Automatic Birthright Citizenship Is Constitutional—IF

"Automatic Birthright Citizenship" Is Constitutional—"IF"

&

Do Rely on John Jay—YES

Do Not Rely on the 14th Amendment Congressional Debates—YES

This post is modified with corrections from a similar post on Mario Apuzzo's blog on September 4, 2015 at 12:38 PM, September 5, 2015 at 10:39 PM, September 5, 2015 at 10:43 PM and September 6, 2015 at 4:41 PM.

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

<<>>

ajtelles said...

Sven, I didn't quote Blackstone. In part #3 on August 31, 2015 at 11:58 PM, I quoted Prof. Erler who mentioned Blackstone and his historical point of view.

Erler's essential point was that the language of the Declaration of Independence severed the perpetual allegiance of the perpetual subjects of the British monarch, and that the U.S. Constitution codified the independence. Also, the Fourteenth Amendment affirmed U.S. sovereignty of the citizens, meaning that automatic birthright citizenship is not implicit in the American common law, not to be confused with the feudal law and British common law.

Art

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This is Mario's comment on September 4, 2015 at 4:13 PM.

Mario Apuzzo, Esq. said...

Art,

Natelson's comment "other countries or under international law" shows how much of a weasel he is. He makes it look like some other argument would be one under international law, thereby appealing to an anti-international law spirit. The truth of the matter is that the Founders and Framers called it the law of nations, not international law. Jeremy Bentham coined "international law" and the expression was not used until after the Constitution was ratified.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

This is my comment on September 5, 2015 at 10:39 PM.

Mario,

Two reasons for this comment.

First, this is my uncredentialed (aka not having letters after my name, whether summa cum laude, magna cum laude, cum laude, or whew, I made it), layman's response to Prof. Rob Natelson, who has another article on American Thinker in which he clarifies the 1868 “original genesis original intent” (my words) of the Fourteenth Amendment as understood by two prominent framers, Senators Lyman Trumbull of Illinois and Jacob Howard of Michigan, and how automatic birthright citizenship should be construed today in 2015 America.

>> http://www.americanthinker.com/articles/2015/09/birthright_citizenship_opponents_should_not_rely_on_14th_amendment_congressional_debates.html

Second, in my comment to Sven on September 4, 2015 at 12:38 PM, I wrote something accurate but it could be confusing if construed with Fourteenth Amendment intent as defined by the erroneous 1898 Wong Court: I wrote "...meaning that automatic birthright citizenship is not implicit in the American common law.…"

In a certain sense, “automatic birthright citizenship” definitely IS “implicit in the American common law” if the language is correctly applied and articulated.

If “birthright citizenship” means that the Fourteenth Amendment implies “automatic” U.S. citizenship for children of legal immigrants or children of illegal aliens, then, no, “not” is accurate. However, if originalists take control of the language and use “birthright citizenship” in a better way to constitutionally mean that the 1868 Fourteenth Amendment Section 1 first sentence word “born” incorporates the 1787 meaning of “born” in “natural born Citizen” in Article II because the parents of the child born on U.S. soil are both U.S. citizens married to each other before the child is born, then, yes, it is accurate to say that “birthright citizenship” definitely IS “automatic” when U.S. citizenship as derived from the two U.S. citizen married parents.

The way "automatic birthright citizenship" is construed today in 2015 to mean that the children of legal immigrants or illegal aliens have “automatic” Fourteenth Amendment U.S. citizenship, yes, "automatic" citizenship for children of foreign citizenship parents, legal or illegal, was NOT implicit in the 1787 American common law as articulated in Article II Section 1 clause 5 ("No Person except a natural born [U.S.] Citizen"), or as articulated in the 1868 Fourteenth Amendment Section 1 sentence 1 ("All persons born...subject to [U.S.] jurisdiction").

Since the legal immigrant and the illegal alien single parent is not subject to U.S. jurisdiction as they would be if they were a U.S. single parent and a U.S. citizen, and the legal immigrant and illegal alien married parents are both not subject to U.S. jurisdiction as they would be if they were both U.S. married parents and U.S. citizens, the obvious commonsense conclusion is that the alien child of legal immigrants or illegal aliens is also NOT subject to U.S. jurisdiction as a U.S. citizen.

Commonsense, even in 2015 America, affirms that, starting in 1787, even foreigners, the legal immigrants and their children born on U.S. soil and illegal aliens and their children born on U.S. soil, were subject to the penal code prohibitions against murder, manslaughter, stealing, breaking and entering (either breaching the borders of a house on private property or breaching the borders of a country), etc., and statutes concerning owning of property. They simply were not under U.S. jurisdiction as naturalized U.S. citizens are, and so they could not and still can not pass on to their children what they, the parents, do not have: U.S. citizenship.

However, "automatic" U.S. citizenship under the American common law (the common understanding) of "citizenship and allegiance" (which, since the July 4, 1776 Declaration of Independence, rejected English perpetual "subjectship" and perpetual allegiance" to the monarchy) definitely WAS, in 1787 (and still IS in today 2015 by originalists, aka John Jay “born” birthers and constitutional original intent birthers), a commonsense implied reason for John Jay to underline the word "born" in "natural born Citizen" in his July 25, 1787 note to George Washington. That 1787 "automatic" construction obviously was also accepted by the Constitutional Convention delegates/framers and eventually was accepted by all thirteen state ratifiers, including John Jay, a 1783 Treaty of Paris plenipotentiary signatory (one of three) ending the war of independence from England, a Union founder, a New York ratifier, and the first Supreme Court Chief Justice.

Since a child born in the U.S. to two U.S. citizen married parents in 1787 America meant that the child had "automatic" U.S. citizenship status "by birth", well, that child, born to two U.S. citizen married parents, also had "automatic" "natural born Citizen" status "by birth". Also, since, in 1787 America and in the following years, until the 1922 Cable Act gave the wife the option to retain her foreign citizenship or not, the wife in 1787 America acquired by marriage the U.S. citizenship of the husband. That being so, the U.S. citizenship of the husband determined the U.S. citizenship of the wife, AND the U.S. citizenship of BOTH parents “automatically” determined the U.S. citizenship of the child born after the marriage of the parents. This means that the child automatically acquired ONLY singular U.S. citizenship ONLY by birth on U.S. soil ONLY by birth to two U.S. citizen married parents.

This 1787 commonsense common law understanding continued to and through the 1866 Civil Rights Act and the three reconstruction amendments (1865 Thirteenth, 1868 Fourteenth, 1870 Fifteenth) until the 1898 United States v. Wong Kim Ark Court erroneously held that a child born on U.S. soil to legal immigrant alien parents, was, ipso facto, regardless of the original intent of the Fourteenth Amendment word “born” as incorporated from the 1787 word “born” in “natural born Citizen” as a tacit reference to being born with singular U.S. citizenship by being born on U.S. soil to two U.S. citizen parents, was by judicial fiat ALSO a U.S. citizen even though the U.S. citizenship was NOT derived from the foreign citizenship of the parents.

What the Court gives by fiat, the Court can take away and correct by fiat. If not the Court by fiat, then the Congress can take away and correct by statute. If not the Congress by statute, then the Congress can take away and correct by Article V amendment. If not the Congress by Article V amendment, then We the People with our state legislatures of the “several states” can take away and correct by amendment.

The way I see it:

By taking control of the language and using “automatic birthright citizenship” accurately so that “automatic” means either “by” birth on U.S. soil to one U.S. citizen parent (a “citizen”), or “by” birth on U.S. soil to two U.S. citizen married parents (a “natural born Citizen”), both Article II Section 1 clause 5 and the Fourteenth Amendment Section 1 sentence 1 will cohere and make sense in a way that will show the error of the 1898 United States v. Wong Kim Ark Court holding that a child born on U.S. soil to zero U.S. citizen parents is still a U.S. citizen. A coherent constitutional understanding of “born” and “citizen” in the Fourteenth Amendment that incorporates the original intent of “born” in “natural born Citizen” in Article II can be agreed to before a possible Article V convention of states to propose the amendment to clarify that “born” in the Fourteenth Amendment Section 1 sentence 1 and “born” in “natural born Citizen” in Article II Section 1 clause 5 can ONLY mean “born” on U.S. soil to either one (Fourteenth Amendment) U.S. citizen parent, or two (Article II) U.S. citizen married parents.

By statute the U.S. Congress can declare a child born on foreign soil to one U.S. citizen parent to be a U.S. citizen “at” birth but NOT “by” birth. For that reason the child, a U.S. citizen by statute, can NOT be a “natural born Citizen” “by” birth, and so the child is NOT “… eligible to the Office of President.”

By statute the U.S. Congress can also declare a child born on U.S. soil to zero U.S. citizen parents to be a U.S. citizen “at” birth but NOT “by” birth. For that reason the child, a U.S. citizen by statute, can NOT be a “citizen” “by” birth, and so the child is also NOT a “natural born Citizen” and is also NOT POTUS eligible.

A U.S. citizen “by” birth to one Fourteenth Amendment U.S. citizen parent obviously could NOT be a “natural born Citizen” “by” birth to two U.S. citizen married parents, and would NOT be POTUS eligible, while a U.S. citizen “by” birth to two Article II U.S. citizen married parents would be a “natural born Citizen” and so would be POTUS eligible.

While it is obvious that an Article II “natural born Citizen” “by” birth on U.S. soil to two U.S. citizen parents, from whom is derived “singular” U.S. citizenship, is a higher hurdle than a Fourteenth Amendment “citizen” “by” birth on U.S. soil to one U.S. citizen parent, and definitely a much higher hurdle to a congressional statute “citizen” “at” birth, even a Fourteenth Amendment “born” citizen, aka a U.S. citizen “by” birth on U.S. soil to at least one U.S. citizen parent, is a higher hurdle than a congressional statute that simply declares in one session of Congress that citizenship is “at” birth on foreign soil for a child born to one U.S. citizen parent, and also a higher hurdle than the 1898 Supreme Court holding that citizenship is “at” birth on U.S. soil for a child born to zero U.S. citizen parents.

If one session of Congress can declare a child to be a U.S. citizen “at” birth, a succeeding session of Congress can change the previous citizenship “at” birth declaration to NOT a citizen “at” birth as was the case earlier in U.S. statute history when an alien was an alien, not only “at” birth by statute but “by” birth to alien parents.

However, absolutely NO Congress can rescind by statute, and absolutely NO Supreme Court can rescind by holding, that citizenship “by” birth, EITHER “by” birth to one Fourteenth Amendment U.S. citizen parent OR “by” birth to two Article II U.S. citizen married parents, is the original genesis original intent of “born” in “natural born Citizen” in Article II Section 1 clause 5 and “All persons born...subject to [U.S.] jurisdiction” in Section 1 sentence 1 of the Fourteenth Amendment.

That is a constitutional way to use the language to clarify that “automatic birthright citizenship” is implicit in “born” in “natural born Citizen” in Article II Section 1 clause 5 and implicit in “born” in the Fourteenth Amendment when applied ONLY to a child born with singualr U.S. citizenship ONLY by birth on U.S. soil, ONLY to a child born a U.S. citizen “by” birth to one OR two U.S. citizen parents.

If Congress wants to declare that a citizen “by” birth on U.S. soil to one U.S. citizen parent is a “singular” U.S. citizen and NOT a dual U.S./foreign citizen, Congress can do so, according to Article I and Section 5 of Article V. However, because the “singular” U.S. citizenship status would be by statute, the child so declared to be a “singular” U.S. citizen could NOT be construed to have “singular” U.S. citizenship “by” birth as would a “natural born Citizen,” and so the child would NOT be “...eligible to the Office of President.” If the Congress does not pass such a statute, the child is, “by” birth to one U.S. citizen parent, a dual U.S./foreign citizen if the parent is NOT married to the U.S. citizen partner (or the foreign citizen partner), of if the U.S. citizen parent IS married to the foreign citizen partner, or if the other parent/partner, U.S. citizen or foreign citizen, is not known, or, if known, does not or can not accept paternity or maternity.

For these reasons and more that could be added (e.g., the jihad percolating in America is an internal ideological struggle that transcends political parties, and, it seems to me, only the intervention of the architect of the universe, YHWH (pronounced Yahuah, some prefer Yahweh) the transcendent Creator, can alleviate the pain that is coming to America), this is the way I see it:

_“Automatic birthright citizenship” for a child born on foreign soil to one U.S. citizen parent?—NO!

_“Automatic birthright citizenship” for a child born on U.S. soil to illegal alien parents?—NO!

_“Automatic birthright citizenship” for a child born on U.S. soil to legal immigrant parents?—NO!

_“Automatic birthright citizenship” for a child born on U.S. soil to legal immigrants and one parent joins the military service but who, at this time, can not become a U.S. citizen by statute until AFTER release from service?—NO!

_“Automatic birthright citizenship” for a child born on U.S. soil to one U.S. citizen parent but NOT “...eligible to the Office of President”?—YES!

_“Automatic birthright citizenship” for a child born on U.S. soil to two U.S. citizen married parents and the ONLY “by” birth citizen “...eligible to the Office of President”?—YES!

Art

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This is Mario's comment on September 6, 2015 at 12:21 AM

Mario Apuzzo, Esq. said...

Art,

Yes, Professor Robert Natelson is at it again. He follows with another article, “Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates,” accessed at

http://www.americanthinker.com/articles/2015/09/birthright_citizenship_opponents_should_not_rely_on_14th_amendment_congressional_debates.html . There he states:

* As I explained recently, in two cases the U.S. Supreme Court has decided that the Citizenship Clause’s term “subject to [U.S.] jurisdiction” means subject to the English common law doctrine of “allegiance.” In general, that doctrine recognizes most children born in a country as natural born citizens, including the children of visiting foreigners. And in the more crucial case, United States v. Wong Kim Ark, the allegiance rationale was central to the holding, not mere “dicta” as sometimes asserted.

So again, under the guise of writing on the Fourteenth Amendment debate, Natelson again tells the reader what he thinks a natural born citizen is. Here he errs again. Now he tells us that the English common law doctrine of allegiance “recognizes most children born in a country as natural born citizens, including the children of visiting foreigners.” What is amazing about this statement is that Natelson tells us that the English common law did something which did not even exist in that law. There is no such thing as a citizen or natural born citizen in the English common law. There is also no evidence that the Framers used the English common law to define a natural born citizen. Hence, how could the English common law doctrine of allegiance recognize anyone as a natural born citizen? It cannot.

Additionally, Natelson says that Wong Kim Ark defined an Article II natural born citizen and that such definition is not dicta. Again, Natelson is just making things up, for Wong Kim Ark never held that Wong was a natural born citizen, let alone define a natural born citizen any differently than how Minor defined one. So, it is not that Wong Kim Ark’s statement that Wong was a natural born citizen is dicta. Rather, it is that Wong Kim Ark never even made any such statement. 

As we can see, Natelson is really far out on the limb on the meaning of a natural born citizen. He has no further room to go other than to just fall off.

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Do Rely on John Jay—YES

Do Not Rely on the 14th Amendment Congressional Debates—YES

Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates
By Rob Natelson – September 4, 2015
( http://www.americanthinker.com/articles/2015/09/birthright_citizenship_opponents_should_not_rely_on_14th_amendment_congressional_debates.html )

Mario,

Dittos to your last sentence September 6, 2015 at 12:21 AM:

"As we can see, Natelson is really far out on the limb on the meaning of a natural born citizen. He has no further room to go other than to just fall off."

The confusion continues with the use of "birthright citizenship" continuing to be applied with approval to children born on U.S. soil to illegal aliens or legal immigrants as well as to children born to one OR two U.S. citizens. When "birthright citizenship" begins to be applied accurately ONLY to children born on U.S. soil to at least one U.S. citizen parent, married or not, and ONLY to children born on U.S. soil to two U.S. citizen married parents, "birthright citizenship" will make coherent sense when "born" in "natural born Citizen" in Article II Section 1 clause 5 is incorporated into "All persons born...subject to the [U.S.] jurisdiction..." in Section 1 sentence 1 of the Fourteenth Amendment.

>> https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States

"Birthright citizenship in the United States refers to a person's acquisition of United States citizenship by virtue of the circumstances of his or her birth.

"It contrasts with citizenship acquired in other ways, for example by naturalization later in life.

"Birthright citizenship may be conferred by jus soli or jus sanguinis.

"Under United States law, U.S. citizenship is automatically granted to any person born within and subject to the jurisdiction of the U.S."

When birthright citizenship is "...granted to any person born within...U.S.," is the nonsense conclusion when the Fourteenth Amendment is construed contrary to Article II.

In the seventh paragraph from the end, Natelson wrote (I separated the sentences):

"Insofar as one can divine a consistent understanding of “subject to the jurisdiction” from these debates, it appears to mean “subject to American judicial process and the law.” 

["It appears to mean" is tentative language, not conclusive.]

"Tribal Indians and diplomats were not subject to either one, and therefore were outside U.S. jurisdiction in the sense that term was used in the amendment.

"But aliens within the borders of the U.S. -- legally or illegally -- are subject to both. [emphasis is his]

In the sixth paragraph from the end, Natelson wrote (I separated the sentences):

"Reading the amendment to grant citizenship to the children or other descendants of resident foreigners may, in fact, have been necessary to accomplish its purpose.

"In 1868, when the amendment became effective, some former slaves had been illegally imported from Africa, and therefore were foreigners.

"They remained citizens of the tribe or nation into which they had been born."

In the fifth paragraph from the end, Natelson wrote (I separated the sentences):

"Most of the other former slaves also were legally aliens: They were the descendants of foreigners; neither they nor their ancestors had ever been naturalized. 

["...neither...nor...naturalized" is a true statement, and that fact was rectified by "naturalized" in the Fourteenth Amendment]

"Because they were slaves they could not take advantage of the common law rules of allegiance to claim natural-born status.

["...common law rules of allegiance to claim natural-born status" is a curious conclusion, and Natelson does not adduce any history to support the tacit suggestion that claiming natural-born status was attempted before 1868 or since then, by any race. Elk in Elk v. Wilkins (1884) claimed "citizen" status, not "natural-born" status]

"In fact, under the rule issued by the Supreme Court in its notorious 1857 Dred Scott decision, all African-Americans living within the United States, whether or not enslaved, were legally foreigners.

"Arguably, then, the Citizenship Clause could not have accomplished its goals of overruling Dred Scott and affirming citizenship for African-Americans if it had excluded foreigners and their progeny."

["Arguably,...could not...if" is tentative language, not conclusive]

In the fourth paragraph from the end, Natelson wrote:

"Arguably, then, if the Fourteenth Amendment had excluded foreigners and their progeny, it could not have achieved the goal of granting citizenship to newly freed slaves."

["Arguably,...if...could not" is tentative language, not conclusive]

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It is this kind of "if/then" tentative and not conclusive conclusion that I had in mind when I wrote previously on Mario's blog (September 5, 2015 at 10:39 PM) that if "born" in "All persons born...subject to [U.S.] jurisdiction" in Section 1 of the Fourteenth Amendment is associated with "born" in "natural born [U.S.] Citizen" in Article II Section 1 clause 5, the incorporation of the original intent of "born" which is inherent in Article II will affirm the Article II original intent (singular U.S. citizenship by birth on U.S. soil to two U.S. citizen married parents) and affirm the coherence that is inherent in the original intent (U.S. soil and at least one U.S. citizen parent) word "born" in the Fourteenth Amendment.

The "if/then" conclusion sounds plausible when the fact of the continuing illegal importation of slaves is adduced to support a presupposition based on logic that "appears" to be so and is "arguably" so, but was not so in the debates themselves. Natelson does not adduce any debate quotes about the illegal importation of slaves continuing, and so, using Prof. Natelson's logic, it "appears" that the continuing illegal importation of slaves was "apparently" implicit in the "possible" intent of the Fourteenth Amendment even though the continuing illegal importation of slaves was not, it "appears," explicit in the debates.

Why?

Is it because the debates do not support Prof. Natelson's eisegetical conclusion?

The "if/then" conclusion of Prof. Natelson could be made to cohere with both the Fourteenth Amendment "born" and Article II "born" as originally intend by John Jay (see below).

But, hey, what do I know? I don't have honorably earned letters indicating esteemed constitutional scholarship after my name indicating respected achievement as Prof. Natelson has, followed by twenty-five years of esteemed teaching.

None of the preceding sentence has any sarcasm, intended OR implied. I sincerely mean the words "honorably earned" and "respected achievement" and "esteemed" to convey respect. With respect I can ask the next question about Prof. Natelson's Article II "natural born Citizen" aberration as revealed in his Fourteenth Amendment aberration that the 1868 slaves could not "claim" "natural-born status" before ratification of the amendment.

I'm curious.

How can Prof. Rob Natelson be so right about the original intent of Article V where "...the several States, shall call a Convention for proposing Amendments..." and be so wrong about "No Person except a natural born Citizen, or a Citizen at the time..." in Article II Section 1 clause 5 and also so wrong about "All persons born...subject to [U.S.] jurisdiction..." in Section 1 sentence 1 in the Fourteenth Amendment?

I think I have at least one plausible reason for Prof. Natelson can be so right about Article V and so wrong about the Fourteenth Amendment. He did not consider to adduce John Jay and his original intent as the author of the word "born" in "natural born Citizen" in his July 25, 1787 note to his friend George Washington. If Prof. Natelson wants to use tentative language like "appears" and "arguably" to make a reasonably sounding conclusion, for example, about the continuing illegal importation of slaves into antebellum America before the 1868 Fourteenth Amendment was ratified, well, maybe he can posthumously ask John Jay some basic questions about Jay's "original genesis original intent" for underling the word "born" in "natural born Citizen" in his July 25, 1787 note to George Washington.

For example, Mr. Chief Justice John Jay, on July 25, 1787, when you underlined the word "born" in "natural born Citizen" in your note to George Washington regarding who would be "...eligible to the Office of President," what did you mean? After virtually no debate by the delegates/framers about your meaning of "born" in "natural born Citizen," the framers who signed the new constitution accepted and adopted your language suggestion with your "original genesis original intent" (those are my words, not Jay's) meaning, and sent the entire constitution to the states for ratification.

So, what did you mean Mr. Chief Justice, and what did the framers and ratifiers, and you were one of the New York ratifiers, what did the other ratifiers understand you to mean?

1_Did you mean ONLY singular U.S. citizenship?

2_Did you mean EITHER singular U.S. citizenship OR ALSO dual U.S./foreign citizenship?

3_Did you mean ONLY born on U.S. soil?

4_Did you mean EITHER born on U.S. soil OR born on foreign soil?

5_Did you mean ONLY born to two U.S. citizen parents married to each other BEFORE the child is born?

6_Did you mean ONLY born to two U.S. citizen parents who were NOT married to each BEFORE the child was born?

7_Did you mean ALSO born on U.S. soil to zero U.S. citizen parents?

8_Did you mean ALSO born on foreign soil to at least one U.S. citizen parent, married or not?

9_Did you mean ALSO born on foreign soil to two U.S. citizen married parents, as stated in the 1790 Naturalization Act which "considered" (that is statute positive law language) a child born on foreign soil to U.S. citizen parents to be a "natural born Citizen" before the 1795 Naturalization Act changed the designation from "natural born Citizen" to "citizen?"

I think that John Jay, an original founder, an original ratifier, and an original birther according to the "born" word in Article II Section 1 clause 5, would bring coherence to Prof. Natelson's articulation of "natural born Citizen" in both Article II and the Fourteenth Amendment as he attempts to substantiate that the antebellum (and pre-Thirteenth Amendment free Negroes???), "[b]ecause they were slaves they could not take advantage of the common law rules of allegiance to claim natural-born status, but, and this is speculation based on his conclusion, the former slaves would probably have liked to "claim" not only citizenship but also natural born citizenship, whether or not they would have considered themselves to be "...eligible to the Office of President."

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