Ai Yai Yai—Automatic Natural Born Citizen?

Ai yai yai—Automatic Natural Born Citizen?

This post is modified with corrections from a similar post on Mario Apuzzo's blog on August 31, 2015 at 11:56 PM.

>> http://puzo1.blogspot.com/2015/07/july-4-1776-birth-day-of-nation-and.html

<<>>

Ai ya yai is what I said after I read Rob Natelson's American Thinker article, August 31, 2015, "An Objective Guide to Birthright Citizenship." Ai ya yai is what my Spanish speaking friends say here in El Paso, Texas, only about five miles from Juarez, Mexico, said by researchers to be the murder capitol of the world (ai ya yai).
A Quote from Natelson (bold emphases is mine) -

"United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally resident foreigners was a natural born citizen. ... The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. ...

"The most important lesson of Wong was this: the Constitution's version of "allegiance" was the version we inherited from Great Britain in 1776 – not versions prevailing in other countries or under international law. This agrees with the independent conclusion in my book, The Original Constitution: What It Actually Said and Meant."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

So, implicitly speaking, Professor Natelson can also be construed to be saying that “born” in “All persons born or naturalized ….” in the Fourteenth Amendment means the same thing as “born” in “natural “born” Citizen” in Article II section 1 clause 5. A child born on U.S. soil is a “citizen” who is automatically a U.S. citizen by birth AND, the cherry on top, AND a natural “born” citizen, even if both parents are not U.S. citizens.

So, y'all come, now, hear? That includes stealth jihad terrorists who are “dreamers” of the world wide ummah, the Arabic word for the Muslim "community" that is similar to the the marxist collective "commune."

Maybe, this would be a good time to post what Professor Edward Erler said on Mark Levin's radio program a few days ago about “automatically” as it applies to “jurisdiction” in the Fourteenth Amendment Section 1 sentence 1.

Their emphasis is illegal aliens, anchor babies and “automatic” birthright citizenship. However, “automatic” also applies to the U.S. born children of aliens whom Prof. Natelson identifies as “legal resident foreigners,” since, before they were declared to be “citizens,” they were identified as alien children of alien parents. Before the 1898 U.S. v. Wong Kim Ark Court declared alien children to be “citizens” they were aliens, and now, people who should know better, like Prof. Natelson, they now say the "alien" children are not only U.S. "citizens" but also U.S. “natural born citizens” and so "...eligible to the Office of President."

Fourteenth Amendment:

"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.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

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Posted by The Right Scoop on Aug 19, 2015 at 8:07 PM
“Mark Levin interviews a professor who is one of the foremost EXPERTS on birthright citizenship”

2 part conversation on TheRightScoop.com

>> http://therightscoop.com/mark-levin-interviews-a-professor-who-is-one-of-the-foremost-experts-on-birthright-citizenship/

PART 1

[...snip]

Levin-

Now, Professor Erler, Ed, this birthright citizenship issue has come up again, and it amazes me, it amazes me that people that push this policy for birthright citizenship for illegal alien babies pretend that the Constitution's on their side and that we have to amend the Constitution to say what it actually says.

Would you briefly explain what's going on here?

Erler-

Well, the Constitution is not on their side, it has never been on their side, and it doesn't require a constitutional amendment to end birthright citizenship. I think the framers of the Fourteenth Amendment would be astounded at the low level of the debate that's taking place today.

If you just look at the language of the Fourteenth Amendment, "all persons born or naturalized, and subject to the jurisdiction of the United States are citizens of the United States." There are two requirements, [1] you have to be born or naturalized, [2] but you must also be subject to the jurisdiction.

Mark-

Let me stop you right there. I just want to take it step by step.

Is it not true, if an illegal alien baby were to be an immediate American citizen, that that's all we would need is the front part of that section, correct?

Erler-

That's exactly right.

[The "front part" that Mark is referring to is "All persons born or naturalized...subject to the [U.S.] jurisdiction is a citizen...." That means that "jurisdiction" is not needed if "all persons born" on U.S. soil are automatically U.S. citizens the instant they are born on U.S. soil.]

Mark-

Which says, anybody born in the United States is what? Can be a citizen or naturalized. Great. Ok, why do we need any more?

Erler-

That's exactly right. If you say that all persons born here are automatically citizens, then you've rendered the jurisdiction clause of the Constitution superfluous. If the framers had meant that everybody born here is automatically a citizen they would have left out the jurisdiction clause. So, you've automatically amended the Constitution by saying that anyone born here is automatically a citizen.

[Prof. Erler is saying that the "birthright citizenship" proponents who assert that birth on U.S. soil automatically makes a person a citizen and that what is meant by "born" is automatic citizenship, then it is they who have amended "jurisdiction" out of the Constitution by asserting that birth automatically makes a person a citizen.]

Levin-

Has the Supreme Court ever ruled that?

Erler-

No, never. Never a ruling by the Supreme Court that says that children of illegal aliens born in the United States are citizens of the United States. There's never been a case on point.

Levin-

Now, let's take this next section which is crucially important and in which you are the expert as far as I'm concerned. Subject to the jurisdiction of the United States. We have a lot of slip and fall lawyers running around professing to know that means the geographic territories of the United States. Now, that can't possibly mean that, can it?

Erler-

Well, most people say that it means that you're just subject to the courts of the United States, or subject to the laws of the United States, but what the framers of the Fourteenth Amendment said, it means owing allegiance to the United States. Owing exclusive allegiance.

One of the interesting things that came up at debate was that Jacob Howard, who was Senator from Michigan, who was the author of the citizenship clause, he was asked whether the Fourteenth Amendment would make Indians citizens of the United States, and he said no. They were born in the United States, he said, but they were not subject to the jurisdiction because they owed allegiance to their tribes and not to the United States.

So, what it means to owe allegiance is, not to be subject to the laws of the United States, but it means to owe allegiance, exclusive allegiance, to the United States. And I submit to you that those people who come to the United States, breaking the laws of the United States, are not demonstrating allegiance to the United States or allegiance to the laws of the United States. And it would just be incredible to believe that the framers of the Fourteenth Amendment would confer the boon of citizenship upon the children of illegal immigrants when they said explicitly that that boon was not to be conferred upon the children of native persons.

Levin-

And so, I guess the question is, how did we get from that to where we are today where people insist, no, if somebody's born here in the United States of illegal alien parents or an illegal alien mother, then they have automatic citizenship. Who says? What, the State Department?

Erler-

As nearly as I can figure it out, it must have been the decision somewhere along the line in the State Department. The only Supreme Court case that we have that is even close is a case call Wong Kim Ark in 1898, where the child born in the United States of legal immigrant parents, was declared to be a citizen of the United States, but nowhere has a Supreme Court decision ruled that children of illegal immigrants are citizens of the United States. So, I cannot figure out, myself, and I've tried to my best, where the decision to make children of illegal immigrants was decided.

Levin-

But it's not in the constitution. It's not in the history of the amendment. It's not in a Supreme Court decision, so it must have been burped out of the bureaucracy somewhere, right?

Erler-

That's my belief, yes. Now, the other thing about whether or not it would require a constitutional amendment. I think that that is simply not the case for this reason. In 1870, this was two years after the Fourteenth Amendment ratified, the Senate asked the Senate Judiciary Committee to do a study about the status of American Indians, and the Judiciary Committed issued a report that said it is very, very clear that the amendment did not tend to make citizens out of American Indians, that the primary purpose of the Fourteenth Amendment was to settle the citizenship of the newly freed slaves.

Levin-

Now, let me stop you there. Why did they need to settle the citizenship, just for historic purposes? Why did they need to settle that. 'Cause the states were a problem then, weren't they?

Erler-

Yes. Prior to the Civil War, state citizenship was primary. Every citizen of a state, for all practical purposes, was considered to be a citizen of the United States. So, that, in order to keep the states from denying citizenship to the newly freed states, uh, the newly freed slaves, the citizenship had to be reversed. Federal citizenship had to come first, and state citizenship was derivative from federal citizenship.

Levin-

So, this was one of three, what we call, civil rights amendments. And, by the way, who had to ratify these amendments?

Erler-

The states.

Levin-

So the states are imposing upon themselves, it's quintessential federalism. For people,"and the federal government?" No, the states did this.

Erler-

Exactly right. But, my point was this. After the Fourteenth Amendment was ratified, the Congress began to pass pieces of legislation inviting various Indian tribes, or extending offers of citizenship to members of various Indian tribes.

[Start of part #2]

Levin-

Professor Edward Erler, expert on many things constitutional and political, including the Fourteenth Amendment and the so-called birthright citizenship clause.

Professor, you were talking about no amendment needed. The amendment says what it says. Go right ahead.

Erler-

My point was that American Indians were not included within the jurisdiction of the United States according to the Fourteenth Amendment as originally passed. Congress passed federal pieces of legislation under their authority, under the Fourteenth Amendment, bringing American Indians under the jurisdiction of the United States. In 1923 they passed a law offering citizenship to all native Americans.

So, this is precedent where Congress has passed legislation determining who is within the jurisdiction of the United States. And it is my contention that Congress could, today, pass legislation determining again who is within the jurisdiction of the United States, this time saying that children born of illegal aliens are not within the jurisdiction of the United States, not subject to the jurisdiction of the United States. So, there is precedence for such legislation.

And as we currently speak, there are bills circulating in both House and Senate purporting to do that very thing. Those bill probably will not pass, and they would certainly be vetoed by President Obama, but at least there is an attempt to pass such legislation.

Levin-

So, Article 1 Section 8 Clause 4, does not Congress have plenary power in this regard? You know, we talk about what will the courts do? The courts have implied judicial authority I would argue, implied judicial review authority, I should say. But, here we have and explicit grant of power to Congress. Do we not?

Erler-

We do, but under the Fourteenth Amendment, Section 5, which gives Congress the power to enforce the provisions of the Fourteenth Amendment, they have already exercised their legislative power to say who is withing the jurisdiction of the United States, and I think they could just simply do that, saying children of illegal immigrants, born within the boundaries of the United States are not subject to the jurisdiction of the United States.

Levin-

What about children of diplomats? I mean, you're a diplomat, you come to the United States, you're serving, you have a child here. Under the theory of those who talk about birthright citizenship as a matter of geographic jurisdiction, wouldn't that child automatically become a United States citizen?

Erler-

No. I think it was simply understood at the time, they would not be considered.

By the way, Senator Howard, when he made a statement about the Fourteenth Amendment, who would be within the jurisdiction, said diplomats would not be.

Levin-

No, that's what I'm trying to underscore.

Erler-

Diplomats would not be, but he also said those who are here who are aliens would not be subject to the jurisdiction of the United States. So he said very, very clearly at the beginning that aliens and children of aliens are not subject to the jurisdiction of the United States. So, I don't know why we don't just take the framers of the Fourteenth Amendment at their word, and stop this nonsense about all persons born within the geographical confines of the United States are automatic citizens of the United States.

No country who can't determine who are to become citizens is any longer a sovereign nation. I think it's that simple. If we can't determine who are to become citizens or treat citizens differently from non citizens, I'm sorry, we're just no longer a sovereign nation. It is that simple.

Levin-

There's really only a few countries that do this. We do. I know Canada does. There can't be many.

Erler-

I think Kenya still does it.

Levin-

Let me ask you this. Let's make this in plain English as we can so that even I can understand it.

What about those who refer to common law? What does common law have to do with this, as opposed to constitutional or statutory law?

Erler-

A lot of people say, people on the progressive side of the political scale say the Fourteenth Amendment adopted the common law standard of citizenship, which is birthright citizenship. But, if you look at what the common law says [sentence not finished].

Levin-

Alright, let's stop. What is common law?

Erler-

Well, this was the law that was in force during colonial times and is still the law in force in Britain. But, the common law in, Blackstone is the authority, he wrote in the mid eighteenth century a huge multivolume work, commentaries on the common law of England. When he talks about birthright, he calls it subjectship. He never uses the word citizenship in all of his commentaries on the common law of England. It's always birthright subjectship. And he said that the law of subjectship in England is a borrowing from feudal law. It is the relationship between master and servant. There is no such thing as citizenship under the common law. And what he says is, if you were born within the protection of the king, you owe allegiance forever to the king as a debt of gratitude. In other words, you can never get rid of your debt of gratitude to the king.

Now, in the Declaration of Independence, we said that we are dissolving our allegiance to the king of Great Britain. We no longer owe allegiance to the king of Great Britain. Now, I submit to you, having dissolved our allegiance to the king, which by the way is a gross violation of the English common law as it was understood at the time, do you think that the framers of our constitution adopted the British common law of birthright subjectship as the ground of our citizenship? That's too absurd for anybody to even consider.

Levin-

Well, you say it's too absurd. I think I just read, I hope I'm not wrong in saying this. I think I just read a former staffer to John Cornyn, the senior Senator, Republican from Texas, making that point. Referring to common law, which is so absurd. Why do we even have to refer to common law?

Erler-

I have no idea. James Wilson, who was a signer of the Declaration of Independence, a member of the Constitutional Convention and later a Supreme Court Justice said in one of his Supreme Court opinions, in America there are citizens but no subjects. And that is the message of the Declaration of Independence and the Constitution. There are citizens but there are no subjects, but under the common law there are only subjects.

In 1868, in a companion piece to the Fourteenth Amendment, the same senators and congressmen who passed the Fourteenth Amendment, passed what is known as the Expatriation Act in which they said the doctrine of the common law basis for citizenship is a feudal doctrine which we are repealing, and we are allowing people of America to repudiate their citizenship if they want to leave the country. Under the common law it is impossible to repudiate your citizenship and to go to some other place where you think you can get a better deal.

Levin-

So, you point here is, common law had nothing to do with this. In fact, it defeats the argument because we're talking about being subjects, not citizens, if you actually adhere to common law. That's number one. Number two, as a lawyer I can tell you, you would never have to refer to common law. We have a constitution, and that constitution has an amendment, and the amendment says what it says, the history behind the amendment says what it says, and if people want to confer birthright citizenship on illegal alien children, then they have to amend the constitution, not us.

Erler-

That's exactly right. You hit the nail right on the head there, Mark, and I think that encapsulates the whole thing.

There used to be a doctrine of constitutional jurisprudence that said that whatever was in the common law that was contrary to the principles of the Declaration of Independence was repealed at the revolution. And if there was anything that was contrary to the principles of the Declaration, it was the doctrine of perpetual allegiance to the king of Great Britain. And that's what the common law required with respect to birthright subjectship. That has no place in America, and it was repealed by the Declaration, and it was repealed by the Fourteenth Amendment.

Levin-

And it just amazes me, not only progressives, professor, use this argument of subjugation, they may not even realize it, but, they're in to subjugation, if you ask me, but you have Republicans making the same argument, frankly, linking to it on some of our favorite websites. Have you noticed that?

Erler-

I have noticed that, and I think it's a travesty.

Levin-

It's an outrage.

Erler-

It is.

[...snip]

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Well, it looks like the work of We the People isn't finished, since it has not really started yet. When “born” in the Fourteenth Amendment and “born” in Article II are identified as meaning ONLY singular U.S. citizenship ONLY by birth on U.S. soil, and, as applied to Article II for POTUS eligibility, ONLY birth to two U.S. citizen married parents, and, as applied to the Fourteenth Amendment for citizenship eligibility, either two U.S. citizen married parents OR one U.S. citizen parent, maybe, at that time, commonsense will reign again.

Well, at least that's the way I see it.

For Article II “natural born Citizen” POTUS eligibility:

_ONLY singular U.S. citizenship
_ONLY by birth on U.S. soil (or U.S. jurisdiction on foreign soil)
_ONLY by birth to two U.S. citizen married parents
_ONLY married to each other
_ONLY before the child is born

For Fourteenth Amendment “citizen” eligibility but NOT POTUS eligibility:

_EITHER singular U.S. citizenship
(not POTUS eligible – both parents may be U.S. citizens but NOT married to each other)

_OR dual U.S./foreign citizenship
(not POTUS eligible – parents have mixed citizenship and are NOT married to each other)

_ONLY by birth on U.S. soil

(or U.S. jurisdiction on foreign soil)

_ONLY by birth to at least one U.S. citizen parent
(not POTUS eligible)

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This post is modified with corrections from a similar post on Mario Apuzzo's blog on September 4, 2015 at 1:37 AM.

>> http://puzo1.blogspot.com/2015/07/july-4-1776-birth-day-of-nation-and.html

<<>>

Robert said...

"How do Levin and Erler get so deep into the definition and foundation of citizenship regarding illegal immigrants and their children and still remain blind to the definition of "natural born citizen"...."

Dittos Robert, great observation.

The discussion was about the birthright citizenship of the children of illegal immigrants, so Levin and Erler did not get anywhere near "nbC" in their discussion.

Levin's point is clarified in part #6, the first paragraph, on Mario's blog on August 31, 2015 at 11:59 PM:

Levin-
"...if people want to confer birthright citizenship on illegal alien children, then they have to amend the constitution, not us."

Erler-
"That's exactly right. You hit the nail right on the head there, Mark, and I think that encapsulates the whole thing."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

To me it seems a natural link between the obvious singular U.S. citizenship implication of "born" in "No person except a natural born Citizen...shall be eligible to the Office of President" in Article II, and the obvious singular U.S. citizenship implication of "born" in "All persons born or naturalized...and subject to the [U.S.] jurisdiction..." in the Fourteenth Amendment.

The words "subject...jurisdiction" can ONLY imply ONLY singular U.S. citizenship of the child born in the United States, because the original intent of the 1868 Fourteenth Amendment was to hardwire the original intent of the 1866 Civil Rights Act for the benefit of the already FREE Negroes of 1866 and 1868 who had already been freed by the 1865 Thirteenth Amendment before Pres. Lincoln was assassinated on April 14, 1865 by John Wilkes Booth.

Of course, the implication of "born" and "naturalized" and "subject...jurisdiction" also applied to the Caucasians already living and domiciled in the United States, and those of any race or nationality who would be naturalized later, including the Chinese after the Chinese Exclusion Acts were rescinded, so the ethnicity of the new "citizen" by birth or naturalization did not need to be specified in the same way that Section 2 of the Fourteenth Amendment excluded the indigenous Indians ("excluding Indians not taxed") since the indigenous Indians were already not considered to be subject to the jurisdiction of the United States until 1923 by Congressional statute.

It seems to me that a natural clarifying progression would be to work backwards to Article II from the Fourteenth Amendment Section 1 by applying to Article II Section 1 clause 5 what Prof. Erler said about feudal law and "subjectship" in his Blackstone reference:

"... And he [Blackstone] said that the law of subjectship in England is a borrowing from feudal law.

"It is the relationship between master and servant. There is no such thing as citizenship under the [British] common law" [i.e., the British "common law" regarding perpetual allegiance and subjectship, aka perpetual servant to perpetual master, not the American common law regarding allegiance and citizenship, allegiance of citizen to citizen under law].

[...snip]

"Now, in the Declaration of Independence, we said that we are dissolving our allegiance to the king of Great Britain.

"We no longer owe allegiance to the king of Great Britain.

"Now, I submit to you, having dissolved our allegiance to the king, ... do you think that the framers of our constitution adopted the British common law of birthright subjectship as the ground of our citizenship?

"That's too absurd for anybody to even consider."

That comment by Prof. Erler about dissolving “allegiance” and "British common law" is contrary to what Prof. Natelson said about "'allegiance'...we inherited from Great Britain in 1776" in my quote above on August 31, 2015 at 11:56 PM:

[...snip]

"The most important lesson of Wong was this: the Constitution's version of "allegiance" was the version we inherited from Great Britain in 1776 – not versions prevailing in other countries or under international law.…"

Natelson's reference to "other countries or under international law" looks like a tacit reference to Emer de Vattel and his Law of Nations book. Maybe Natelson will feel confident in the future to make the case, if this is his intent in the above quote, about why Vattel in not relevant to the American version of common law, allegiance, citizenship, and, as Prof. Erler put it, the 1868 “Expatriation Act in which they said the doctrine of the common law basis for citizenship is a feudal doctrine which we are repealing."

Art
U.S. Constitution: The Original Birther Document of the Union
( OriginalBirtherDocument24.blogspot.com )