Strengthening Constitutional Self-Government

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Birthrights and Wrongs

Drudge is having fun again with the ongoing quest in Hawaii to find the President's birth certificate. 

The irony is that the only reason there are "birthers" is that our Courts created the idea of "birthright citizenship."  But soil ought not to determine citizenship, and the Constitution, as amended, ought not to be read to require it--as the dissenters in Won Kim Ark noted.  English law made soil fundamental, they noted: "The tie which bound the child to the Crown was indissoluble. The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject."

In the American revolution, they add, "Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated."

According to Justices Fuller and Harlan (Harlan signed onto Fuller's dissent. Not coincidentally, it was two years after Plessy.  The decision turns on the same principles.  The same idea of equality that made segregation problematic, also made compact the basic of American government and, the foundation for our ideas of citizenship.")  As they noted, those elements of the common law that could not be reconciled with the "principles on which the new government was founded" were abroated.

According to the principles of the compact, once someone becomes a citizen, any child born to him is also a citizen.  The dissenters noted, "it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad."  That maxim could be reas narrowly, suggesting the citizenship follows the father.  But since we no longer discriminate on the basis of sex, t is reasonable to say that the child of any American parent is a citizen.  In short, it is only the deeply problematic argument that soil is the foundation of citizenship that lets Druge and others amuse themselves with the question of Obama's birth certificate.

Categories > Courts

Discussions - 9 Comments

We kept adverse possession as one small example. There is a sort of farce in saying that something was founded on a principle, and then bringing reconciliation into it. I suppose you could say that congress makes laws on principle, and the adminstrative agencies reconcile them.

English law made the soil fundamental because nature to be commanded must be obeyed. English law went pretty far at one point, but the principle of reconciliation is jurisdiction. This is why you have adverse possession as well. Ownership of land is only good as memory and record.

Lets suppose that it is actually a fact that Obama was born in Kenya. Obama gained the presidency under colorable title, he was sworn in twice, he was heavily scrutinized in the democratic primary, he has served as president, delivered state of the union addresses as president, flown on air force one as president, signed a health care bill, and otherwise behaved as someone who had the authority to act as president. Obama has delivered two states of the Unions were John McCain has been in attendance as a Senator, and has applauded and frowned consistent with his reaction to what Obama has said as president.

I think Obama's actions as president have been sufficiently Actual, Exclusive, Open, Notorious and Hostile to put John McCain on notice that his failure to contest the election has resulted in a permanent loss of his interest in the property.

Even if Obama was born in Kenya, the doctrine of laches and adverse possession would ensure that he would remain president for the duration of his term. For National Stability the statute of limitations on such claims has to be very short.

Theoretically at least I think it is possible to become president without being an american citizen, contrary to the constitutional requirement.

You just have to be "colorably" an american citizen, and catch a RINO sleeping on his property rights:)

This has been so confusing right along. My argument to birthers has been that a child belongs to a parent, especially a mother, and therefore is a citizen if the parent is a citizen, no matter where born. I have been grateful that this usually shuts birthers up. People believe that a child, being a total dependent, acquires certain rights through family. Call it an inheritance.

The idea that nationality depends solely on soil suggests that if a friend of mine, born an American citizen, gives birth while overseas, then her baby is not a citizen and will have to undergo naturalization as an immigrant? After the birth, would she have to leave the child behind? Would that other country claim it? The lesson is, then, never travel while pregnant or give birth in the embassy. A child is not of the mother at birth.

I don't think we really function like that. We assign a value to blood and the ties that bind. A child is not autonomous, but dependent. Motherhood counts for something.

The birthers are crazy. Obama is rightfully an American Citizen. His mom was an American and his DAD was an American. The reason that Obama's birth certificate has not been released is very simple and obvious. Barack Obama Senior is not Obama's dad. Frank Marshall Davis, who was Obama's mentor in Hawaii is is dad. Stanley Ann Dunham sent Barry home to Hawaii from Indonesia to be with his father.

Now before everyone goes insane, do me a favor. Here is a link (no, I am not being pumpkin and dumping links all over the place) that shows three photographs - Barack Obama Senior, Barack Obama Junior and Frank Marshall Davis. Genetics & DNA don't lie. The resemblance between Barack Junior and Frank Marshall Davis is uncanny. There is no resemblance between Barack Senior and Barack Junior.

Dreams of My Father was not about Barack Obama Senior, but about his real dad and mentor, the Communist Frank Marshall Davis.

In all honesty, he looks more like Obama Sr in that pic.

To each their own opinion, but you are the first person I know who has thought that. I am sure pumpkin will be
the second.

You and pumpkin must keep the dream alive, while the rest of us are living in the nightmare.

Alright, cowgirl. Yeah -- I guess that makes me a lib.

Kate - Yes, Motherhood counts for a lot but the law is the law, and, more pointedly, the Constitution is clear on the issues. Your argument is from emotion, and, dare I say, sexism? Read more about the fundamental issues.

Charles, I have. The Constitution is not practically clear on who and who is not a citizen:

Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are "citizens of the United States at birth:"

* Anyone born inside the United States *
* Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe
* Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
* Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
* Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
* Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
***** Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
* A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.

* There is an exception in the law — the person must be "subject to the jurisdiction" of the United States. This would exempt the child of a diplomat, for example, from this provision.

Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born, for example.

I added a few stars to the section that seemed most pertinent to the discussion. The law is the law and is (generally) not stupid about the dependency of children.

Was the Constitution squishy on the topic of citizenship since no one involved in ratifying the document could possibly be "born in the USA"? No president until Martin Van Buren was born post-Declaration.

Most of that was a quote. I am not good with HTML codes.

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