Yes, Kamala Harris Is Indeed a Natural-Born Citizen

I saw over the weekend that some people argue that Kamala Harris is ineligible to be Vice-President: apparently her parents weren't citizens when she was born, so the argument goes that she is thus not a natural-born citizen. (Under article II of the Constitution, only a "natural-born citizen" can be President, and the Twelfth Amendment provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.")

But "natural-born citizen" appears to have been the Framers' adaptation of the familiar English term "natural-born subject" (though with the "subject" of a monarch being changed to the "citizen" of a republic). And Sir William Blackstone, who immensely influenced the Framers' understanding of the law, expressly explained that

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king…. The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, … if a child be born of foreign parents, it is an alien.

The test was place of birth, not the citizenship of parents.

It's possible that this has since been broadened to include children of U.S. citizens born overseas (a 1790 Act of Congress specified that, "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"). But it hasn't been narrowed, and in U.S. v. Wong Kim Ark (1898), the Court reaffirmed that people born in the U.S. are indeed American citizens, regardless of their parents' citizenship (with narrow exceptions for "children of members of the Indian tribes," who were at the time not citizens, and "children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State").

Now the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations (a book that had some influence on the Framers), did say that, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." But that was describing the European civil law rule, not the British common law rule; and in any event, the earlier editions appear to use the word "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes") instead of "natural-born citizens."

Presumably the 1797 editor at least viewed the terms as roughly interchangeable. Still, I expect that the Framers, when they were writing the Constitution, mentally linked the "natural-born citizens" phrase more to the "natural-born subject" in Blackstone's very familiar explanation of the common law, rather than to "natives, or indigenes" in Vattel's somewhat less familiar discussion of the civil law.

I have seen some point to this 1787 John Jay letter to George Washington:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

But while this shows that Jay supported the natural-born citizen requirement, and saw it as a means of staving off undue foreign influence, it doesn't tell us how he understood who qualifies as a "natural born Citizen."

Finally, I've seen some suggest that being born to noncitizen parents may lead to divided loyalties, and that this should preclude the person from being elected President (or Vice-President). But while concern about divided loyalties may be the reason for the provision, the provision itself doesn't ask about divided loyalties.

I can't be elected President even if I satisfy everyone that I have no loyalty to the USSR, where I lived until I was seven, or to the nation of the Ukraine, which didn't exist as a country when I was born there. Conversely, someone born in the U.S. (and thus the American equivalent of Blackstone's "natural-born subject") is a natural-born citizen regardless of whether we think there's reason to doubt their undivided loyalty—say, the parents' foreign citizenship at the time of birth (a pretty weak reason for such doubts, I think), the citizenship of the candidate's spouse or children, blood relation between the candidate and some foreign potentate, or whatever else.

The voters can certainly consider any claims of dual loyalty. But the minimum criteria set forth by the Constitution are solely that the person be "a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution," "have attained to the Age of thirty five Years," and have "been fourteen Years a Resident within the United States."

I wouldn't vote for Kamala Harris for Vice-President (or for President); but she is indubitably constitutionally eligible to the office.

UPDATE: Just to illustrate the gradual shift from "natural-born subject" to "natural-born citizen," with no indication that Revolutionary sentiment treated the two as radically different, see the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777:

Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.

 

Comments

[Dr. Ed 2]

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Was the child of aliens "subject to the jurisdiction thereof"? I'd argue that she wasn't.

And then did the 1865 14th Amendment modify the 1787 clause in Article 2? I'd say no, but then I thought that "sex" meant "sex."

IANALNDIWTB -- but I doubt that SCOTUS has ruled on this.
And who knows what SCOTUS will do?

[Allutz]

Aliens legally present are subject to the US's jurisdiction. Originally Indian tribes on their own land were not, so a special legislation was passed in the 1920s to give them citizenship on birth.

[Richard]

I quit working at shoprite and now I make $65-85 per/h. How? I'm working online! My work didn't exactly make me happy so I decided to take a chance on something new…MGf after 4 years it was so hard to quit my day job but now I couldn't be happier.

Here’s what I do…......► Cash Mony System

[Patrick Henry, the 2nd]

Only partial jurisdiction. The constitutional requires complete jurisdiction. Hence she is not eligible.

[JollyRoger888]

You are correct sir and in total agreement with Supreme Court Justice Gray who stated, ""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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized"

[JollyRoger888]

Harris parents were NOT under U.S. jurisdiction when she was born ACCORDING to the men who wrote the 14th Amendment AND the Supreme Court. >>> According to the men that wrote the 14th Amendment she was not a U.S. citizen when she was born <<>> Senator Jacob Howard (R), author of the 14th, said concerning 14th Amendment citizenship “This will not, of course, include persons born in the United States who are 1)foreigners, 2)aliens, 3)who belong to the families of ambassadors or 4)foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Congressman John Bingham (R) presenter of the 14th Amendment to the U.S. House of Representatives said, “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” Senator Reverdy Johnson (D-Md.) explained that parents must be “subject to the authority” of the United States if their children born here are to be classified as having acquired the status of U.S. citizen: “Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. Nikki Haley is not eligible to be President.. This is but a short piece of all the evidence that proves NIKKI HALEY IS INELGIBLE TO BE PRESIDENT.. Do the research yourself. You will find this to be true.. Please do not support violating the Constitution by supporting her.========================================Rep. John Bingham, Principal Framer of the Fourteenth Amendment of the U.S. ConstitutionDuring a debate (see pg. 2791) regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen. Representative Bingham (of Ohio), stated on the floor:As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution,=================All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians. – (Cong. Globe, 37th, 2nd Sess., 1639 (1862))=============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…. – (Cong. Globe, 39th, 1st Sess., 1291 (1866))———————————-According to Justice Black, Bingham’s words uttered on the floor of the House are the most reliable source. Bingham made three statements, none of them challenged on the Floor, which indicate that a natural born citizen is a person born on US soil to parents who were US citizens.<<< "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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized" Further proof that Harris' parents were not under the jurisdiction of the U.S. as Justice Gray points out, "completely subject to their political jurisdiction and owing them direct and immediate allegiance." Her Dad did not sign up for the Draft which was mandatory law and he was not drafted nor did he serve.

[Eugene Volokh]

Dr. Ed 2: You'd argue that a child of aliens wasn't subject to the jurisdiction of the United States -- but on what basis would you argue this? Also, did you have a chance to read the Wong Kim Ark case that I cited and linked to, and see what it has to say about "subject to the jurisdiction thereof"? I assure you that it's not silent on that subject.

As to subsequent amendments, they can certainly modify preexisting parts of the Constitution (and indeed are often intended to do so); but here, the Fourteenth Amendment more elaborated than modifying article 2: "Natural-born citizen," as I mentioned, linked back to Blackstone's "natural-born subject," which focused on the place of the person's birth (as does the Fourteenth Amendment). The main change wrought by the Citizenship Clause had to do with overruling the Supreme Court's holding in the Dred Scott case that blacks weren't citizens.

[Brett Bellmore]

I think Ed's position isn't any crazier than a lot of current "good" jurisprudence, much of which is only accepted as reasonable because we've become numb to how crazy it was to begin with.

Sure, it's off the wall, but objectively considered in the context of what's currently on the wall, is that really a strong objection?

[Sarcastr0]

This isn't an argument - it's an appeal to...grumpiness I guess?

'This argument may be wrong, but I also think many other things are wrong, so you shouldn't care about wrongness.'

We get that your worldview and jurisprudence are radically different from the status quo in the country, you don't need to keep jumping in and bomb discussions about what the law is with declarations about how the law isn't as it ought to be. Plenty of places for that discussion elsewhere.

[Brett Bellmore]

Ed's proposing an interpretation of the 14th amendment that's at odds with the text. I'm simply pointing out that a lot of current jurisprudence is equally at odds with text, so how is that a substantial objection?

I'd like to see birthright citizenship limited to the children of citizens or green card holders, and categorically prohibited for people whose parents were here on tourist visas, or worse, illegally. "Birth tourism" is a real thing, and a statistically improbable fraction of illegal immigrants are pregnant.

But Ed's proposal is not the best way to get there. Ideally we should amend the Constitution to accomplish it.

[Sarcastr0]

Ed isn't making an anti-textual argument, or a policy argument; he's making a textual one that Prof. Volokh exploded.

You've had to re-write his rationale to be in keeping with this other thesis about the Constitution in Exile.

I am aware that there are many on the right that want to reduce one of my favorite aspects of America into something much less exceptional. If birth tourism is a thing (you got a cite for the pregnancy rate?), it shows we're still great. I have no problem with citizens whose parents worked hard to get them here. If you've ever talked to a Dreamer, their fervency of love for America makes me feel inadequate.

[Brett Bellmore]

There's a point where a textual argument becomes "explodey" enough that it's really an anti-textual argument.

[Dilan Esper]

Ed’s proposing an interpretation of the 14th amendment that’s at odds with the text. I’m simply pointing out that a lot of current jurisprudence is equally at odds with text, so how is that a substantial objection?

The more substantial objection is that it is not the law.

Fundamentally, you don't understand that all those court decisions you don't like are part of the law. Indeed, in many cases, they are the only part of the law that matters, because they define what your rights are when there is a dispute.

[JollyRoger888]

There is no need to amend the Constitution. The men who wrote the 14th Amendment stated that children born of aliens and foreigners are NOT U.S. citizens. It's message and words are clear. Delegate Bigham said it over and over and over again on the House floor in various debates. He got zero objections to what he stated - NONE. Justice Gray in Wong Kim Ark upheld those men's statements, specifically addressing the 14th Amendment.  >>> "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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized"

[Hank Ferrous]

Agree w/ the potentially grumpy tone, but likely easier to ask than assume re the rest. If he is opening an argument (debate, should I have to parentheticize?) then, he's done it in a grumpy manner.

[Sarcastr0]

I can come in a bit hot at times, you're not wrong.

[cajuninct]

Looking to Blackstone for definition of the phrase "natural-born Citizen" based on his explication of the common law in a monarchy is not logical. We are a republic, not a monarchy. We are citizens, not subjects, as Blackstone defines the phrase. We rejected Monarchy. We need to look to civil law, which grew out of another republic, Rome. None of the founders would ever have contemplated U.S. citizenship merely by location of birth without looking to the citizenship of the parents at the time of the candidate's birth. Citizenship by birth location alone, is not in harmony with the founders interpretation of the Constitution.

[Reality Check]

The Supreme Court however has ruled that to define the meaning of terms used in the US Constitution we must look to English Common law. The term "natural born subject" continued to be used in citizenship proclamations in states like Massachusetts for years after the American Revolution.

[cajuninct]

Just because the Supreme Court has ruled that to define the terms used in the U.S. Constitution we must look to English Common law (or basically a restatement of judge-made law from old England) does not make it right, or that a majority of citizens has to accept it. They were wrong, and the citizens have the final word. Otherwise we cease to be our own rulers, surrendering our fate to a group of an unelected nine. The idea that the drafters and ratifying conventions in any way defined "natural-born" as anything other that the highest hurdle, the highest and best form of citizenship for the highest office in the land is preposterous. Additionally, the idea that "natural-born" would include dual-citizens in the office of president under the Constitution is beyond laughable.

[Tundra Grifter]

You are just making stuff up. The basis for our law is common (English) not civil (Roman) - unless you live in Louisiana. Your are almost three hundred years too late to reject Blackstone. Even justices who claim to object to "foreign law" often turn to him - Justice Thomas is a textbook example. The founders thought birthright citizenship so common and obvious in the early days of our nation the only dispute was whether a child born of citizen parents in another land (or on a vessel at sea) could be a natural-born citizen. Birthright citizenship for white folks started when our nation began.

[JollyRoger888]

Justice Gray in writing the ruling of the Court in Wong Kim Ark and Chief Justice Fuller in writing a dissenting opinion BOTH quoted the Supreme Court standard birth circumstances that must be met to be a natural born citizen. "The natives, or natural-born citizens, are those born in the country of parents who are citizens."

[Helvidius]

Wong Kim Arm may not apply to Harris. You've ignored the full holding of the Court, that required the child's parents be domiciled in the U.S. Prof. Eastman points this out. Why do you evade that point?

[JollyRoger888]

As I have stated before you are posting misinformation. Let us let Supreme Court Justice Gray provide the facts as he wrote them for the Court in Wong Kim Ark. 1) In specifically addressing the 14th Amendment, "The Constitution does not in words say who shall be natural-born citizens." Did you get that? The 14th Amendment does NOT grant natural born citizenship to anyone. 2) In specifically addressing 14th Amendment "jurisdiction" Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:
"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.***" Justice Gray expounded on that, That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that ***all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment*** 3) Justice Gray made it plain and to the point. "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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized" Justice Gray in writing the ruling of the Court AND Chief Justice Fuller in a dissenting opinion BOTH quoted the Supreme Court standard birth circumstances that must be met to be a natural born citizen. "The natives, or natural-born citizens, are those born in the country of parents who are citizens. You can not find your claim "Anyone born in the U.S. is a natural born citizen." in a Supreme Court opinion. It does not exist. Harris is according to the men who wrote the 14th Amendment not even a citizen much less a natural born citizen. Do you even know what the RULING on the Wong Kim Ark case was?

[wnoise]

> but then I thought that “sex” meant “sex.”

Can we stop this mischaracterization? Bostock affirmed that "sex" means "sex", and the standard age-old notion of biological sex at that. All it said was that discrimination based on either homosexuality or trans status was necessarily also discrimination based on sex. And this is clear because if you the sex of only the employee and nothing else, not their partners, nor their behaviour, the discriminator would reach a different decision.

The only way around this is to analyze "discrimination against due to sex" as a whole phrase, rather than analytically breaking it up into the whole words. Yes, at the time the whole phrase would be unlikely to be analyzed this way. You can argue the meaning of the phrase changed. But it's not because the meaning of "sex" changed.

[Dilan Esper]

Was the child of aliens “subject to the jurisdiction thereof”? I’d argue that she wasn’t.

1. Who the heck cares what you think? There's Supreme Court precedent on this. Your personal opinion of what the law should be is basically worthless.

2. At any rate, non-citizens certainly are subject to US jurisdiction, other than some narrow groups like foreign emissaries and such.

[IceTrey]

There's no federal case specifically defining the phrase natural born citizen.

It means complete jurisdiction not just territorial but personal.

[doinkdoink]

Harvard Law Review had an interesting article titled "On the Meaning of Natural Born Citizen."
Eugene would do well to read it.
Additionally, even though Harris's parents had F student visas, the amount of time they were in the US before Kamala was spawned matters.
For F student visas it appears one needed to be in US at least 5 years to be considered a resident alien.
The offspring born in the US to non resident aliens would not be subject to the full jurisdiction, both territorial and personal, of the US Govt.
Such a person can not be considered a Natural Born U.S Citizen.

[JollyRoger888]

There are at least 3 Supreme Court cases that state what the birth circumstances are that must be met in order to be a natural born citizen. - Venus, Minor and Ark. Then you have Elg who the Court specifically said was a natural born citizen then proceeded to provide the birth circumstances that made Ms Elg a natural born citizen >>> Born in the U.S. of U.S. citizens.

[JollyRoger888]

You would be saying the opposite of Supreme Court Justice Gray  specifically addressing the 14th Amendment.  >>> "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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized"

[ClinicalThinker]

Perhaps this will shed some light on what SCOTUS will rule and why.
The term "natural born citizen" was defined quite clearly by John Bingham in the House on March 9, 1866:”[4] [5] [6]

“[I] find no fault with the introductory clause [S 61 Bill], 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…. . . ”

Bingham penned the 14th amendment and I saw no dispute over that definition by other members.
This makes it clear Harris is not eligible for the position.

[JollyRoger888]

There were 3 additional times Del Bingham Got up on the House floor >> Rep. John Bingham (Ohio R), Principal Framer of the Fourteenth Amendment of the U.S. ConstitutionDuring a debate regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen. Representative Bingham (of Ohio), stated on the floor:1) As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution,=================2) All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians. - (Cong. Globe, 37th, 2nd Sess., 1639 (1862))=============

3) 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.... - (Cong. Globe, 39th, 1st Sess., 1291 (1866))----------------------------------

According to Justice Black, Bingham’s words uttered on the floor of the House are the most reliable source. Bingham made three statements, none of them challenged on the Floor, which indicate that a natural born citizen is a person born on US soil to parents who were US citizens.

Constitution Articl

[JollyRoger888]

I know that 28 years after the Constitution was ratified that the First Supreme Court in the Venus case was made up of men who fought in the Revolution, served in the Convention of States, were sons of men who fought in the Revolution and some were tasked with presenting the Constitution to their States for ratification. If any one knew what the new nation of the United States meant by "natural born citizen" these men did. So what did they say about the term, "natural born citizen"? WORD for WORD quote >>> "The whole system of decisions applicable to this subject rests on the LAW OF NATIONS (Vattel's work) as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says
"The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. ***** The natives or indigenes are those born in the country of parents who are citizens.**** Society not being able to subsist and to perpetuate itself but by the children of the citizens"<<< The men who wrote the 14th Amendment had to say about people with birth circumstances like Harris'. According to the men that wrote the 14th Amendment she was not a U.S. citizen when she was born <<>> Senator Jacob Howard (R), author of the 14th, said concerning 14th Amendment citizenship "This will not, of course, include persons born in the United States who are 1)foreigners, 2)aliens, 3)who belong to the families of ambassadors or 4)foreign ministers accredited to the Government of the United States, but will include every other class of persons." Congressman John Bingham (R) presenter of the 14th Amendment to the U.S. House of Representatives said, "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” Senator Reverdy Johnson (D-Md.) explained that parents must be “subject to the authority” of the United States if their children born here are to be classified as having acquired the status of U.S. citizen: “Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. Nikki Haley is not eligible to be President.. This is but a short piece of all the evidence that proves NIKKI HALEY IS INELGIBLE TO BE PRESIDENT.. Do the research yourself. You will find this to be true.. Please do not support violating the Constitution by supporting her.========================================Rep. John Bingham, Principal Framer of the Fourteenth Amendment of the U.S. ConstitutionDuring a debate (see pg. 2791) regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen. Representative Bingham (of Ohio), stated on the floor:As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution,=================All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians. - (Cong. Globe, 37th, 2nd Sess., 1639 (1862))=============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.... - (Cong. Globe, 39th, 1st Sess., 1291 (1866))----------------------------------According to Justice Black, Bingham’s words uttered on the floor of the House are the most reliable source. Bingham made three statements, none of them challenged on the Floor, which indicate that a natural born citizen is a person born on US soil to parents who were US citizens.

[ah....Clem]

Oh boy. Here we go again. The Birthers will be out in force, regardless of the vacuousness of their argument. How long before we start arguing about US flags with fringe on the border?

[Eugene Volokh]

To be fair, the argument isn't vacuous -- the Vattel quote does point in that direction -- but I'd go with Blackstone's summary of English law over Vattel's summary of continental law.

[Dan Schiavetta]

No, I wouldn't say it's a fair point to cite Vattel, who was writing in 1758 to a French audience. It is stretching really, really far.

Someone who wanted to delegitimize a black Vice President (or by extension a Black President) did a lot of digging to find that cite.

[Eugene Volokh]

captcrisis: Vattel had at least some influence on early Americans; he is on Donald Lutz's of the 36 most-cited writers in late 1700s American writing (at #29, near Plato, Machiavelli, and Voltaire), and a quick Westlaw search, for instance, finds 9 citations in court decisions from 1780 to 1787. But he was no Blackstone.

[Dan Schiavetta]

What about the 14th Amendment?

I'm reminded of white supremacists making a distinction between "Article I citizens" (i.e., white people) and "Fourteenth Amendment citizens" (i.e., black people, or more generally "the mud races"). Consciously or not, this entire discussion is taking place in their living room. Let's leave, ok?

[Eugene Volokh]

???

[Dan Schiavetta]

All people "born" in this country are "citizens" (14A). There can be no clearer example of a "natural born citizen". This shouldn't even be a discussion.

You've never heard the phrases "Article I citizen" or "Fourteenth Amendment citizen"? Considering the comments your blog has attracted, at least since you moved to Reason, you must have encountered this unpleasant mentality.

[Dan Schiavetta]

More specifically I recall this from . . . the National Association of Notaries, which I joined in 1994 out of boredom (though I was also out of a job at the time). They had their annual convention in Acapulco . . . Anyway, I got their monthly magazine, which had one arresting story, about a notary in Montana (I think) whose house was set afire and whose life was threatened.

A militia group had asked her to notarize an affidavit, and she refused to do it, because the caption said "States of the People of America", or something like that. These folks did not recognize the current government as legitimate because it gave rights to black people ("Fourteenth Amendment citizens").

I bought an extra large, purple-ink stamp after I read that.

[Eugene Volokh]

The question isn't, I think, whether Harris is a citizen -- I don't think anyone is disputing that. The question is whether "natural-born citizen" means "person born in the country" (Blackstone) or "person born in the country to citizen parents" (Vattel); the question remained live in late 1800s U.S. (see, e.g., Minor v. Happersett) until Wong Kim Ark resolved it, at least as a matter of precedent. That's why I focused on Blackstone and not on the Fourteenth Amendment.

As to what white supremacists believe, I'm just not particularly interested in that. Even a stopped clock is right twice a day; perhaps some of them are correct on some things (it's unlikely that they'd be wrong on all things). Suffice it to say that it seems to me that Harris is a natural-born citizen, for the reasons I try to lay out in the post, whatever white supremacists might think on the subject.

[Josh R]

Didn't Vattel argue that Harris is not a citizen at birth, and therefore not a citizen (she was never naturalized)?

[NToJ]

It would have been bizarre for her to attempt to naturalize when she was already a citizen under the laws of the jurisdiction she was born into. Vattel is not relevant.

[Tundra Grifter]

I would suggest the 14th Amendment extended to non-white people the birthright citizenship granted to white people from the time our nation was founded. Wong Kim Ark confirmed it. I believe it is in one of the US Senate speeches were an opponent decries the fact that Wong Kim Ark would extend citizenship to every gypsy and Hottentot born in the country. That's absolutely correct.

[JollyRoger888]

Let's see what the Supreme Court says about it, Not my opinion but theirs. Those who say Harris is a natural born citizen because of the 14th Amendment are in direct conflict with the U.S. Supreme Court. Chief Justice Waite and Justice Gray in 2 different Courts and 2 different cases BOTH stated in addressing the 14th Amendment, "The Constitution does not in words say who shall be natural-born citizens." Did you get that? The 14th Amendment does NOT grant natural born citizenship to anyone. So now what is the basis to disprove the fact that Harris is Constitutionally ineligible?

[David Nieporent]

But Vattel never actually used the phrase "natural born citizens," so even to the extent his work was influential, it's irrelevant to the topic. A translation of his work by someone else that was written (a) after he died, and (b) after the Constitution was drafted, could not have had any influence on the founders' use of that phrase.

[M L]

David Nieporent:

Blackstone never used the word "citizen" or "citizenship" or any derivation thereof.

[David Nieporent]

I mean, I don't know why you're responding with this statement to my comment, which didn't even mention Blackstone.

In any case, that's true since Blackstone was writing about English law and the English spoke of subjects rather than citizens. I don't exactly know what your point is. But Blackstone did — unlike Vattel — write about the phrase "natural born." So he discussed the meaning of "natural born subject."

[Leo Marvin]

S/he's whatablackstoneing you .

[M L]

I mean, I thought it was obvious. You are discounting Vattel, pointing out that his comments are not relevant because he wasn't talking about "citizenship." I think the same is true of Blackstone.

[Dilan Esper]

I think Peter Frampton may have written about "natural born".

https://www.youtube.com/watch?v=zqgslos32mk

[Helvidius]

Not that far a stretch considering there are SCOTUS cases that referenced it as early as the Marshall Court. Not saying I find de Vattel authoritative, but apparently Marshall at least supposed he might be.

[Josh R]

Doesn't Wong Kim Ark foreclose Vattel's argument unless you are going to distinguish between citizen at birth and natural-born-citizen?

[Eugene Volokh]

Josh R.: Indeed, though I think Blackstone is independently important to those who want to focus more on original meaning and less on what the Supreme Court has held.

[Helvidius]

No. Volokh elides the part of the holding in Wong Kim Ark that states the child's parents must be domiciled in the U.S.

[M L]

I'd go with Blackstone too, but what Blackstone shows is a detailed picture of what "subject" means and it is clearly distinct from "citizen."

[Dr. Ed 2]

Didn't Britain have both? I seem to remember the Americans fighting for their rights "as Englishmen", something that not all in England enjoyed.

[Sarcastr0]

Why would it be different in terms of what natural born means?

[M L]

It's not different in terms of "natural born" I think.

[Sarcastr0]

Isn't that the ballgame, then? Natural born citizen is acquired the same as natural born subject, which dispenses of the 'only domiciled permanent residents' faffing about.

[M L]

No, they aren't necessarily acquired in the same ways. Either can be acquired by circumstances of birth. Natural born just means "acquired by circumstances of birth" regardless of what circumstances are required.

[Sarcastr0]

What is your support for that definition of 'natural born?' That's not how the natural language reads to me.
Nor to Blackstone from what I've seen.

[M L]

What do you think "natural born citizen" means in the Constitution? It means a citizen who acquired their citizenship by birth, as opposed to by naturalization.

Similarly, Blackstone writes "Natural-born subjects are such as are born within the dominions of the crown . ." The word "such" seems to refer to "subjects." So it is subjects who are subjects by nature of where they were born.

[Sarcastr0]

All sounds about right, but am I missing something - where you are born seems like it doesn't require only domiciled permanent residents.

[M L]

"where you are born seems like it doesn’t require only domiciled permanent residents."

That's correct when it comes to "subjectship," which Blackstone explains derived from feudal law, the soil on which you were born was all that mattered (jus soli). You owed perpetual allegiance to the king by nature of being born on his land under his protection. This was a "debt of gratitude" in Blackstone's words which was “intrinsic” and “cannot be forfeited, cancelled, or altered.”

Obviously, jus soli and subjectship was rejected in the Declaration of Independence. As I explained below, the Framers rejected the concept of "subjectship" and instead adopted the concept of citizenship, which was unfamiliar to Blackstone and English common law. Instead of being born into permanent allegiance and debt of gratitude to the king, citizenship was based on consent and popular sovereignty.

[Sarcastr0]

Other than king versus the people, I don't think it is at all evident that the switch from subject to citizen means you go from natural born meaning born on this land to born to a domicile to a permanent resident.

That we're all now on equal footing and no longer subjects doesn't get you where you want to go.

Indeed, I'm still unconvinced subject->citizen distinguishes Blackstone at all in this arena; while different in terms of the operations of the State, for the purposes of birth as a method of acquiring the P&I of a country, the two concepts appear identical.

[M L]

"for the purposes of birth as a method of acquiring the P&I of a country, the two concepts appear identical."

In the citizenship model, there is mutual consent. Congress could decide to grant citizenship to everyone born on US soil, or not.

[ah....Clem]

"To be fair, the argument isn’t vacuous — the Vattel quote does point in that direction ..."

Agree that citing Vattel is not vacuous - it's just extremely weak. But it won't be the only argument from the Birther Brigade; expect a whole lot of vacuous arguments.

[Hank Ferrous]

Certainly one should never refute the argument, just engage in personal attacks, yes?

[JollyRoger888]

You seem to have this all figured out. Would you please provide the Supreme Court case that backs your claim -- "All people born in the U.S. are natural born citizens." All I have been able to find as being the Supreme Court standard birth circumstances that must be met to be a natural born citizen is "The natives, or natural-born citizens, are those born in the country of parents who are citizens"

[jjsaz]

"Was the child of aliens 'subject to the jurisdiction thereof'? I’d argue that she wasn’t."

Can she be arrested and tried if present? Of course she can. If you're here you're subject to the jurisdiction of the US and then the only question is where were you born?

[Dr. Ed 2]

Arrest a neonatal infant?!?

The question I ask is if her father had to register for the draft?
Yes, there was a draft back then....

[David Nieporent]

What does the question of whether her father had to register have to do with anything?

First, whether one has to register for the draft is a statutory question, not a constitutional one.

Second, the 14th amendment doesn't say, "All persons born and naturalized in the United States whose parents were subject to the jurisdiction of the United States." It talks about whether the person in question was subject to the jurisdiction of the U.S.

[Krayt]

"Subject to the laws thereof", but if one cannot be drafted...

Is it just an issue of diplomatic immunity?

I think that's the kind of thing he's getting at.

[David Nieporent]

But they can be drafted! Who told you that they couldn't be?

The people who can't be drafted are exactly the sort of people who aren't subject to the jurisdiction of the U.S. children of diplomats and invading armies.

[Dilan Esper]

There are other forms of jurisdiction other than criminal jurisdiction.

A US court can decide a child custody issue involving a child born in this country to non-citizens, for instance. Or place that child into protective care. Or adjudicate a trust for her benefit. Isn't that "subject to the jurisdiction"?

[JollyRoger888]

Even if she is not a diplomate if she makes it to the foreign Embassy the U.S. cannot touch her. She can take that refuge BECAUSE she is not under the full jurisdiction of the U.S. A person "under the jurisdiction" cannot do that.

[Milhouse]

Where on earth did you get that idea?

A person in a foreign embassy or consulate can't be arrested, simply because the police can't enter the premises without the head of mission's permission, even with a warrant. The fugitive's citizenship has nothing to do with it.

The fugitive remains subject to US law, since he is still in US territory, but so long as he remains within the premises and the head of mission doesn't allow the police to enter he can't be arrested. Should he leave the premises, or should the head of mission allow the police to enter, he can be charged with crimes he committed even within the embassy, since it is US territory.

(There is a widespread idea that embassies are foreign territory. They're not. Nor are US embassies abroad US territory.)

[NToJ]

"...apparently her parents weren't citizens when she was born, so the argument goes that she is thus not a natural-born citizen."

Not bad company. John Adams's parents weren't citizens when he was born, either.

[Josh R]

But, John Adams was a citizen in 1789, which is the other way to satisfy the eligibility requirement.

[JollyRoger888]

John Adams was covered by the now expired Presidential requirement of being a "citizen at the time of the adoption of this Constitution" I don't think Harris can find herself in that company.

[steeltown lad]

Without disagreeing with the OP’s conclusions, it has always seemed to me that defining a child born on US soil to foreign parents as a “citizen” and, more specifically, a “natural-born citizen” would give rise to all the problems attendant on the concept of dual citizenship. What if French citizens, tourists, are visiting the US wh@ male is born. The parents and child promptly go back to France, never to return. When the child turns 18 must he register for the draft? Is he under the tax jurisdiction of the IRS the same as an American expat? If he were to bear arms for France against the US is he committing treason?

[MatthewSlyfield]

Lots of people, including naturalized citizens have dual citizenship.

While the ceremony for granting US citizenship to immigrants includes a renunciation of foreign citizenship, this actually has no actual legal impact on the immigrant's foreign citizenship.

Go look into what it takes to (in a legally effective way) for an emigrant from the US to renounce their US citizenship. It's almost impossible.

[Brett Bellmore]

This goes to an old theme of mine, the difference between "law" and "practice". It's not an accident that the citizenship oath requires to to renounce foreign citizenship. It's not a scrivener's error. It's legally required.

But there's a lot of deviation between the text of the law, and the substance of the practice, when it comes to immigration. I suspect because those in power don't like the text of the law, but see changing the law as politically toxic.

The law requiring renunciation, and the government not giving that renunciation any teeth, is just another example.

[Rat on a train]

The renunciation in the oath is "symbolic". Each country determines who are its citizens. To enforce the renunciation the US would need to force each naturalized citizen to follow the procedures for relinquishing citizenship according to the losing country.
(My wife is naturalized but her birth country still recognizes her citizenship.)

[Brett Bellmore]

Bullshit it's "symbolic". It was intended as a binding commitment, and we've transformed it into empty, "symbolic" words. Text vs practice. All you're saying is that the government is committed to not letting the LAW have any legal significance, which is a hell of a thing to have to say in a country which supposedly enjoys the rule of law.

And, yes, my wife is in the same position, but that doesn't make me comfortable with the government treating the law like toilet paper, and the courts upholding practice in its place.

[Sarcastr0]

Sometimes Brett insists on rule of law and bare textualism and sometimes he does not.

[MatthewSlyfield]

Yes it is symbolic. It can't be anything else.

An immigrant's citizenship in their home country is a matter of the law of their home country. Absolutely nothing in US law can affect it.

In the US naturalization process, it doesn't even come up until the oath of citizenship which is far too late for any kind of effective process.

If it was intended to be effective, the US would have to require that a prospective citizen bring written proof of renunciation from the embassy of their home country to the beginning of the application process.

But that would be very dangerous for the prospective US citizen because now if their application for US citizenship is rejected, they aren't a citizen of any country.

And given how hard the US make it for US citizens emigrating to foreign countries to renounce their US citizenship, it would create a huge diplomatic nightmare if the US did take that approach.

[MatthewSlyfield]

One more thing. The suggested process of the US naturalization process requiring effective renunciation of foreign citizenship would give foreign governments a veto over the US naturalization process.

China could prevent Chinese immigrants in the US from gaining US citizenship simply by rejecting the renunciations. Would we really want to be in that kind of a situation?

[Dilan Esper]

TECHNICALLY, there's two different things here.

There's whether the home country recognizes the foreign citizenship, and whether the US recognizes it. The US, officially, discourages dual citizenship by naturalization, though they obviously don't do anything to prevent it. (They do not discourage dual citizenship by birth.)

[David Nieporent]

But the U.S. doesn't recognize dual citizenship by either means. By that I mean that if you're a citizen of the U.S., the U.S. treats you as a U.S. citizen regardless of which other country or countries you might also be citizens of.

[Rat on a train]

But dual citizenship can present problems. From the State Department:
Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries, and either country has the right to enforce its laws. It is important to note the problems attendant to dual nationality. Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts of the U.S. Government to provide consular protection to them when they are abroad, especially when they are in the country of their second nationality.

[Brett Bellmore]

I wouldn't say the renunciation has to be "effective" in the sense of being accepted by your former government, but it should be "effective" in the sense of being reflected in your own behavior going forward.

Renouncing your former citizenship implies things on your part, quite apart from whether your former government cares about it. That you won't, for instance, vote in their elections, or otherwise actively take advantage of your former government still viewing you as a citizen.

For instance, if your passport from your former country expired, you wouldn't renew it, as you should properly be traveling using a US passport.

[Josh R]

In Afroyim, SCOTUS invalidated a law which categorically withdrew citizenship from someone who voted in a foreign election. The logic would also preclude categorically withdrawing citizenship for renewing a foreign passport.

[NToJ]

Brett, they meant "symbolic" in the sense that it doesn't bind some other country. How could it?

[Rat on a train]

That was why I quoted. The US can refuse to recognize the foreign citizenship under its jurisdiction. The foreign country can continue to recognize citizenship under its jurisdiction.

[Dr. Ed 2]

Michelle Bachmann ran into this when she was running for President and had to renounce her Swiss citizenship.

[Tundra Grifter]

Why did she have to? Because she knew her supporters might reject her if they knew she had duel citizenship?

[JollyRoger888]

She can't change her birth circumstances! The Supreme Court standard birth circumstances that must be met to be a natural born citizen is
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
Absolutely no way there to have Swiss citizenship. If she did she was not a natural born citizen. Ted Cruz did the same thing. He is not a natural born citizen eother.

[Burkhard]

wasn't that a big problem in Australia recently? Several MPs realised that they had dual nationality without knowing it (which made them ineligible to be parliamentarians) and some found they could not even renounce their second nationality.

I thought that would be a great business model for small, cash deprived countries: bestow nationality on people for which this is a problem, and then have a law that links renunciation to a high "processing fee". The opposite of what we see in some countries where payment gives citizenship to those who want it. And also a difference from the normal debate that centres around not giving people citizenship/make it difficult for them.

[Rat on a train]

I doubt it would be a problem. The "citizen" would challenge and the primary country would likely determine the citizenship isn't valid. How is the small country going to enforce its claim?

[jjrzw72]

I think it was New Zealand MPs that had Australian citizenship, which made them ineligible to sit in parliament.

[jjrzw72]

And what if the parents were Americans who gave birth to the child in France and then promptly renounced their citizenship?

Or Americans who got on a flight to Paris 2 hours after being discharged from the hospital, and then renounced their citizenship an hour after landing?

The child’s connection to America is functionally the same in all 3 hypos.

[MatthewSlyfield]

You can't just renounce your US citizenship like that.

To effectively renounce your US citizenship (the US government no longer considers you a US citizen), you have to go to a US embassy, do it in person and in writing, and you have to pay an exit tax.

[jjrzw72]

The reason I said "an hour after landing" rather than "immediately after landing," was so they'd have time to get to the embassy.

[JollyRoger888]

Supreme Court standard that must be met to be a natural born citizen.
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
Which one of your scenarios fits the standard?

[Dr. Ed 2]

Exactly, steeltown_lad.

[Tundra Grifter]

I believe a child in such circumstances would have the opportunity to decide, upon reaching majority, which citizenship to adopt and which to abandon. Some nations, of course, permit duel citizenship. I don't believe citizenship is a requirement to pay taxes in the United States.

[Eugene Volokh]

NToJ: True, but John Adams and his contemporaries were covered by the alternative part of that clause: "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."

[jb]

Funny how this issue of who is a natural born citizen never comes up when white men like Ted Cruz or John McCain are running for President, but needs to be very carefully scrutinized in the case of non-whites like Harris (or Obama or Duckworth).

[Well Regulated Militia]

You're mistaken about that, it was very much discussed in both of those cases.

[jb]

I guess Trump did pick on Cruz's citizenship, so give the guy's birtherism some consistency, I guess.

I'd be interested in a cite to anyone serious making an issue of McCain's eligibility. I found a blog post or two, but can't find any real public figure that endorsed the notion that he might not be.

[Dan Schiavetta]

Or Mitt Romney, born in Mexico.

[Eugene Volokh]

You mean Mitt Romney's father George Romney, yes? Apparently the issue came up in the 1968 Presidential campaign, see https://abcnews.go.com/blogs/politics/2012/01/how-mitt-romneys-mexican-born-father-was-eligible-to-be-president and https://fas.org/sgp/crs/misc/R42097.pdf, though I can't speak with confidence about that.

[Dan Schiavetta]

Yes, sorry. My memory was faulty.

[California Dreamer]

I'm old enough to remember the 1968 campaign. There were a few articles talking about Romney's citizenship in an abstract sort of way, but no other candidate or organized group suggested that he was not a citizen. Note, however, that Romney was a slightly different situation: He was born in Mexico to parents who were American citizens, whereas Harris was born in the United States. Maybe her parents weren't citizens (although I have yet to see any evidence on that question) but I agree with Eugene that it's irrelevant whether they were citizens.

[Josh R]

And don't forget about Marco Rubio whose parents weren't citizens when he was born.

[Eugene Volokh]

Josh R: I hadn't known that (or perhaps hadn't remembered that), but I now see that there was actually a lawsuit over that (dismissed for lack of standing).

[Brett Bellmore]

Well, *I* made an issue of it at the time, though not in court. (I'm not made of money!) McCain absolutely was NOT a natural born citizen, which is somebody who is a citizen at birth; The law was changed some months after his birth, and he was swept in by a retroactivity clause, IOW, he was "naturalized".

But I don't think the Democrats wanted to risk him being replaced with a candidate who'd try to win...

[bernard11]

So the Democrats didn't raise the issue not because they thought it was silly, or a loser, but to keep McCain, who was, you'll recall, an extremely popular figure, as the GOP nominee.

Right Brett. You continue to amaze.

[Brett Bellmore]

"Extremely" popular is a bit of an exaggeration. Obama had a healthy lead over him almost the whole campaign, and after McCain unseriously suspended his campaign, any prospect of his winning evaporated.

[bernard11]

And which Republican do you think would have fared better?

Yes, McCain sort of lost it with his response to the financial crisis, but I don't recall any Republican who advocated anything resembling a rational response.

And don't confuse McCain's standing in the polls vs. Obama with his overall popularity. This is a guy that some thought Kerry should choose as his VP nominee. Any challenge to his candidacy would have come early in election season.

So your assertion that the Democrats didn't challenge the legality of his candidacy because they thought he would be a weak opponent is nonsense - yet another example of your inability to ascribe any but the worst possible motives to those you disagree with.

[Brett Bellmore]

I'll agree they had not giving a shit about what the Constitution says as a secondary reason.

[Leo Marvin]

I knew McCain wasn't a natural born citizen when he called Obama a decent family man.

[Krayt]

That's a relative statement, and an odd concern if one is a Trump supporter.

[NToJ]

"But I don’t think the Democrats wanted to risk him being replaced with a candidate who’d try to win…"

Is this your secret confession that the only reason you were a birther is because you knew President Obama would win?

[Tundra Grifter]

That didn't keep Congress from passing a resolution that he was, indeed, a natural-born citizen. As I recall, that was non-partisan.

[Dr. Ed 2]

And as to McCain, (a) the Canal Zone was US territory until Jimmy Carter gave it away, and (b) his father was active duty USN which means his berthing was US territory -- either by conquest or treaty, nut the US flag was flying on that base.

It was US soil.

[David Nieporent]

All incorrect, but, then being right isn't your specialty.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I suppose it must have never come up, as you say, since nobody has ever heard of it until you announced it to the world, right here in this very blog.

[James K. Polk]

Funny how some people turn everything into a question about race.

[Tundra Grifter]

Especially when the issue is, indeed, about race. Funny how that works...

[Tundra Grifter]

Actually, the issue was raised about Sen. McCain. And about Ted Cruz. And, I believe, Mitt Romney. How it is brought up is quite different - there's no doubt about that.

[Tundra Grifter]

George Romney. My error.

[JollyRoger888]

Ted Cruz is Constitutionally ineligible to be President. And it is very easy to prove that at best he is a naturalized citizen. Just look up the Supreme Court Bellei case. Replace Bellei's name with Cruz then read the case. Born of a citizen Mother and a foreign father and born out of the jurisdiction of the U.S. read the case.

[Eugene Volokh]

jb: Have you had a chance to Google "ted cruz" "natural born citizen" (e.g., this op-ed in the Washington Post)? Or perhaps "john mccain" "natural born citizen" (e.g., this column in the New York Times)?

[NOVA Lawyer]

Eugene,

Technically, people did bring Cruz and McCain up. However, I think the point is at least two-fold:

1. The people questioning McCain's and Cruz's eligibility to be President were not as prominent or numerous as the people who questioned Obama's eligibility to be President. (And while Republicans were silent or complicit in pushing Obama birtherism, two Democratic Senators proposed and the Senate unanimously passed a resolution affirming McCain's eligibility. There was a definite difference in treatment.)

2. The people questioning Obama's eligibility to be President were generally silent as to McCain's and Cruz's eligibility to be President.

Basically, the cases against McCain and Cruz are much stronger (though still very weak) than the case against Obama, and yet the more rabid, vocal, and numerous objections were to Obama's eligibility. The comment to which you are referring was, essentially, a rhetorical question: Why was that?

Do you have an answer?

[Eugene Volokh]

1. jb asked, "Funny how this issue of who is a natural born citizen never comes up when white men like Ted Cruz or John McCain are running for President, but needs to be very carefully scrutinized in the case of non-whites like Harris (or Obama or Duckworth)." He wasn't focusing on Obama specifically, but on nonwhites generally. My sense is that the questioning of McCain's and Cruz's eligibility came from many more people than are questioning Harris's (or are questioning Duckworth's).

2. The distinction isn't, I think, nonwhite candidates vs. white candidates; it's Obama vs. everyone else. I'm not sure why this is so, but here are two things that contributed: (a) Obama had been described as having been born in Kenya in promotional material for his own book, an error that nonetheless made the rumors more credible. (b) Obama appeared connected to foreign countries, in a way that few American blacks do: A foreign father; a foreign-sounding (i.e., unusual in America today) first name, middle name, and last name, which seemed to stem from the foreign connection and not an ideological choice; and spending a good deal of time overseas when growing up. This made a "he was born abroad, too" claim more plausible. (c) Relatedly, the Obama claim was about contested facts (with the exception of a twist having to do with whether his mother would have been qualified to pass along citizenship even if he had been born in Kenya) rather than about contested law (as with McCain, Cruz, Harris, etc.).

3. And I think there also is a Democratic / Republican distinction, at least these days. Democrats tend to be more embracing of immigration and (more broadly) of internationalism than Republicans, and are thus somewhat more likely to view the "natural-born citizen" clause as an embarrassment, a bug in the Constitution rather than a feature. As a result, I expect that "not a natural-born citizen" arguments are less likely to resonate with Democrats than with Republicans, and borderline claims are less likely to be brought up by Democrats.

[Brett Bellmore]

And don't forget that Obama kept the controversy alive by fighting release of his birth certificate. That lent the allegation some superficial plausibility.

I think he actually found the controversy useful, it kept some of his more energetic foes focused on something where he knew they'd come up empty.

[bernard11]

So Obama was clever. Good for him.

I suppose he got some idiots to waste some amount of money on their stupidity.

What's wrong with that?

[Brett Bellmore]

No, I agree it was a clever tactic, and the people chasing after his birth certificate were fools. Just fools who should have had their day in court, and lost on the merits.

Indeed, I wonder if Trump hasn't been pulling the same con with his tax returns.

[Krayt]

So a foolish behavior on Obama's part was secretly very clever and intended all along, explain other people.

How very Trumpian!

[bernard11]

What was foolish about it?

[Tundra Grifter]

Brett Bellmore: Mr. Obama knew that releasing his birth certificate wouldn't make any difference. Because the brouhaha wasn't founded on fact, the truth wouldn't make it go away. He gave in and released it and the hurricane in a shot glass continued. To my mind, it was clearly based on his race.

[bernard11]

Nice rationalizations, Eugene, but no more than that.

I mean, really. Obama had a funny name, so it was all OK?

Relatedly, the Obama claim was about contested facts (with the exception of a twist having to do with whether his mother would have been qualified to pass along citizenship even if he had been born in Kenya) rather than about contested law (as with McCain, Cruz, Harris, etc.).

There were no contested facts. There were fantasies, including your guy Trump claiming he was sending "investigators" to Hawaii to look into matters, including your guy Limbaugh claiming that a trip by Obama to Hawaii to visit his grandmother was a cover for nefarious goings on.

Sorry to see you aligning yourself with these assholes.

[jb]

FWIW, I've heard precisely one piece on Biden considering Duckworth and it explicitly called out the fact she wasn't born in the US so it might raise questions of eligibility. Obviously a small sample set, but the "intro to candidate McCain" or "intro to candidate Cruz" definitely did not include that sort of caveat. I suspect if either were to end up as

I think it's a real stretch to try to separate the racial element from the response to the Obama. Of course you're right that he seemed more "foreign", but race is certainly a part of that equation as well.
And as you note, even if it's true that people might have been confused that he was born in Kenya, he would still have the exact same claim to birthright citizenship as Cruz (born outside the US to a citizen mother and non-citizen father). I don't know why this should make it more of an issue rather than less. It simply wouldn't have been a controversy if he was a white guy who happened to be born in Kenya, as the reactions to Romney, McCain and Cruz all demonstrate.

(I do agree that the Republican vs. Democrat thing probably has some legs, but there's some overlap between the anti-immigrant sentiment and racial animus as well.)

[Eugene Volokh]

jb: (1) If Obama had indeed been born outside the U.S., that would have meant he was lying. (2) The law at the time only allowed U.S. citizen mothers to pass on citizenship to their children born outside the U.S. if they have lived in the U.S. for some number of years as adults; as I recall, Ted Cruz's mother would have qualified, but President Obama's (if I remember right) wouldn't have, so it turns out the legal analysis would have been different.

[Tundra Grifter]

Eugene Volokh: I don't believe it was ever settled how many years Mr. Cruz's mother spent inside and outside the U.S.

[NOVA Lawyer]

Eugene,

I appreciate your response and you make a lot of good points as to why Obama might have been treated differently than McCain and Cruz. However, bernard11 has some justification for calling them rationalizations.

You lean heavily on the idea that this is mostly about Obama (and not non-white candidates generally) and imply that his race had nothing or little to do with it AND you imply that the Obama matter was more controversial because it involved contested facts. However, as jb points out below, even accepting the (fallacious) birther version of the facts would create a situation identical to Ted Cruz's situation:

A presidential candidate born to a U.S. citizen mother and non-U.S. citizen father in a foreign country.

And Ted Cruz supporters are disproportionately birthers in my opinion. Why is it fine for Cruz but not Obama? Just the funny name? Seriously?

Your supposition about the name carries some weight (Ted is Ted not Rafael for a reason, one presumes), but that can't be much of it.

You place some weight on Obama spending "a good deal of time overseas", but Obama and Ted Cruz each spent roughly four years of their childhood in a foreign country (though Obama was 6-10 while Cruz was 0-4). That can't be it really either.

You really are left with either (1) a difference wherein Democrats don't attack Republicans on this (generally), but the reverse is true AND Republicans don't actually care about it because they give their own a pass in situations that are factually and legally more problematic (to the extent you are a person who believes any are problematic at all, which I don't) or (2) race.

I think you are mistaken that the non-white aspect has little to do with why the weaker case against Obama's eligibility (the legal argument was stronger based on the actual facts and was the essentially the same on the facts alleged by birthers) drew more, louder, and uglier questions.

But, again, thank you for your thorough and thoughtful response.

[Josh R]

Eugene is correct that Obama would not have been a citizen at birth had he born outside the USA because, unlike Cruz, his mother had not met the statutory requirement of being physically in the USA for at least 5 years after her 14th birthday (she was not yet 19 hen Obama was born).

[bernard11]

I agree.

Suppose that Barack Obama were named Pierre LeBlanc, and all the circumstances of his early life were the same, except his parents were white and the countries involved were France and England.

Would birtherism have become as big a deal as it was?

[Loren]

“I’m not sure why this is so, but here are two things that contributed: (a) Obama had been described as having been born in Kenya in promotional material for his own book”

That promotional material, however, was first discovered and brought to the public’s attention by Breitbart in May 2012. By that time, Birther conspiracy theories about Obama had already been widely circulating for four years. Trump’s entire initial foray into Birtherism happened in spring 2011, over a year before that promotional material was uncovered. Obama released his long-form birth certificate to try to settle the issue in April 2011.

So the agency bio’s discovery in mid-2012 gave Birther conspiracy theorists the closest thing to empirical support that they’d had in four years, but the eligibility accusations against Obama existed in full force long before that material came to light.

[Leo Marvin]

Thanks. That timeline is how I remembered it, but I lacked the energy to do a Google dive.

[Brett Bellmore]

"That promotional material, however, was first discovered and brought to the public’s attention by Breitbart in May 2012."

Right, literally nobody had seen it prior to then, the publicist had it printed, and then stored all the copies in a locked box.

[Sarcastr0]

That is an impressive misreading.

[Brett Bellmore]

That bio was likely the reason the whole controversy ever got started.

As Breitbart said at the time, "‘It is evidence – not of the President’s foreign origin, but that Barack Obama’s public persona has perhaps been presented differently at different times.’"

IOW, before running for President he sometimes found it convenient for people to think he was born abroad.

[Sarcastr0]

So your argument is about Obama's public persona, as evinced by this pamphlet, was that of not a natural born American. And that it was this persona that motivated birthers.

This is what happens when you take Breitbart seriously.

[Brett Bellmore]

That it sometimes was; He made good use of the ambiguity, the air of the exotic it gave him.

What, you're going to claim he was too scrupulously honest for that?

[Sarcastr0]

I'm going to claim that that pamphlet is not great evidence for that retroactive narrative.

[Leo Marvin]

Whether Birtherism was racist turns on whether the same movement with the same energy would have erupted had Obama been white. We'll never know. At the time it seemed so deranged and out of the blue that race struck me as the most likely explanation. But the panoramic view the last three years have given us on the tribal Right's heat of a thousand suns anti-everything-left vitriol moves me more and more to think these people may actually have behaved no differently to a white Obama. Which isn't to say that Team Trump isn't the happy home to millions of committed racists, just that hatred of liberals is probably the broader yet equally unhinged constituency.

[Rev. Arthur L. Kirkland]

Birthers are racists. They also are big Volokh Conspiracy fans, Trump followers, and culture war casualties.

[Sarcastr0]

I was reading a lot of Free Republic at the time, and the birthers often said 'You can tell he's not one of us' or the like, which you don't here about Biden or even Hillary.

Not that all birthers were racist I'm sure - plenty of room for all sorts of crazy at the bottom. But I'm comfortable saying a bunch were fueled by Obama not looking like the Real America they knew.

[Leo Marvin]

Oh, I agree. The racist birthers hung all kinds of racist tropes and innuendos on their birtherism. I'm just saying that if -- and the "if" is a huge assumption -- they'd have spun up the same birther movement sans only the racist details against a white Obama, was racism their true motive?

Consider it from another angle. Imagine a universe where the GOP's presidential candidate could be a black man named Barack Hussein Obama with all of Obama's birth details. Would there have been a comparable birther movement? Even after the nomination? Even after the inauguration?

[JollyRoger888]

Better yet read the Supreme Court case Bellei and replace Bellei's name with Cruz. Exact same birth circumstances.

[Richard Smart]

Any special reason why you would not vote for Harris? I mean, apart from her being a Democrat presidential aspirant, rather than a Republican one?
I ask because I was impressed by the 'Lexington' article in "The Economist" regarding her chops as a candidate for the Senate back in October 27th 2016 (and re-published on January 22nd 2019 when she declared for the Presidency). She's only 54. Where she has leftish leanings it seems to result from sharp awareness of the dollar cost to taxpayers of poverty, and generally she hews to the law. As Lexington remarked:
'Ms Harris is a prosecutor to her core, who approaches voters as she would 12 jurors of different backgrounds: “You have to point to the facts.”'

[Rossami]

Have you actually looked at her record as a prosecutor? She's an authoritarian to her core. Reason (and others) ran quite a few articles on her history during the primary debates. Here is one of many such articles. She doesn't so much "hew to the law" as 'apply it for personal victory regardless of justice'. I will grant that Harris is hardly alone among prosecutors with that particular attitude - but it hardly counts as a positive.

[Richard Smart]

Rossami, you wrote "Here is one of many such articles" but while the 'one of many' is underlined like a hyperlink it points nowhere. Apparently it's empty.

[Rossami]

That's odd. The link worked when I tested it yesterday. But today it's failing for me, too. Did Reason put some sort of filter in place that breaks links to their own articles?

Alternate way to find it (but again, it's only one of many such articles): Use the search icon in top right of this page and look for the article titled "Kamala Harris Went to Bat for Dirty Prosecutors as California Attorney General" and bylined C.J. Ciaramella | 1.9.2018 5:25 PM

[Richard Smart]

Aha, didn't even have to search reason, a simple google of the quote brought up the article. The article subtitle says "The newest member of the Senate Judiciary Committee has a record on criminal justice. Some of it's not pretty." But it's less than damning. Indeed, from what I've seen it doesn't show her behaving in a manner that's in any way unusual. She appears to have been doing her job the same way other prosecutors do. Now she is a candidate for high office, this is being held against her.
So what was Kamala's sin? 'However, during Harris' time as a prosecutor and eventually California attorney general, her offices repeatedly tried to tip the scales of justice in favor of prosecutors.' Examples followed, but Goodness gracious me. That's what prosecutors are supposed to do. For every article like that one in Reason, I see another like the one in the Atlantic, "Give Kamala Harris a break", subtitled "In attacking her record on crime policy, her critics are ignoring how politics actually works" and concludes:
"The fact that Harris didn’t boldly confront police misconduct earlier in her career says less about her than about the country in which she lived."
Which is absolutely the point. It's not her fault that law in the United States is in so parlous a condition. Nor does it mean she's the wrong person to do something about it.
In this regard what are we to make of the remarks of Popehat's Ken White, who admits to much worse that he is not proud of - but that such methods are simply part of the legal battleground? Even Ciaramella notes in the next section that "Such tactics aren't unusual among state prosecutors, unfortunately, but they are revealing." Revealing or not, former prosecutors like White regard them as absolutely part of the job.
My moral touchstone for this is White's article, also for Reason, back in 2011 (which prompted his unmasking as an anonymous blogger). In relevant part he writes:
"Yet state and federal prosecutors routinely fall short of this ideal (that prosecutors may strike hard blows but not foul ones). There are too many stories of convictions obtained through subornation of perjury, through suppression of exculpatory evidence, and through the willful use of unreliable, wrongfully obtained confessions.
It’s difficult enough to detect misconduct, mostly due to inadequate funding for criminal defense. But if detection is rare, redress is even rarer. Prosecutors enjoy “absolute immunity” from lawsuits, a privilege no other profession in America enjoys save for judges. In theory, state bars should sanction misbehaving prosecutors, but that is also vanishingly rare. Last September [2010], USA Today found 210 cases in which federal prosecutors had committed ethical breaches so egregious that a federal judge personally rebuked the prosecutor, overturned a conviction, or dismissed the criminal charges entirely. The prosecutor faced serious discipline from a state bar in just one of those 210 cases. Recent studies of misconduct among state prosecutors in California have produced similar results: disturbing examples of misconduct and an even more disturbing lack of accountability."

In view of what happened to your link I won't post the URL to Mr White's remarks. But the title - "Culture of Misconduct. The misplaced priorities of prosecutors" - should be sufficient.

[Robert Beckman]

If I understand you correctly, you posit that a persons unethical and illegal actions shouldn’t be held against them if they voluntarily choose to join a group who regularly commits unethical and illegal acts, so long as their bad actions fall within the general ambit of bad acts that the group does, right?

Prosecutors regularly act against the interest of justice, so we shouldn’t hold it against any individual prosecutor when they do so, and instead promote them to higher office? Not asking if the body politic regularly does this, but you seem to imply that it’s proper to do rather than a regrettable fact of our imperfect world.

If so, do you apply this same rule to others? If not, why not? If yes, then Weinstein should get a pass on his sexual improprieties, and Trump should get a pass on his (maybe fatuously asserted) bribing of state officials, right?

[Cannon]

You could also look into her actions in the Kevin Cooper case that show a disregard for justice for a man on death row, her years of filing nonsense motions to defy SCOTUS ruling in Brown v. Plata, her office's handling of the Jamal Trulove and other cases where wrongly convicted people later got compensation, her numerous attempts to keep likely innocent people in prison over minor technical faults such as George Gage and Daniel Larsen cases, as DA she helped cover up problems in a lab that later resulted in 600+ convictions being dismissed, etc. There is plenty of evidence that her record as DA/AG argues against giving her the power of the Presidency.

[librarian]

Harris got an F from the NRA. I wonder if there is any vice-presidential candidate which would redeem Biden's candidacy?

[santamonica811]

Carolyn D. Meadows (only mostly joking...NRA would certainly still endorse and support Trump, of course)

[James K. Polk]

If you have any libertarian leanings you definitely don't want a person who is a "prosecutor to her core" in a position to influence the civil liberties of Americans. In that sense the vice presidency is a safer place to stow her than the senate, but her access to the presidency is scary. On the other hand, she could clarify her positions after she's nominated.

All magazine articles about politicians are either puff pieces or hatchet jobs, nothing in between. You read a puff piece.

[Richard Smart]

The Economist is not in the habit of publishing "puff pieces", and their US Correspondent (byline 'Lexington') is not in the habit of writing them. But he does quote a certain Lateefa Simon to this effect:
'"When Ms Harris became district attorney she hired Ms Simon to run a programme for low-level, non-violent drug offenders. Though strikingly cheap, it drew national attention for preventing 90% of its graduates from reoffending. Ms Simon explains how Ms Harris would tell youngsters their chances of going to jail or dying if they did not change course. Then she would offer help with everything from housing to remedial education and apprenticeships—even dentistry cadged from a local university, after she read research linking job prospects to bad teeth. Ms Simon calls her old boss both “data-driven” and tough: “If you hurt a woman, she wants you in jail.”'
On the whole I have no difficulty believing this. I do see how being a 'prosecutor to the core' might annoy those of a "Libertarian" streak; no-one likes to have their liberty threatened. But it's not clear to me that Mr Volokh is what you would call a libertarian in that sense, or if he is, that he belongs to either the left or right wings of that movement.

[Dr. Ed 2]

Didn't she support the death sentence of an innocent man?

Imagine if Pence had done that....

[Richard Smart]

I don't know. You tell me. If you have a source I would like to see it.

[Leo Marvin]

I voted against Harris for Senator on libertarian grounds, and I don't even consider myself a libertarian. Of course the notion of that criticism being raised by Trump supporters is beyond risible.

[rsteinmetz]

A number of my more "progressive" friends refused to support her for her conduct as a prosecutor.

[Richard Smart]

Okay... so if she offended Progressives by her prosecutorial conduct, doesn't that make her a suitable candidate for those who are NOT 'progressive'? Such as, and I realize I may be wrong here, libertarians?

[Brett Bellmore]

There's prosecutorial conduct that would offend 'progressives', and there's prosecutorial conduct that would offend libertarians, but these overlap significantly.

[Richard Smart]

Oh, I do agree. But despite the overlap my impression is that her approach - which appears to be thoroughly normal for prosecutors, by the way - is much more likely to garner votes on the right than the left. And that, I suspect, is just the ticket for Mr Biden.

[JollyRoger888]

Fact you have to be Constitutionally eligible FIRST. Harris isn't. Nothing else matters.

[Richard Smart]

Tracked down that article. https://www.economist.com/united-states/2016/10/29/meet-kamala-harris.

[Rossami]

Were these serious arguments against Harris? Or was this just an attempt to tweak the noses of the D-supporting pundits who made similarly frivolous claims about the eligibility of R-candidates in past elections?

[bernard11]

D-supporting pundits who made similarly frivolous claims about the eligibility of R-candidates in past elections?

I don't recall a lot of that. Maybe there was some, but I bet it hardly compares with the volume of birtherism.

[M L]

Wasn't birtherism a completely different issue where some people thought Obama was lying about where he was born? I've always ranked that as similar to the Trump-Russia hoax in its prima facie credibility, but really it's probably a notch lower.

[bernard11]

Not a hoax, ML.

But that's not going to bother someone who thinks Robert E. Lee was an abolitionist.

[JollyRoger888]

The Constitution and the Supreme Court are not frivolous. Corrupt people have gotten away with violating the Constitution. This is the Supreme Court standard birth circumstances that must be met to be a natural born citizen.
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"

[larryseltzer]

First, obviously Harris is a natural born citizen.
To me, based on the history of it, the phrase means anyone who is a citizen under the law at birth. This explains why Ted Cruz, born in Canada to a mother who was a US citizen, is a natural born citizen. It's why John McCain, born to a US service man in the Panama Canal Zone, was a natural born citizen.

[Brett Bellmore]

Except that McCain was not a citizen under the law at his birth. Clearly so. Congress passed a law AFTER his birth that applied retroactively, but all that did was make him a naturalized citizen.

[Josh R]

Had McCain been born in Panama, outside the Canal Zone, he would have been a citizen at birth (Call that Event A). Had he born in the USA, he would have been a citizen at birth (Call that Event C). But, he was born in the Canal Zone (Call that Event B).

If we assign a number to each event, with a higher number meaning a closer tie to the USA and thus a greater claim to citizenship at birth, we have A < B < C. By the transitive law of citizenship (invented by me, thank you), McCain is thus a citizen. The statute left event B out, but it would be absurd (per the transitive) law to assume Congress did so intentionally.

[Brett Bellmore]

Interesting reasoning, but not particularly relevant in a legal sense.

[jjrzw72]

It explains why the cannon against absurdity says that he’d have been a citizen regardless of the subsequent act.

[Robert Beckman]

No, because while it’s an apparent oversight it’s not an absurd result.

The doctrine against absurd results doesn’t work like Imperial Decrees in Imperial China did - where a person could be found guilty of violating an imperial decree that had never been issued if the judges decided that had the Emperor only thought of their circumstance he would have prohibited it. Instead it only acts on things that no one could have rationally intended, similar to the rational basis test but in reverse.

[Dr. Ed 2]

The Canal Zone was US territory at the time.

Yes, we stole it from Panama, but that's irrelevant.

[Krayt]

The Canal Zone was US territory at the time.

Yes, we stole it from Panama, but that’s irrelevant.

"I got just as much right to that deed, now that it's worth something!" -- Charles Foster Kane's father

[Krayt]

[1870s, Charles is to be taken to New York to be raised by others] "...and in exchange, the boy's mother and father will be paid..."

"I'm the boy's father! I got as much right as anyone to have a say in his future!"

"...the sum of $60,000 a year."

"Well, let's hope it's for the best."

Damn that was a magnificent movie.

[jjrzw72]

No, it wasn't. It was under U.S. administration, but sovereignty remained with Panama. Like a U.S. embassy or the base at Guantanamo Bay, not Guam or the Virgin Islands.

[Rat on a train]

Did McCain need right-of-soil (8 USC 1401(a)) citizenship or was he eligible under right-of-blood (8 USC 1401(c))?

[Josh R]

Neither because the Canal Zone was neither in the USA or outside the USA. He was retroactively granted citizenship by 8 U.S. Code § 1403.

[Rat on a train]

8 FAM 302.7
b. Status acquired by birth in the Canal Zone after extension of U.S.:

From February 26, 1904, until August 4, 1937, acquisition of U.S. citizenship by persons born in the Canal Zone was governed by section 1993, Rev Stat. (see 8 FAM 301.5). Thus from February 26, 1904 to May 23, 1934, citizenship was transmitted only to children whose fathers were, at the time of the child's birth, U.S. citizens who had previously resided in the United States. The original section 1993, R.S., was amended by act of May 24, 1934, and made possible transmission of citizenship by either U.S. citizen parent who had previously resided in the United States.

[Josh R]

I'm not sure how courts treat the Foreign Affairs Manual in interpreting the statute. The argument to the contrary is that section 1993 did not apply at all to the Canal Zone.

[Tundra Grifter]

Brett Bellmore: I don't believe that was a law. I believe Congress passed a non-binding resolution. In point of fact, both parents of Sen. McCain were citizens. So he was a natural-born citizen, no matter where the birth took place.

[JollyRoger888]

Your opinion is in direct oppostion to the Supreme Court standard birth circumstances that must be met to be a natural born citizen,
"The natives, or natural-born citizens, are those born in the country of parents who are citizens". But I would like to see your Supreme Court source to back up your claim. And you are really making 2 claims so please state the Supreme Court case where I can find either claim. "Anyone born in the U.S. is a natural born citizen." OR "Anyone born anywhere in the world as long as they have at least 1 U.S. citizen parent is a natural born citizen."

[Armchair Lawyer]

Harris was born in Oakland, California.

Until California secedes from the Union as the People's Republic of California. she's a US Citizen.

If/when secession happens, well, that's a different question.

[JollyRoger888]

Please state your Supreme Court case to back up your claim. "Anyone born in the U.S. is a natural born." I would like to see that. All I can find as the Supreme Court standard birth circumstances that must be met to be a natural born citizen is
"The natives, or natural-born citizens, are those born in the country of parents who are citizens" Harris' birth circumstances do not meet the Supreme Court standard.

[Brett Bellmore]

She's a natural born citizen, there's no question at all about it.

Ideally, that status will remain irrelevant.

[Commenter_XY]

Meh....Heels Up Harris cannot be rehabilitated by the MSM, no matter how hard they try. The citizenship question to me is completely irrelevant.

[bernard11]

And what is your criticism exactly?

[Hank Ferrous]

Agreed. Her career as a prosecutor & her lying about it precludes her, but has not thus far done so, from public office. For such a group of vehemently cop-hating commenters, the progressives here certainly like the hell out of her.

[Sarcastr0]

The Democratic Party is not some single hypocritical individual. It contains multitudes.

No one cares about lying anymore.

There are law and order folks who like a little prosecutor on their ticket.
People who don't care one way or 'tother.
Anyone but Trump folks who think persuadables will like it.
Bernie Bros who hate that but weren't voting for Biden anyhow.
Former Bernie/Warren voters who have reluctantly returned to the fold, and are finding their principles are more flexible than they thought when the rubber meets the road.

And a bunch of folks in between.

[Sarcastr0]

Did...did you just call Kamala Harris a slut, ML?

[Robert Beckman]

Do you think that people who have sex with their boss for the purpose of professional advancement are sluts?

I don’t, regardless of the veracity of the claims that she did so, but that terms sufficiently vaguely defined in this context that I think it matters that you appear to think it applies.

[IceTrey]

Cite the law or federal court case defining the term.

[JollyRoger888]

Please state your Supreme Court case to back up your claim. “Anyone born in the U.S. is a natural born.” I would like to see that. All I can find as the Supreme Court standard birth circumstances that must be met to be a natural born citizen is
“The natives, or natural-born citizens, are those born in the country of parents who are citizens” Harris’ birth circumstances do not meet the Supreme Court standard.

[Josh R]

How do we know Harris wasn't delivered through a C-section or cloned?

[James K. Polk]

"... the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations, which also had some influence on the Framers, ..."

I'm not sure I understand that, it sounds like you're saying the 1797 document had an influence on the 1789 constitution. Those guys were pretty darn sharp, I'll grant you that, but I'm skeptical they could read books from the future.

[Eugene Volokh]

It's the treatise that had some influence of the Framers; I note in the following sentences that earlier editions (which of course are what the Framers read) didn't have that phrase. But I've edited this to clarify it.

[JollyRoger888]

And yet EVERY Supreme Court discussion that describes natural born citizen uses this standard
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
Hey Eugene how about you finding in a Supreme Court case where the Court says "Anyone born in the U.S. is a natural born citizen." I can find at least 3 cases that quote the standard I posted above. AND I can even find a Supreme Court case where the Court says the plaintiff is a natural born citizen. Then describes her birth circumstances that makes her a natural born citizen. Namely, Born in the U.S. to U.S. citizen parents. Can you find a case to back your claim and a specifically named individual of that claim?

[Pete]

https://www.reuters.com/article/us-library-washington/george-washingtons-library-book-returned-221-yrs-late-idUSTRE64J4EG20100520

[EscherEnigma]

Seriously? Conservative are harping on this again? Are y'all trying to look racist, or... well, honestly, that's the most benign explanation I got for y'all.

[JollyRoger888]

Maybe you would be so kind as to post a Supreme Court case that backs up your claim that disproves Harris is Constitutionally ineligible to be VP. Because this is all I can find in any Supreme Court case
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"

[David Nieporent]

I can't believe that nobody here has posted the comment:

FRAUD!!!!!!!!!!!

What is this comment section coming to?

[santamonica811]

Thanks for the flash-back. Ah, those were good times . . . (In the sense of "chock full of racism" times)

[JollyRoger888]

Instead of fraud I would say Harris is Constitutionally ineligible to be VP

[M L]

1. ""natural-born citizen" appears to have been the Framers' adaptation of the familiar English term "natural-born subject""

I'm afraid this is incorrect. Historian David Ramsay (1749–1815) wrote at the time of the founding:

THE United States are a new nation, or political society, formed at first by the Declaration of Independence, out of those British subjects in America, who were thrown out of royal protection by act of parliament, passed in December, 1775. A citizen of the United States, means a member of this new nation. The principle of government being radically changed by the revolution, the political character of the people was also changed from subjects to citizens.

The difference is immense. Subject is derived from the Latin words, sub and jacio, and means one who is under the power of another; but a citizen is an unit of a mass of free people, who, collectively, possess sovereignty.

Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them at pleasure: but citizens possess in their own right original sovereignty.

So "citizen" was far from merely being the founders' adaptation of the familiar term "subject."

The founders' deep familiarity with Blackstone only makes it all the more striking that they rejected the familiar notion of "subjectship." A NR article by Edward J. Erler has more information, including more about what Blackstone said on subjectship:

Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine.

2. "in U.S. v. Wong Kim Ark (1898), the Court reaffirmed that people born in the U.S. are indeed American citizens, regardless of their parents' citizenship (with narrow exceptions.."

Yes, but don't forget that Wong clearly emphasizes, and includes the element in its holding, that the parents are "domiciled" and "residents," having legally established a permanent residence in the land. Wong clearly does not include tourists.

3. I agree that Kamala Harris is obviously eligible to run for Vice President, because both of her parents were legally domiciled, or lawful permanent residents. From Wikipedia: "Kamala Devi Harris was born on October 20, 1964, in Oakland, California.[1] Her mother, Shyamala Gopalan, was a breast-cancer scientist who emigrated from India in 1960 to pursue a doctorate in endocrinology at UC Berkeley.[8] Her father, Donald Harris, is a Stanford University Emeritus Professor of Economics, who emigrated from Jamaica in 1961 for graduate study in economics at UC Berkeley.[9][10]"

[David Nieporent]

It is true that WKA's parents were domiciled in the United States, but it's also true that WKA's parents were from China. That doesn't make either fact relevant to the holding of WKA. The holding of WKA is broader: all persons born in the U.S. other than the children of foreign diplomats or invading armies are citizens. (The one exception was the sui generis situation of Indians.)

[Brett Bellmore]

Right. I suppose you could analogize illegal aliens to invading armies, as both are present in the country contrary to the express will of the government. That wouldn't imply anything about the children of tourists, though.

[Sarcastr0]

I know you love analogizing illegals to invaders. No matter how you narrow it to a particular quality, that's not going to fly for anyone who isn't a Stephen Miller level nativist.

[M L]

Nope. The holding is that all persons born in the US to domiciled perminent residents are citizens, other than the exceptions you mention.

[Sarcastr0]

That's the rule of the Court as applied to the specific facts of the case, but the holding says The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.

Hard to read that as limited to domiciled permanent residents.

[M L]

That's...not the holding. It's not even from this case, it's quoted in this case from a different case. You found a sentence in the opinion that is about as far from the holding as can be.

Read this: https://www.chapman.edu/law/_files/publications/clr-vol-22/10eastman_online.pdf

[David Nieporent]

That's not the holding. Nothing in the Court's decision indicates that their ruling turns on the fact that his parents were domiciled permanent residents. The problem is that you're not understanding how to read a court opinion; just because facts are recited does not mean that those facts are necessary to the ruling. For example, the Court also recites that the plaintiff's name is Wong Kim Ark. And in the most narrow sense, one could say that the Court held that Wong Kim Ark was a citizen of the U.S. But that's not the rule handed down by SCOTUS in Wong Kim Ark.

[M L]

"Nothing in the Court’s decision indicates that their ruling turns on the fact that his parents were domiciled permanent residents."

It certainly does. It's right there in Gray's statement of the question presented, was a key agreed-upon fact submitted to the courts, and is repeated throughout the opinion by Gray and in the key statements of the holding. You are, at best, reading into some dicta in the opinion to expand the ruling well beyond the most pertinent facts of the case. See the link I posted above in response to Sarcastro. https://www.chapman.edu/law/_files/publications/clr-vol-22/10eastman_online.pdf

[David Nieporent]

It certainly does. It’s right there in Gray’s statement of the question presented,

The statement of the question presented also says "whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States…" Do you think therefore that the decision did not apply to children born in the U.S. of parents of Turkish descent who at the time of their birth were subjects of the Sultan of the Ottoman Empire? Just because a fact is mentioned does not mean that the case turns on that fact.

The opinion is long so I can't quote all the relevant passages, but there are dozens of quotes in there making quite clear that being born here is sufficient (subject to the exceptions previously noted) to make one a citizen under the 14th amendment. (And no quotes from the opinion saying anything akin to, "But if his parents had only been here temporarily, then it would be different." Indeed, they expressly noted that under English and colonial law, it didn't matter whether the parents were "merely temporarily sojourning." And there is nothing to show that this rule was ever rejected by the U.S., other than racial prejudice on the theory that we couldn't possibly have meant to make citizens of non-whites.)

[IceTrey]

Wong was naturalized at birth. He wasn't a natural born citizen.

[IceTrey]

He was maybe a natural born citizen. The phrase has no legal definition so no one really knows.

[Reality Check]

No Wong was not naturalized at birth. He was a natural born citizen. At the time US law forbade Chinese nationals from becoming naturalized citizens and the SCOTUS did not overturn that law in Wong Kim Ark. The entire majority opinion in WKA is that Wong is a citizen based on birth on US soil, which made him natural born. The government in their opposition briefs argued that if the court ruled for Wong it would make him eligible to be president.

A very distinguished attorney, William Damien Guthrie, who argued and won cases before the Supreme Court wrote:
"The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States, by virtue of the Fourteenth Amendment, all persons born in United States of alien parents and permanently domiciled here, except the children of the diplomatic representatives of foreign powers; and therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, altho his parents could not be naturalized under our laws."

[M L]

Good quote. It makes very clear that the holding of Wong obviously only applied to permanently domiciled persons (i.e. legal permanent residents).

It is interesting that this attorney added the last bit about eligibility to the office of President. This goes to what "natural born" means and is completely beyond the scope of the holding and facts of the Wong case. But it makes sense to me -- the implication is that "natural born" just means obtained by virtue of the circumstances of birth.

[Charles Hughes]

Both the appellant brief and Chief Justice Fuller’s dissent said a majority opinion in Wong’s favor would make Him eligible to be President.

[IceTrey]

Was he a Chinese national? What were the laws in China concerning such questions?

[M L]

"there are dozens of quotes in there making quite clear that being born here is sufficient"

If so, those are dicta. The Wong opinion is a mess, but the court repeatedly emphasizes the fact of domicil(e), with the word appearing 26 times.

"...subjects of the Sultan of the Ottoman Empire?"

Don't be obtuse. I understand you are acting as if you were writing an Open Borders advocacy brief right now. But if you understand how to read a court opinion, then you know about distinguishing between facts that are pertinent or not, and you also know that, as quoted in the Wong opinion itself:

"general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision."

[David Nieporent]

But if you understand how to read a court opinion, then you know about distinguishing between facts that are pertinent or not,

Indeed, and that's my point. Nothing in the court's opinion suggested that the permanency of the residence of WKA's parents was a pertinent fact. And a lot of language — which you have simply handwaved as "dicta" — suggesting the opposite.

It's certainly precious that your methodology involves taking statements saying domicile doesn't matter, counting them as instances of the court using the word domicile, and then saying, "A ha! The opinion uses the word domicile so it must be saying that domicile matters!"

[M L]

The opinion repeatedly suggests over and over that the legal domicile of the parents was a pertinent fact. And it was, anyway. The opinion does not need to include counterfactuals and hypotheticals for you. While there is no doubt that the holding of the case applies to persons born to parents who "have a permanent domicil and residence in the United States," you are free to argue, of course, that the reasoning or logic of the case should extend to a broader class of persons.

[M L]

Also, look into the case Elk v Wilkins.

[David Nieporent]

Elk vs. Wilkins was about Indians born within the jurisdiction of Indian tribes. Indians were sui generis; the rules applying to them did not apply to anyone else.

[M L]

Oh, did it really? How interesting that you are now characterizing the holding of a case in such an implausibly narrow manner, after characterizing the holding of another case in an implausibly broad manner.

Read the case. Really. Above you wrote in regards to Wong, "The statement of the question presented also says . . 'parents of Chinese descent . .' Do you think therefore that the decision did not apply to children born in the U.S. of parents of Turkish descent who at the time of their birth were subjects of the Sultan of the Ottoman Empire?"

Well, of course not, and yet that's exactly the same as the argument you're advancing re Elk v Wilkins!

Elk v Wilkins:

"The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes . . and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. . .

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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized"

[IceTrey]

I think they were here on student visas so they may not qualify as being domiciled.

[JollyRoger888]

You have misunderstood Wong Kim Ark. Two times in that case once by Justice Gray who wrote the ruling of the Court and once by Chief Justice Fuller in his dissent stated the Supreme Court standard birth circumstances that must be met to be a natural born citizen was quoted.
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
And you are adding 2 words that neither appear in the 14th Amendment nor in the final ruling of Wong Kim Ark. "Natural born" does NOT appear in either. The Court like the U.S. District Court where this case was appealed from BOTH ruled Ark to be "a citizen" not a natural born citizen. You can find nowhere in any Supreme Court case where the Court says "anyone born in the U.S. is a natural born citizen." But you can find the Supreme court standard.
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
There is even 1 case where the plaintiff is called a natural born citizen and the Court proceeds to describe why the plaintiff is a natural born citizen -- "born in the U.S. to U.S. citizen parents"

[Eddy]

But not MacDuff. He was from his mother's womb untimely ripped.

[Rev. Arthur L. Kirkland]

Race- and immigration-related discussions at the Volokh Conspiracy are always a treat.

Does this blog — like the Republican Party — generate bigots, or merely attract them?

[Brett Bellmore]

You're ideally situated to tell us: Which was it, in your case?

[ThePublius]

"We invite comments and request that they be civil and on-topic. "

Your post is neither civil nor on-topic.

[Hank Ferrous]

Are kirkland's ever? Does he offer anything other than muttering, claims of superiority and threats of oral rape? Kirkland is a troll; the spambots are generally more on topic than he is.

[Unicorn Abattoir]

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government

Mick Jones hardest hit.

[Charles Hughes]

“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”

William Rawle, A View Of the Constitution Of the United States (1826)

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”

Zephaniah Swift, A system of the laws of the state of Connecticut: in six books (1795)

[IceTrey]

Meaningless opinions.

[Charles Hughes]

Prominent lawyers of the time explaining their understanding of the term “natural-born”.

[IceTrey]

Right their opinion.

[Charles Hughes]

“In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” Justice Scalia in D.C. v Heller

So what did “ordinary citizens” understand the meaning of natural born to be?

Let’s ask William Rawle and Zephaniah Swift.

[JollyRoger888]

Hey Charles tell me when did Willian Rawle or Zephania Swift get the Constitutional authority to say who is and who is not a natural born citizen? The Supreme Court standard birth circumstances that must be met to be a natural born citizen is in direct opposition to your sources claims. The Supreme Court standard is
"The natives, or natural-born citizens, are those born in the country of parents who are citizens"
Now if you can show a source that has Constitutional authority in the matter to back up your claim "anyone born in the U.S. is a natural born citizen." then you would have something. Let me know when you find it.

[M L]

"Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. 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." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. "

Senator Trumbull

[M L]

^Reply to Charles Hughes

[Josh R]

Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens

Senator Trumbull in response to Senator Cowan

[IceTrey]

Yes being born to permanent legal residents makes you a citizen but not necessarily a natural born citizen.

[Josh R]

So can we agree that Trumbull has no relevance to this debate?

[M L]

It does have relevance. The OP's view and many others seems to be that if you are born on US soil, then you're citizen and a natural born citizen. So even if your mom flew in from Asia to one of the "birth tourism" hotels in California to give birth, you're a natural born citizen. I believe that's incorrect as a matter of original meaning, and that it's also incorrect under precedent including Wong.

If you are born to permanent legal residents, then under Wong you are a citizen. However, some think this does not necessarily make you a "natural born" citizen. As far as I can tell, natural born citizen just means citizen by circumstances of birth, so I think under Wong you would be a natural born citizen as well.

Moreover, some contend that Wong was w(r)ongly decided because the original meaning of the clause excluded those who still had "allegiance" to a foreign power. I think this is definitely correct in some sense, but the key corollary to this idea is, following the main principle of the Declaration of Independence, we have always welcomed and encouraged immigrants to exercise their inalienable right to reject prior allegiances if they wish to do so in connection with becoming an American. There seems to be an implication that any immigrant is free to do this and perhaps this can even be implied by the act of becoming permanently domiciled here. In the case of Wong, there was actually a treaty which formally prevented Chinese from doing this. John Eastman writes:

"But it should be acknowledged that the treaty between the United States and the Emperor of China that gave rise to the Wong Kim Ark case was ignoble because it refused to afford to Chinese subjects the same inalienable right to reject their prior allegiance that Americans had claimed as an unalienable, natural right in 1776. Perhaps Justice Gray was doing no more than counter-balancing the pernicious effects of that treaty, acknowledging that because Chinese parents who had become lawfully and permanently domiciled in the United States had demonstrated their allegiance to their adopted country as much as the treaty allowed them to do, any children born to them on U.S. soil should enjoy the benefits of citizenship. But that concern no longer exists—“Cessante Ratione Legis, Cessat Ipsa Lex” (the reason for a law ceasing, the law itself ceases). Thus, to extend the mandate of automatic citizenship to the entirely different context of temporary visitors, and even further to the context of those who have entered this country illegally, pushes well beyond any such sentiment, and certainly beyond the actual holding of Wong Kim Ark."

[Josh R]

Not only did you not say how Trumbull is relevant, you didn't mention him at all.

[M L]

Sorry, the Trumbull quote is from the ratification debates and shows the original meaning of the citizenship clause of the 14th amendment. Together with a full reading of the ratification debates, I think it shows that today's prevailing view of birthright citizenship is incorrect.

As you posited below, if "natural born citizen" merely means anyone who is born a citizen (possibly plus on US soil), then the Article II qualification is dependent in part on the meaning of the 14A citizenship clause.

[Josh R]

What do you think the Trumbull quotes reveal about the original meaning?

[Charles Hughes]

Senator Howard:

“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws.”

Senator Conness:

“The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”

[JollyRoger888]

You need to read the ruling on the case Wong Kim Ark. The ruling was same as the U.S. District Court made. The District Court was where the matter originated. BOTH ruled that Ark was "a citizen" not a natural born citizen. Justice Gray who wrote the opinion for the Court and Chief Justice Fuller who wrote the dissenting opinion BOTH quoted the Supreme Court standard birth circumstances that must be met to be a natural born citizen. "The natives, or natural-born citizens, are those born in the country of parents who are citizens." Your opinion is in direct conflict with the Constitutional authority on the matter, the Supreme Court.

[JollyRoger888]

Rep. John Bingham (Ohio R), Principal Framer of the Fourteenth Amendment of the U.S. ConstitutionDuring a debate regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen. Representative Bingham (of Ohio), stated on the floor:1) As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution,=================2) All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians. – (Cong. Globe, 37th, 2nd Sess., 1639 (1862))=============

3) 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…. – (Cong. Globe, 39th, 1st Sess., 1291 (1866))———————————-

According to Justice Black, Bingham’s words uttered on the floor of the House are the most reliable source. Bingham made three statements, none of them challenged on the Floor, which indicate that a natural born citizen is a person born on US soil to parents who were US citizens. Bingham's words on natural born citizen are also the Supreme Court standard that must be met to be a natural born citizen.

[Pete]

Wow!! Can’t believe that someone would suggest that the founding fathers of the United States excepted British common law understanding of Natural born subject!

Are people SO POORLY educated that they don’t even know the events that resulted in the war of 1812. Yes, that war were the White House was BURNED by British troops!! Why declare on the most powerful empire in the world when your a just freed struggling colony. That’s right it was about US people being born as British Subjects and being press ganged into servitude at sea!! Absolutely every single major author of the Constitution followed ONE legal set as it pertained to nationality and its respect to other nations. I assure you it wasn’t British.

Vattel, Law of Nations was the impetus of the phrase “Natural Born Citizen”. Further, every single major founding father and John Jay checked out this book from the New York City library. We were aligned with the French, not the British.

The author of this article failed to even mention that British Common Law was summarily rejected by the founding fathers as it pertains to citizenship in these United States.

Today, in two world wars, we have fought along side the British. However, we were saved by the French in the revolutionary war. The British, and its claim on our citizens (their subjects) was rejected, and rightfully so.

Vattel was specific, two citizen parents and born on soil, is undisputed Natural Born Citizen. No other nation can claim you, and you can claim no other country.

Kamala Harris is not eligible, neither parent was a citizen at her birth, She is, without debate, an American Citizen, but she is not Natural Born as Vattel discussed, and our founding fathers educated themselves of his work

Stop with the silly politics, learn your history and your Constitution.

[Josh R]

Isn't Vattel arguing that Harris is not a citizen at birth?

[IceTrey]

Yes and she shouldn't be. Everyone keeps saying her parents were immigrants but at the time they were in the country on student visas.

[Josh R]

Does Vattel distinguish between permanent residents and people with student visas?

[IceTrey]

The SCOTUS did in Wong.

[Josh R]

The most favorable interpretation of Wong Kim Ark for your position is that SCOTUS held that the children of permanent residents are citizen at birth while strongly suggesting the children of student visa holders are too. Less favorably, SCOTUS held that both types of children are citizens at birth.

[IceTrey]

Did they have student visas back then?

[Josh R]

No, but the language in Wong Kim Ark strongly suggests that a person born in the United States is a citizen so long as their parents aren't Indians, members o an invading army, or diplomats.

[Pete]

https://www.reuters.com/article/us-library-washington/george-washingtons-library-book-returned-221-yrs-late-idUSTRE64J4EG20100520

Look. What were the founding fathers reading.

Look at the term Natural Born Citizen in letters between Jay and Washington.

Clearly, they were speaking about what they had both read, from the New York Library, Vattel’s Law of Nations.

[David Nieporent]

Vattel, Law of Nations was the impetus of the phrase “Natural Born Citizen”.

It's like you didn't read the post, or any of the comments. "Vattel, Law of Nations" never used the phrase "Natural Born Citizen".

[IceTrey]

But he did use indigene which means indigenous which means native which has a definition of, belonging to a person's character from birth rather than acquired.

[David Nieporent]

Given that indigenous people were about the only ones clearly not deemed to be citizens of the U.S., it's pretty ludicrous to suggest your Google Translate chain of evidence somehow tells us the meaning of a constitutional phrase that doesn't use any of the words you just said.

[IceTrey]

Native Americans weren't citizens because they had their own nations and didn't want to be Americans. I was talking about Vattel not the Constitution.

[davidfarrar]

§212. Citizens and natives.*

"The natives, or natural-born citizens, are those born in
the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers and succeed to all their rights." ... Emer de Vattel

* The term "native" is a legal construct, chosen to fit English translations of de Vattel's French version of "The Laws of Nations' (circa 1760). And, as you say, the translation isn't quite correct.
De Vattel used "Les naturals" synonymous with ou 'indigenes' (or indigenes, or the indigenous population). "Les naturals" is a specific reference to those living in the lands of their births, and that of their ancestors, and as such, by natural right, are natural-born members of their ancestors' societies.

[M L]

Pete didn't say that Vattel used that phrase (how could he, it was a different language). Pete said that Vattel's French language concept was the impetus for the English phrase "natural born citizen."

I would like to hear more about this and see more support and evidence. It sounds plausible to me.

[David Nieporent]

Really? Because it seems a lot more plausible to me that the English phrase "natural born subject" was the impetus for the English phrase "natural born citizen."

[M L]

The English word and concept of "subject" was certainly part of the impetus for the Framer's adoption of the term "citizen" -- but only in the sense that it resulted in the Framer's resounding rejection of the former.

[Charles Hughes]

Founders used both terms natural born citizen and natural born subject interchangeably. The Massachusetts naturalization acts are a good example.

[JollyRoger888]

Good post. There is but what could be considered 1 minor flaw. The men who wrote the 14th Amendment would say Harris wasn't even a citizen.

[IceTrey]

Volokh is wrong. There is no law nor federal court case that specifically defines the phrase natural born citizen. It is undefined. It has no legal definition. No one alive knows what it means. Anything anyone says about it is opinion and nothing more.

[Alpheus W Drinkwater]

If no one alive knows what it means, then how do you know Prof. Volokh is wrong?

[IceTrey]

He took a definitive position. Anyone who says no or yes is wrong. At most it's mere opinion.

[JollyRoger888]

Here is the Constitutional authority on the matter and their opinion does count. And I'll use Wong Kim Ark case just to show that. The Supreme Court standard birth circumstances that must be met to be a natural born citizen was quoted by Both Justice Gray who wrote the opinion of the Court and Chief Justice Fuller who wrote the dissenting opinion of the Court. "The natives, or natural-born citizens, are those born in the country of parents who are citizens." And before you go shouting but Ark was a natural born citizen, you should read the ruling of the court as to his citizenship status.

[Moderation4ever]

First Senator Harris is a natural born citizen as was President Obama. There is a very small group that just will not see anyone who is not white as an American. The question of dual loyalties is of interest because your country of birth has less to do with dual loyalty that perhaps your personal interest. Lt. Coronel Vindman born in Ukraine fought for and was wounded serving our country. President Trump born in the USA seem more loyal to Russia based on his business interests.
For the record I think the "natural born" condition for President is past and I would open the Presidency to naturalized with a long history in the USA. Especially anyone naturalized before their 18th birthday.

[IceTrey]

That's your opinion. There's no law or federal court case defining the phrase.

[Charles Hughes]

Tisdale v Obama, US District Court for Eastern District Of Virginia

“It is well settled that those born in the United States are considered natural born citizens.“

[Moderation4ever]

Thanks for the assist.

[M L]

That is incorrect as a matter of original meaning.

[IceTrey]

That case was thrown out for failure to state a claim so your quote is meaningless dicta.

[Charles Hughes]

I disagree. Tisdale specifically claimed Obama was not a natural born citizen because of his father’s status. Judge Gibney dismissed for failing to state a claim upon which relief could be granted because by “settled law” Obama was a natural born citizen.

It was beyond doubt that the Tisdale could “prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson , 355 U.S. 41, 45-46 (1957)

[IceTrey]

How can that be when there is no law? If there's no law defining the phrase how can it be settled? I won't even mention Gibney was appointed by Obama.

[Charles Hughes]

Wong Kim Ark.

Supreme Court decisions are law.

[JollyRoger888]

It's a good thing you have no Constitutional authority to decide such matters. The Supreme Court standard birth circumstances that must be met to be a natural born citizen was stated in the Wong Kim Ark case. Justice Gray who wrote the opinion of the Court and Chief Justice Fuller BOTH quoted the Supreme Court standard. "The natives, or natural-born citizens, are those born in the country of parents who are citizens. By the way the Constitution has no qualification as to race or sex. But accoding to the Supreme Court Harris and Obama were both Constitutionally ineligible to hold the Offices they usurped.

[Mannix]

An added nuisance is California (as most states) evidence of being a natural-born citizen as a qualification to vote was proof of citizenship of the father, not where the person was born.

[davidfarrar]

Under the "Exclusive Citizenship" theory, an Art. II, §1, cl. 5 natural (U.S.) citizen by birth is a person born exclusively under U.S. jurisdiction, with no other foreign allegiances or civic attachments at birth.

Under the Wong Kim Ark decision, Kamala Harris (dob: 1964) is a naturalized U.S. Citizen at birth by positive law, not a U.S. Citizen at birth by natural law. Her father emigrated from Jamaica in 1961, and her mother emigrated from India in 1960. Neither were U.S. Citizens at the time of Kamala's birth in Oakland, California.

In 1787 only white men born within the jurisdiction or naturalized in one of the 13 states, and who owned property were routinely permitted to vote. Under these circumstances, the question of divided allegiance at birth was an impossibility. This is why no one seemed to question the definition of a natural-born U.S. citizen in terms of their allegiance from birth.

Since 1787 many things have changed, but the requirement of a single allegiance at birth to the U.S. Constitution has never wavered or been annulled.

[Josh R]

Under the Wong Kim Ark decision, Kamala Harris (dob: 1964) is a naturalized U.S. Citizen at birth

Not only does Wong Kim Ark not reach that conclusion, it is precluded by logic. If Harris was a "naturalized citizen at birth," she must have been subject to the jurisdiction of the United States at birth. But in that case, she was born in the United States and subject to the jurisdiction thereof, and thus a citizen at birth without being naturalized.

[davidfarrar]

Kamala Harris was subject to more than one jurisdiction at birth. Jamaica would have legally considered her to a Jamaican citizen at birth as well.

[Charles Hughes]

Mr. Farrar had this explain to him by an Administrative Law Judge in Georgia.

Farrar v. Obama

“In 2009, the Indiana Court of Appeals (“Indiana Court”) addressed facts and issues similar to those before this court. [Ankeny] v. Governor, 916 N.E.2d (Ind. Ct. App. 2009). … The Indiana Court rejected the argument that Mr. Obama was ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. … This Court finds the decision and analysis of [Ankeny] persuasive.”

[davidfarrar]

In his denial of my case, Judge Malihi did not mention the principle, and instead relied on the 2009 case of Ankeny v Governor, stating that "[T]he Indiana Court determined that a person qualifies as a natural-born citizen if he was born in the United States because he became a United States citizen at birth."

Interestingly, Judge Malihi footnoted that particular statement with the assertion: "This Court recognizes that the Wong Kim Ark case was not deciding the meaning of 'natural-born citizen' for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive."

It must also be noted that the Indiana decision contains another similar and interesting footnote: "We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a 'natural- born citizen' using the Constitution's Article II language is immaterial."

In other words, Judge Malihi found more persuasive than the long-established principle of statutory construction, a State's Court of Appeals' opinion and its unsupported contention that the Constitution's language "is immaterial."

[Josh R]

There is no principle of statutory construction applied to the 14th Amendment that leads us to conclude there is such a thing as a "naturalized citizen at birth" born in the USA.

Additionally, the Indiana court did not say the Constitution's language is immaterial. It said Wong Kim Ark not expressly pronouncing the plaintiff a natural-born citizen (only pronouncing him a citizen at birth) is immaterial. That is, the Indiana court determined 1) Obama was a citizen at birth born in the USA per Wong Kim Ark, and 2) Obama was a natural-born citizen by interpreting "natural-born citizen" to include a citizen at birth born in the USA.

[M L]

I'm not sure if the 14th amendment is relevant. It is Article II that controls.

[Josh R]

If "natural-born citizen" includes a citizen at birth born the USA (defined by the 14th Amendment) the 14th amendment is relevant.

[M L]

True. I could be wrong, but I think "natural born citizen" includes citizens at birth, which is affected not only by the 14A but can be affected by Congress and administrative practices.

[Josh R]

I think "natural-born citizen" should be read as "citizen at birth," including those born in and subject to the jurisdiction of the United States (for which Congress has no say in), as well as other people Congress makes citizens at birth through statute.

[Josh R]

Kamala Harris was subject to more than one jurisdiction at birth. Jamaica would have legally considered her to [be] a Jamaican citizen at birth as well.

By your interpretation of Kim Wong Ark, that circumstance does not disqualify her from being a "naturalized citizen at birth." Therefore, it can't disqualify her from being a citizen at birth without being naturalized.

[M L]

Under Wong Kim Ark, allegiance or citizenship in Jamaica would not prevent Harris from being a citizen at birth, yes. There is maybe a question of whether her parents were "domiciled."

But Wong Kim Ark had nothing to do with interpreting what "natural born citizen" in Article II means. It only had to do with interpreting what "All persons born or naturalized in the United States and subject to the jurisdiction thereof" means in Section 1 of the 14th amendment.

[David Nieporent]

You are correct that WKA was not directly about interpreting the phrase "natural born citizen"; the issue in the case wasn't whether WKA was eligible to be president.

But the case does discuss the topic. And it holds that WKA — and thus Harris — was a citizen at birth. And there is nothing anywhere to suggest that there are more than two categories: citizens at birth and naturalized citizens. Obviously naturalized citizens are not natural born citizens, which leaves citizens at birth.

[M L]

On this point, I agree with you. Notwithstanding Vattel, it seems most plausible to me, as far as I know, that "natural born citizen" just meant someone who would automatically be a citizen at birth.

Under current law and administrative practice, that would include Harris.

[IceTrey]

So if a law was passed saying everyone born anywhere in the world after a certain date is an American citizen they could be the POTUS. I doubt the Founders would approve.

[David Nieporent]

Well, not exactly. The president also has to have resided in the U.S. for 14 years.

[IceTrey]

Of course but they would be considered natural born citizens even though they have no connection to the US.

[Reality Check]

If there were "naturalized citizens at birth" under the Fourteenth Amendment then Congress could alter or remove that type of citizenship under the power of naturalization. No legal scholar believes Congress could use such powers alter the Fourteenth Amendment without another constitutional amendment.

[IceTrey]

It depends on what "subject to the jurisdiction of" means. If it means not owing allegiance to any other country no further amendments are required.

[Josh R]

Reality Check: Farrar claims the 14th Amendment defines a "naturalized citizen at birth", and because it is an amendment, it is beyond the reach of Congress - notwithstanding it's power to regulate naturalization - to change through an ordinary statute.

IceTrey: Farrar concedes that Harris was born subject to the jurisdiction of the United States. As best as I can tell, he thinks "subject to the jurisdiction" means something stricter for someone born in the USA than it does for someone naturalized. Regardless, Congress cannot alter what is meant by "subject to the jurisdiction" through an ordinary statute.

[Josh R]

Correction: I think Farrar is arguing Harris was "subject to the jurisdiction" the moment she became naturalized at birth, but was not "subject to the jurisdiction" at the time of her birth. Sounds crazy? I agree, and that is why Farrar is wrong.

[IceTrey]

It would depend on whether her parents had green cards or were here on student visas. If the latter she shouldn't be a citizen at all.

[Josh R]

That's a different argument than Farrar's, which does not rely on the "naturalized at birth" construct. The problem with your argument is, at the very least, strong dicta from Wong Kim Ark suggests otherwise.

[JollyRoger888]

Very true and the violation of the Presidential qualifications come from both sides of the aisle. And you can't tell me that Congress as a whole does not know what the Constitutional birth circumstances are that must be met to be a natural born citizen. They have tried to change it for over 60 years. They have failed every time. So in order to get their way they dumbed down the American citizen. And we have the mess you see now. Weakling Joe match with 2 Constitutionally ineligible usurpers. How has that worked out for America?

[NOYB2]

I think a better question is why Democrats keep nominating people like Obama and Harris, people whose commitment to American traditions and principles is dubious and who want to radically transform US society into something that looks more like the kinds of s---holes their immigrant parents came from.

[Charles Hughes]

Governor Jindal, Senator Rubio and Ambassador Haley have the same “eligibility” issue as Senator Harris.

[IceTrey]

And Cruz.

[JollyRoger888]

Correct they all have birth circumstances that do not meet the supreme Court standard that must be met to be a natural born citizen. "The natives, or natural-born citizens, are those born in the country of parents who are citizens. They all do not meet the Constitutional standard to be a natural born citizen

[David Nieporent]

I bet that sounded less racist in your head than it did when you typed it.

[Moderation4ever]

Agreed

[Inter results]

Ipl today match

[Reality Check]

Mr. Volokh is quite correct. I wrote a similar blog post on this subject last September when Sen. Harris was still running for president.

https://rcradioblog.wordpress.com/2019/09/17/for-the-thousandth-time-anyone-born-on-us-soil-under-the-jurisdiction-of-the-united-states-is-a-natural-born-citizen-period/

I would note that no one had ever heard of this "two citizen parent" nonsense theory or the writings of de Vattel until attorney and poker player Leo Donofrio invented this argument late 2008 to try to claim that Barack Obama was not a natural born citizen because his father was a British subject.

Birthers have been challenged for since 2008 to produce a law text book or Civics book that contains this two citizen parent requirement to be a natural born citizen. No one has produced anything close.

[IceTrey]

I challenge you to produce any law or federal court case that defines the phrase at all. The phrase currently has no legally accepted definition. No one alive knows what it means.

[Reality Check]

How about Tisdale v Obama, U.S. District Court for the Eastern District of Virginia before Judge John A. Gibney:
"It is well settled that those born in the United States are considered natural born citizens."[

[IceTrey]

Thrown out for failure to state a claim so your quote is meaningless dicta.

[Reality Check]

Judge Gibney provided a definition in a federal case. That's what you asked for now you are trying to weasel out.

[IceTrey]

So does Minor v Happersett. Obviously I meant a legal ruling not dicta.

[Charles Hughes]

Minor v Happersett is also dicta.

[IceTrey]

Do you think I don't know that?

[Reality Check]

Minor v Happersett didn't define all who natural born citizens and said it did not. Wong Kim Ark did.

[IceTrey]

No the SC ruled Wong was a citizen. The lower court had actually called him a natural born citizen but the SC didn't.

[Charles Hughes]

That is not true.

Justice Morrow did call Wong a “natural born” citizen.

The term only appears once in Morrow’s decision in reference to the 1846 decision in Lynch v. Clarke. In that case, Chancellor Stanford said birth in the US made someone a natural born citizen.

[Charles Hughes]

My Mistake.

Judge Morrow “did not” rule Wong to be a natural born citizen. He said he was a citizen of the United States just as Justice Gray ruled.

[davidfarrar]

The "two-citizen parent" rule is a general solution that ensures exclusivity of allegiance at birth solely U.S. jurisdiction.

[Reality Check]

I have yet to run into an infant that was able to tell me they had allegiance to this or any other country. The 'divided loyalty" argument because someone is born with dual citizenship is ridiculous.

[IceTrey]

You want the CIC to owe loyalty to a country we are at war with?

[David Nieporent]

I just wish we didn't have one who was Putin's puppet.

[JollyRoger888]

That's funny. The Supreme Court has heard of it since 1814 as posted in one of their opinions. The framers know about it when they were drafting the Constitution. The Supreme Court standard birth circumstances that must be met to be a natural born citizen was quoted by Justice Gray when he wrote the opinion of the Court in Wong Kim Ark and Chief Justice Fuller in the dissenting opinion. "The natives, or natural-born citizens, are those born in the country of parents who are citizens. I prefer to use the institution that has Constitutional authority to decide what birth circumstances must be met to be a natural citizen. Not some law book or supposed Constitutional authority. Their opinion is no better than yours or mine. Quote a Supreme Court case that backs up your claim :anyone born in the U.S. is a natural born citizen." I have already posted the Constitutional authority on the matter WORD for WORD.

[davidfarrar]

There are four Supreme Court Cases that define "natural-born citizen".

To define a term is to indicate the category or class of things which it signifies. In this sense, the Supreme Court of the United States has never applied the term "natural-born citizen" to any other category than "those born in exclusively under U.S. sovereignty.

1. The Venus, 12 U.S. 8 Cranch 253 253 (1814)
2. Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
3. Minor v. Happersett, 88 U.S. 162 (1875)
4. United States v. Wong Kim Ark, 169 U.S. 649 (1898)

[IceTrey]

We're on the same side but I disagree that the SC has ever ruled on the definition of nbC. There's dicta but no ruling. Mostly because no court will give anyone standing. Who has standing to challenge her eligibility?

[David Nieporent]

Her opponent.

[IceTrey]

So Pence is the only person in the world who can challenge her.

[Charles Hughes]

Some states allow individual voters to challenge candidates name on ballots.

Kansas and Florida are two I believe.

[Speak2Truth]

The SC does not have to rule. The definition is easily found in the reference book used by the Framers to craft the Constitution. It is clearly stated:

"The natives, or natural-born citizens, are those born in the country, of parents who are citizens." - Law of Nations

Article I, Section 8 of the Constitution directly empowers Congress to enforce the clauses of "Law of Nations". That's how important it is to understanding what our constitution means.

For more info and debunking of the common arguments used to confuse this issue, visit:

https://www.dagnyintel.com/post/kamala-harris-is-not-eligible-to-be-president-the-natural-born-citizen-requirement

[David Nieporent]

It's like you haven't bothered to read any of this thread. Even if the framers had relied upon Vattel, and they did not, the quote you claim is "clearly stated" is not in there at all.

[Elvis35]

A state could refuse to put her on the ballot because of their interpretation of the requirement, and then Harris would presumably sue to have her name included. That is I think one instance where the supreme court would almost certainly not punt the question.

[Speak2Truth]

And born to US Citizens.

'The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. [60 U.S. 393, 477]' - Dred Scott Decision, referring directly to Vattel (1856)

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says "The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens." - The Venus 12 U.S. 253, 289 (1814)

The Wong Kim Ark case never examined the issue of "natural born citizen" status. And, no Supreme Court case has dealt with Presidential eligibility regarding that clause. So, recourse is to be found with the clearly written definition of the term that Congress had when they wrote the Constitution:

"The natives, or natural-born citizens, are those born in the country, of parents who are citizens." - Law of Nations

[Josh R]

The argument that Harris is not a citizen at birth is foreclosed by Wong Kim Ark. If, as I believe, Vattel did not distinguihs between natural-born citizens and citizens at birth, you need some other authority to support the argument Harris a citizen at birth but not a natural-born citizen.

[David Nieporent]

Once more: that quotation is a fabrication. It did not exist when the Constitution was written.

[JollyRoger888]

Specifically >>All those cases site "The natives, or natural-born citizens, are those born in the country of parents who are citizens. But there is a better one still. The Elg case. There the plaintiff the Court specifically said was a natural born citizen. Then it went on to describe what made the plaintiff a natural born citizen. Born in the U.S. of U.S. citizen parents.

[M L]

Minor v. Happersett, 88 U.S. 162 (1875):

"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."

[Josh R]

Firstly, SCOTUS did not resolve the doubts about children born within the jurisdiction without reference to the citizenship of their parents. Secondly, SCOTUS distinguished natural-born citizens from aliens, which seems to imply if you are a citizen at birth, you are a natural-born citizen.

[JollyRoger888]

The second class is just citizen as in naturalized AT BIRTH. Otherwise it would have said others go so far as to claiming "natural born" citizens no matter the citizenship of their parents.

[Speak2Truth]

I suggest a bit more studying of the history of the creation of our Constitution. The definition of "natural born citizen" is easily found in the reference book used by the Framers to craft our nation's founding documents:

"The natives, or natural-born citizens, are those born in the country, of parents who are citizens." - Law of Nations

Ben Franklin received several copies in the original French, in 1775, to craft the Declaration of Independence. By 1787, it was a common textbook in American universities. Everyone understood what the term meant when it was put into the Constitution.

For more information and debunking a lot of the deceptions on this issue, visit: https://www.dagnyintel.com/post/kamala-harris-is-not-eligible-to-be-president-the-natural-born-citizen-requirement

[Charles Hughes]

The Framers also used Blackstone’s Commentaries during the Convention.

Madison mentions its use for determining legal terms like ex post fact.

Alexander Hamilton wrote that the process for impeachment was based on the English system.

He also wrote that we should use the English legal system to find the definition of terms used in the Constitution.

[JollyRoger888]

Since there is no other Constitutional authority on the matter we look to the U.S. Supreme Court not British influence to decide .The Supreme court standard birth circumstances that must be met to be a natural born citizen is "The natives, or natural-born citizens, are those born in the country of parents who are citizens. Chief Justice Fuller wrote Before the Revolution, the view of the publicists (men who wrote the 14th Amendment) had been thus put by Vattel:
"The natives, or natural-born citizens, are those born in the country of parents who are citizens.

[David Nieporent]

Liar, liar, pants on fire.

[M L]

He makes some good points.

The founders had Law of Nations in hand, and it was "necessary frequently to consult" in the words of Franklin. Did they all have the original French, like Benjamin Franklin did? Or what?

Law of Nations in explicitly referenced in the Constitution? Didn't know that.

What is your precise contention? That it is a "lie" to say that the book included this quote, because the quote is an English translation rather than the French original, and you can only quote the original French? Or are you saying that it is a "lie" to say that the book included this quote, because while it would be OK to quote the book in English, this particular translation is wrong? Or are you saying something else?

Incidentally, I went back to EV's original post and he writes "the earlier editions appear to use the word "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes") instead of "natural-born citizens."" But it seems there is an error because his hyperlink for the "earlier editions" points to the same 1797 English edition.

[Charles Hughes]

“Law of Nations in explicitly referenced in the Constitution?”

[Reality Check]

It was not a specific reference to Vattel's work nor did it have anything to do with citizenship. It more than likely referred to the chapter on the Laws of Nations in Blackstone's Commentaries.

[JollyRoger888]

And the Supreme Court by Chief Justice Fuller. "Before the Revolution, the view of the publicists (men who wrote the 14th Amendment) had been thus put by Vattel:
"The natives, or natural-born citizens, are those born in the country of parents who are citizens."

[David Nieporent]

Preliminarily, Franklin's statement that they consulted Vattel was uttered in 1775; it had nothing whatsoever to do with the constitution, let alone this particular phrase.

But the lie is the claim that Vattel said anything at all about "natural born citizens." He never once used the phrase. (Not surprisingly, because he wrote in French.) Not only was the English translation not written by Vattel, but it wasn't written at all at the time of the convention. So even if the framers cared what Vattel had to say about citizenship, and even if they were willing to settle for a random guy's English translation of Vattel's work, they would have needed a time machine to consult it.

There is simply not one shred of evidence that "natural born citizen" as used in the constitution has anything at all to do with Vattel.

[Tundra Grifter]

So it is your contention that none of the Founders and Framers read French?

[JollyRoger888]

Chief Justice Marshall - Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says
"The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Chief Justice Waite - 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. Vattels Law of Nations was translated into English in 1760. By the time of Constitutional Conventions There is the possibility of several copies of an English text or one of the later translations into English prior to the copies in French that Franklin had received and we have record of. Several Founders were fluent in French so they would have had no problem in translating Vattel's French as being "natural born citizen". Obviously John Jay did. And he being the first Supreme Court Chief Justice brought that thought to the Supreme Court as it is the standard description that a natural born citizen must have these birth circumstance "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"

[Charles Hughes]

To be clear the Constitution mention of Law Of Nations is not a reference to Vattel’s book but to the bogey of international law.

“To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

Blackstone’s Commentaries has a chapter titled - “Of Offenses against the Law of Nations”.

He lists three. The third is piracy. He describes it as a felony committed on the high seas.

[edrebber]

Were Harris' parents legally present in the USA when she was born? If not then one could argue the parents were alien enemies in hostile occupation and that Harris is not a natural born citizen.

[IceTrey]

They were.

[edrebber]

What is your source for this assertion?

[Charles Hughes]

Both were on student visas.

[bernard11]

Wow. Did somebody must have put some nuts out? If not, I wonder what attracted all the squirrels.

[edrebber]

Your dismissive response is a violation of the commenting policy.

[Tundra Grifter]

"One could argue" and one would lose.

[nicmart]

Not just "some people," but the personage of John Eastman, a person of some influence at the supposedly credible Federalist Society.

[Vesicant]

It didn't make any difference as to scumbama, so it won't make any difference for La Grande Horizontale.

[Tundra Grifter]

The paucity of thought in your comment is obvious. Mr. Obama was and still is a natural-born citizen. Only a complete idiot would try to contend otherwise. Your insults prove only you are incapable of forming a logical argument using facts and reason.

[Tundra Grifter]

A child born in the United States is a citizen of the United States (with a few very specific exceptions). What could be more American?

From the Wong Kim Ark (1898) decision: "The fourteenth amendment of the constitution, in the declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization..."

In point of fact, America was founded with birthright citizenship. The combination of the 14th Amendment and Wong Kim Ark simply extended that right to one and all.

[Nalejbank]

I am truly having my doubts about Reason's understanding of such simple concepts about the special and duly noted exceptional requirements set aside just for the offices of President and Vice President!
The founders put this special requirement in the Constitution for the simple reason that no person, not completely American, having been born of American citizens (both) could hold such a high office. Are we now to believe that there is no difference between Kamala Harris and Marco Rubio?
The reason for these "special limits" is for the more likely preservation of our republic's unique political and legal structure if a person has been the product of parents who, at the time of their birth, had themselves already attained the status of naturalized citizens.
To preserve the union under the Constitution, one should be a thoroughly loyal citizen to the word and intent of the founders. Not the "courts" as interpreters. "Reason" knows not to use courts as final arbiters. History does not support such high qualifications for someone merely born on U.S. soil. If at the time of her birth her parents where not already naturalized, she is not qualified, regardless of where she was born.
An anchor baby is NOT qualified. If that were the case, Marco Rubio would be natural born.
When a person's "motherland" or culture is still clung to as an identity, if their public "claim" is to their heritage from another country, or any similar indicator that they are not fully assimilated into our uniquely American culture, I question the wisdom of their election to any national office, and certainly not to our two highest executive offices!

[Pariwiki]

IPL Today Match

[JollyRoger888]

Interesting how people who believe harris is Constitutionally eligible rely on just 2 sources. 1) The 14th Amendment 2) The Supreme Court Kim Wong Ark case. I would challenge anyone to show in either source where it states natural born citizen that would back up making harris a natural born citizen.
It isn't in the 14th Amendment. Fact is the men who wrote the 14th Amendment would say harris is not a U.S. citizen at all >>> E1. Senator Jacob Howard 14th Amendment author - "This amendment (14th) 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," he said."This will not, of course, include persons born in the United States who are 1)foreigners, 2)aliens, ****Harris is both a foreigner and an alien by any definition of those words you want to use.**** 3)who belong to the families of ambassadors or 4)foreign ministers accredited to the Government of the United States, but will include every other class of persons."E2. Congressman John Bingham presenter of the 14th Amendment to the U.S. House of Representatives -”I find no fault with the introductory clause [S 61 Bill], 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” -Rep. John Bingham, framer of the 14th Amendment, before The US House of Representatives ((Cong. Globe, 39th, 1st Sess., 1291, March 9, 1866 )E3. Senator Reverdy Johnson (D-Md.) explained that parents must be “subject to the authority” of the United States if their children born here are to be classified as having acquired the status of U.S. citizen: “Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power…shall be considered as citizens of the United States. … [T]he amendment says that citizenship may depend on birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. Who would know better than these men? Certainly not a bunch of individuals removed from its writing by 153 years. They are certainly the experts over anyone posting on this issue.
As for the Ark case if people would actually have read it that believe harris is eligible they would not be quoting it. Fifteen times the term natural born citizen is mentioned in the Ark case. 9 times it is mentioned in passing in order to make another point. 4 times it is mentioned in the quote of Constitutional requirements to be President. The last 2 times it is mentioned it gives the definition of the Standard birth circumstances that MUST be met to be President. Quoting WORD for WORD "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." Now I am sure by now everyone knows harris and obama's birth circumstances. Do they meet those Standard birth circumstances? And before someone says well that was a dissenting opinion. IT was a dissenting opinion that was being quoted word for word from another Supreme Court case that was an 8-0 decision. But lets go 1 step further. I would challenge all of you who thinks harris is eligible. Find 1 Supreme Court case that states the individual in the case IS a natural born citizen THEN defines what birth circumstances that person met. When you find that case (Hint Elg) You will get this: Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year. (Immigration and Naturalization laws at the time automatically gave naturalized citizenship to wives of husbands who had been naturalized) Later in the opinion Chief Justice Hughes stated "The court below, *******properly recognizing the existence***** of an actual controversy with the defendants
Page 307 U. S. 350
(Aetna Life Ins. Co. v. Haworth, 300 U. S. 227), declared Miss Elg "to be a NATURAL BORN CITIZEN of the United States,"
So to be the NATURAL BORN CITIZEN the Court said Miss Elg properly was; She was born in the U.S. At the time of her birth BOTH her parents were U.S. citizens by virtue of being naturalized.
Now you harris supporters find 1 Supreme Court case that mentions a person by name who was born in the U.S. of foreign parents AND says that person was a natural born citizen. If you can't you are basing your opinion on folly. HARRIS IS CONSTITUTIONALLY INELIGIBLE TO BE VP

[JollyRoger888]

Your article is full of misinformation. First we are NOT talking about British subjects. We are talking about Untied States "natural born CITIZENS" Those are in no way the same. The only Supreme Court ruling you make is Wong Kim Ark. And you are way off on it. Three things that Court did when Justice Gray delivered the Ruling I will quote all 3 WORD for WORD 1)Supreme Court Justice Gray upholds The men who wrote the 14th Amendment statements, specifically addressing the 14th Amendment.  >>> "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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized". Harris's parents were not subject to U.S. jurisdiction. 2) Justice Gray When addressing "natural born citizen" in the Wong Kim Ark case also quoted the Supreme Court standard birth circumstances that MUST BE MET in order to be a natural born citizen this way. "The natives, or natural-born citizens, are those born in the country of parents who are citizens" When addressing "natural born citizen" the Supreme has always defined it in that way. That has been the standard since 1814. 3) Finally the COURT RULED just like the U.S. District Court did where this case originated that Wong Kim Ark was "a citizen". It did not rule him to be a natural born citizen. Ark's birth circumstances did not meet the Supreme Court standard Justice Gray had mentioned earlier in the case. <<< Your misinformation would have people believe this to be the Supreme Court standard, "Any one born in the U.S. is a natural born citizen." Please show me a Supreme Court case that states that. The Venus, Minor, and Ark case ALL use the same standard when natural born citizen is mentioned. "The natives, or natural-born citizens, are those born in the country of parents who are citizens" And if that isn't enough the Elg case States specifically that Ms Elg is a natural born citizen and goes on to describe her birth circumstances that made her a natural born citizen. Born in the U.S. of citizen parents. Bottom line is you cannot back up your claim, "Anyone born in the U.S. is a natural born citizen." in any Supreme Court case.