I Am For and Against Automatic Birthright Citizenship

I Am For and Against Automatic Birthright Citizenship

This post is modified with corrections from a similar post on Mario Apuzzo's Natural Born Citizn blog on September 14, 2015 at 1:23 AM, September 14, 2015 at 8:25 AM, and September 14, 2015 at 12:08 PM.

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

<<>>

Mario's comment on September 14, 2015 at 8:25 AM below was posted after my 1:23 am post and before my 12:08 pm post, but I am posting in first (I opened it up for quick reading) as an introduction to the subject of "automatic" birthright citizenship.

Mario Apuzzo, Esq. said...

Art,

I think the best way to look at the question of what is birthright citizenship is to say that there are two types, one that exists by virtue of natural right and one that exists by virtue of positive law. David Ramsay explained that the former ["natural right"] belongs only to the children born in the country to citizens parents since July 4, 1776. In the Constitution, the Framers called these persons "natural born citizens." The latter ["by virtue of positive law"] exists under the naturalization powers that the Framers gave to Congress in the Constitution and under an amendment to the Constitution which is the Fourteenth Amendment.

No branch of our government has the power to alter the meaning of a natural born citizen. Only a duly ratified constitutional amendment can do that. On the other hand, government can always change the conditions precedent for gaining

(e.g., the Fourteenth Amendment give Congress the power to enforce birthright citizenship by appropriate legislation and Congress in its naturalization Acts, when it has even given such a right at all, has over the years required that one or both parents of children born to them out of the United States satisfy a U.S. residency or physical presence requirement)

and conditions subsequent for maintaining

(e.g., Congressional naturalization Acts have over the years provided various conditions for the retention of citizenship gained by one born out of the United States)

birthright citizenship that exists as a creature of positive law.

Concerning, Robert Natelson, he tries too hard and keeps failing. He has the nerve to make this statement:

"I would try to square my case with precedent

instead of arguing that precedent

should be disregarded."

Wow!

He is the one who[,] concerning the definition of a natural born citizen[,] is presenting an argument that disregards both historical and legal precedent.

I've cited and discussed that precedent over the years in my briefs to the courts and on this blog and elsewhere and the best he can do is say that in defining a natural born citizen, we adopted the allegiance of the English common law to define the clause, a position which is treason to and fraud upon the Constitution.

There is simply no evidence of such an outlandish statement and he advances it.

Now he also presents himself as a friend offering a helping hand to those who opposed birthright citizenship.

Natelson needs to be exposed for his treason and fraud on the Constitution which he sneaks into his innocent articles on defining the Fourteenth Amendment.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

This is my comment on September 14, 2015 at 1:23 AM.

In Prof. Rob Natelson's third article at AmericanThinker.com, he says that he does not have a dog in this hunt, but he woould counsel the opponents of birthright citizenship to go with precedent and to not disregard precedent.

Arguing the Constitutional Case Against Birthright Citizenship for Children of Illegals
By Rob Natelson, September 12, 2015
>> http://www.americanthinker.com/articles/2015/09/9_7_2015_14_53.html

"I do not have a dog in this hunt.

But if I were legal counsel for opponents of birthright citizenship,
I would take their legal argument in an entirely different direction.
And I would try to square my case with precedent

instead of arguing that precedent should be disregarded."

"In two prior postings (here and here), I listed flaws in the constitutional arguments of

opponents of birthright citizenship for children of aliens living here illegally.

"For children to be American citizens by virtue of the Fourteenth Amendment, they

must be born within American territory and they (or rather their parents)

must be “subject to the jurisdiction” of the United States.

Those opposing birthright citizenship

hurt their own case by basing it principally on the claim that

visiting foreigners never qualify as “subject to the jurisdiction.”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Well, I'm not a lawyer, so I can't offer legal counsel to "opponents of birthright citizenship" like Natelson is doing, but I can propose more clarity in framing the argument in a way that Natelson can not because his point is precedent. What he means is not really as clear as it could be.

Here is my second comment on September 14, 2015 at 12:08 PM.

Mario, it seems that I did not include part #2 in my comment yesterday, so here it is, after the "First, dittos" comment.

First, dittos to your first sentence today, September 14, 2015 at 8:25 AM:

"I think the best way to look at the question of what is birthright citizenship is to say that there are two types,

one that exists by virtue of natural right and
one that exists by virtue of positive law."

Your "two types" is another way of saying what I write below in part #2: "by" birth ("natural right") and "at" birth ("positive law").

~ ~ ~ ~ ~ ~ ~ ~ ~

First, from part #1 yesterday:

This is what I mean.

1- Who is a proponent of automatic birthright citizenship? I am.
2- Who is an opponent of automatic birthright citizenship? I am.

It seems that "automatic birthright citizenship" ("abc") can mean two different things, "by" birth to U.S. citizen parents and also "at" birth to non-U.S. citizenship parents, and confusion arises because "abc" is usually referenced as meaning primarily "at" birth citizenship for the children born on U.S. soil to alien parents, legal and illegal.

This is part #2 -

1 - I support U.S. automatic birthright citizenship "by" birth ONLY for children born on U.S. soil to U.S. citizen parents, either born to two U.S. citizen married parents, or born to one U.S. citizen parent, whether that U.S. citizen parent is married to the non-U.S. citizen parent or not married.

2a - I oppose U.S. automatic birthright citizenship "at" birth for children born on U.S. soil to legal alien parents.

Some people say that the child born on U.S. soil to legal alien parents is an automatic citizen "at" birth because the 1898 U.S. v. Wong Kim Ark court implicitly said, tacitly, of course, that both "at" birth and "by" birth was the original intent of the 1868 Fourteenth Amendment, and what it "really" meant in 1868, even though the child of alien parents could NOT be an automatic citizen "by" birth because the legal alien parents were, well, still aliens who did not have U.S. citizenship to pass on to the child "by" birth.

2b - I oppose U.S. automatic birthright citizenship "at" birth for children born on U.S. soil to illegal alien parents.

Some people manage to "break and enter" our property (cross our borders) to "plop and drop" their "anchor baby" after they are told that the illegal alien child is an automatic citizen "at" birth, not knowing that it was Justice Brennan who said in a note that, according to the 1898 Wong court, the "by" birth children of illegal alien parents should not be treated differently than the "by" birth children of legal alien parents.

Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy
by Lino A. Graglia

Texas Review of Law and Politics Vol. 14
>> http://www.trolp.org/main_pgs/issues/v14n1/Graglia.pdf

[...snip]

" Although there is no Supreme Court decision on the issue of birthright citizenship for children of illegal aliens, it is referred to in the dicta in a few cases."

[...snip]

"In a footnote, Justice Brennan interpreted Wong Kim Ark(64) as holding that “no plausible distinction . . . can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”(65)

"That statement cannot settle the matter, however, because it is not only a pure dictum—a gratuitous statement unnecessary to the decision of the case—but also based on the mistaken premise that Wong Kim Ark decided the case of illegal aliens.(66)"

~ ~ ~ ~ ~ ~ ~ ~ ~

Justice Brennan and Prof. Natelson can learn about precedent by distinguishing between natural rights "by" birth (Article II Secion 1 clause5) and positive law "at" birth (Fourteenth Amendment Section 1 sentence 1).

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