March 3, 2014
Copyright (c) 2013-2014, Stephen Tonchen
This article is intended for persons who are facing prosecution, fine, incarceration, capital punishment, deportation, loss of franchise, loss of revenue, loss of business opportunity, or other injury in fact, as a direct result of (a) a law that President Obama has signed, or (b) an offical action or decision by the President or one of his appointees.
If you are such a person, you may have standing to pursue a collateral attack against the injury-causing law, action or decision, on grounds that Barack Obama does not meet the presidential "natural born citizen" eligibility requirement specified in the U.S. Constitution .
The modern-day consensus of legal opinion is that all persons born in the United States, except the children of foreign diplomats and enemy invaders, are natural born citizens. President Obama claims he was born in the United States (specifically, the State of Hawaii) on August 4, 1961 . At this time, he has not provided any court-admissible evidence supporting this claim . There is anecdotal and circumstantial evidence indicating that he may have been born in a foreign country .
According to Dr. Edwin Vieira, one of this nation's foremost Constitutional scholars, the uncertainty regarding President Obama's birthplace provides an opportunity to criminal defendants who have been indicted, and are being prosecuted, under a statute that President Obama has signed. Such defendants...
...undeniably have "standing" to challenge the indictment on the grounds that no statute...even exists, because the original "Bill which...passed the House of Representatives and the Senate" was never "presented to the President of the United States", and therefore could never "become a Law," inasmuch as the supposed "President," Barack Obama, being constitutionally ineligible for that office, was then and remains thereafter nothing but an usurper [See Article I, Section 7, Clause 2 and Article II, Section 1, 4] (Vieira)
Likewise, if you are suffering, or are about to suffer, an injury in fact as a direct result of an official order, decision or action by one of President Obama's appointees, you may have standing to challenge that order, decision or action, on grounds that the appointee is not holding office legally and therefore has no legal authority to institute such order, decision or action; he or she was never legally appointed by a Constitutionally legitimate President in accordance with the Appointments Clause of the U.S. Constitution.
President Obama publicly admits that, regardless of where he was born, he was a foreign citizen at birth . The modern-day consensus of legal opinion is that persons born on U.S. soil are, in most cases, "natural born citizens", regardless of any other citizenship also acquired at birth. This consensus is based largely on two sources:
After the 2008 presidential election, new information surfaced, shedding new light on the above two sources. This new information is explained and documented in Presidential Eligibility Tutorial and is summarized here. It now appears that persons who are foreign nationals at birth, even if U.S. citizens, are not natural born citizens and are therefore not Constitutionally eligible to serve as President.
A collateral attack does not seek to remove anyone from office. It merely asks a court to invalidate a specific action by an officeholder, on grounds that the officeholder was not legally appointed to, or does not meet the eligibility requirements of, the office he or she is holding.
Under the de facto officer doctrine, the official acts of an ineligible officeholder are valid and legally binding, and may not be challenged collaterally, despite the fact that he or she is holding office illegally. However, there are exceptions to this de facto officer rule. These exceptions may be beneficial to persons, groups and business which are adversely affected by an official act of President Obama or one of his appointees.
II. Exclusive-Citizenship Theory
III. Birthplace-only Theory
IV. New Information 1: 18th Century English Law
V. New Information 2: Justice Gray's Reasoning
VI. Exceptions to the De Facto Officer Doctrine
Appendix 1: Sample Motion
Appendix 2: Laws Signed by President Obama
Appendix 3: Federal Judges Appointed by President Obama
President Obama publicly acknowledges that he was, at birth, a citizen of a foreign country.
...at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Obama's Kenyan Citizenship)
Since Barack Obama Jr. was born with foreign nationality (in addition to U.S. citizenship), his "natural born citizen" status is in doubt (Why Obama is Ineligible -- Regardless of His Birthplace).
Furthermore, President Obama's published Long Form Certificate of Live Birth appears to be a fabrication (Zullo Affidavit 5-14-2013). It is therefore possible that President Obama might have been born in a foreign country . If the President is indeed foreign-born, it would provide another basis on which to challenge his natural born citizenship.
Prior U.S. Presidents: Anyone born after 1787 (the year the U.S. Constitition was adopted) must be a natural born citizen in order to be constitutionally eligible to serve as President . All U.S. presidents who were born after 1787, except Chester Arthur and Barack Obama, were born in the United States, of parents who were both U.S. citizens. Moreover, all post-1787-born presidents (except Arthur and Obama) were, at birth, citizens of the United States exclusively and were not citizens or subjects of any foreign country.
Chester Arthur became Vice President in 1880, and became President after James Garfield's assassination in 1881. At the time, the general public did not know of Chester Arthur's foreign nationality at birth.
January 20, 2009, was the first time in history that the United States knowingly inaugurated a post-1787-born President who was, at birth, a citizen of a foreign country.
Two Theories: Throughout U.S. history, there has been two conflicting theories as to the meaning of "natural born citizen".
Both theories are briefly summarized next.
Five arguments are often cited in support the exclusive-citizenship theory (which posits that natural born citizenship means exclusive, or "pure", U.S. citizenship at birth):
(1) "Natural Born Citizen" in 18th-Century English Literature:
The phrase "natural born citizen" appeared in non-legal English-language writings prior to the U.S. Constitution.
In 1720, Henry Eelbeck translated a speech by Cicero from Latin into English. According to Cicero, several ancient cities claimed that Homer was one of "their own" (Latin suum), but only the Smyrneans claimed that Homer was "truly their own" (Latin vero suum). Eelbeck translated the Latin vero suum as "their natural born citizen":
The Colophonians claim Homer as their own free Denizen, the Chians challenge him as theirs, the Salaminians demand him again for their own, but the Smyrneans assert him to be their natural born Citizen; and therefore have also dedicated a temple to him in their Town of Smyrna. (Eelbeck, p.17, PDF page 22, boldface emphasis added)
According to Greek mythology, Homer was born in Smyrna, of parents who were both local Smyrnean deities: the river god Meles, and the goddess Kretheis.
In 1758, Edward Spelman translated Roman Antiquities from Greek/Latin into English. His translation included a plea by Veturia to her son, Marcius Coriolanus, a Roman general who had been unfairly exiled from Rome, had sought refuge with Rome's enemy, the Volsci, and was now leading the Volscian army in a campaign to invade and destroy Rome.
These are the favors I am come to ask of you, Marcius, my son, which are neither impossible to be granted, as you say; neither do they imply any consciousness of injustice or impiety. But it seems you are afraid, if you do what I advise, of incurring the infamy of ingratitude to your benefactors who received you when you were their enemy, and communicated to you all the advantages, which their natural born citizens are intitled to: For these are the things you are, ever, magnifying. (Spelman, p.358, boldface emphasis added).
The English phrase "natural born citiens" is Spelman's translation of the Latin cives nati ("citizen by birth"), and the Greek fysei polites ("natural citizens"), both of which refer to persons who are citizens, at birth, by descent from their parents.
In 1774, Patsall translated the twelve-volume classic, Institutio Oratoria, by Marcus Fabius Quintilianus, from Latin to English. Patsall's translation includes this text:
Therefore, if possible, every word and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education. (Patsall, p.32)
The phrase "natural born citizen" is the English translation of the Latin alumnum urbis (native of the city). The text implies that a "natural born citizen" of Rome was one who was purely Roman by birth and education.
Although the above examples do not explicitly define "natural born citizen", the manner in which the phrase is used suggests that it means something more than mere birth in a particular place.
(2) "Natural born citizen" in Supreme Court Opinions:
The U.S. Supreme Court has never explicitly defined "natural born citizen". Nevertheless, in every instance in which a Supreme Court majority opinion or concurring opinion used the phrase "natural born citizen", it was always in reference to persons who were born on U.S. soil, to parents who were U.S. citizens.
In Scott v. Sandford (1856), Justice Daniel's concurring opinion characterized, as unexceptionable (beyond criticism or objection), the 1797 Vattelian Law of Nations view of citizenship, which includes this definition of "natural born citizen":
"natural-born citizens are those born in the country of parents who are citizens" (Scott v. Sandford, 1856)
In Minor v. Happersett (1874), children born in the United States were divided into two classes: (a) U.S.-born children of U.S.-citizen parents, and (b) all other U.S.-born children, regardless of their parents' citizenship. The Court used the term "natural born citizen" only in reference to members of the first class.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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. 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 there have been doubts, but never as to the first. (Minor v. Happersett, 1874).
In Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States. At the time of her birth, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage.
In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural born citizen. He was born in the United States, at which time, his father was a native-born U.S. citizen, and his mother was a U.S. citizen by marriage.
(3) Purpose of the Natural Born Citizen Provision:
Early drafts of the U.S. Constitution specified that the U.S. President must be a U.S. citizen. Later, the Philadelphia Convention changed the presidential eligibility requirement from "citizen" to "natural born citizen".
According to multiple historical sources, the purpose of this wording change (from "citizen" to "natural born citizen") was to exclude "foreigners" from the presidency, and thereby protect the presidency from "foreign influence" .
Apparently, a person who is a U.S. citizen can also be a "foreigner" in some sense, but a natural born citizen is one who is not a foreigner, at least not in the same sense.
When the Constitution was being written, the meaning of the word "foreigner" was not limited to persons born overseas. Anyone who was a citizen or subject of a foreign country was also a "foreigner" according to the 18th century meaning of the term (Berry, pp.337-8).
Since natural born citizenship pertains only to one's status at the time of one's birth, the only "foreigners" that the natural born citizen provision could have possibly excluded were persons who were "foreigners" when they were born. It appears, therefore, that the wording change from "citizen" to "natural born citizen" could not have accomplished its stated purpose (the exclusion of "foreigners" from the presidency) unless a "natural born citizen" is one who is not a "foreigner" at birth (i.e., is not born in a foreign country and is not a foreign citizen or subject at birth) .
(4) Federal case law prior to the 14th Amendment.
Prior to the 1866 Civil Rights Act, all citizenship-related legislation enacted by Congress pertained to foreign-born persons and their children. Prior to 1866, Congress did not pass any law regarding the status, at birth, of persons born on U.S. soil.
Perhaps the first most important thing to understand about national [federal] birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution (Madison (2007)).
Since there was no applicable written law (prior to 1866), the federal courts  applied unwritten "common law" to persons born on U.S. soil .
The courts associated "common law" with Vattel's Law of Nations (1758). According to Vattel, the citizenship of a child at the time of its birth is that of its father, not its place of birth (Vattel, sections 212, 215 and 216).
Vattel has been cited repeatedly by American courts, including the U.S. Supreme Court . For example:
According to an Emory Public Law research paper published in 2007, a New York State case, Lynch v. Clarke (1844), is the only pre-Civil-War case in which any American court had ruled that birthplace alone determines U.S. citizenship at birth :
Lynch v. Clarke  is the only antebellum [pre-Civil War] decision ... that clearly finds that jus soli per Calvin's Case determines United States citizenship. Whatever light the case provides, though, should be adjusted by the fact that it is the unreviewed opinion of a single state-court judge and that shortly thereafter, in Ludlam v. Ludlam, that state's highest court, all justices concurring, spoke differently, saying that birthright citizenship depended on parentage rather than the "boundaries of the place." (Mayton)
In Ex parte Reynolds (1879), a federal district court reiterated that, in the United States, partus sequitur patrem (the offspring follow the condition of the father) was, and had always been, the "common law" governing the citizenship, at birth, of children born on U.S. soil:
...the principle handed down from the Roman civil law [is] that the owner of a female animal is entitled to all her brood, according to the maxim partus sequitur ventrem (the offspring follow the condition of the mother). But by the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Diet. 147; Shanks v. Dupont, 3 Pet. [28 U. S.] 242. This is the universal maxim of the common law with regard to freemen ... No other rules than the ones above enumerated ever did prevail in this or any other civilized country.
In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says:"The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother."
The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says:"As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. ... The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent."
Again, on page 102, Vattel says:"By the law of nature alone, children follow the condition of their fathers and enter into all their rights."
This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case. (Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879))
Prior to the 14th Amendment, children born on U.S. soil, to foreign-citizen fathers, did not acquire U.S. citizenship at birth. The citizenship of such children was that of their fathers, not their place of birth. If such children were not U.S. citizens at birth, they could not have been natural born citizens.
(5) 14th Amendment Citizenship Clause.
The "14th Amendment citizenship clause" (the first sentence of the 14th Amendment) guarantees U.S. citizenship to every person, regardless of race, who is both:
During the time period in which the 1866 Civil Rights Act and the 14th Amendment were being drafted and debated, several members of Congress expressed their viewpoint that anyone born on U.S. soil is (or should be considered as) a U.S. citizen (see Quotations from the 39th Congress). Nevertheless, in the final draft of both documents, mere birth on U.S. soil, by itself, did not confer U.S. citizenship. In the 14th Amendment, a child born in the United States does not receive U.S. citizenship at birth unless the child is subject to U.S. "jurisdiction" at the time of its birth.
Persons who were involved in developing the 1866 Civil Rights Act and 14th Amendment -- specifically, Representative John Bingham (1815-1900), the father of the 14th Amendment, and Senator Jacob Howard (1805-1871), a member of the Joint Committee which drafted the 14th Amendment -- explained that the word "jurisdiction", as used in the 14th Amendement citizenship clause, means complete U.S. jurisdiction and the absence of any foreign jurisdiction or allegiance.
Mr. TRUMBULL. ... The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."
... What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2893)
Mr. HOWARD: ... I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2895)
According to Representative Bingham and Senator Howard, U.S. law has always been that, if a child is born on U.S. soil, to a parent who owes allegiance to any sovereignty other than the United States, such child is not subject to U.S. "jurisdiction", hence does not acquire U.S. citizenship at birth. Thus, the citizenship clauses of the 1866 Civil Rights Act and 14th Amendment were declaratory of then-existing U.S. law:
I find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen;... (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column, boldface emphasis added)
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, 1866, p.2890, center column)
In the Slaughter-House Cases (1873), the Supreme Court acknowledged that the intent of the 14th Amendment citizenship clause was to exclude, from U.S. citizenship, the U.S.-born children of parents who are "citizens or subjects of foreign States", regardless of their diplomatic status:
The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)
Likewise, in Elk v. Wilkins (1884), children born on U.S. soil are not subject to U.S. "jurisdiction" and therefore do not acquire U.S. citizenship at birth, unless they are, at birth, "completely subject" to the "political jurisdiction" of the United States and owe the United States "direct and immediate allegiance" :
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. ...
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884)
Summary: Throughout U.S. history, some prominent and influential individuals have expressed their opinion that mere birth on U.S. soil is, in most cases, sufficient to confer U.S. citizenship, if not natural born citizenship. However, personal opinions merely stated and not supported by substantive facts or reasoning, have little authority or weight. Sources which have actual historical and legal authority and weight tend to support the exclusive-citizenship theory (the theory that natural-born citizenship means exclusive U.S. citizenship at birth). Specifically, the exclusive-citizenship theory is supported by:
The birthplace-only theory asserts that any child born on U.S. soil (other than the offspring of a foreign diplomat or enemy invader) is, at birth, a natural born citizen of the United States. This theory is widely accepted in the modern-day legal community.
In 1991, the following definition of "natural born citizen" appeared in Black's Law Dictionary:
Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Henry Campbell Black, A Dictionary of Law, 6th Ed., 1991, p.1026)
The consensus of legal opinion is that anyone born in the United States is a natural born citizen:
Anyone born after the adoption of the U.S. Constitution in 1787 must be a "natural born Citizen" of the United States to constitutionally fill the office of President or Vice-President. ... Some debate exists as to the meaning of this phrase. Consensus exists that anyone born on U.S. soil is a "natural born Citizen." One may also be a "natural born Citizen" if, despite a birth on foreign soil, U.S. citizenship immediately passes from the person's parents. (Legal Information Institute: Natural Born Citizen)
According to an article published by the Yale Law School, there is near-universal acceptance of the consensus viewpoint:
There is near-universal agreement that all persons born within the United States are natural born (Bonner, p.3)
According to a Congressional Research Service memorandum (April 3, 2009), the weight of legal opinion is that anyone born in the United States, except the child of a foreign diplomat, is a natural born citizen:
The weight of scholarly legal and historical opinion appears to support the notion that "natural born Citizen" means one who is entitled under the Constitution or laws of the United States to U.S. citizenship "at birth" or "by birth," including any child born "in" the United States (other than to foreign diplomats serving their country) ... (Maskell, p.5)
So far, no court has held a hearing into President Obama's eligibility, nor has any court made a ruling based on evidence presented at such a hearing. Nevertheless, some judges have expressed, as dicta, their belief that birthplace alone determines natural born citizenship:
... the appellee [who was U.S.-born of alien parents] is a natural-born citizen of the United States (Judge Walker, United States v. Low Hong (1919), Federal Reporter Vol 261, p.74)
... 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. (Judge David J. Dreyer, Ankeny v. Indiana, 2009)
It is well settled that those born in the United States are natural born citizens. (Judge John A. Gibney, Tisdale v. Obama, 2012)
The birthplace-only theory -- the notion that all persons born U.S. soil (except the children of foreign diplomats and enemy invaders) are natural born citizens -- is based largely on two sources: 18th century English law, and Justice Horace Gray's reasoning (rationale) in U.S. v. Wong Kim Ark (1898).
According to the prevailing consensus viewpoint, the above two considerations -- the meaning of "natural born" in 18th century English law, and Justice Gray's reasoning in U.S. v. Wong Kim Ark -- outweigh all arguments put forth in support the exclusive citizenship theory.
However, some new information has recently surfaced, which sheds new light on the birthplace-only theory and its two principal sources. This new information is explained and documented in Presidential Eligibility Tutorial and is summarized here.
One of the strongest and most compelling arguments supportive of the birthplace-only theory is the fact that, in 18th century English law, nearly every child born on English soil -- regardless of whether the child's parents were English or alien -- acquired "natural born subject" status at birth. At first glanced, this one fact alone seems to suggest that, when the U.S. Constitution was being written, the phrase "natural born" implied birth in a particular place, without regard to the state or condition of one's parents.
But, upon closer examination of the 18th century English legal writings that the Framers of the Constitution were familiar with and had relied upon, we find that the phrase "natural born" referred to two distinct classes of persons: those who actually are "natural born" as a matter of fact, and those who are deemed to be "natural born" as a matter of law .
English Subjects: When the U.S. Constitution was being written, Western Europe was divided into several kingdoms, each ruled by a monarch. Persons who owed permanent allegiance to a monarch were called "subjects" of that monarch.
Within each kingdom, there were local communities, called "cities", "towns" or "boroughs". The members of these local communities were called "citizens" . In 18th century England, there were various ways by which you could become a "citizen" of an English city or town . But the only way you could acquire English citizenship at birth was by patrimony (by descent from a father who was a citizen at the time of your birth) .
The people residing in 18th century England were divided into two groups: "subjects" and "aliens". Subjects had property and inheritance rights; aliens did not. Some English subjects were also "citizens" of an English city or town.
A person became an English "subject" in one of three ways:
Natural-born subjects: Francis Bacon (1561-1626) is the attorney who successfully represented the plaintiff in Calvin v. Smith (1608), a landmark English legal case that profoundly influenced both English and American nationality laws well into the 19th century. In his Report on Calvin's Case, Francis Bacon explained that, in English law, a "natural-born subject" is one who either (a) is an English subject by birth, or (b) is naturalized by an act of Parliament (Francis Bacon, p.649).
Thus, there are two categories of natural-born subjects:
At least one federal Circuit Court Judge, Noah Haynes Swayne, understood that the phrase "natural born subject" referred, not only to English subjects by birth, but also to aliens naturalized by acts of Parliament:
An alien naturalized is "to all intents and purposes a natural born subject." (United States v. Rhodes (1866), p.10)
Persons who became English subjects by acts of the King were called "denizens"; they were "in a kind of middle state between an alien and a natural-born subject" (Blackstone).
Parliament may "naturalize" an alien (i.e., transform an alien into a natural-born subject) either by a private act or by a public act:
By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever." (Cunningham, section titled "Aliens")
In 1604, Parliament passed a law conferring "denizen" status, at birth, to children born in England, of alien parents:
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
At the time, any person who was made a denizen by an act of Parliament (as distinguished from a person who was made a denizen by an act of the King) was a naturalized subject. English-born children of alien parents, like foreign-born children of English parents, were naturalized at birth by laws enacted by Parliament.
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Francis Bacon, pp.664-665)
The word "naturalization" refers to any (public or private) act of Parliament by which an alien is made into a "natural subject":
Naturalization, (Naturalizatio) Is where a person who is an alien, is made the King's natural subject by act of parliament; whereby one is a subject to all intents and purposes, as if he were born so. (Jacob, Naturalization)
Naturalization puts an alien in "exactly the same state" as if he were a subject by birth. Although the king had the power to endenize, only Parliament had the power to naturalize:
Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. (Blackstone)
Denizens at Birth: When the U.S. Constitution was being written, English legal literature affirmed that native-born children of alien parents were statutory "denizens" (denizens made so by acts of Parliament, as distinguished from denizens made so by acts of the king).
...if one born out of the King's allegiance, come and dwell in England, his Children begotten here, are not Alien, but Denizens. (Cowell, 1701 edition; also 1727 edition, under the section titled "Alien").
Also if one born out the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens (Cunningham, section titled "Aliens").
And if one born out the king's obedience comes and resides in England, his children begotten and born here, are not aliens but denizens (Jacob, section titled "Aliens", p.40).
If one born out the king's allegiance, come and dwell in England, his children (if he beget any here) are not aliens, but denizens. (Johnson, p.365)
English-born children of alien parents had the status of a "natural-born subject" with respect to property and inheritance rights, but in many ways, they were still regarded as aliens. They had to pay aliens' duties (instead of single customs) and were barred from certain trades:
There is a curious passage in Hale's Treatise Concerning the Customs concerning aliens' customs in the 17th century. He says "If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet ... such a natural-born subject hath been decreed heretofore to pay aliens' duties..." Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens.... The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327).
When the U.S. Constitution was being written, all persons born on English soil (except the children of foreign diplomats and alien enemies) were, at birth, natural-born subjects. But not all such persons were natural-born subjects for the same reason.
English Naturalization Acts: During the 16th through 18th centuries, Parliament did not enact any legislation asserting that naturalized subjects actually are natural-born subjects. In private and public acts of Parliament, naturalized subjects were always "deemed" or "taken" or "reputed" to be natural or natural-born subjects.
In 1541, Parliament passed a law granting "natural subject" status to foreign-born children of English fathers. The law did not say that such children are natural subjects; it merely said that such children shall be "reputed and taken" as such:
[Children born overseas, of English fathers, shall be] from henceforth reputed and taken king's natural subject as lawful persons born within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim, p.158)
The Act of Anne did not say that foreign-born children, of English fathers, are natural-born subjects; such children were "deemed and adjudged" to be so:
The Act did not say in terms that the foreign-born child of natural born parents ... was himself a natural born subject. It said that he was to be "deemed and adjudged" to be such, albeit "to all intents, constructions and purposes whatsoever". (Parry)
The British nationality acts of 1730 and 1772 did not say that foreign-born persons, of English fathers, are natural-born subjects; each act said that such persons "shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects" (see British Nationality Act of 1730 and the British Nationality Act of 1772).
Mirroring the style of British nationality acts, the U.S. Naturalization Act of 1790 did not say that naturalized persons are citizens or natural born citizens of the United States. Rather, the 1790 Act merely said that each naturalized person shall be considered as a citizen or natural born citizen.
Fiction of Law: According to Judge Yelverton (one of the judges who heard Calvin's Case in 1608), a person who acquires "subject" status by an act of Parliament is not a "real" subject. Such a person is merely deemed to be a subject by law.
A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157).
A series of 17th century English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- affirmed Yelverton's understanding. Naturalization, whether by public or private act of Parliament, is a fiction of law which has no effect except in countries consenting to that fiction:
The law clearly held that naturalization equated an alien and a natural-born subject. Yet as Chief Justice Vaugham noted, native Irishmen were natural English subjects, although aliens naturalized in Ireland were not."The reason is, that naturalization is but a fiction of law, and can have effect but upon those consenting to that fiction: therefore it hath the like effect that a man's birth hath, where the lawmakers have power, but not in other places where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there, so in Scotland as being born there, but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own."
A legal fiction could not in any absolute sense make an alien a natural-born subject, for this would mean that he would have "two natural princes, one where he was born and the other where naturalized." The idea was absurd as the supposition that a man could have "two natural fathers, or two natural mothers." (Kettner, pp.41-42)
In his Law Dictionary (1771), Cunningham explained that "naturalization" (an act of Parliament which transforms an alien into a natural-born subject) is a "fiction of law" which has no effect except in countries consenting to that fiction:
Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own. (Cunningham, p.97, in section entitled "Aliens")
To reiterate, all persons born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. But not all English-born persons were natural-born subjects for the same reason:
Calvin's Case: In Calvin v. Smith (1608), also known as "Calvin's Case", England's highest court, in a 12-to-2 decision, defined subject born and ruled that Robert Calvin was such a subject.
It is widely believed that, in Calvin's Case, the English high court established the jus soli principle, whereby mere birth on English soil was (in most cases) sufficient to confer "natural-born subject" status. However, a more careful reading of the court's decision paints a somewhat different picture.
James Charles Stuart became king of Scotland in 1567, when he was only 13 months old. Queen Elizabeth died in 1603, at which time James inherited the English throne. Thus, from 1603 until his death in 1625, James was king of both Scotland and England simumtaneously.
In 1606, Robert Calvin was born in Scotland, to Scottish parents. Since he was born in a foreign country (Scotland), of alien (non-English) parents, Calvin was an alien in England according to then-existing English law.
Calvin was heir to some property in England. When he was denied his inhertance due to his "alien" status under English law, his gardians filed a lawsuit on his behalf.
Subject Born: In its ruling, England's highest court made a distinction between two categories of subjects:
The court defined subject born as one who is born within the king's realm, of parents who are "under the actual obedience of the king".
There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience [ligeance] of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke, p.208)
In order to qualify as subject born, one must be born within the allegiance of the king. According to Francis Bacon (the attorney for the plaintiff in Calvin's Case), the phrase "born within [or under] the allegiance of the king" was a figure of speech, referring to:
...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653) 
In his Report on Calvin's Case, Sir Edward Coke (1552-1634) emphasized repeatedly that the status of a child, at the time of its birth, depends primarily on the allegiance or obedience of the parents, and only secondarily on the child's place of birth:
...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke, p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke, p.179)
Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place does not help]. (Coke, p.224)
The definition of subject born is stated more concisely in Giles Jacob's New Law Dictionary (1782):
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40, Aliens)
Ligeance: In Lord Coke's Report, the words obedience and ligeance (allegiance) were synonymous and were used interchangeably. In English legal writings, ligeance sometimes refers to the king's territory. But in Lord Coke's Report on Calvin's Case, the word ligeance, when not qualified or modified, refers to faith, loyalty and service that a subject gives to his king, in return for the king's governance and protection.
The word ligeance derives from liege which, in Feudalism, refers to absolute loyalty to one, and only one, lord exclusively:
There is nothing in feudal theory or practice to prevent a man from having more lords than one. In such a case he owes fealty to both; he is ad fidem utriusque domini. But he can owe liege fealty (ligeantia) to one only. He can have two lords, but not two liege lords. This was a fundamental maxim of feudalism. Unus et idem duorum dominorum homo ligius esse non potest. ...
But as feudalism grew and prospered, ... it became clear that there was no liege fealty possible or lawful, save that which was due to the king himself. He was the only liege lord because he was the supreme lord of all. His claim of fidelity and obedience was above all others. All faith or fealty which a man owed to any other lord was subject to that which he owed to his lord the king. ... So it came about that allegiance took on its modern meaning, and came to signify exclusively the fidelity due from a subject to his king, he being the only person by whom fidelity of so absolute a sort could be lawfully demanded. (Salmond, pp.51-52)
As long as aliens owe ligeance to the sovereign of their country of origin, they cannot owe true ligeance to the English king.
Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52)
Natural Law: In Calvin's Case, the English high court ruled that man-made laws enacted by Parliament may not deny property and inheritance rights to a child who is the king's subject by natural law. Since Calvin was born in territory (Scotland) of which King James was in actual possession, and since Calvin's parents, at the time of Calvin's birth, were Scottish subjects owing actual obedience (ligeance) to King James, the Court ruled that Calvin was subject born, a subject of King James by natural law. Consequently, by natural law, Calvin had property and inheritance rights in all territories belonging to King James, including England.
In his Report, Lord Coke noted that aliens owe only "local" (temporary) obedience to the king, yet their children, if born on English soil, are natural-born subjects (according to a law that Parliament had enacted in 1604). Coke argued, that, if the children of aliens are natural-born subjects, then Calvin, who was born of parents owing "natural and absolute" ligeance to the king, ought to be a natural-born subject "so much the more so":
... [an alien friend] owed to the King a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [a child] here, that issue [child] is a natural born subject: a fortiori [so much the more so] he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia [high allegiance]) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179)
Jus Soli Principle: According to the jus soli principle, all children born on English soil were, at birth, natural-born subjects, except:
This jus soli principle did not originate from Calvin's Case. Well before the English high court heard Calvin's Case, the jus soli principle was already a part of English law, thanks in part to a statute that Parliament had enacted in 1604. The justices in Calvin's Case merely observed what was already English law at the time: that it is impossible for a child (regardless of its birthplace) to acquire "natural-born subject" status at birth, unless the parents actually are, or are deemed (by law) to be, under the allegiance to the king.
Lord Coke's judgment did not affirm the jus soli as such; he did not lay down the principle that mere birth within the realm conferred the status of a subject, and then qualify it by two exceptions: what he did was to lay down a different principle, that what constitutes the person a subject at birth is the fact of his birth within the king's allegiance, and this carried with it the consequence that the two excepted classes were not subjects, because they were not born within the allegiance of the king. (Ross, p.7).
Blackstone's Commentaries: Sir William Blackstone (1723-1780) is best known for a series of lectures he gave at Oxford University from 1765 through 1769. These lectures were later consolidated and published as Commentaries on the Laws of England, which became immensely popular and influential in the American colonies (Blackstone in America).
In the first edition of his Commentaries, Blackstone wrote that children born overseas, to English fathers, are natural born subjects. This statement is technically correct according to Francis Bacon's definition of "natural-born subject". However, during the 16th through 18th centuries, the English Parliament did not pass any law asserting that naturalized subjects are natural-born subjects; children who were naturalized at birth were "taken" or "reputed" to be natural-born subjects. In a later edition, Blackstone's Commentaries were revised to say that children born overseas, to English fathers, are deemed to be natural born subjects.
Likewise, Blackstone wrote that the English-born children of alien parents are natural-born subjects. In his Report on Calvin's Case, Lord Coke said the same thing: that the English-born "issue" (child) of an alien parent is a natural-born subject. Both statements are technically correct according to Francis Bacon's definition of "natural-born subject". But, in Systematical View of the Laws of England (1777), Richard Wooddeson clarified that English-born children of alien parents are "accounted" (considered as or deemed to be) natural subjects; at birth, they receive "the rights of naturalization" (Wooddeson, p.386).
Cunningham's Definition of "Natural Born Subject": The Framers of the Constitution were undoubtedly familiar with two 18th century legal sources:
Cunningham's was the only law dictionary that James Madison ordered for the Continental Congress (Berry, pp.347-8).
Both sources contain, verbatim, the same definition of "natural-born subject":
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience [allegiance] of our king, and whose place of birth was within his dominions. (Cunningham, p.95, section entitled "Aliens"; also Matthew Bacon, p.77)
Although all persons born on English soil acquired, at birth, the status or legal position of a natural-born subject, it appears that you are truly "natural-born", in the actual or literal sense, only if you are born in a country, of parents who are under the actual obedience (allegiance) of the sovereign of that country.
Putting the Pieces Together: Prior to 2008, it was widely believed that, in 18th century English law, "natural born" meant birth in a particular place, without regard to the status or condition of one's parents. Recently, a review of 18th century English legal literature that the Framers of the Constitution had relied upon, has revealed that, when the Constitution was being written, the phrase "natural born" had two meanings, depending on context.
When the U.S. Constitution was being written, the Founding Fathers most likely understood "natural born" according to its literal meaning, for three reasons.
In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that a child born on U.S. soil, of permanently-domiciled alien parents, acquires U.S. citizenship at birth.
... 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 domicile 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. (U.S. v. Wong Kim Ark, 1898)
Justice Horace Gray wrote the Opinion of the Court in the Wong Kim Ark case.
The Court's ruling, by itself, has little relevance to President Obama's eligibility. The ruling pertains only to citizenship; the ruling, in and of itself, does not address natural born citizenship, which is what Barack Obama needs in order to be eligible to serve as President. Moreover, the ruling recognizes, as citizens, only the U.S.-born children of permanently-domiciled alien parents. President Obama's father was never permanently domiciled in the United States; he was merely visiting the United States temporarily, on a student visa.
Nevertheless, Justice Gray's reasoning, when carried to its logical conclusion, seems to support the birthplace-only theory, which posits that every child born on U.S. soil, except the offspring of a foreign diplomat or enemy invader, is a U.S. natural born citizen.
Justice Gray's reasoning in U.S. v. Wong Kim Ark has two aspects:
The Court's ruling pertained only to Mr. Wong's citizenship. The Court did not need to decide, hence did not decide, Mr. Wong's eligibility to serve as U.S. President. Consequently, the portion of Justice Gray's reasoning which pertains solely to the meaning of "natural born citizen" in the U.S. Constitution is, at most, judicial dicta.
Supporters of the exclusive-citizenship theory (the theory that natural born citizenship means exclusive U.S. citizenship at birth) do not wish to challenge, and do not wish to relitigate, the Supreme Court's ruling in U.S. v. Wong Kim Ark. A Supreme Court ruling and the ratio decidendi on which the ruling is based -- even if erroneous -- are the law of the land. A challenge to that law (in a collateral attack) would be ill-advised and unnecessary.
However, Obama eligibility challengers contend that, unlike ratio decidendi which must be followed even if patently wrong, judicial dicta are not precedent when they are shown to be erroneous. Since Justice Gray's reasoning is erroneous (it is based largely on assertions which are provably false), it need not and should not be extended beyond the Court's actual ruling in the Wong Kim Ark case (see Amicus Brief).
There are multiple problems inherent in Justice Gray's reasoning. Five of them are mentioned here:
(1) Justice gray ignored (ruled "not admissible") the 1866 congressional debates.
In his written opinion, Justice Gray admitted that his understanding of the word "jurisdiction," as used in the 14th Amendment citizenship clause, was based on presumption, not direct evidence. Justice Gray dismissed, as "not admissible", the transcripts of the 1866 congressional debates, in which the Framers had explained the meaning of "jurisdiction" in the 14th Amendment citizenship clause.
The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (U.S. v. Wong Kim Ark, 1898, boldface emphasis added).
The Supreme Court did not consider evidence showing that the intended meaning of "jurisdiction" was full and complete U.S. jurisdiction and the absence of foreign jurisdiction. According to Justice John Paul Stevens, a refusal to consider such evidence is "inexcusable":
A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent. (Justice Paul Stevens, as quoted by Madison(2006))
(2) Justice Gray relied on an erroneous footnote in an early draft of an article by Horace Binney.
Horace Binney published three editions of his article titled The Alienigenae of the United States. The first two editions were privately published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.
All three editions cite the Naturalization Act of 1790, which (when quoted correctly) states:
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; boldface emphasis added).
The first two editions of Binney's article misquoted the 1790 Act:
[T]hat the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States shall be considered as natural born citizens -- with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (1st ed.), pp.21-22, and Binney (2nd ed.), p.21, boldface emphasis added).
In the misquoted version of the 1790 Act, foreign-born children do not receive U.S. citizenship solely by descent from their parents. The citizenship of such children depends on their subsequent residence in the United States. Based on the erroneous text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:
The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), footnote, p.22).
In U.S. v. Wong Kim Ark, Justice Gray cited Binney's footnote, both in the Opinion of the Court and in the Court's ruling. But Binney's footnote is factually incorrect; it is based on a misquote of the 1790 Naturalization Act. In the final edition of Binney's article, the 1790 Naturalization Act was quoted correctly and the erroneous footnote was deleted. Binney's footnote, though erroneous and though deleted from the final version of Binney's article, nevertheless became one of the cornerstones of Justice Gray's reasoning in U.S. v. Wong Kim Ark (Binney Humiliates the Reputation of the United States Supreme Court).
(3) Justice Gray misrepresented earlier Supreme Court decisions:
In his reasoning, Justice Gray misrepresented four prior Supreme Court cases. He characterized these four cases as being supportive of jus soli citizenship (the notion that mere birth on U.S. soil, in most cases, confers U.S. citizenship at birth). In actuality, none of the four cases supports Gray's viewpoint:
Justice Gray mischaracterized and misrepresented all four of the above-mentioned Supreme Court rulings. In actuality, none of those rulings supports his contention that birthplace alone confers federal citizenship at birth (see Amicus Brief).
In addition, Justice Gray cited Justice Curtis' opinion in Scott v. Sandford (1857), but did so without disclosing that Curtis' opinion was a dissenting opinion. A dissenting opinion has no legal weight. Justice Gray made it appear as though Curtis' viewpoint was part of the Opinion of the Court, when in fact it was not. Justice Gray wrote:
In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said:"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.' 19 How 60 U.S. 576
And, to this extent, no different opinion was expressed or intimated by any of the other judges. (Justice Gray, Opinion of the Court, U.S. v. Wong Kim Ark, 1898)
Justice Gray gave the impression that, in Scott v. Sandford, all of the other judges agreed with Justice Curtis, that "natural born citizen" status is determined by birthplace alone. But this impression is factually incorrect. Justice Daniel, concurring with the majority in Scott v. Sandford, characterized the 1797 English-language Law of Nations definition of natural born citizen ("those born in the country of parents who are citizens") as unexceptionable (beyond criticism or objection). (Justice Daniel's Concurring Opinion, Scott v. Sandford, 1857).
(4) Justice Gray blurred the distinction between "actual" and "legal" natural-born subjects.
In 18th century English law, all persons born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects, regardless of whether their parents were English or alien. But there was a distinction between those who were natural-born subjects by birth and those who were natural-born subjects by acts of Parliament. A person was a natural-born subject by birth if she or he was born within the king's realm, of parents whose actual obedience (allegiance) was to the king. All other so-called natural-born subjects -- incuding persons born on English soil, of alien parents -- were naturalized subjects. They acquired subjecthood, not by birth, but by a naturalizing statutes enacted by Parliament (See prior section titled "New Information 1: 18th Century English Law").
(5) Justice Gray had a compelling personal interest in Mr. Wong's citizenship at birth.
Prior to 2008, there was no evidence indicating judicial corruption or conflict of interest in the U.S. v. Wong Kim Ark decision. But, in 2008, Attorney Leo Donofrio published previously-undisclosed historical information which plausibly explains why Justice Gray's reasoning is riddled with misrepresentations of American and English law. (See Historical Breakthrough - Chester Arthur).
Chester Arthur was born in Vermont in 1829. At the time of Chester's birth, his father, William Arthur, was a British subject, not yet a U.S. citizen. William became a naturalized U.S. citizen in August 1843, at which time his underage children, including Chester, acquired U.S. citizenship automatically.
Chester Arthur was elected Vice President in 1880. He became President when James Garfield was assassinated in 1881. Later that same year, President Chester Arthur appointed Horace Gray to the U.S. Supreme Court.
For health reasons, President Arthur did not seek a second term. He left office in 1884, and passed away in 1886. His dying wish was that all of his personal papers be destroyed. However, his family Bible and his father's naturalization records survived. Those documents show that, when Chester was born, his father was an alien, not yet a naturalized U.S. citizen.
President Arthur and Mr. Wong were born under similar circumstances. Each was born in the United States, of a permanently-domiciled alien father. If Mr. Wong did not acquire U.S. citizenship at birth, neither did President Arthur. If President Arthur was not a U.S. citizen at birth, he could not have been a natural born citizen, in which case neither his presidency nor his judicial appointments were Constitutionally valid.
Plausibly, the Supreme Court may have rule that Mr. Wong was a U.S. citizen at birth, in order to retroactively legitimize Arthur's presidency and judicial appointments, including Arthur's appointment of Horace Gray to the Supreme Court.
Obama eligibility challengers contend that, in light of its various problems, Justice Gray's reasoning cannnot be relied upon, and ought not be extended beyond the Supreme Court's actual ruling in U.S. v. Wong Kim Ark .
Every elected or appointed public official falls into one of three categories:
The official acts of a usurper are null, void, and without legal effect. If the courts were to rule that President Obama is a usurper, all of his appointments, directives, executive orders, and all of the laws he had signed, could be declared invalid.
If the courts rule that Barack Obama Jr. is a de facto officer, then, according to the de facto officer doctrine, President Obama's official actions are valid and legally binding, even though he is holding office illegally. However, there are exceptions to this de facto officer rule.
Not all federal courts recognize the de facto officer doctrine:
Several federal courts have abandoned the de facto officer doctrine entirely. In Silver v. United States Postal Service (9th Cir.1991) 951 F.2d 1033, the Ninth Circuit noted that only two federal circuits had adopted the doctrine, one circuit had limited the doctrine, and the United States Supreme Court in two cases had entertained challenges based on the Appointments Clause without considering the de facto officer doctrine. (Id. at p. 1036 fn. 2.) Similarly, in U.S. v. Gantt (9th Cir. 1999) 194 F.3d 987, the Ninth Circuit stated, "[f]ollowing the modern trend we choose not to ratify the actions of an improperly appointed officer of the United States under the ancient 'de facto officer' doctrine." (Id. at p. 998.) In both cases, the Ninth Circuit refused to apply the doctrine and reached the merits of whether the officer had been properly appointed. (Fair Political Practices v. Californians Against Corruption).
Other federal courts accept the de facto officer doctrine in general, but do not apply it in cases in which the actions of an ineligible officeholder violate the purpose of the eligibility requirement:
Several federal cases have refused to apply the de facto officer doctrine where the purpose of the appointment requirement is to protect the person subject to the authority of the judicial officer. For example, in several [military] draft cases, federal courts have allowed a defendant to challenge an induction order on the ground that the draft board was not properly constituted. In U.S. v. Beltran (N.D.Cal.1969) 306 F.Supp. 385, the defendant successfully argued for an acquittal on the ground that the draft board members resided outside of their jurisdiction in violation of the federal appointment requirements. The district court noted that the purpose of this requirement was to promote impartiality, justice, and better decision-making in controversial cases. (Id. at p. 387-388.) Because these requirements were not just formalities, but were specifically designed to protect potential draftees from poor decisions, the District Court ruled that the de facto officer doctrine did not apply. (Id. at pp. 388-390.) Other courts have reached the same decision on the same grounds (see U.S. v. Cabbage (6th Cir. 1970) 430 F.2d 1037, 1041-1042; U.S. v. Williams (E.D. Penn. 1970) 317 F.Supp. 1363; U.S. v. Machado (N.D.Cal.1969) 306 F.Supp. 995, 999-1002), although some courts have disagreed and held that this defense would not be permitted (see, e.g., Czepil v. Hershey (7th Cir. 1970) 425 F.2d 251). (Fair Political Practices v. Californians Against Corruption).
The de facto officer doctrine does not protect the official actions of an ineligible officeholder (consequnetly, those actions may be challenged collaterally) when the actions violate a right or protection that the eligibility requirement confers to persons subject to the officeholder's authority:
Although the de facto officer doctrine generally denies individuals an interest in enforcing title requirements, the doctrine should not apply when a qualification for a specific office aims to protect the individuals subject to that official's authority. A breach of these statutes gives individuals a sufficiently personalized injury to challenge official action on the ground of defective title. (Clokey, p.1135)
In general, the de facto officer doctrine does not apply in criminal cases and in cases in which a "non-frivolous constitutional" issue is raised.
Courts have developed certain exceptions to the de facto officer doctrine. Taken individually, the cases delineating these exceptions involve rather specific factual circumstances and can be narrowly confined. Collectively, however, they represent a gradual erosion of the doctrine. The Supreme Court itself has held that the doctrine does not apply where there is a "non-frivolous constitutional" challenge to an exercise of authority. In addition, one line of cases suggests that the doctrine cannot be reflexively invoked in criminal proceedings. One court has interpreted this series of cases as suggesting or requiring a balanced approach to the problem of the de facto authority. (Clokey, p.1126.)
In Andrade v. Lauer (1984), the DC Court of Appeals held that, if there is a Constitutional defect in an officer's title to the office he is holding, you may collaterally challenge the action of that officer, but only if (a) you bring your challenge soon after the action is taken, and (b) the agency involved was given adequate prior notice of the defect.
The court viewed the primary interests served by the de facto officer doctrine as protection of the public's reliance on past governmental actions and protection of the government's ability to take final and effective action. The court argued that these "core purposes" are served when a contestant brings the challenge soon after the adverse governmental action is taken and he demonstrates that the agency or department involved had reasonable notice of the title defect. Accordingly, the court would allow a collateral title challenge to proceed only where these two requirements have been met. (Clokey, pp.1127-1128).
Assuming that both requirements (adequate prior notice and timeliness of challenge) are met, the Andrade ruling opens the door to collateral attacks against Obama's official actions:
Under the holding in Andrade v. Lauer, the Court of Appeals for the District of Columbia has held that the de facto officer's doctrine does not prohibit "collateral attacks" of official actions based upon a public officer's lack of eligibility. These are not quo warranto suits to remove the official; they are civil suits to challenge a specific action of that official.
In the Andrade case, the plaintiffs were Government employees who lost their jobs to "reduction in force" ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.
The DC District Court held that the plaintiffs had no standing other than to bring a "direct attack" in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said the plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injury in fact (being fired) was caused by a Government official who was not eligible to serve.
They opened the door to a floodgate of litigation by an incredibly large field of possible plaintiffs who might challenge every single official action of the Obama administration on the basis that he isn't eligible. (Donofrio: Quo Warranto Legal Brief, pp.19-20)
In Ryder v. United States (1995), the petitioner, James Ryder, challenged the decision of the Coast Guard Court of Military Review, on grounds that two of the three judges comprising the court had not been appointed legally. The two judges at issue were appointed by the General Counsel of the Department of Transportation, in violation of the Appointments Clause of the Constitution.
The U.S. Supreme Court ruled in Ryder's favor. Three factors appear to have influenced to the Court's decision:
Some courts may allow eligibility challenges made by a "reluctant defendants" in legal actions initiated by purportedly ineligible officeholders:
The [de facto officer] doctrine is typically used against a plaintiff who is suing an administrative agency. However, the Wisconsin Supreme Court has held that courts have the limited discretion not to apply the [de facto officer] doctrine when an agency sues a "reluctant defendant." In Trager, supra, 118 Wis.2d 204 [346 N.W.2d 756], a zoning board found that defendant Trager's garage violated a recently enacted zoning ordinance ... The county then sued Trager seeking a mandatory injunction that he remove his garage. ... The court noted that in many cases the party challenging the order is suing, but in some cases "the administrative agency initiates a civil proceeding to enforce the agency's decision and the party aggrieved by the decision ... seeks to defend against the enforcement action by challenging the validity of the agency decision". (County of Sauk, supra, 118 Wis.2d at pp.212 [346 N.W.2d at pp.760].) "Trager is the reluctant defendant in a court action initiated by the administrative agency." (Id. at 212 [346 N.W.2d at p.760].) (Fair Political Practices v. Californians Against Corruption).
At this time, we are not aware of any case in which a litigant with court-recognized standing has pursued a collateral attack against any of Obama's presidential actions. In Purpura v. Sebelius, the plaintiffs argued that the ObamaCare law (HR3590: Patient Protection and Affordable Care Act) is unconstitutional because it was signed by a Constitutionally-ineligible President. Since ObamaCare affects the public in general and does not harm the plaintiffs a unique or particularized manner, the court ruled that the plaintiffs (as private citizens) did not have standing to challenge the ObamaCare law.
Nevertheless, as increasingly larger numbers of persons and businesses are being uniquely harmed or injured by Obama Administration's official acts, it is only a matter of time before an injured party with proper standing files a collateral attack against one of those official acts.
The following factors may affect the strength, therefore the outcome, of a collateral attack:
...the defendant ... can invoke the Sixth Amendment: namely, "In all criminal prosecutions the accused shall enjoy the right ... to have compulsory process for obtaining Witnesses in his favor ... ." Presumably, a properly represented defendant would subpoena Obama himself as the indispensable witness, requiring him to bring into court whatever records were in his possession or subject to his control that in any way evidenced, related to, or referred to the time, place, and circumstances of his birth, or to his citizenship, application for citizenship, renunciation of citizenship, or oath of allegiance in or to any country. This would include the original of his supposed Hawaiian birth certificate; every subsequent Hawaiian "certification of live birth" or like document created by public authorities; every other "birth certificate" or equivalent document whenever, wherever, and by whomever generated in the name of "Barack Obama" or any of his several other names; every document submitted to an educational institution that contained information or representations concerning his place of birth or citizenship; and so on. ... And no Hawaiian or other law of the States or the General Government purporting to make those records "confidential" can frustrate the Sixth Amendment. (Vieira)
Based on new information which supports the exclusive-citizenship theory and impugns the birthplace-only theory, President Obama does not appear to meet the presidential "natural born citizen" eligibility requirement specified in the U.S. Constitution.
The President's ineligibility may open the door of opportunity to persons and organizations who are suffereing, or are about to suffer, an injury in fact as a direct result of some official act of the President or one of his appointees.
If you are facing unique harm or injury as a direct result of a law that President Obama has signed, or a directive or executive order that he has issued, or an official action by one of his appointees, you may have standing to pursue a collateral attack against that law, directive, executive order or official action, based on evidence that the President is not a natural born citizen.
Such a collateral attack would be in addition to other legal defenses or remedies you might choose to pursue.
This article is for general information only and should not be construed as legal advice. You should seek professional legal assistance when considering whether a collateral attack based on President Obama's ineligibility is appropriate for your particular circumstances.
|||The U.S. Constitution states:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. (U.S. Constitution: Article 2, Section 1, Clause 5)
Thus, if you wish to serve as President of the United States, you must meet three requirements:
The Constitution makes a special exception for persons who were born before September 17, 1787, the date on which the U.S. Constitution was adopted. If you were already a U.S. citizen on that date, you do not need to be a natural born citizen in order to serve as President; your preexisting citizenship is sufficient to meet the presidential citizenship requirement. However, no one alive today qualifies for this exception. If you were born after September 17, 1787, mere U.S. citizenship is not enough: you must be a natural born citizen in order to be eligible to serve as President.
|||Barack Obama Jr. claims that he was born in Hawaii on August 4, 1961, that his mother was Stanley Ann Dunham (1942-1995), and that his father was Barack Obama Senior (1936-1982). Stanley Ann Dunham was a U.S. citizen. Barack Obama Sr. was a foreign national who never became a U.S. citizen.
If Barack Obama Jr. was born in Hawaii (as he claims), he acquired U.S. citizenship, at birth, by virtue of birth on U.S. soil.
If Barack Obama Jr. was born in a foreign country, his U.S. citizenship, at the time of his birth, would have been governed by U.S. laws which were in effect at the time of his birth. Those laws are summarized here:
What are the rules for people born [outside the United States] between December 23, 1952 and November 13, 1986?
If President Obama was born in a foreign country, his U.S. citizenship, at the time of his birth, would have depended on the marital status of his mother.
Regardless of where President Obama was born and regardless of whether he is or isn't a U.S. citizen, he publicly admits that he received foreign nationality, at birth, by descent from his father. For that reason, the President does not appear to be a U.S. natural born citizen.
|||President Obama's published Long-form Certificate of Live Birth appears to be a fabrication, not the image of an actual 1961-era document (Zullo Affidavit).|
|||These sources suggest that Barack Obama may have been born in Kenya
(previously known as British East Africa):
In 1991, a brochure published by his literary agent, Acton & Dystel, stated that Barack Obama was born in Kenya:
Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii. (Obama's Literary Agent in 1991 Booklet)
The information in the brochure most likely came from Obama himself (Evidence Obama Born In Kenya Goes Beyond 1991 Brochure).
In a speech before the Kenyan National Assembly, James Orengo, the Kenyan Minister for Lands, indicated that President Barack Obama was born in Kenya:
If America was living in a situation where they feared ethnicity and did not see itself as a multiparty state or nation, how could a young man born here in Kenya, who is not even a native American, become the President of America? It is because they did away with exclusion. (National Assembly Official Report, Thursday, 25th March 2010, p.31)
During the second half of 1961, the U.S. Immigration and Naturalization Service (INS) issued a Certificate of U.S. Citizenship to a child which was born in East Africa, of a U.S.-citizen parent. There is speculation that the child was Barack Obama Jr.:
...an American consular officer issued a single Certificate of Citizenship to only one passenger arriving in the U.S. from the Kenyan region of Africa between July and December of 1961. The record shows demographic and status classifications for a passenger who was explicitly recorded at the INS Arrival Inspection Station as an individual being born to a U.S. citizen parent arriving from the Kenyan region of Africa between July 1st and December 31st, 1961. (INS doc found: U.S. Certificate issued to one East African-born child of U.S. citizen in 1961)
According to hand-written "line records" in the British National Archives (BNA), three births took place in Kenya -- one in 1958, another in 1960, and the third in 1961 -- to a father whose name resembles "Barack Obama". There is speculation that one of those births was that of President Obama:
The books containing hand written line records of vital events attributed to Obama are contained in Series RG36 of the Family Records section in the Kew branch of the BNA. The hand written line records first discovered in 2009, indicate several events were registered to the name Barack Obama (appears to be handwritten and spelled "Burack" and "Biraq") beginning in 1953 and include two births recorded in 1958 and 1960, a marriage license registration in 1954 and a birth in 1961. ... To date, Barack Obama II is the only known alleged son of Obama Sr. born after 1960 and before the independence of Kenya became official in 1963. ... The line records do not specify the identity or names of the children, only gender. However, the line records are associated with index numbers of actual microfilm copies of certificates, licenses and registration applications filed in the archives. According to researchers, Obama's line records were discovered in Series RG36, reference books. Not surprisingly, when researchers specifically requested access to the relevant microfilm for the Obama birth registrations, they were told that the records were currently held under an outdated "privileged access" status, meaning researchers were denied access under Chapter 52, Sections 3 and 5 of the British Public Records Act of 1958. (Obama's Kenyan Birth Records Discovered in British National Archives; see also British National Archives show a son was born to Obama Sr. in 1961 in Kenya)
In a speech delivered prior to the 2008 presidential election, national security specialist Michael Shrimpton reported that, according to British Intelligence, Barack Obama Jr. was born in 1960, in Mombassa, Kenya.
Video excerpt of Shrimpton's speech (7 mins 6 secs)
|||FactCheck.org has confirmed President Obama's foreign citizenship at birth:
...at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Obama's Kenyan Citizenship)
|||There is a distinction between what a natural born citizen is, and how someone becomes a natural born citizen. According to the exclusive-citizenship theory, a natural born citizen is a person whose citizenship, at birth, is of the United States exclusively. Birth in the United States, to U.S. citizen parents, is one pathway to natural born citizenship, but is not necessarily the only pathway. A child born in the United States, to parents who are stateless (have no ties of any kind to any country) or are U.S. nationals (persons who owe allegiance to the United States exclusively, but are not U.S. citizens) is, at birth, a citizen of the United States exclusively, hence could be construed to be a natural born citizen.
Although the laws of a foreign country generally do not apply in the United States, the U.S. State Department has, throughout history, recognized the right of a foreign country to confer citizenship to the children of its citizens, even when those children are born on U.S. soil. (See US Citizens Born With Dual Nationality)
|||There is a third theory, called the citizenship-at-birth theory, which posits that all persons who acquire U.S. citizenship at birth are natural born citizens, regardless of their birthplace. However, according to official literature published by the U.S. State Department, a person must be, at minimum, "native-born" (born in the United States) in order to be eligible to serve as President.
Another right of all citizens is running for federal office. Many naturalized citizens are elected to federal office. However, to be president or vice president, you must be born in the United States. (Your Government and You, p.1)
U.S. citizenship is required for many elected offices in this country. Naturalized U.S. citizens can run for any elected office they choose with the exception of President and Vice President of the United States, which require candidates to be native-born citizens. (Citizens Almanac, M-76, Rev. 8/13, p.4)
|||See, for example, John Jay's Letter dated 25 July 1787, and Joseph Story: Commentaries (1833), Section 1473).
"Foreign influence" does not necessarily imply disloyalty or national security risk. As a general rule, naturalized citizens are loyal to the United States and would never deliberately harm the United States. Nevertheless, such citizens might be "influenced", in subtle and unpredictable ways, by their past associations with foreign countries.
The Framers of the Constitution were not xenophobic. Although British law barred many naturalized English subjects from serving in Parliament, the Constitutional Convention rejected a proposal to similarly prevent naturalized citizens from serving in Congress. Thus, it does not appear that the Framers were distrustful of "ex-foreigners" (foreigners who had renounced their foreign nationality and were now citizens of the United States exclusively).
However, the Framers were distrustful of the foreign governments to which ex-foreigners had previously owed allegiance. The Framers were concerned that, if an ex-foreigner were to become President, a foreign government, even a supposedly friendly one, might attempt to use the President's past allegiances to "influence" him or her towards making decisions which, though not harmful to the United States, are less than optimal to its interests. (See John Jay's essays "concerning the dangers of foreign force and influence" in The Federalist Papers).
The President's past ties to a foreign country might have unforeseen consequences. For example, if a dispute develops between allies of the United States, the disputing countries might question the impartiality of the U.S. President if he was, at one time, a citizen of one of those countries.
As Attorney General Jeremiah Black explained, a person may serve as President only if he or she "never did owe fealty" to any sovereignty other than the United States.
There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. ... Here none but a native can be President. ... A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (Black, boldface emphasis added)
|||If the Constitutional Convention had intended merely to exclude foreign-born individuals from the presidency, the phrase "native-born citizen" would have been "a much more apt" wording choice:
The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ... It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word "native," which is a much more apt word than natural. (Bridgham)
In 1904, Alexander Porter Morse similarly noted that, if the Constitutional Convention had intended merely to exclude foreign-born persons from the presidency, "native-born," instead of "natural born," would have been sufficient:
At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, "no person, except a native-born citizen"; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)
|||We distinguish between federal and state courts, because there was (and to some extent, still is today) a distinction between a state citizen (a citizen of a particular state) and a federal citizen (a citizen of the United States).
Prior to 1856, it was generally assumed that a citizen of any state was automatically a citizen of the United States. But, in Dred Scott v. Sandford (1856), the Supreme Court rejected this assumption. The Court explained that, on September 17, 1787 (the date on which the U.S. Constitution was adopted), all then-existing state citizens became U.S. citizens. But, thereafter, new federal (United States) citizens were created either by federal law enacted by Congress or "by birth" (as defined by federally-recognized common law). The states had the right to confer state citizenship upon anyone they chose, but state citizenship did not automatically confer federal citizenship of any kind, natural born or otherwise.
State citizenship laws varied from state to state. But, in general, each state grant state citizenship to all free white persons born within its borders, even if their parents were aliens. A state typically required aliens to swear allegiance to the state prior to settling anywhere within that state. Thus, as a general rule, children born within the boundaries of a state, of alien parents, were "born within the allegiance" of the state, i.e., were born of parents whose allegiance was to the state exclusively.
While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (Madison(2007))
... unlike the British practice, States required everyone including aliens to take an oath of allegiance to the State as a condition of residency. Children born to these residents were considered born into the allegiance of the State. In addition to this, States also had specific laws that banned citizenship to alien born who were not resident aliens who had declared their allegiance. (Madison(2008))
|||In his book, Citizenship of the United States (1904), Fredrick Van Dyne acknowledged that, prior to 1866, common law determined the citizenship, at birth, of children born on U.S. soil.
The Constitution of the United States ... contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866. Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural-born citizens thereof. (Van Dyne, p.4)
Van Dyne asserts that anyone born on U.S. soil is a U.S. citizen at birth. He also cites sources which assert that anyone born on U.S. soil is a natural born citizen, although Van Dyne himself stops short of embracing that viewpoint. By common law, a natural born citizen is one who is both (a) born within the limits (territory) of the United States, and (b) born within the allegiance of the United States. As Francis Bacon explained in his Report on Calvin's Case (1608), "born within the allegiance" of a sovereign is a figure of speech referring to children which are born of parents whose allegiance is to that sovereign (Bacon, Francis, pp.652-653).
The federal courts applied "common law" only to matters on which both the Congress and the U.S. Constitution were silent. Since the Constitution gave Congress the power to establish uniform rules of naturalization, and since Congress had exercised that power by passing laws governing the naturalization of foreign-born adults and their children, the common law did not apply to persons born outside of the United States.
The notion that there is any common law principle to naturalized the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not and never was any such common law principle. (Binney (3rd edition). p.203).
|||In at least some court decisions, Vattel's Law of Nations was apparently a source of the partus sequitur patrem principle (whereby the status of a child follows that of its father). But Vattel does not appear to be the source of the phrase "natural born citizen" in the U.S. Constitution. The phrase "natural born citizen" did not appear in any English translation of Vattel's Law of Nations until 1797, a decade after the U.S. Constitution was written. The phrase "natural born" in the U.S. Constitution most likely came from English law, not Vattel.|
|||In his book, Citizenship of the United States (1904), Fredrick Van Dyne cited several pre-Civil-War cases which appear to support the notion that "all persons born in the United States were citizens thereof" (Van Dyne, pp.4-5). However, none of the cited cases, except Lynch v. Clarke (1844), is supportive of jus soli citizenship; and Lynch v. Clarke was reversed by Ludlam v. Ludlam (1883).
Van Dyne cited several invividuals who had expressed their opinion that mere birth on U.S. soil was sufficient to confer U.S. citizenship at birth, but prior to the Civil War, there was no federal court ruling supportive of that viewpoint.
|||In U.S. v. Wong Kim Ark (1898), Justice Gray asserted that the decision, in Elk v. Wilkins (1884), was applicable to Native American Indians only. But the actual wording of the Court's decision in Elk v. Wilkins does not support that assertion. The U.S.-born child of a father whose owes allegiance to any sovereignty other than the United States does not acquire U.S. citizenship at birth. A Native American Indian tribe is a sovereignty separate from (though dependent on) the United States. Therefore, the U.S.-born children of parents who owe allegiance to an Indian tribe do not acquire U.S. citizenship at birth. In this respect, Indian tribes were regarded the same way as any other foreign nation.|
|||It is not unusual for an English word or phrase to have an "actual" meaning and a "legal" meanings. A tomato is actually a fruit; but by law, it is deemed a vegetable (Supreme Court Rules that Tomatoes are Vegetables). There is a distinction between "actual" (physical) custody of a child, and "legal" custody (Difference Between Physical and Legal Custody). If you have physical contact with and control over an object, you are in "actual" possesion of it; but, if you place the object in a safety deposit box in a bank, you still possess the object, but only in a "legal" (or "constructive") sense; you are no longer in "actual" possesion of it (Legal Definition of 'Possession'). The underage dependents living in your home may be your children in fact (your actual biological offspring) or your children in law (your children by marriage or adoption). Likewise, during the 18th century, "natural born" had both an "actual" meaning and a "legal" meaning. All English subjects (except persons made denizens by the king) were natural-born subjects in law, but only English subjects by birth were natural-born subjects in fact.|
|||In his Commentaries (1765-1769), William Blackstone used the word "subject" to refer to members of the English nation, and the word "citizen" to refer to the freemen of an English city. This passage, from Blackstone's Commentaries, illustrates how the English word "citizen" was used in English writings prior to the American Revolution:
In some cases, the sheriff of London's certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner, in case of privilege pleaded to be sued only in the city courts. (Blackstone's Commentaries, Bk 3, Chap 22, emphasis added)
|||Apprenticeship was the most-frequently-used pathway to urban citizenship:
In sixteenth century London, for example, it has been estimated that 90 per cent of Londoners became citizens through apprenticeship (Withington, p.29)
|||In eighteenth-century English cities and towns, "citizenship by birth", also called "citizenship by patrimony", was available:
...only to the legitimate and natural children of a male (or, since 1976, female) Freeman who were born after their parent's own Freedom admission. (City Freedom rchives)
You could claim English urban "citizenship by birth" if, at the time of your birth, your father was a citizen:
It may be assumed that those who claimed the franchise by birth were the sons of well-to-do freemen (Seybolt, p.4)
Freedom by patrimony was granted to sons of citizens who requested admission to freedom under the auspices of the guild to which their father belonged. (Herzog, p.178)
|||Francis Bacon's explanation of the meaning of the phrase, "born within the allegiance", helps to clarify a comment by Circuit Court Justice Noah Haynes Swayne in United States v. Rhodes (1866).
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. (United States v. Rhodes (1866), p.7)
As Francis Bacon explained, the phrase "born within the allegiance" is a figure of speech which means "born of parents who are within the allegiance" (Bacon, Francis, pp.652-653). Thus Justice Swayne's comment could be understood as:
All persons born [of parents who are] in the allegiance of the King are natural-born subjects, and all persons born [of parents who are] in the allegiance of the United States are natural-born citizens.
Justice Swayne knew, or should have known, these facts regarding English law:
In light of the above information, Justice Swayne's comments can be further clarified as:
All persons born [of parents who are] in the [actual] allegiance of the King are [actual] natural-born subjects, and all persons born [of parents who are] in the [actual] allegiance of the United States are [actual] natural-born citizens.
|||For further information about problems inherent in U.S. v. Wong Kim Ark, see Amicus Brief and Was U.S. vs. Wong Kim Ark Wrongly Decided?|
|||Foreign citizenship at birth, by itself, does not influence one's judgment in later life. The decisions that one makes during adulthood are influenced to a far greater extent by one's upbringing rather than one's citizenship at birth. However, children born with foreign nationality are more likely to be raised by foreign citizens, in a foreign country, than children born with exclusive U.S. citizenship.
Often, the reason a child is born with foreign nationality is closely tied to the reason such child is raised and educated by foreigners. In Obama's case, the reason he was born with British/Kenyan nationality is the same reason he was raised in Indonesia from 1966 through 1971: his mother's preference for husbands who are foreign nationals.
According to the exclusive-citizenship theory, the "natural born citizen" provision excludes, from the presidency, persons who were born with foreign nationality. By excluding such "foreigners" from the presidency, the provision reduces the probability of inaugurating a President who had been raised (a) in a foreign country, or (b) by foreign citizens, or (c) both.
President Obama's foreign upbringing can be tied to his foreign nationality at birth. If Barack Obama had been born with exclusive U.S. citizenship (that is, if he had been born in the United States, to parents who were both U.S. citizens), he probably would have been raised in the United States, by persons who were citizens of the United States; and it's less likely he would have been raised by a foreign-citizen step-father, in a foreign country.
When President Obama takes an action or makes a decision which appears to have been influenced by his Indonesian upbringing (particularly, the action or decision reflects attitudes and perspectives which are more typical of Indonesian society than of the United States), such action or decision is vulnerable to collateral attack because it has the objective appearance of a "foreign influence" which would have been less likely if he had been, at birth, a citizen of the United States exclusively.
|Bacon, Francis||Francis Bacon, Case of the Post-Nati of Scotland, 1608. Also, James Spedding, Works of Francis Bacon, Volume XV.|
|Bacon, Matthew||Matthew Bacon, A New Abridgement of the Law -- Volume 1, 1736. (This is a 57MB PDF document)|
|Berry||M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, Berkeley Journal of International Law, Vol. 27:2, 2009.|
|Binney (1st ed.)||Horace Binney, First Edition: The Alienigenae of the United States, 1853.|
|Binney (2nd ed.)||Horace Binney, Second edition: The Alienigenae of the United States, 1853.|
|Binney (3rd ed.)||Horace Binney, Third (final) edition: The Alienigenae of the United States, American Law Register, 1854.|
|Black||Jeremiah Black, Opinion upon Expatriation and Naturalization, 1859.|
|Blackstone||William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 10, 1765-1769.|
|Bonner||J. Rebekka Susan Bonner, Who May Be President? Constitutional Reinterpretation of Article II's 'Natural Born' Presidential Eligibility Clause, 2008.|
|Bridgham||Percy A. Bridgham, People's Lawyer, Boston Daily Globe, November 9, 1896.|
|Clokey||Kathryn A. Clokey, De Facto Officer Doctrine, 1985.|
|Coke||Edward Coke, Selected Writings of Sir Edward Coke: Volume 1, 1608. (This is a 2.29MB PDF document).|
|Cowell||John Cowell, The Interpreter, 1607.|
|Cunningham||Timothy Cunningham, A New and Complete Law-Dictionary, 1771. Except: Cunningham (1771): Aliens|
|Dicey||Albert Venn Dicey, A digest of the law of England with reference to the conflict of laws, 1896.|
|Donofrio||Leo Donofrio, Quo Warranto Legal Brief, 2009.|
|Eelbeck||Henry Eelbeck, A proposal for printing in English, the select orations of Marcus Tullius Cicero, 1720.|
|Galloway||Bruce Galloway, The Union of England and Scotland 1603-1608, 2003.|
|Herzog||Tamar Herzog, Defining Nations, 2003.|
|Jacob||Giles Jacob, A New Law Dictionary, 1782. Excerpts:|
|Johnson||Samuel Johnson, A Dictionary of the English Language, 1755.|
|Kettner||James H. Kettner, The Development of American Citizenship 1608-1870, 1978.|
|Kim||Keechang Kim, Aliens in Medieval Law, 2000.|
|Madison (2006)||Paul A. Madison, Was U.S. vs. Wong Kim Ark Wrongly Decided?, 2006.|
|Madison (2007)||Paul A. Madison, What 'Subject to the Jurisdiction Thereof' Really Means, 2007.|
|Madison (2008)||Paul A. Madison, Defining Natural Born Citizen, 2008.|
|Maskell||Jack Maskell, Congressional Research Service, Qualifications for the Office of President, April 3, 2009.|
|Mayton||William Mayton, Birthright Citizenship and the Civic Minimum, 2007.|
|Morse||Alexander Porter Morse, Natural-born Citizen of the United States: Eligibility for the Office of President, Albany Law Journal, Vol.66 (1904-1905).|
|Parry||Clive Parry, British Nationality Law, 1954.|
|Patsall||J. Patsall (translator), Ouintilian's Institutes of the Orator, Volume 2, 1774.|
|Ross||J.M. Ross, "English Nationality Law: Soli or Sanguinis?", in Charles Henry Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2, 1972.|
|Salmond||John W. Salmond, Citizenship and Allegiance, Law Quarterly Review, 1902.|
|Seybolt||Robert Seybolt, The Colonial Citizen of New York City, 1918.|
|Spelman||Edward Spelman (translator), The Roman Antiquities, Volume 3, 1758.|
|Van Dyne||Frederick Van Dyne, Citizenship of the United States, 1904.|
|Vattel||Emmerich de Vattel, Law of Nations, Book 1, 1758.|
|Vieira||Edwin Vieira, In the Shadow of Nemesis, December 8, 2008.|
|Wooddeson||Richard Wooddeson, A Systematical View of the Laws of England - Volume 1, 1777.|
Montgomery Sibley has published a sample motion that criminal defendants may use to challenge an indictment, prosecution or conviction resulting from (a) a law that President Obama has signed, or (b) a prosecutorial decision by one of his appointees:
Sample Defendant's Motion to Dismiss
Listed below are some laws that President Obama has signed. If you are charged with, are being prosecuted for, or have been convicted of, violating one of these laws, or if you have been denied any rights or benefits as a result of any of these laws, you might have standing to challenge the constitutionality of that law, on grounds that it was never signed by a constitutionally-eligible president.
The Federal judges, listed below, were appointed by Barack Obama who, being Constitutionally ineligible to serve as President, does not have Constitutional authority to appoint anyone. As a general rule, the actions and decisions of a de facto judge are valid and legally binding; but there are exceptions to this general rule. When a de facto judge is notified of the defect in his appointment before he takes any action on a particular case, he should recuse himself from that case, especially if the case involves a challenge to Barack Obama's presidential eligibility. A judge's refusal to recuse himself or herself under such circumstances might provide a basis for appeal.
Source: List of federal judges appointed by Barack Obama (as of May 23, 2013)
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