Posts Tagged ‘wong kim ark’

Legislative History of INA § 301(g) Proves Mark Levin WRONG About Ted Cruz

February 6, 2016

This article was published by World Net Daily. It is an important legal memorandum and simplifies the constitutional questions of how statute affects terms of art in the original text:

Opinion: Leonard A. Daneman on Ted Cruz Eligibility

http://www.wnd.com/2016/02/ted-cruzs-eligibility-tied-to-womens-rights-movement/

Legislative History of INA § 301(g)

The Citizenship of Ted Cruz Tied to Women’s Rights Movement

[Personal Note:   Why should I care? That is the $10 Trillion Question. If the Obama presidency had been blocked by the ‘birthers,’ perhaps our National Debt wouldn’t have doubled!

My response to Ms. Clemon’s comment summarizes the legal question: “So, the question is if the Harvard article or mine is in the public interest: Does the introduction of foreign nationality to a child who claims being a natural born citizen benefit the presidency viz Article II, or the singular citizenship of a child born of two U.S. citizens as it was from the beginning satisfy the intent of the framers?”

Here is another salient point: If the nationality of the father is inconsequential, then only the citizenship of the mother matters. After all, a child of a U.S. citizen father or alien father is eligible as long as the mother was a U.S. citizen!

How about Prof. Lawrence Tribe, who put so much weight on ‘native born’ that a child of two aliens, legal or illegal, is eligible to the presidency, just as long as they were born on U.S. soil.

Modern Americans have a ‘perception’ of Naturalization; not real knowledge. When you mention naturalization, they think of a courtroom with a U.S. flag and a line of new immigrants with their right hands raised giving the oath of allegiance.

Hopefully, after you read this article  (about 1700 words) on naturalization and repatriation of married women with children, you will understand that the framers would have never intended the child of an alien father eligible to the presidency; even if a so-called ‘citizen at birth.’ Alexander Hamilton proposed a version of Article II that specified a child ‘born a U.S. citizen,’ but John Jay insisted on a ‘natural born citizen,’ which cannot be created or changed by naturalization Law.

Ted Cruz’ citizenship through his mother was created by Naturalization Law. The 1952 statute separated him from Canadian citizenship upon moving to the U.S. at age four, and repatriated him through his mother. And so he is not eligible to run for the presidency.

Naturalization laws that gave Ted Cruz citizenship rights from birth were and still can be altered and changed, man-made. However, birth from two U.S. citizen parents is outside and independent of man-made law, and therefore a ‘natural’ born citizen.]

The following shall be nationals and citizens of the United States at birth:

INA § 301 g. a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States.

Not all, but many legal professionals conclude that because Ted Cruz was a ‘citizen at birth,’ he is Article II eligible to the presidency.

However, at the time of the framers there were only four ways to become a citizen:

  1. You were a citizen of one of the states at the time of adoption of the  constitution
  2. You were born to a U.S. citizen father (more on the mother later)
  3. Your father naturalized while you were a minor child
  4. You naturalized after reaching the age of majority

Under both our First Uniform Naturalization Act of 1790 and the British Nationality Act of 1772, a child was the same foreign nationality as the father. Children were born with the father’s nationality through sanguinity, through blood, a legitimate and natural inheritance.

Now, consider this fact: That at the time of the framers and over 100-years of our history, Ted Cruz would have only become a citizen of the United States under #4 in the list above.

Based on both British and United States law, even if the mother was born a U.S. citizen, being married to a Canadian or British subject her child born in the United States would not be a U.S. citizen. And Ted Cruz was born in Canada.

So, I ask you the following:

  1. Would the framers and Article II as written and intended consider Ted Cruz a natural born citizen?
  2. Under 1930’s naturalization law, did repatriation to the United States of a mother with minor children, married to an alien father, revise Article II as written and intended? (See Intermediate Scrutiny Test)

The answer to both is ‘No.’

While naturalization law was once uncomplicated, the women’s rights movement unintentionally created a dichotomy in the legal doctrine of sanguinity, requiring an expansion of naturalization laws to deal with dual nationality at birth and repatriation.

What is Naturalization?

The Illinois Board of Elections decided that Ted Cruz was a natural born citizen. “The board distinguished between natural born and naturalized citizens, pointing out that Cruz did not have to take any steps to go through a naturalization process at some point after birth.”

By ‘process’ the board makes a common mistake, only seeing naturalization as that of an adult renouncing one citizenship (Ted Cruz renounced Canadian citizenship in 2014) and being permitted to take the Oath of Allegiance for U.S. citizenship. However, there is more to naturalization, as can be seen in the extensive body of law.

A minor’s nationality is affected by actions of parents; and which parent’s citizenship applies to the child comes under naturalization law. What happens when the child is born in another country, or to one alien parent? What happens when the child lives as one nationality, but before reaching the age of majority wishes to assume the other? This is also naturalization and includes numerous conditions and requirements as part of the legal ‘process.’

Minor vs Happersett (1875) declared, in a case involving a woman’s right to vote, it was ‘never doubted’ that the child of two U.S. citizen parents was a natural born citizen. And to this day it is still only that particular birth circumstance (even if born outside the U.S.) that produces a citizen naturally, without having to remove dual nationality of the minor with naturalization law.

The Evolution of Naturalization Law and Dual Nationality

The 14th Amendment is best-known for its ‘born in the United States’ and ‘equal protection’ clauses. However, it was written specifically for children born of freed black slaves. Because the father had no national allegiance or citizenship to confer to his children (See Dred Scott, and the 1866 Civil Rights Act) the legislature had to rely on, for the first time in U.S. naturalization law, birth on U.S. soil (jus soli).

The 19th and 20th century saw changes in the institution of marriage, racial inclusion, and legitimization of nullius fillius (children of unwed mothers) that required broader applications of sanguinity (inheritance by blood) if not a complete departure from it (1898). The application of ‘equal protection’ to sanguinity, until then only through the husband, created the previously unheard of concept of Dual Nationality.

Women’s Claims to Equal Citizenship Rights 1922-1940

Yale Law Journal Volume 123 Number 7, p. 2134-2573 ‘Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,’ Kristin A. Collins

The reaction of some committee members to women’s claims to gender equality reveals a strong commitment to those traditional modes of regulating nationality. For example, in 1922, Richard Flournoy—then an assistant solicitor in the Department of State and later a member of the interdepartmental committee—found the idea that a married woman would maintain her American citizenship upon marriage to a foreigner “very objectionable” on the ground that it was “obviously a direct blow at the principle of family unity”—a reference to the principles of coverture[1] that resulted in women’s loss of independent civil identity upon marriage. In 1934 Congress passed a statute that gave American women the ability to transmit citizenship to their foreign-born children with no explicit racial limitations.

A Woman’s Loss of U.S. Citizenship: Laws of Coverture

Prior to modern women’s rights, when a woman married a man she assumed a subordinate legal status to that of the husband. Before today’s no-contest divorce, communal property, and intestate succession laws, inheritance laws didn’t give a woman equal rights to property; they favored the husband’s side of the family.

In the same light, if marrying an alien she lost her U.S. citizenship. So, from the time of the framers and into the 1930’s, it was understood that only a U.S. citizen husband produced U.S. citizen children, natural born through sanguinity, father and mother together.

American women who married an alien would not only lose U.S. citizenship but produce alien children (1922):

  • 369. (a) A woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship or by reason of the loss of United State citizenship by her husband may, if eligible to citizenship and if she has not acquired any other nationality by affirmative action, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions: . . . (Repealed by act Oct. 14, 1940)

The 19th Amendment finally extended the vote to women in 1920. The 1922 Cable Act permitted repatriation to the United States if an American woman lost citizenship by marrying a foreigner. Her children would then gain U.S. citizenship with her. Other challenges were based on the ‘equal rights clause’ of the 14th Amendment, successfully comparing Coverture to slavery.

Over time, the legal doctrine of Coverture was finally eliminated. However, the retention of pre-marital U.S. citizenship created a bifurcated marriage, a dichotomy of nationalities requiring new naturalization laws to determine the child’s nationality and citizenship throughout the course of the marriage/dissolution, until the child reached the age of majority. In fact, Obama had three nationalities from birth to reaching adulthood.

However, to this day a ‘natural born citizen’ must be interpreted how the framers chose it to mean, and why; children of U.S. citizens without alienage had no possible foreign allegiance or affiliation. As specifically expressed by John Jay to George Washington, this was to avoid ‘foreign intrigue’ from the highest office of the land. Only a U.S. citizen ‘naturally born’ was immune from changes in naturalization law, natural law versus naturalization.

1933 Statute for Child Born Outside the United States Not a ‘Citizen at Birth’

Any 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; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United Sates previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and reside therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service of the Department of Labor. Am. June 10, 1933, Ex. Or. 6166, § 14; and May 24, 1934, c. 344, § 1. 48 Stat. 797. [emphasis added]

The term ‘citizenship at birth’ was not yet applied in the law.

Ted Cruz was Born December 22, 1970

Finally, the phrase ‘citizen at birth’ is used in the law.

The laws grew to accommodate women giving birth to children with dual nationality; specifically the 1940 statutes were repealed and replaced in 1952, 8 U.S.C. § 1401(a)(7) [INA § 301(a)(7)] as originally enacted by Act of June 27, 1952;

The following shall be nationals and citizens of the United States at birth:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is a non-citizen, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totally not less than ten years, at least five of which were after attaining the age of fourteen years.

That law was liberalized and codified in 1986 as INA § 301(g); 8 U.S.C. § 1401(g).

Through women’s rights and equality protection under the law, the concept of sanguinity was extended through the mother as it was, previously, only through the father; however dual nationality was a concept completely foreign to the framers and is, as you can see, the reason for the vast body of naturalization law necessary to remove any alienage created in a child at birth, or even temporary loss of citizenship due to unintentional expatriation of the mother. Only a natural born citizen, a child of two U.S. citizen parents, is immune from and undefined by naturalization law.

 

Simple Truth of Immigration Law, viz. Immigration Reform Act

June 21, 2013

There are only two political conditions in which the national allegiance of a father has no bearing on the allegiance or citizenship of the child at birth:

  1. Feudal Monarchy
  2. Slaveholder’s property rights over the issue of his slaves

I want you to think about this as you read further, because the condition of property and subjection is clearly apparent in the above. One would think rights of the father predominate in free societies, especially a constitutional republic in which the government is crafted to be ‘subject’ to the citizens, not the other way around.

As I’ve posted previously, the ratio of illegal to legal immigrants is approximately 10-to-1. For some reason, lawless behavior is the status quo and the result is a broken INS.

Therefore, the so-called Immigration Reform Act is not so much reform but utter ‘liberalization,’ including sections hidden within its one-thousand pages pledging millions in ‘pork’ to activist organizations such as La Raza. Indeed, the cowardice of our congress to control the borders and deport illegal aliens is the cause for ‘liberalization,’ i.e., reform, which in reality is the abrogation of existing law to avoid its constitutional obligations.

Here is an interesting quote from an excellent Wikipedia article, cited by the Boston Bar in their article on Jus Soli (‘right of soil’). http://www.bostonbar.org/sections/international-law/news-archive/2011/11/22/jus-soli

In the 1898 case United States v. Wong Kim Ark 169 U.S.649 (1898), the U.S. Supreme Court held that the “subject to the jurisdiction thereof” restriction applied only to two additional categories: children born to foreign diplomats and children born to enemy forces engaged in hostile occupation of the country’s territory. The Court also rejected the government’s attempt to limit Section 1 of the 14th Amendment by arguing it was intended solely to allow former slaves and their descendants to become citizens.

Actually, the latter part of the quote rejecting ‘the government’s attempt to limit’ is the key to understanding our current immigration crisis. The ‘government’ this article refers to was the U.S. Attorney in his brief [http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA] before the Wong Kim Ark. Unfortunately, only two out of nine justices of that court, including the Chief Justice, dissented, and vigorously. (Search ‘Chief Justice Fuller Wong Kim Ark Dissent’)

Indeed, the law as it stood from our nation’s beginnings, from the first Naturalization Act to its last intact revision in 1855 required a U.S. citizen Father for a child, as a minor or at birth, to be a U.S. citizen. There was no ‘right’ of soil, i.e., jus soli.

Therefore, the ‘government’ in Wong Kim Ark was correct; the 7:2 SCOTUS majority was wrong. However, many congressmen and jurists are stuck with the idea that Calvin’s Case (1608) is a common law principle adopted by the states, which just isn’t true! In fact, the English law most valuable as controlling law is the 1772 British Nationality Act, which is jus sanguinis, not jus soli.

Indeed, the 14th Amendment, a summary of the Reconstruction Acts after the Civil War, specifically the 1866 Civil Rights Act, was to protect the rights of slaves, and to remove their ‘stateless’ condition.

In fact, that stateless condition as property resulted in no nationality passed on to their children, revealing that jus sanguinis (blood of the father) was the law of the land (pun intended) and jus soli had to be conjured up, resurrected so to speak, from Gothic laws from two centuries previous, from a case called Calvin’s Case (1608). How awkward and inappropriate to cite ancient law, and foreign law too.

Some jurists say that jus soli is part of our common law tradition, inherited from English common law. Two things bely that judicial notice: 1) The 1772 British Nationality Act invoked jus sanguinis as its primary principle toward the recognition of natural born subjects, and 2) English common law was, in our earliest case law, denied stare decisis status, unless that cited law was specifically approved in the state’s highest court. [citations omitted]

As you may see now, the ‘birthright’ soil citizenship conjured up by the Wong Kim Ark majority is what created our out of control immigration problem, and must be ended. The Boston Bar suggests that Wong Kim Ark, even if in error, has been on the books so long only a constitutional amendment can change it. However, Art 1, Sec 8 gives congress plenary power over Naturalization law, and it can correct the Ark court’s misinterpretation of the 14th Amendment’s ‘born in the United States and subject to the jurisdiction thereof’ as being derived from the 1866 Civil Rights Act’s similar preamble, ‘born in the United States and not subject to any foreign power.’

Of course, activists will take that revision/addition/clarification to 8 USC 1401 to the Supreme Court, but I feel the legislature would prevail.

An Excellent Discussion of Natural Born Citizenship at Mario Apuzzo’s Blog

December 20, 2011

I’d like to refer you to attorney Mario Apuzzo’s blog, specifically the one dated December 11, 2011. It includes a list of case law with brief analysis of each very useful to your understanding of the Judiciary’s opinions on citizenship.

See http://www.blogger.com/comment.g?blogID=7466841558189356289&postID=5867093233794772942

Here is my Comment on that Blog Post:

Notice how in the Elk case, the 14th Amendment ‘born or naturalized’ aids in conflating ‘natural born’ with ‘native born,’ as most consider a child born on U.S. soil of alien parents not naturalized per se.
Therefore, they are raising statutory Jus Soli to the level of natural law.
In his work on Conflict of Laws, § 48 (1844), Mr. Justice Story, treating the subject as one of public law, wrote:
“Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established.”
Of course, the conflict is the public law concept of jus soli undermining the ‘reasonable qualification’ that was, since 1790, an integral part of legislated Act requiring aliens to first naturalize before their minor children could become U.S. citizens.
Sec. 3. Uniform Naturalization Law by Congress “And be it further enacted, That the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization; and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States:”
The champions and defenders of the Jus Soli insist that Sec. 3 applied only to children born abroad . . . yet cannot prove this when challenged.
Justice Story’s Commentaries describes the reason for making Naturalization law Uniform through Federal legislation. See http://www.constitution.org/js/js_316.htm
Uniform Law relies heavily on the Plenary Powers Doctrine. The courts in each state were limited to administering oaths and keeping records. Later, that part of Naturalization Law was given over to the Executive Branch. As cases and controversies in suit against the Secretary of State ensued, the courts declared Article III power over naturalization law and the liberal courts began rewriting it.
I recommend Mark R. Levin’s article at http://www.cis.org/CitizenshipSupremeCourt
Congress has the power to ‘fix’ the Wong Kim Ark interpretation of the 14th Amendment, merely by adding a brief definition of ‘under the jurisdiction thereof’ to 8 USC 1401, but our congressmen are, almost unanimously, misinformed and uneducated on the subject.
Indeed, a President Gingrich could address congress and teach them, and encourage them to challenge the SUPREME (or not so supreme) Court.

My E-Mail to Rep. Thaddeus McCotter

June 30, 2011

Dear Rep. McCotter,

January of 2009, you replied to my fax/e-mail to 77 Republican congressmen, begging just two of them, as required by Title 3 § 15, to submit a single-page letter to the President of the Senate challenging Barack Hussein Obama’s Electoral Votes based on his Article II eligibility, vis-à-vis Sen. McCain in SR511, and Minor vs. Happersett (1874).

Don’t you wish now that two congressmen had listened?

J. Waite in Minor followed the constitution and existing legislated act when he determined the citizenship of Ms. Minor under the following parameters:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first.

Yet, 24 years later, J. Gray in Wong Kim Ark set aside the Article I, Sec. 8 plenary power of congress and ignored the legislative history of the 14th Amendment, vis-a’-vis the 1866 Civil Rights Act, to re-establish the ancient feudal tradition of English jus soli as constitutional law itself, arrogating by Article III power over that rightfully of congress, and congressional intent in writing the Reconstruction Acts in the first place!

In addition, J. Gray violated Sec. 5 of the 14th Amendment itself:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

J. Gray ignored the brief submitted by the United States solicitor (  http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA  ) that followed existing law, instead creating his own law in direct conflict with U.S. Uniform Naturalization Act, acts which consistently followed the jus sanguinis model since first inception in March, 1790.

While the colonial states, under England, were forced to follow jus soli (See The Case of Mr. Smith) https://paraleaglenm.wordpress.com/2011/04/29/the-first-eligibility-case-1789/ ; ten months later, the 1790 Act superseded English common law and statutes and relied upon jus sanginis. (Cf. Shanks, vs. DuPont, 28 U.S. 242; 7 L. Ed. 666; 1830 U.S. LEXIS 537)

Conflicts of Law, by way of Wong Kim Ark, have created the illegal immigration problem bankrupting municipalities and hospital systems, and diluting the electorate with illegal voters to such a degree that New Mexico admits that the number of illegal alien voters has reached 10% of the vote, enough to undermine any election.

In addition, the confusion created by Ark has conflated the term ‘native born’ citizen with ‘natural born,’ resulting in the election of an avowed Marxist to the presidency, whose father was an alien from a British Colonial Protectorate, the Kenyan Colony . . . an extremist Marxist and Muslim himself . . . a person of values and purpose in direct conflict with our U.S. constitution.

Can you imagine what John Jay would say to that?

Exigency: by definition is a condition of imminent harm that is so serious that it allows constitutional rights to be suspended.

Look at our economy: Barack Obama is out-spending FDR, and pushing through unconstitutional bills and legal actions against states, corporations and private citizens. If not for the unemployment checks, there would be Depression Era soup lines. Obama has blocked domestic energy production, telling citizens complaining about gas prices to, and I quote, “Get used to it!” Yet, where are our four Schecter Brothers? Perhaps their names are Berg, Apuzzo, Donofrio, and Taitz?

The United States is facing imminent harm, citizens losing their homes and jobs and families right now.

The Stimulus Plan was not intended to create or save jobs, but to hide the damage being done to the economy and dollar until the Republicans take back the presidency, just in time for the entire system to collapse . . . on their watch , so to speak.

August 2, 2011 approaches with no pragmatic solutions to our National Debt, and a president who refuses to follow constitutional requirements of a formal budget and accounting.

Respectfully submitted,

See letters from Representatives Burges (R-TX) and McCotter (R-MI) at https://paraleaglenm.wordpress.com/2011/01/07/who-is-a-citizen-at-birth-or-a-natural-born-citizen/

Other important blogs:

https://paraleaglenm.wordpress.com/2011/02/17/the-missing-link-confusing-english-law-with-natural-born-citizenship/

https://paraleaglenm.wordpress.com/2010/01/21/a-timeline-of-barack-hussein-obamas-nationality-and-citizenships/

https://paraleaglenm.wordpress.com/2009/12/08/john-mccain-and-congressional-republicans-notified-obama-ineligible/

https://paraleaglenm.wordpress.com/2009/02/27/barack-hussein-obama-a-natural-born-subject-of-great-britain/

THE FIRST ELIGIBILITY CASE (1789)

April 29, 2011

Important Update:

In his comment section at http://puzo1.blogspot.com/, Mario Apuzzo reveals what I expected, that even though Madison won an argument that Mr. Smith was a citizen based on ‘place of birth’ principles, Madison followed the 1790 Act passed 10-months later requiring a U.S. citizen parent . . . birthplace not being an active principle in U.S. naturalization law.

http://www.scribd.com/puzo1/d/94493192-Purpura-Moran-v-Obama-Brief-and-Appendix-Filed-5-18-12 is an important read . . . very thorough . . . send to your congressman.

If she was not of age, then she might well be deemed under the circumstances of this case to hold the  citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, … 

Shanks v DuPont, 28 U.S. 242; 7 L. Ed. 666; 1830 U.S. LEXIS 537 (1830)

THE FIRST ELIGIBILITY CASE

The Case of Mr. Smith

Ramsay’s Petition in the Case of Mr. Smith, May 22, 1789,[1] was a thorough analysis of by what mechanisms a person became a U.S. citizen. #1, if I recall, was ‘by birth or inheritance.’ It was based on his nine-page Dissertation published in 1789.

The petition of Dr. Ramsey was again read, in which he stated, “That citizenship with the United States is an adventitious character to every person possessing it, who is now thirty years of age; and that it can, in no case, have been acquired but in one of the following modes: 1st, By birth or inheritance. 2dly, By having been a party to the late revolution. 3dly, By taking an oath of fidelity to some of the States. 4thly, By tacit consent. 5thly, By adoption: and that Mr. Smith cannot have acquired the character of a citizen in either of the modes, seven years ago. He cannot be a citizen by birth or inheritance, for he was born in 1758, in South Carolina, while a British colony’ and his parents were both dead many years before the declaration of independence; his birthright and inheritance can, therefore, be no other than that of a British subject; for no man can be born a citizen of a Government which did not exist at the time of his being born; nor can parents leave to their children any other political character than that which they themselves possessed.”

James Madison countered that ‘place of birth’ was the primary principle, i.e., jus solis as practiced in the states as English colonies.

FACTS

Mr. Smith’s parents died some years prior to 1776 and he was taken to England (exactly where is uncertain) to be raised and educated, returning to his birthplace, S. Carolina, at age 23. Seven years later, at age 30, he ran for congress and his citizenship was challenged.

The congressional hearing sided with Madison, disregarding Smith being ‘born’ of British subjects and not ‘inheriting’ U.S. citizenship from his parents in 1776, or becoming a U.S. citizen ‘at the time of adoption’ of the U.S. Constitution (Art. II).

Ironically, only ten months later, (March 26, 1790) the 1790 Uniform Naturalization Act was passed following Dr. Ramsay’s Dissertation and Petition[2] . . . not the colonial  jus solis position of James Madison.

Under the 1790 Act, Smith would have been required to apply for naturalization at a court of proper jurisdiction.

United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.

Note: The Wong Kim Ark case is analogous; the proper application of law would have been his appeal to the denial of his application for naturalization because of the Burlingame Treaty and the Chinese Exclusionary Act, the proper jurisdiction of SCOTUS,[3] NOT misinterpreting the 14th Amendment to create jus solis citizenship where it never was. Cf. the Hausding and Greisser cases cited in Chief Justice Fuller’s dissent in Wong Kim Ark.[4]

And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.

Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:

You ask “Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.” Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.

Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:

Richard Greisser was no doubt born in the United States, but he was on his birth “subject to a foreign power,” and “not subject to the jurisdiction of the United States.” He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.

2 Whart.Int.Dig. 399.

Many supporters of jus solis champion James Madison’s position, Madison being one of the framers of the constitution, ipso facto his jus soli position in the Case of Mr. Smith is valid and true law. However, look at the 1802 Naturalization act as cited by Justice Gray in Wong Kim Ark:

The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

Act ofApril 14, 1802, c. 28, § 4; 2 Stat. 155.

Note that this revised act discriminates clearly between two types of citizens at birth going back to the beginning of the Republic. It is not apparent at first glance, but the text infers that until the 1790 Act’s reliance on jus sanguinis, states of the new nation had to rely on traditional jus solis, as the colonies were limited to for nearly a century.

Therefore, at the time of the Smith case, weeks prior to passage of the 1790 Act, Madison was appying correct law concerning citizenship at birth.

The 14th Amendment was proposed only nine weeks after passage of the 1866 Civil Rights Act.

The 1866 Act began with “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .” Cf. The 14th Amendment’s “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”

The basic intent of the 14th Amendment and the 1866 Civil Rights Act was to guarantee full rights of citizenship to freed slaves who did not inherit either foreign or U.S. citizenship, because their slave parents were property and outside all government jurisdictions, except for those laws controlling such property.

Update — August 29, 2011    Further research presented by a friend in Virginia reveals Mr. Smith’s connections to the Revolutionary War and the Declaration of Independence. Smith maintained, through loco parentis, his S. Carolina estates, even though born as and living as a British subject in Europe. His meetings and business with Benjamin Franklin is his proof of membership of the United States as a citizen, thus meeting one of Dr. Ramsay’s conditions. However, Smith’s argument mirrors that of James Madison that birthplace alone was his membership card to the newly declared nation. Here is a link to Smith’s recorded comments: http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=210


[3] U.S. Const. Art. III, Section 2, Clause 1. Subjects of Jurisdiction.  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, . . . “

Fax this Memo to your Congressman

February 24, 2011

The concept of birthright U.S. citizenship by native-birth alone is a carryover from English law as practiced by the American colonies, but superseded by the 1790 Uniform Naturalization Act that relied on the ‘Law of Nation’s’ § 212 description of “those born in the country, of parents who are citizens.”

The reason ‘native-born citizen’ is so terribly conflated in the American psyche as synonymous with ‘natural born citizen’ is because of over a century of the judiciary ignoring U.S. statute.

The Lynch case (1844) violated the 1790, 1795, 1798, 1802, and 1804 uniform naturalization acts through semantic gymnastics and false logic, implying law and intent that went beyond the clear language of the acts themselves.

Wong Kim Ark (1897) side-stepped the existing requirements of legislated Act by creating a special ‘constitutional’ citizenship-at-birth. Ark’s violation of jurisprudence (neglecting to address treaty and equity issues actually within the court’s jurisdiction) completely ignored the 1866 Civil Rights Act’s “not subject to any foreign power” as precursor to the 14th Amendment’s “under the jurisdiction thereof” clause. Ark continues in its effect to this day, causing the courts to ignore the conflicts of dual nationality at birth and, through Plyler vs. Doe (1982), forcing states to treat children of even illegal aliens as citizens.

The Judiciary versus Congress; Removing the Redundancy

The constitution, and case law cited in Wong Kim Ark, specifically enumerates congressional plenary power over uniform naturalization law. However, while Minor vs. Happersett (1874) commented in dicta [or Judicial Notice] that a ‘natural born citizen’ was without doubt a child born of U.S. citizens, the judge in Ark intentionally fabricated a ‘constitutional’ citizen out of reach of congressional Article I powers.

The judiciary’s reliance on English jus solis principles for citizenship at birth was belied by English law itself; that law relying on both ‘descent’ and ‘otherwise than by descent,’ i.e., of patrilineal inheritance, or just born within English dominion. The courts compounded their error by creating the ‘birthright’ native-born citizen, which has burdened the states by encouraging illegal immigration. [See also the Preamble to the 1772 British Nationality Act, defining children of British subjects born outside British territory, i.e., the United States from its first inception, natural born British subjects . . . therefore, under British law Obama was a natural born British subject.]

In addition, judicial error has created a constitutional crisis, for it has justified the son of a British subject, Barack Hussein Obama, to erroneously claim Article II eligibility to the presidency through native-birth alone. This is obviously something the framers never intended.

Congress has the power to correct over one-hundred years of judicial ‘legislation’ simply by clarifying Title 8, U.S.C. § 1401(a) with a definition that “under the jurisdiction thereof” is extended from the 1866 Civil Rights Act’s “not subject to any foreign power.” The legislative history supports this amendment to existing statute.

In addition, the current misinterpretation is a gross redundancy; a child ‘born in the United States’ is obviously within its territorial jurisdiction. Foreign political jurisdiction conferred through the law of nations is, as defined in the rest of the Aliens and Nationality Act, the effect of one alien or non-citizen parent who introduces alienage.

https://paraleaglenm.wordpress.com/2011/02/17/the-missing-link-confusing-english-law-with-natural-born-citizenship/

https://paraleaglenm.wordpress.com/2011/01/07/who-is-a-citizen-at-birth-or-a-natural-born-citizen/

https://paraleaglenm.wordpress.com/2011/10/18/the-transition-from-jus-soli-obama-not-a-natural-born-citizen/