Pop Quiz

Tim Kowal in reply to Tim Kowal says:

stillwater:

I didn’t say what my theory is.Report

Tim Kowal in reply to Tim Kowal says:

I didn’t present my theory because it’s not relevant to the post, because it’s a bit long for a comment, and because it’s not relevant to the point I was making. That point is that based on my research, I submit there is no theory, not even the one I came up with, that can conclusively settle the interpretive question of what the words “natural born Citizen” mean. I wouldn’t say my theory is “inconsistent” with the cases. (The cases, by the way, are from various European jurisdictions, and thus only instructive at best—not binding.) There are just a lot of varying understandings concerning citizenship law, and these understandings evolved over the decades from the 18th, 19th, and 20th centuries. So perhaps the main reason I’m uncomfortable sharing my theory is that I’m just not confident it’s right, particularly since I’m really not an expert in citizenship law or legal history.

Since you’ve expressed interest, however, here are some principles of citizenship law that seem important:

– Every person is presumed to be the citizen of at least one nation. I don’t know that Obama has claimed citizenship of another other nation, or that any other nation has claimed citizenship over him. So it should be presumed he’s a U.S. citizen.

– Inversely, in one understanding, duel citizenship at birth is not supported by natural law of citizenship. Thus, if one is born with a claim of citizenship to two sovereigns (e.g., born to an American mother and an Irish father), there might be an argument that he is a “natural born citizen” of neither.

– The doctrine of “jus solis” (“right of the soil”), while imported from English common law, doesn’t comport with the American view of citizenship by consent. Englishmen were “subjects” of the crown, not consensual citizens, and this was the principle underlying the feudal notion that one’s right as an Englishman vested simply by virtue of being born within the realm. (The rule was later relaxed so that children born to traveling Englishmen were also deemed subjects of the crown.) Thus, there is an argument and some precedent to support the idea that American-born children do not “perfect” their citizenship—even “natural born citizenship”—until they give their implied consent to U.S. citizenship by reaching the age of majority without having left the U.S. and putting themselves under the jurisdiction of another sovereign.

Again, a lot of this is based on confusing and fusty doctrine and precedent. It’s interesting to some people, but in my view, there’s little hope it will lead to a persuasive theory of settling the meaning of “natural born Citizen.” That’s because there’s such scant evidence of what the Founders meant by it, or that even they had much of idea what it meant.Report

Tim Kowal in reply to Tim Kowal says:

For one thing, there are people who are born in the territorial jurisdiction of the U.S. who obviously are not citizens. Children of ambassadors or enemy soldiers or visitors, for example. Moreover, although the term was somewhat ambiguous, “natural born citizen” was a term of art that meant something different than merely “born in the territorial jurisdiction.” For example, the Fourteenth Amendment uses the language “All persons born … in the United States….” (Of course, even that amendment is not so simple, as it goes on to impose a further condition “and subject to the jurisdiction thereof….”) Finally, citizenship is not just smiles and sunshine. In addition to the privileges and immunities that come with citizenship, obligations are imposed on the citizen as well by nature of the sovereign/citizen relationship. The right to tax and confiscate property, and the right to conscript citizens into military service are some of the most obvious and severe. The rhetoric of citizenship tends to be overwhelmed by the word “grant,” suggesting citizenship is a one-way street in favor of the individual. In fact, citizenship is a two-way street and, in the U.S., is based on consent. (As briefly described above, under the English feudal system, consent was not implicated, and the crown made “subjects” of individuals born within its domain. Not so in the U.S.) Thus, more conditions are required in order to presume the consent necessary for “natural born citizenship” in the U.S., as well as for so-called “birthright citizenship.”Report

Tim Kowal in reply to Tim Kowal says:

And what are they? Are times really any more high pressure now than they’ve been in the previous 100 years that such a tactic has never been pulled out? If you think there are motives other than racism as the primary driving factor (there assuredly are others at play, but I don’t believe they are the primary reason), please defend this position.

As far as I can tell, other more recent examples dealt with pure legal questions, such as whether McCain’s being born in the Canal Zone sufficed, whether Goldwater’s being born in the territory of Arizona prior to its gaining statehood sufficed, etc. With Obama, as with Arthur, there were uncovered factual questions bearing on the ultimate outcome. Thus, the opposition to both of them might very well just be based on political concerns, not necessarily or primarily racial prejudices.
Though you’ll note that more than once I acknowledged the racism component, in the desperate hope of avoiding accusations of “denialism.”Report

Tim Kowal in reply to Tim Kowal says:

David Cheatham,

As I mentioned above, the “natural born Citizen” requirement in the Constitution has never been adjudicated by any court in the United States. Scholars agree that the meaning of the Natural Born Citizen clause is vague. The words “natural born citizenship” themselves seldom appear in the records of the Constitutional Convention. Yet, you offer some unequivocal pronouncements about what the clause does and doesn’t require (e.g., “dual citizenship can’t have anything to do with” natural born citizenship, and “a requirement [to renounce any other citizenship] does not exist currently”), suggesting you know of some authority and precedent defining the meaning of that clause I must not be aware of.

I am familiar, however, with the theory you insist is the “one” and “only” “suggestion as to what it means.” That theory was offered by a law student named Jill Pryor, who offered the interesting argument that “natural born Citizen” ought to be understood to mean “naturalized born Citizen,” or a citizen at the time of birth according to the naturalization laws in effect at the time. Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale Law Journal 881 (1988) (available at http://www.jstor.org/pss/796518). But Ms. Pryor rejected your suggestion that this is the one-and-only theory ever advanced concerning the meaning of the clause. Instead, Ms. Pryor acknowledged the existence of the questions I posed above—for example, “whether a person born abroad of American parents, or of one American and one alien parent, qualifies as natural born has never been resolved.” Ms. Pryor also observed that “[c]ourts have characteristically distinguished between ‘native-born’ and ‘naturalized’ citizens, asserting that their status is the same except that the latter are ineligible for the Presidency.”

Thus, while the theory you advance is an interesting one and has been discussed by some scholars, it is most certainly not, as you say, the “one” and “only” theory ever advanced as to the meaning of the natural born citizenship clause.Report

Tim Kowal in reply to BSK says:

BSK,

I’m reluctant to answer, because I’m just not comfortable saying what is a “reasonable definition”–not just because the authority is scant and inconsistent, but because I’m afraid of being wrongly labeled a “birther.” This is obviously a charged issue, and I’ve probably already waded in beyond what prudence would advise.

Nonetheless, there is a definition–reserving judgment on whether it’s “reasonable” or not–that NBC requires TWO citizen parents. That’s the “Vattel” theory. I set out to find authority to debunk it, but so far have been unable to conclusively do even that. Also, there seems to be some authority that suggests that any “dual citizenship” at birth might be a bar to NBC status. Again, I’m skeptical that SCOTUS would ever adopt such a high bar to qualify under the NBC clause.Report

Tim Kowal in reply to Tim Kowal says:

BSK,

I totally get what you’re saying. The reason I started researching this question was to see if the law could bring any order to the chaos here. As I’ve mentioned, there may be *some* grounds for making a challenge under the NBC clause, but that challenge has not been focused or based on a sound legal footing. After my research, I’m coming to the conclusion that there’s no clear legal answer. The best approach for making a challenge is for states to pass laws that require natural born citizenship and will force SCOTUS to adjudicate the matter once and for all. But you’re probably right that AZ’s law places too much focus on the birth cert issue, and thus defeats the whole purpose, since SCOTUS can adjudicate that law on that aspect alone and sidestep the interpretive issue of the NBC clause.Report