 Supreme Court decision in Wong Kim Ark (1898).
Briefly, Ark was born in the United States to Chinese nationals who were barred from citizenship by the Burlingame Treaty and the Chinese Exclusionary Act. Ark’s parents had no intention to become citizens. In fact, they left the United States to live out the remainder of their lives in China. Their son traveled to China too, but one time on his return he had reached the age of majority and was denied re-entry.
The majority opinion in Ark was written by Assoc. Justice Gray. It was flawed for two major reasons: 1) The court had no jurisdiction over legislated act unless the act was unconstitutional; and, 2) The court did have jurisdiction over Treaty, but did not have the courage to break it. The court, however, did have the courage to impose its power unlawfully over congress’ Article 1, Sec 8 plenary power over Naturalization Law.
The First One Hundred Years of U.S. Nationality and Naturalization Law
From the First Uniform Naturalization Act of 1790 through its revisions through 1855, the nationality of the father was the sole determination of a child’s nationality.
However, this would require Wong Kim Ark to apply for his own citizenship, but that was barred by both the Burlingame Treaty and the Chinese Exclusionary Act. So, the court relied on a feudal law, a British law even Blackstone called ‘Gothic,’ and ruled that because the Ark family had legal domicile in the United States, their son was a citizen because he was born on U.S. soil. In other words, the court claimed the U.S. had sole ‘jurisdiction’ over Ark, not the nationality of the father. This raised the principle of ‘jus soli’ (soil) over ‘jus sanguinis’ (blood).
This ruling was even a fallacious application of the ancient principle of king’s rights of dominion and the jus soli, because even in feudal times the alien with domicile, called a ‘habitant, ‘sojourner,’ or ‘denizen’ had a right to declare his allegiance to his native country and deny the king the birth allegiance of his son.
In addition, it was a standard practice in well-established and recorded U.S. law, from the very beginnings of our judicial system, that British common law had no precedent value unless the high courts of the states specifically codified them. Indeed, Chief Justice Taft in the Weedin vs Chin Bow case, 274 US 657 (1927) observed:
The very learned and useful opinion of Mr. Justice Gray, speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, — that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute,..
Please note that the truth was just the opposite; U.S. statute for the first one-hundred years of our Constitutional Republic relied solely on jus sanguinis! His reasoning was not based on fact, or law. It was a massive assumption in direct violation of existing law, which then had to be revised as Title 3, 8 U.S.C. 1401 after the fact!
The 1790 First Naturalization Act and the 1722 British Nationality Act
Further proof the judges were way off base in both Ark and Bow are in the British and U.S. statutes determining citizenship from the very beginnings of our nation and the first congress. In the 1790 Act et seq, a minor child was only a U.S. citizen upon naturalization of the alien father. Conversely, a child born on U.S. soil to a British subject was a natural born British subject.
That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, . . . intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom. 1772 British Nationality Act
In other words, in the eyes and understanding and statute, an Obama born on U.S. soil, even to an unmarried or married U.S. citizen mother, would be the nationality of the father. Indeed, there was no such concept as dual nationality until modern liberal interpretations of the law, and various provisions of treaty.
Therefore, not only would not see Obama, Jr. as a U.S. citizen, but certainly not an Article II ‘natural born’ citizen, required if he was to run for president.
The 14th Amendment
The 1866 Civil Rights Act was one of the post-Civil War reconstruction acts, guaranteeing citizenship to children of freed slaves. Its preamble defined black children of slaves to be citizens, thusly: ‘children born in the United States to fathers not subject to any foreign power.’
Why? Because as property (re: the Dredd Scott decision) slaves had no nationality and therefore their children were stateless, thus proving the historic primacy of the jus sanguinis principle. Following that logic, if jus soli was always the principle of citizenship at birth, then the 14th Amendment and its precursor act would not have been necessary.
In order to prevent Southern states from revising this Act in future congresses, the 14th Amendment was immediately proposed and passed in 1869, its preamble reading, ‘children born in the United State and under the jurisdiction thereof.’ The debate over the 14th Amendment concentrates on the meaning of ‘jurisdiction,’ however it is nationality jurisdiction (as opposed to local jurisdiction), proven by the precursor preamble in the 1866 Act.
The 1855 Act was revised to reflect the 14th Amendment, following the preamble which you can read in Title 3, 8 U.S.C. 1401.
Does the Law as it now stands make Obama a ‘natural born citizen’?
While the law, as misinterpreted in Ark, makes children of aliens legally domiciled, or now even if not legal (a liberal corruption of Ark itself), citizens at birth, ignoring the national jurisdiction over the father, i.e., native allegiance, scholars agree that Ark did not revise Article II’s natural born citizen.
Some judges conflate ‘citizen at birth’ with ‘natural born citizen,’ reasoning there are only two types of citizens, born or naturalized, but they are in error. “There are only two types of citizens: those who are native born and those who are naturalized.” Schaufus v. Attorney General of United States 45 F.Supp. 61,66 (D. MD 1942)
A child born of alien parents on U.S. soil, even if the mother is a citizen, is a citizen at birth by force of statute, i.e., naturalization law, that statute artificially removing foreign jurisdiction through ‘de-alienage.’ A natural born citizen requires a U.S. citizen father, as that was the law from 1790 to 1855; a misinterpretation of statute by the courts cannot ‘revise’ Article II of the U.S. Constitution, only congress can amend or revise the constitution.
Two Vital statutes from the Aliens and Nationality Act
8 U.S.C. 1424 — denies issuing of visas to anarchists and Marxists. Those politically or religiously opposed to our constitution are ineligible not only for citizenship, but entry and temporary residency in the United States. This was violated by the Schneiderman case, Schneiderman vs. United States, 320 U.S. 118 (1943), forcing the Secretary State to accept an avowed communist activist’s entry into the United States and his recently acquired citizenship.
If one studies the Koran and Hadiths, and 1300 years of Muslim history, this bar on visas should also apply to all of the Muslim faith (Cf. Obama’s father).
8 U.S.C. 1135 – bars allocation of visas in times of high unemployment.
Obviously, these statutes are not being enforced. Indeed, the proposed Comprehensive Immigration Reform Act must address these two issues, or a conflict of law will exist.
Before you dismiss the above legal position, I suggest you access Chief Justice Fuller’s Dissent in the Wong Kim Ark case. It is cogent and brilliantly written. The Appellant’s Brief in Ark is also available on-line.
The United States has allowed its borders to be violated. Indeed, the Immigration Service expends 30X the effort in dealing with illegal aliens than its true purpose of processing desirable legal aliens.
Furthermore, a misinterpretation of law and multiple violations of jurisprudence created an unconstitutional holding in Wong Kim Ark, a holding that has lead to a complete and radical revision of one-hundred years of statutes controlling immigration and naturalization.
That resulted in the election of an ineligible president, the son not only of an alien father, but a father who was an ideological enemy of the United States viz. his both Muslim religion and as an avowed, radical Marxist.
Finally, if the Republicans co-operate (are bamboozled) in this immigration reform nonsense instead of first ordering control of our Southern border, the party of Lincoln and our constitutional republic will be over. The tyranny, if not fascism, of the current administration will become a permanent fixture in the American politic.
Important links to documents referenced supra: