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September 10, 2020

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anon

So, ProfJudge, you believe ostracizing dissenters from the conformity of the herd is "reaching higher."

How enlightened! Perhaps you are able to sentence those who disagree with a "consensus" view on some issue to exile for a "thought crime."

Wouldn't that be the pinnacle of fairness? All's well in the Western World, thanks to the enforcers of group think, right? And, we call this: freedom (of the academic sort)!

Oh, and by the way, you are holding up three fingers. Yes, I can see that it is only two.

Larry Rosenthal

The constitutional question at issue is not a difficult one.

The Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Of course, even undocumented persons unlawfully in the United States are "subject to the jurisdiction thereof." If an undocumented person unlawfully in the country commits a crime, that person is subject to the jurisdiction of the courts; that person is similarly subject to the jurisdiction of a tribunal authorized to undertake deportation proceedings. I am John Eastman's colleague, and I have discussed this issue with him and asked him how he responds to the basic point that persons unlawfully in this country are, even on his own view, subject to the jurisdiction of courts and other tribunals, as well as the laws, of this country. I have never received a coherent response.

As for precedent, in United States v. Wong Kim Ark, decided in 1898 (well after the dicta in Minor v. Happersett mentioned by Anon), the Court wrote: "The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several
tribes." Indeed, Professor Eastman's current argument is pretty much identical to the argument of the United States that the Court rejected in Wong Kim Ark.

Although in Wong Kim Ark the Court seemed to assume that Wong Kim Ark's parents had been lawfully in the country, the Court has long held that the phrase "subject to the jurisdiction" includes all persons within territorial jurisdiction, regardless of citizenship, except for those immune from process, such as foreign diplomats. In 1886, in Yick Wo v. Hopkins, the Court wrote that the provisions of the Fourteenth Amendment "are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws." More recently, in Plyler v. Doe, the Court specifically held that undocumented persons unlawfully in the United States are nevertheless subject to its jurisdiction within the meaning of the Fourteenth Amendment: "Use of the phrase 'within its jurisdiction' thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws."

Larry Rosenthal
Chapman

anon

Larry

Was Wong Kim Ark running for President of the United States?

Did the court hold that Wong Kim Ark satisfied the "natural born citizen" requirement?

Is "natural born citizen" exactly the same as "citizen"?

SCOTUS cite please.

This thread has gone way beyond copying and pasting research on birthright citizenship.

anon

And, in the event actually reading the thread is not possible, let me repeat, re: Minor:

"This statement was, no doubt, dicta. But the point here is not the holding: it is the opinion that there were “doubts” whether persons born on the soil of the US were “natural born citizens” without reference to the citizenship of their parents.

I think we all know by now the definition of natural-born citizen in Emerich de Vattel's treatise, The Law of Nations: "The natives, or natural-born citizens, are those born in the country of parents who are citizens.”

As many have mistakenly asserted, the question of “birthright citizenship” is not what this controversy is about. As I understood his point, Eastman was exploring the meaning of “natural-born citizen.” By the well-known rules of construction, the answer to this question does not depend solely upon the meaning of the term “citizen.”"

Again, if you can cite a SCOTUS opinion on point, please do so now, to make sure that you let us all know now, better than Waite did then (writing for a unanimous court), that the clear irrefutable meaning of the "natural born" requirement is plain for all to see.

Larry Rosenthal

Anon:

Wong Kim Ark and the other cases I discuss above establish that children born in this country, whose parents are not citizens, are nevertheless citizens by virtue of their birth under the Citizenship Clause of the Fourteenth Amendment. You seem to be suggesting that the phrase "natural born" in Article II of the Constitution could mean something other than those who acquire citizenship by virtue of their birth. That is a view that is supported by neither the dicta in Minor v. Happersett nor Professor Eastman. The dicta in Minor and Professor Eastman have questioned whether those born in this country but whose parents are not citizens are "citizens"; they do not claim that there is a category of "citizens" who acquired citizenship by virtue of birth in the United States but who are somehow not "natural born citizens."

I know of no one who has ever suggested that one could be a citizen by virtue of one's birth in this country but somehow not a "natural born citizen." The most natural (and pretty much the only plausible) reading of the phrase "natural born citizen" is one who acquires citizenship by virtue of birth in this country.

Professor Eastman agrees with me on this point. In his Newsweek essay, he writes, when he is questioning Senator Harris's eligibility to be elected Vice President: "Were Harris' parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible." His argument is that Senator Harris might not be "entitled to birthright citizenship under the 14th Amendment as originally understood." Thus, Professor Eastman's argument is that Senator Harris is not even a citizen, not that she is a citizen under the Fourteenth Amendment by virtue of her birth but somehow not a "natural born" citizen within the meaning of Article II of the Constitution. Indeed, he expressly concedes that if Senator Harris was a citizen at birth, she would be "a natural-born citizen-and hence eligible." That is also the view expressed in Minor, in which Chief Justice Waite defined natural-born citizenship in terms of citizenship acquired by birth rather than naturalization: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization."

If your view is that the phrase "natural born" means that there are some citizens by virtue of their birth in the United States who are nevertheless ineligible to serve as President, you are taking a position contrary to that of Professor Eastman, and a position that, to my knowledge, no scholar or judicial opinion has ever embraced, and one that makes nonsense out of the phrase "natural born." Professor Eastman and I agree on this much: If Senator Harris was a citizen when she was born, she was a "natural born citizen."

Larry Rosenthal
Chapman

anon

Larry, you may be correct about Eastman’s position. I merely read the op ed, and haven’t studied or followed his work at all. Nor do I claim any special expertise in this area. Finally, you are surely more familiar with Eastman’s positions than I am.

All that said, this much I have also said:

1. As I read Eastman's op ed, it appeared to me that he suggested that there is no SCOTUS opinion that directly held, on the facts before the court, that birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" for purposes of the relevant requirement for the presidency. You haven’t shown otherwise. Citing Ark doesn’t get you there.

2. Again, the dicta in Minor was not cited by me to prove Chief Justice Waite was correct. It was cited to show that the meaning of “natural born citizen” as used in the Constitutional requirements for the presidency wasn’t unambiguous. Chief Justice Waite expressly cited this clause (“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 went on to distinguish, writing for a unanimous court, “natives, or natural-born citizens, as distinguished from aliens or foreigners [and] citizens [who are] children born within the jurisdiction without reference to the citizenship of their parents.” It is persons in this latter category who would be deemed “citizens” but not “natural born citizens” See, e.g. Vattel ("The natives, or natural-born citizens, are those born in the country of parents who are citizens.”) Waite wrote: “As to this class there have been doubts, but never as to the first.” Whatever you may say, there were doubts as to this distinction very close to the time the relevant documents were adopted. For anyone now to say all this is clear and unambiguous seems to me to be intellectually arrogant. As I’ve stated above, the meaning of these phrases can only be resolved by the SCOTUS, and I think there are others above who have agreed.

3. You claim these doubts are resolved by Wong Kim Ark, because that case found for birthright citizenship, arguably without regard to the citizenship of parents. I think you are correct, I don’t dispute that. I dispute the opinion that the qualifying clause “natural born” adds nothing to the term “citizen.” That is quite clearly false. I don’t think that you would disagree that the rules of construction require us to give some consideration to the term “natural born.” Whether Eastman has, or anyone else has for that matter, based his or their arguments on this point is to me irrelevant.

4. I have simply asked you, or anyone else, to cite a SCOTUS opinion that held or even stated, either:

a.) that birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" for purposes of the relevant requirement for the presidency; or

b.) birth on the soil of the US automatically and without more (i.e., no consideration of the status of the parent(s)) conferred "natural born citizenship" as that phrase is used in the Constitution.

For these purposes, I’d consider a SCOTUS opinion that states, as you do, that the term “natural born” adds nothing to the term “citizen” to be getting close.

Finally, my point isn’t that there is a “right” or “wrong.” Again, my point is that Chief Justice Waite was much closer to all this than we are, and he noted ambiguity about the term “natural born citizen” and distinguished that category from “citizens [who are] children born within the jurisdiction without reference to the citizenship of their parents.”

My point is that simply inquiring about the meaning of these phrases, and ascribing reasonable distinctions (based on, e.g., Vattel and Waite) does not make it possible to compare Eastman, or anyone else, to a "flat earther" – at least as I understood, and perhaps misunderstood – Eastman’s point about the presidential requirements.

Rather, I think it may be that the true flat earthers are the ones reenacting the actions of the body from which that term is derived.

anon

And, FWIW, the issue in Wong Kim Ark was:

"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution."

Tell us, were the drafters of the Fourteenth Amendment unaware of the words "natural born citizen" in the Constitution, or did they instead use the term "citizen" to convey the same meaning?

Cite please.

Does anyone seriously contend that SCOTUS actually intended to say, in Wong Kim Ark, that the issue was whether the child referenced was a "natural born citizen," within the meaning of the relevant requirement for the presidency?

Or, is the understanding that "citizen" means the same thing as "natural born citizen" -- as stated above -- just so "obvious" that it never occurred to anyone but me to question this equivalency?

SCOTUS opinion on point, please.

anon

Finally, the notion that Wong Kim Ark is not directly on point was affirmed in ANKENY v. STATE OF INDIANA, 916 N.E.2d 678, fn. 14 (2009) ("[T]the Court in Wong Kim Ark did not actually pronounce the plaintiff a "natural born Citizen" using the Constitution's Article II language … ."

This case found, nevertheless, that WKA controlled the case:

"Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents."

Based on the discussion above, a bare reliance on WKA was clearly misplaced.

Be that as it may be, if a SCOTUS opinion, this case would satisfy the challenge I've issued above.

By the way, IMHO, this opinion was an incredibly sloppy piece of work, repeatedly ignoring the distinctions between "subject" and "citizen" and relying, among other things, on the dissent in Dred Scott to support its discussion.

Larry Rosenthal

Anon:

If you read Professor Eastman's op-ed, you know that he wrote that if Senator Harris acquired citizenship at birth by virtue of the Fourteenth Amendment, then, "under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible." He found no ambiguity in the phrase "natural born." Indeed, he thought it clear that those one who is "a citizen a birth" is a "natural-born citizen. He found no ambiguity in that phrase.

If you mean to quarrel with Professor Eastman's view that "natural born" refers to citizenship acquired by birth under the Fourteenth Amendment's Citizenship Clause, I wonder, what else could it mean? Are you suggesting that those born by caesarian section are ineligible to become President? This phrase can only be ambiguous if there is a second, plausible meaning of the term beyond that identified by Professor Eastman. The ambiguity to which Chief Justice Waite referred in Minor is an ambiguity it the meaning of "citizen," not an ambiguity in the meaning of "natural born." No one to my knowledge has ever suggested that there is a plausible meaning to the phrase "natural born" other than denoting those who become citizens by virtue of their birth.

Although there are a number of Supreme Court cases addressing the meaning of the term "citizen" in the Fourteenth Amendment," there are none addressing the meaning of the phrase "natural born." That is because, as Professor Eastman acknowledged, the meaning of that phrase is so clear. Easy interpretive questions are rarely litigated. Ironically, however, if a case is required to make the obvious point, consider Minor itself. Chief Justice Waite wrote that there are only two ways of acquiring citizenship: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization." The former, of course, is a reference to "natural born" citizens, while the latter refers to naturalized citizens.

I would respectfully suggest that no competent lawyer would argue that the phrase "natural born" refers to anything other than those who acquire citizenship at birth. Certainly Professor Eastman has not attempted such an argument. Nor have you. Repeating Chief Justice Waite's dictum in Minor is no answer; that dictum refers to ambiguity in the meaning of the term "citizen"; ambiguity that was later resolved in Wong Kim Ark.

Larry Rosenthal
Chapman

anon

Larry, you are not reading my comments, and so, starting to drift into the personal attack to try to make your point ("I would respectfully suggest that no competent lawyer would argue that the phrase "natural born" refers to anything other than those who acquire citizenship at birth.")

As predicted, you are making the "it isn't in the manual because it is so obvious" argument (see, my comment above). Very weak. Cite a case, please. WKA isn't the case. (Please just skim the comments above; this is clear and not really subject to dispute.)

And, you are demonstrably wrong that no authority has ever addressed a claimed distinction between "natural born citizen" and "citizen." In fact, I cited a case above going your way!

As for disagreeing with Eastman, I addressed that point above. This is irrelevant. Again, it appears you aren't reading, or that you are reading terribly poorly.

I would simply say you have failed the challenge. Your basic claim -- that WKA resolves the question -- is false. And, really, that's all you've got? WKA doesn't answer the question and I've cited a case above that agrees. Your claim that a distinction between "natural born citizen" and "citizen" is so frivolous and beyond the pale that no one has ever drawn it is false. You are misreading Minor, and, as I've repeatedly stated, the point of Minor is to establish that a lack of clarity is what is obvious here. (A point repeated in WKA, btw.)

Finally, your personal attack on me is just sort of bizarre. I seem to recall Larry Solum, for whom I have the utmost respect, has had "evolving" formulations over the years. See, e.g., one of those, in Originalism and the Natural Born Citizen Clause, 29 Immigr. & Nationality L. Rev. 593, 599 (2008) ("If the American conception of "natural born citizen" were equivalent to the English notion of a "natural born subject," then it could be argued that only persons born on American soil to American parents would have qualified."

I haven't followed Professor Solum's following articles completely, but it is my understanding that he has taken care to express his view that the stronger argument is that birthright citizenship satisfies the "natural born" clause.

But, more importantly from my pov with respect to the point I've repeated here again and again, Prof Solum, a renowned scholar on the subject, might still posit a possible irreducible ambiguity here that will require SCOTUS interpretation ("The analysis so far has suggested that the original meaning of the phrase "natural born citizen" may be ambiguous, or that evidence of that meaning may be insufficient to resolve the ambiguity introduced by the passage of more than two centuries.)

Don't call another Larry bad names, Larry!


Larry Rosenthal

Anon:

The scholars you are reading have discussed the ambiguity in the term citizen, not the phrase "natural born." That said, I will leave it at this: If the phrase "natural born citizen" does not refer to those who acquire citizenship at birth under Wong Kim Ark, what else could it mean? Do you disagree with Minor that there are only two ways of acquiring citizenship, either by birth or naturalization? And if you do think that there is a third way to acquire "natural born" citizenship other than by birth under the Fourteenth Amendment's Citizenship Clause, or by naturalization under Article I's grant of power to Congress to establish a "uniform rule of naturalization," what is that third way of acquiring citizenship?

Larry Rosenthal
Chapman

anon

Larry, with all due respect, I don't think you've done any legal research on this issue, beyond repeating a very flawed and superficial reading of Minor and WKA. You clearly haven't read the authorities I've cited above.

You are just repeating the same argument, over and over (citizen at birth means natural born citizen). You are rudely claiming that "no one competent could say otherwise."

Your point is demonstrably false. The falsity of that point is demonstrated above. No point in repeating all those comments, because you clearly haven't read those comments.

I would suggest reading the authorities I've cited above.

But, supposing you won't do that, let's try to put this debate in terms that we all can understand.

Please try to read this:

In Originalism and the Natural Born Citizen Clause, 29 Immigr. & Nationality L. Rev. 593, 599 (2008), Larry Solum stated: "If the American conception of "natural born citizen" were equivalent to the English notion of a "natural born subject," then it could be argued that only persons born on American soil to American parents would have qualified."

I haven't followed Professor Solum's following articles completely, but it is my understanding that he has taken care to express his view that the stronger argument is that birthright citizenship satisfies the "natural born" clause.

But, more importantly from my pov with respect to the point I've repeated here again and again, Prof Solum, a renowned scholar on the subject, might still posit a possible irreducible ambiguity here that will require SCOTUS interpretation ("The analysis so far has suggested that the original meaning of the phrase "natural born citizen" may be ambiguous, or that evidence of that meaning may be insufficient to resolve the ambiguity introduced by the passage of more than two centuries.)

You can take a "hard a.." attitude toward me, claiming that anyone who dares to disagree with you is crazy.

But, ask Larry Solum if he agrees with you on that point.

Perhaps you'll listen to him.

anon

For all those other than Larry who are still open minded enough to see the ambiguity here, I can't resist one more try.

From Minor:

Category One: “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.”

Category Two “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”

“As to this class (Category Two), there have been doubts but never as to the first (Category One).”

Did the SCOTUS not state that persons in both Category One and Two could be considered citizens? Is there not a difference between Category One and Category Two, despite the fact that persons in both Categories could be considered "citizens"?

If the answer is yes, is it not possible to postulate the WKA removed the doubt found in Minor as to Category Two, but did not resolve or modify the articulation of Category One?

Larry Rosenthal

Anon:

I usually come regret engaging with anonymous posters because they generally prove to be laypersons who have only a superficial grasp of the technical issues. I seem to have repeated that error here.

I will make one more effort, which I will likely come to regret. It is important to identify the precise nature of the ambiguity referred to in the sources you have referenced. There is indeed ambiguity about whether natural born citizenship means children born in the jurisdiction without reference to the citizenship of their parents, or citizenship conferred on those born in the jurisdiction whose parents are also citizens. This is the ambiguity that the Court noted in Minor. That ambiguity was subsequently addressed by Wong Kim Ark, which held that under the Citizenship Clause, those born in the United States are citizens even if their parents were foreign nationals, with exception of the children of foreign diplomats and others not subject to the jurisdiction of the United States. Thus, the dicta in Minor was overtaken by Wong Kim Ark. One cannot rely on dicta in an earlier case when addressing the state of the law after subsequent decisions have announced new law. It is equally clear, as the Court concluded in Plyler v. Doe, that even undocumented foreigners unlawfully in the United States are nevertheless subject to the jurisdiction of the United States within the meaning of the Fourteenth Amendment. Accordingly, their children acquire citizenship at the time of birth under the Fourteenth Amendment's Citizenship Clause.

There has never been any dispute, in contrast, about whether those who acquire citizenship by virtue of their birth are natural born citizens. For example, in the article by Professor Solum, he explains that there is some ambiguity not about whether those who acquire citizenship at birth are "natural born citizens," but about whether Senator John McCain was a "natural born citizen" because he was born in the Panama Canal Zone and therefore may not have been a citizen at birth: "John McCain, born to American parents in the Panama Canal Zone in 1936, had citizenship conferred by statute in 1937, but there is dispute as to whether the statute granted retroactive naturalization or whether it merely confirmed preexisting law under which McCain was an American citizen at birth. That leaves John McCain in a twilight zone neither clearly naturalized nor natural born." Thus, as Professor Solum explains, the debate concerns whether persons like Senator McCain were citizens at birth. All those who acquire citizenship at birth are natural born citizens. None of the sources you have referenced reflect the slightest disagreement with the preceding sentence.

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