Lt. Col. Terry Lakin Refuses To Deploy To Afghanistan; Considers Obama “Illegal”; Faces Army Court Martial

Decorated Army doctor Lt. Col. Terry Lakin

From NBC’s Jim Miklaszewski and Mark Murray

U.S. military officials tell NBC News that the U.S. Army will court martial a lieutenant colonel who refuses to deploy to Afghanistan because he considers orders from President Obama to be “illegal.”

Army doctor Lt. Col. Terry Lakin believes Obama does not meet the constitutional requirements to be president and commander-in-chief, because he believes (incorrectly) that Obama wasn’t born in the United States.

Lakin refused this week to report to Fort Campbell, KY for deployment to Afghanistan, but instead showed up at the Pentagon, where he was confronted by his brigade Commander Col. Gordon Roberts, a Vietnam Medal of Honor recipient.

Lakin was informed by Roberts that he would face court martial, and his Pentagon building pass and government laptop computer were seized.

(Link)

The real question here, of course, isn’t Obama’s birth certificate. The real question is how can a “British subject at birth” be a natural born citizen of the United States?




19 Comments

  • Mark McKenna

    April 15, 2010

    I am somewhat confused re: ” British subject at birth”.

    Wasn’t Obama born in the state of Hawaii on 4 August 1961. Since Hawaii became a state on 21 August 1959 why is there still debate on eligibility as it relates to naturalization?

  • Taxpayer

    April 15, 2010

    His father was not an American citizen; his father was Kenyan, a British colony, so Obama was a British subject at birth. Yes, born in Hawaii, but of dual citizenship.

    Think of it this way: if a Mexican woman swam the Rio Grande and gave birth here a few days later, do you consider that child eligible to be president of the U.S.?

    Maybe you should ask his wife: http://www.youtube.com/watch?v=Kk3OMRqO7aY

  • ShyButIntrigued

    April 15, 2010

    I swore I wouldn’t comment on this, and I’m sure I’ll be sorry, but Obama’s mother hardly swam the Atlantic or the Rio Grande (and if you’d ever been to the border you’d know you can just wade across the river while barely getting wet) to give birth. She was an American citizen by birth giving birth, to, yes, an American baby on American soil. Why anyone has to say this is fodder for psychiatrists, psychoanalysts, behavioral scientists, and rational people everywhere, but please, have at it, one more time, and yet again and again till your tongue bleeds and your eyes fall out or until mine do. oops, you’ll be glad to know they already did, explaining how anyone could possibly fall into the trap of discussing this dead and boring subject.

    And, yes, the baby born on American soil from the wet and muddy woman who just crawled across the border on her para-human knees is indeed eligible to run for and be sworn in as president. Yeah. Just like it says in the Constitution.

    Now, please, quote me and tutor me on how that’s not what it really says or tell me some fucked up story about some completely unrelated story proves me wrong so I can spend yet one more ounce of energy on something as stupid as this. Yeah, I know you will. Just go for it.

  • ShyButIntrigued

    April 15, 2010

    And really? Really? This is a hot topic for a blog? REALLY?

    Age and Citizenship requirements – US Constitution, Article II, Section 1

    No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

    What does it mean in the Constitution when it says “natural born Citizen?”

    From Black’s Law Dictionary, Sixth Edition: “Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.”

    (1) George Romney of Michigan who ran for president in 1968. Mr. Romney was born in a Mormon community in Chihuahua, Mexico. His parents were U.S. citizens so he was a natural born citizen. (2) John McCain of Arizona was a candidate in 2000. McCain was born in Panama where his father was stationed in the service, so he would also be “natural born.”

    Is there anything that specifies that only the 3rd generation of an immigrant family could be elected as president?

    No. The president must only be “natural born,” that is born a citizen. His parents may be born elsewhere. Both of Andrew Jackson’s parents were born in Ireland, for example.

    OMFG!!! It’s like this country has been overrun by IMMIGRANTS from EVERYWHERE! Even those subject to the British Crown and from a low-down (pun intended) country like Mexico. Someone make it stop, at least right after my forebears landed here, right?

  • Ray

    April 15, 2010

    It isn’t actually disputed that Obama was Kenyan-born by the blood of his father. That led to his Kenyan citizenship having been automatically granted in 1963 by the Kenya Independence Act.

    JUS SANGUINIS

    The legal concept by which it is undisputed that President Obama was “Kenyan-born” is “jus sanguinis“, which means “right of blood”.

    Furthermore, President Obama admitted that, under the British Nationality Act of 1948 – at the time of his birth – he was a British citizen. It has also been accurately reported by Factcheck.org that President Obama became a Kenyan citizen in 1963.

    JUS SOLI

    Unfortunately, the undisputed legal fact of Obama’s jus sanguinis foreign birth has been supplanted by the sensational conspiracy theory relating to the place of his birth. The headline from the 2004 Kenyan news report does not indicate whether “Kenyan-born” relates to Obama’s Kenyan bloodline or – in the alternative – to his place of birth. Place of birth citizenship is conferred by a legal concept known as “jus soli“, meaning law of the soil.

    President Obama admits to having been a British citizen at birth by law and a son of Kenyan blood which led to automatic Kenyan citizenship in 1963. This alone should disqualify him from POTUS eligibility – regardless of where he was born – since he was a dual citizen at birth and at least until 1984.

    Article 2 Section 1 Clause 5 of the US Constitution requires the President to be a natural born citizen.

    This is an attribute only available at birth.

    Whether a person (who admits having been) born subject to the laws of a foreign power can become Commander In Chief of the US armed forces is a genuine and necessary question of law, not a conspiracy theory (source).

    In 1874, in the Minor v. Happersett case, would the Supreme Court affirm the definition of “natural-born citizen” by saying “it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first” (Minor v. Happersett, 1874)

    There are a litany of other court and Supreme Court cases that upheld the two-parent rule, a partial listing of which runs thus:

    The Venus, 12U.S. 253, 1814 (about which Justice John Marshall said “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, those children naturally follow the condition of their fathers, and succeed to all their rights’”); Shanks v. Dupont, 28 U.S. 242 (1830), Scott v. Sandford, 60 U.S. 393 (1856), Minor v. Happersett, 88 U.S. 162 (1875) , Ex parte Reynolds, 20 F. Cas. 582 (C.C.W.D. Ark 1879), United States v. Ward, 42 F. 320 (1890); Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863).

    Dred Scott, which was not strictly a natural-born citizen case, nevertheless defines the term precisely: “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. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights. Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country” (Dred Scott v. Sandford, 60 U.S. 393, 476-77, 1857).

    Senator Lyman Trumbull wrote the following in the Civil Rights Act of 1866: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States” (emphasis mine).

    Trumbull also said: “[If a] negro or white man belonged to a foreign Government he would not be a citizen.” This is referring to, for example, someone who is “a British subject at birth.”

    The lead author of the 14th Amendment, one John A. Bingham (1815 – 1900), said that section 1992 of the Civil Rights Act was, in his words, “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.” This is why a “British subject at birth” can’t be a natural born citizen of the United States.

    Here is the current policy of the Obama administration on dual nationality:

    The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance. However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.

    There are many other cases. Slaughter-House, 83 U.S. 36, 73 (1873), for instance, which says: “[The Fourteenth Amendment] 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.”

    Are Persons Born Within the United States Ipso Facto Citizens Thereof – George D. Collins

  • ShyButIntrigued

    April 15, 2010

    I knew this would be educational. Eyes bleeding, tongue rolling, ears ringing. Why not just post all this as your blog?

    I wouldn’t quote Dred Scott as support. Just my humble opinion.

  • Taxpayer

    April 15, 2010

    Set aside an undying dedication to all things liberal, and the current president is an usurper. All those trillions of spending and taxing are unconstitutional. The party that certified him eligible – especially Pelosi whose signature is on the forms (there are two separate certifications) – is guilty of fraud and conspiracy. Wow, prosecuting that sure would fix a lot of our problems.

    Oh well, why should we start holding Democrats to the same standards as everyone else?

    Let’s face it, Obama/Reid/Pelosi et al are truly creative and innovative in all things liberal. I.e., rather than tax and spend, they spend then tax. Clearly this is a new level of creative innovation we must all slap leather and adore.

  • Greg

    April 20, 2010

    >The real question is how can a “British subject at birth” be a natural born citizen of the United States?

    Presumably in the same way that Chester Arthur, our 21st president, was a natural-born citizen of the United States. After all, Arthur’s father was also a British subject (from Ireland) at the time that Arthur was born.

    Oh wait, I forgot the significant difference: Chester Arthur was a white Republican.

  • ShyButIntrigued

    April 20, 2010

    Ah, Greg. Now you’ve done it. I’ll silently support you in your upcoming scourging for daring to point this fact out.

    Let’s not forget that Dred Scott was the son of slaves, however many generations removed, who were “imported” against their will to U.S. soil, then denied all legal rights as citizens. Then because they had no rights as U.S. citizens, the U.S. Supreme Court, five justices of which were Southerners, ruled their children had no rights. And on and on.

    The next logical question is are all descendants of people brought to the U.S. as slaves or as indentured servants, etc. not citizens? Well, the current Supreme Court might say so, but Ray, do you honestly adhere to this as a solid legal argument? I find the notion antithetical to everything American and everything you say you stand for.

  • Ray

    April 20, 2010

    We’ve addressed Chester Arthur before. Here’s a good recapitulation.

    Quoting from that same recap:

    Chester Arthur is the only president prior to Obama who – after the grandfather clause of Article II, Section 1, expired – was not born in the United States of two citizen parents. As such, Obama supporters have sought to use Chester Arthur as precedent for justifying Obama’s eligibility. Such reliance is unfounded because it wasn’t known at the time Chester Arthur held office that he was born with dual nationality. That this was concealed from the general public is confirmed by two important law review articles….

  • Ray

    April 20, 2010

    ShyButIntrigued wrote: > The next logical question is are all descendants of people brought to the U.S. as slaves or as indentured servants, etc. not citizens?

    You’ve badly misunderstood, and I knock down your strawman which suggests, among other things, that I don’t believe in such a thing as naturalized citizenship — I do believe in it very much; how could I not? — or that I would ever advocate such a thing as slavery or indentured servitude.

    I direct readers to John Greschak’s comprehensive discussion of citizenship, including of course Natural Born Citizenship:

    http://www.greschak.com/essays/natborn/index.htm

    Here’s a quick recapitulation:

    A Citizen of the United States is a person domiciled in the United States, for whom rights, privileges and immunities are set forth in the United States Constitution. A native born Citizen of the United States is a person who was born in the United States, and has been, since birth, a Citizen of the United States. A natural born Citizen of the United States is a native born Citizen of the United States, born exclusively of Citizens of the United States. A naturalized Citizen of the United States is a Citizen of the United States who is not a natural born Citizen of the United States.

    No person shall be a Citizen of the United States who is not domiciled, either by choice or dependency, in the United States. A native born Citizen of the United States is a person who was born in the United States, and has been, since birth, a Citizen of the United States. A natural born Citizen of the United States is a native born Citizen of the United States, born exclusively of Citizens of the United States. A naturalized Citizen of the United States is a Citizen of the United States who is not a natural born Citizen of the United States.

    Quoting also from Attorney Leo Donofrio’s recent article on the subject:

    The constitutional question presented is whether a person born with citizenship in and allegiance to a foreign nation can be considered a “natural born citizen” of the United States as required by Article II, Section 1.

    The U.S. State Department’s [current] Foreign Affairs Manual discusses problems associated with dual citizenship:

    7 FAM 081: U.S. Policy on Dual Nationality:

    “(e)While recognizing the existence of dual nationality, the U.S. Government does not encourage it as a matter of policy because of the problems it may cause. Dual nationality may hamper efforts by the U.S. Government to provide diplomatic and consular protection to individuals overseas. When a U.S. citizen is in the other country of their dual nationality, that country has a predominant claim on the person.”

    This helps explain why the definition of “natural born citizen” as one born in the nation to parents who are citizens makes perfect sense in that such a person will not be infected by dual-allegiance problems. If the parents are citizens, neither will confer allegiance to a foreign nation. Additionally, if one is born on soil foreign to the parents, that nation is likely to recognize the person as a citizen. Owing allegiance to more than one nation is an unnatural circumstance of citizenship.

    While the Constitution requires representatives, senators and presidents to be citizens, Article II, Section 1, additionally requires that the president’s citizenship be “natural born.” A natural born citizen is not a higher level of citizen. “Natural born” simply describes a circumstance of citizenship….

    There are multiple circumstances that create “citizens at birth.” Some require a federal statute for citizenship while others rely on the 14th Amendment. Had the framers of the 14th Amendment sought to deem every person born in the United States a natural born citizen, they certainly could have included such plain, unequivocal language. But they didn’t.

    In 1790, the first Congress deemed all persons born of two United States citizen parents abroad to be “natural born citizens,” but the words “natural born” were repealed in 1795. Congress never again legislated the definition of “natural born citizen,” and no United States statute currently defines the term or even mentions it.

    The citizenship of a person born in the United States to parents who are citizens is self-evident and has never required naturalization, a federal statute or an amendment, and the Supreme Court has indicated that such persons are the only citizens who satisfy the natural born citizen requirement of Article II, Section 1…

    The strict constitutional requirements were enacted to exclude citizens for the sake of national security in safeguarding the office from inexperience and from persons who may not have sole allegiance. It appears the clause was first introduced for constitutional consideration in a letter from John Jay to George Washington dated July 25, 1787:

    “Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

    Jay underlined “born” which signifies the importance of allegiance from birth. The “natural born” requirement renders irrelevant that a person – born to foreign or dual allegiance – may not have renewed his foreign citizenship upon reaching maturity. One is either eligible to be president at birth, or one will never be eligible.

    An important historical definition of “natural born citizen” comes from a 1797 translation of the “Law of Nations,” a 1758 text by Emerich de Vattel, which summarized that body of international law known also as the “Law of Nations”:

    “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.”

    Note that a child of former aliens can be a natural born citizen under this standard if born in the United States to parents who were naturalized prior to the child’s birth. That was made clear by the Supreme Court’s opinion in Perkins v. Elg.

    It appears from James Madison’s notes of August 1787 that the delegates used the terms “native” and “natural born citizen” synonymously. Additionally, Ben Franklin stated that the framers frequently consulted Vattel’s text. Also consider that Article I, Section 8, grants Congress the authority to “punish … offenses against the Law of Nations.”

    In the case of The Venus 12 U.S. 253, 289 (1814), Chief Justice John Marshall stated:

    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 Marshall relied upon a pre-1797 edition of Vattel’s text. The 1797 translation was adopted by the Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), where Chief Justice Waite stated:

    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. …

    It’s significant that this decision was issued six years after the 14th Amendment was enacted. As such, Minor illustrates that the 14th Amendment simply defines who is a citizen, not which citizens are natural born.

    If Obama had run for president in 1874 – six years after the 14th Amendment went into effect – he wouldn’t have been eligible since he doesn’t fit the Minor Court’s standard for a natural born citizen….

    The strange case of Chester Arthur

    The holding in Minor v. Happersett must have given Chester Arthur nightmares when he ran for vice president in 1880, six years after Minor. Arthur, a prominent New York lawyer, managed to conceal from public view that his father didn’t become a naturalized citizen until 14 years after he was born. Therefore Chester Arthur was a British subject at birth….

    Also, the following is from a lifelong Democrat named Breckinridge Long, writing for the Chicago Legal News (Vol. 146-148, pp. 220-222), in which he presents, in exhaustive detail, the differences between the terms “citizen,” “native born citizen,” and “natural born citizen.”

    IS MR. CHARLES EVANS HUGHES A “NATURAL BORN CITIZEN” WITHIN THE MEANING OF THE CONSTITUTION?

    A Legal Examination of the Subject by Breckinridge Long, of the St. Louis Bar.

    Whether Mr. Hughes is, or is not, a “natural born” citizen within the meaning of the Constitution, so as to make him eligible or ineligible, to assume the office of President, presents an interesting inquiry.

    He was born in this country and is beyond question “native born.” But is there not a distinction between “native born” and “natural born”? At the time he was born his father and mother were subjects of England. His father had not then been naturalized. The day after Mr. Hughes was born his father had a right, as an English subject, to go to the British consul, at New York, and to present his wife and infant and to claim any assistance he might need from the consul as the representative of the English government.

    If war had broken out between this government and England this government would have had a right to interne the father, the mother and the son as subjects of an enemy power.

    The Constitution of the United States puts a particular qualification upon those who shall become President and Vice-President. For all other offices it requires that they be “citizens of the United States,” but for the Presidency and Vice-Presidency it requires that they be “Natural Born citizens.” The word “natural” means “of the nature of”; “naturally a part of”; “by the laws of nature an integral part of” a system. Following that line of thought, a “natural born” citizen would be one who was naturally, at his birth, a member of the political society; naturally, a part of the political system into which he was born; by the laws of nature a citizen of the society into which he was born. It would mean, further, that no other government had any claim upon him; that his sole allegiance was to the government into which he had been born and that that government was solely, at the time, responsible for his protection. “Native born” does not mean quite the same thing. He might be born in a country under conditions similar to the conditions under which Mr. Hughes was born, and subsequently become a citizen of that Country. In that case, after he became a citizen, he would be a “native born” citizen, but he would not have been a “natural born” citizen. From the instant of his birth this government would not be solely responsible for his protection.

    Mr. Hughes was born before the adoption of the Fourteenth Amendment to the Constitution, so the status of his citizenship must be considered as under the laws existing prior to the time of the adoption of that Amendment.

    The only reference in the Constitution to the subject (except that Section specifying the qualifications for President) is that Congress shall have the power to make uniform laws to provide for naturalization. Congress under that authority enacted the following law: “The children of persons who have been duly naturalized under any law of the United States, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.” That Statute says that children born of persons who have been duly naturalized become citizens, but become so by virtue of the act of the parent. That is, they become naturalized citizens. They are citizens by operation of law. They were not born so, but, because of the act of their father, are invested with all the rights of citizens. If they are born in this country and their father subsequently becomes naturalized, they then, upon the naturalization of the father, become citizens. After becoming citizens they are “native born” citizens; but they are not “natural born citizens.” That is, they are not born, in the nature of things and by the laws of nature, a citizen of this Republic. If the father becomes naturalized before the birth of the child and is at the time of the birth of the child a citizen of the United States, then the child is a “natural born” citizen. But in the case of Mr. Hughes the father was not naturalized at the time the son was born, and was at that time a subject of England. How could the son be a “natural born” citizen of the United States? If you had been born in England of American parents, would it be necessary for you to be naturalized if you came to this country to reside? No. If he, born in this country of English parents, had returned to England to reside, would it have been necessary for him to be naturalized there? No. If it was not necessary for him to be naturalized in England, would he be a “natural born citizen” of the United States?

    The Statute above referred to announced the law of this country to be that the children of persons who should be naturalized became citizens by virtue of the act of their father. And obversely, that they were not to be considered as citizens until their father was naturalized. “…The naturalization of the father operates to confer the municipal right of citizenship upon the minor child…” (Secretary Blaine, February 1st, 1890.)

    It is admitted that the legal status of the child, under the circumstances we have to deal with, is not explicitly defined by the Statutes. But any question which the reading of the Statute does not clear up is elucidated and illuminated by the courts (113 U.S. Supreme Court 94 infra) and by official documents written by men in authority and vested with the administration of the law.

    In this connection it will be pertinent to make a few illusions to the recommendations made to Congress urging them to clarify the situation. President Arthur, in his Fourth Annual Message, in 1884, said: “Our existing naturalization laws also need revision. * * * Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms* * *.

    “An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to a foreign power and of minor children of fathers who have declared their intention to become citizens* * *.”

    President Cleveland, in his First Annual Message, in 1885, said: “The laws of certain states and territories admit a domiciled alien to the local franchise conferring upon him the rights of citizenship to a degree which places him in the anomalous condition of being a citizen of a state and yet not of the United States within the purview of Federal and International law.”

    The United States Supreme Court has said: “The existing provisions leave much to be desired and the attention of Congress has been called to the condition of the laws with reference to the election of nationality; and to the desirability of a clear definition of the status of minor children whose fathers had declared their intention to become citizens * * *.” (143 U.S. 178.)

    Again the United States Supreme Court says, in the same case: “clearly minors acquire an inchoate status by the declaration of intention on the part of their parents. If they attain their majority before the parent completes his naturalization, then they have an election to repudiate the status which they find impressed upon them, and determine that they will accept allegiance to some foreign potentate or power rather than hold fast to some citizenship which the act of the parent has initiated for them.”

    These opinions indicate where the doubt and uncertainty may be.

    On the other hand, Willoughby, in his work on the Constitution (Vol. I, page 283), makes the positive statement that: “The naturalization of a father operates as a naturalization of his minor child, if they are dwelling in the United States.

    We find the positive declaration of the court that the “citizenship of the father is that of his child.” (1 Ruling Case Law, 796.) There is no dispute on the facts that the father in 1862 was an English subject. There can hardly be, under the law just quoted, any dispute that Mr. Hughes was at the time of his birth an English subject. If he was at that time an English subject, he became a citizen of the United States by a process of naturalization, and is not a “natural born” citizen of the United States. He became a citizen by virtue of the subsequent act of his father. He became a citizen by operation of law, but he was not at the instant of birth, by right and of the nature of things, a “natural born” citizen of the United States.

    And, Willoughby, further on, says: “A declaration of a father of an intention to become naturalized gives to his children, who attain their majority before their father’s naturalization is complete, an inchoate citizenship which, upon majority, may be repudiated.”

    These point clearly to the fact that the child of un-naturalized parents is an alien and that he becomes a citizen by virtue of the subsequent act of the father. That is, that the child is a naturalized citizen; that he becomes a citizen by operation of law and that he is not a “natural born” citizen within the meaning of the Constitution.

    It might be supposed that the Statute above quoted applies to children born in foreign countries and brought to the United States by the father. A careful reading of the Statute will permit of no such discrimination and, directly on that point, is a document written by Mr. Fish, when Secretary of State, under date of February 11th , 1874, in answer to an official inquiry. The document reads as follows: “The laws of the United States on the subject of naturalization provide, in relation to persons situated as your sons are ‘that the children of persons duly naturalized under any law of the United States * * * being under the age of twenty-one years, at the time of their parents being so naturalized, or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.’ Assuming that your three sons were born in France * * * accompanied you to this country and have continued to reside here, they, together with your son born here, are, under the provisions just cited, to be considered, when dwelling in the United States, citizens of the United States. * * *”

    It will be noted that the eminent Secretary of State not only drew no distinction between the children born abroad and the child born here, but that he included all together in the same category and as to be considered, when dwelling in the United States, as citizens of the United States. What would happen if they did not dwell within the United States? What would happen if the father took them back to the country from which he emigrated? Under the Statute, and under the opinion just cited interpreting the Statute, they would, in that case, not be citizens of the United States; and if they were not to be considered citizens of the United States, when they left the boundaries of the United States, how could they be “natural born” citizens of the United States who would owe allegiance to no other power and who would have a right to the protection of this Government no matter where they might find themselves?

    The Supreme Court of the United States has construed that Statute and the Constitution, and has passed directly on the point in issue. It has said that one born of alien parents in the territorial limits of the United States is not a “natural born citizen” within the meaning of the presidential qualification clause and, further, said that “such (persons) not being citizens can only become citizens * * * by being naturalized in the United States.” (Elk v. Wilkins, 112 U.S. 94.) Such naturalization can be accomplished by the son on his own account or through the subsequent act of the parent.

    Mr. Blaine, as Secretary of State, in an official document to the United States Minister to Germany, again, under date of February 1st, 1890, construed the law pointing out the status of the child if it left the United States. The facts in that case were as follows: A husband and wife, both natives of Prussia, came to the United States. A son was born in the State of Pennsylvania six months before the naturalization of the father. Later the father died and the mother returned to Germany, taking her son with her, and they were residing in Germany at the time of the inquiry.

    While in Germany, that Government made some claim upon the son for military service, and a ruling was requested from the Secretary of State. Mr. Secretary Blaine wrote as follows: “’The words, ‘if dwelling in the United States,’ whether meaning residence at a particular moment or contemplating a settled abode, apply to Carl Heisinger, who, being now nineteen years of age, has for about eleven years been dwelling in Germany. It is not known that the government of that country has made any claims upon him. But, if the German Government should, under a provision of law similar to that in force in the United States in relation to the foreign-born children of citizens, seek to exact from him the performance of obligations as a natural-born subject, the Department would be bound to consider the provisions of Section 2172 of the Revised Statutes.”

    Mr. Blaine’s reference to Section 2172 of the Revised Statutes means that this Government would recognize that child as a citizen of the United States if he lived in the United States, but would not recognize him as a citizen of this country if he lived in Germany. Was that boy “a natural born” citizen of the United States? If he was, then why would not the government of the United States recognize him as a citizen of the United States whether he were in Germany, England or China? The only conclusion is that he was not a “natural born” citizen of the United States; that some other government beside that of the United States had some claim upon his allegiance; that he was not exclusively and by operation of the laws of nature a citizen of the United States.

    The boy that Mr. Blaine referred to in the above quotation was not only born in this country but born to a male parent who had not only expressed his desire to become an American citizen, but who had proceeded to perfect his naturalization and who actually was naturalized six months subsequent to the birth of the child. The rulings under the statute hold that the child became a citizen of the United States by virtue of the naturalization of his father, but that his citizenship during his minority, was only inchoate and that if he continued to reside in the United States he would be recognized as a citizen of the United States (not a “natural born” citizen) but that if he went to Germany he would not be, by our Government, considered one of its citizens. How does this case differ from that of Mr. Hughes except in this: that Mr. Hughes and his parents continued to reside in this country? Their domicile affected his citizenship. Had they taken him back to England, he would not have been considered by the government of the United States as a citizen of the United States. The mere circumstances that he continued to live here, and, upon the attainment of his majority, to exercise his political rights perfected the inchoate citizenship which he inherited by the naturalization of his father. Only from the time of the actual naturalization of his father was he considered to be a citizen of the United States, and only upon the adoption of the Fourteenth Amendment did he actually become a citizen of the United States. But what was the status of that boy at the time of his birth, and immediately following his birth? The government of England might have exercised jurisdiction over him. That government had some claim which, under certain conditions, it might have exercised. Had he been a “natural born” citizen of the United States, no government on earth, but that of the United States, would have had any claim upon his allegiance. The law of England at the time of his birth was “once an Englishman, always an Englishman.” Not until 1872 did England change that law.

    It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a “natural born” citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a “natural born” citizen of the United States.

    The doctrines of dual citizenship and of double allegiance are too well known and too well founded in international law to be doubted or disputed.

    “The doctrine of ‘Election’ necessarily implies the existence of a double allegiance. This condition naturally arises where a person is born in one country to a father who is a citizen of another country. By rules of municipal law, which generally prevail, such a person has citizenships by birth—(1) citizenship by virtue of the place of birth (jure soli) and (2) citizenship by right of blood (jure sanguinis) i.e., by virtue of the father’s nationality. Unless this be so, the child on attaining his majority has nothing to elect.” (Moore, International Law Digest, III, 524-525.)

    The subject of double allegiance and dual citizenship is a well recognized doctrine of international law, and one with which all nations have to deal. The question has been presented many times and in many different ways to the government of the United States. That it has taken official cognizance of the existence of double allegiance is not only not questioned, but is too well known to need references. It may, however, be elucidated by citing a few of the instances.

    An application was made for a passport for a youth of seventeen, whose father desired to send him to Germany as a student. Mr. Freslinghuysen, then Secretary of State, in regard to him, wrote the following: “The young man referred to, under the Constitution of the United States, having been born in this country, is, while subject to the jurisdiction of the United States, a citizen of the United States, notwithstanding the fact of his father being an alien. As such citizen he is entitled to a passport. This, of course, would be a sufficient protection to him in every other country but that of his father’s origin—Germany. There, of course, as the son of a German subject, it may be claimed that he is subject to German military law, and that, not being then subject to the jurisdiction of the United States, he cannot claim the rights secured to him, etc.” (Moore, International Law Digest, III., 532.)

    That young man had a divided allegiance. A double allegiance necessarily implies a divided allegiance. His allegiance is not exclusively to one country or to one flag, and a man born with a double allegiance cannot be a “natural born” American.

    Again, Mr. Gresham, Secretary of State, held that: “While a person born in the United States, though of alien parents, is by the laws thereof a citizen, yet, should he be taken by his parents while a minor to the country of which they are subjects, he becomes amenable to the laws of that country and subject to a claim of allegiance thereunder jure sanguinis.” On this ground the Department of State refused to issue a passport for the protection of a minor, born in the United States, whose parents proposed to return with him “for a brief period” to the country (Russia) of which they were subjects. (March 9th, 1893.)

    How could the government of the United States refuse the issuance of a passport to a “natural born” citizen under those circumstances? That child was not considered a “natural born” citizen of this country, and yet his parents proposed to return with him to the country from which they had emigrated only “for a brief period.”

    In 1866 a son was born in the State of Massachusetts to a father who was a Frenchman. In 1885, he, the parent, went back to France with him family, including his son, then nineteen years of age. Two years later the son was notified to perform military duty and, on failing to respond, was arrested and imprisoned. He appealed to the government of the United States, through the American Ambassador in France. Mr. Bayard, the Secretary of State at that time, instructed the American Embassy to use “its good offices” to obtain the young man’s release from military service, but added: “You will, however, advise him that his remaining in France after he becomes of age may be regarded as an election of French nationality and that his only method of electing and maintaining American nationality is by a prompt return to this country.” (December 28th, 1887.)

    All these young men were born in the United States, but had the right to elect whether they should be a citizen of a foreign country or a citizen of this country. If they had the right to elect to which government they would pay allegiance, they were not exclusively the subjects of this country; they were not “natural born”citizens of this country.

    Again, a citizen of Prussia immigrated to the United States and had a son born to him. Later he returned to Germany, with his family, including the son. On reaching the military age, the son was called upon by the German government to perform military duty. The father invoked the intervention of the American Legation at Berlin. In that case it was held that the son, being a minor, acquired, under the laws of Germany, the nationality of his father, but did not thereby lose his right to claim American nationality, and that, upon attaining his majority, the son might, at his own election, return and take the nationality of the place of his birth, or remain in Germany. But that, during his minority and while domiciled with his father in Germany, he must submit himself to the claim of military duty on the part of the German Government. (Edwards Pierrepont, Attorney-General, and U.S. Grant, 15 Op. 15.)

    The only difference in the case of Mr. Hughes and in the case of the subject above examined, is that Mr. Hughes’ father did not take him back to England. But if he had, the English Government would have had a claim upon him, which they might have exercised, and if the English Government did have a claim upon him, then the United States did not have exclusive jurisdiction over him and he did not owe to the United States exclusive allegiance and he was not a “natural born” citizen within the meaning of the Constitution because he was not naturally a part of the Government under the jurisdiction of which he happened to be born. Particularly is this so in view of the declaration of Mr. Porter, Acting Secretary of State, under date of September 14th, 1885, when he says: “By the law of nations an infant child partakes of his father’s nationality and domicile.”

    It is not disputed that Mr. Hughes is not a citizen of the United States, but if he had the right to elect, he must have had something to choose between. He was native born because he was born in this country, and he is now a native born citizen because he is now a citizen of this country; but, had he been a “natural born” citizen, he would not have had the right to choose between this country and England; he would have had nothing to choose between; he would have owed his sole allegiance to the government of the United States, and there would have been no possible question, whether he found himself in the United States or in any other country in the world, that he would be called upon to show allegiance to any Government but that of the United States.

    That it was the intention of the men who framed the Constitution to provide that no person should be President except those who were naturally a part of this government can hardly be doubted by an examination of documents contemporary with the framing of the Constitution.

    It was originally proposed in the Constitutional Convention that the presidential qualifications be a “citizen of the United States.” It was so reported to the Convention, by the Committee which had it in charge, on the 22nd day of August, 1787. It was again referred to a Committee, and the qualification clause was changed to read “natural born citizen,” and was so reported out of Committee on September the 4th, 1787, and adopted in the Constitution. There is no record of debates upon the subject, but the Federalist contains a contemporary comment on it written by Alexander Hamilton. It reads: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?” (Federalist, LXVIII.)

    The interpretation of their position, as expressed in the Federalist, is corroborated by Mr. Story, in his work on the Constitution, in the following words: “It is indispensable, too, that the president should be a natural born citizen of the United States * * * . The general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe.” (Story on the Constitution, Vol. 2, page 353-54.)

    Of course, these articles are not used with the idea of suggesting that Mr. Hughes’ affiliations and sympathies and present allegiance are to any government but to that of the United States. Any such idea is disclaimed. They are used, however, to show the reason that underlay the constitutional provision requiring a person to be a “natural born” citizen if he would assume the presidency of the United States. If, with full knowledge of the meaning of the phrase “natural born,” the framers of the Constitution used those words to express a certain idea and to necessitate a certain qualification, then their meaning is the law of the land. That they did use them is undoubted; that they knew what they were writing hardly seems possible to doubt, in view of the contemporary expressions on the subject and the actual change in the phraseology of the proposed constitution.

    The records of the Constitutional Convention of 1787, the Federalist, Story, the eminent commentator on the Constitution, all agree that only a “natural born citizen” should ever become President of the United States.

    The Supreme Court of the United States, several Presidents of the United States, numerous Secretaries of State and an Attorney-General, each vested with authority in connection with the law, have commented upon and interpreted the only existing statute in such words as to disqualify from the presidency a person born under such circumstances as surround Mr. Hughes’ birth on the ground that he is not a “natural born citizen” of the United States.

    Take one more authority. In view of the military draft proposed in 1862, on account of the Civil War, under the head of “aliens,” it was declared by the government at Washington that the following persons were exempt from draft for military service in the armies of the United States: (1) All foreign born persons who have not been naturalized; (2) All persons born of foreign parents and who have not become citizens. (Papers relating to foreign affairs, 1862, p. 283.) The very year Mr. Hughes was born, the government to which he now pays allegiance officially recognized that it had not the right to call his father to defend the flag and that it had not the right to call him to defend the flag. The government he now aspires to preside over classed him under the general head of “Aliens” the year he was born and drew a line of distinction between him and “natural born citizens”—between him and those to whom it owed protection and from whom it had a right to claim protection.

    Is Mr. Hughes a “natural born citizen” of the United States?

    Link

  • ShyButIntrigued

    April 20, 2010

    Ray, I’m not a legal scholar and neither are you. As I noted before, from Black’s Law Dictionary, Sixth Edition: “Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.”

    We obviously disagree, and that really doesn’t matter to me since we usually do. My point is not to portray you as anything in particular, but to ascertain your logic. It scares me to hear a man devoted to freedom overlook, seemingly, contradictions to what he calls inalienable rights to freedom, ownership of labor, etc. And that’s what I see in citing Dred Scott to support any argument regarding natural born citizenship. That’s all.

  • Junior

    April 22, 2010

    ShyButShrill–you are grasping at straws (Black’s Law Dictionary LMAO), no need to be scared, though, I assure you–as a ‘minority’ who’s known Ray for over fifteen years, I can say with full confidence that he’s the most UNracist person I’ve ever known. He is also more committed to liberty for ALL than any person I’ve ever met. Citing Dred Scott DEFINITION of Natural Born Citizen (“natives, or natural-born citizens, are those born in the country, of parents who are citizens”) does not make a contradiction–a number of courts since have upheld that very definition, in fact!! Read the last two article Ray posted in these comments–IS MR. CHARLES EVANS HUGHES A “NATURAL BORN CITIZEN” WITHIN THE MEANING OF THE CONSTITUTION? by Breckinridge Long (an life-long democrat), and ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEREOF, by George D. Collins) as well as the other articles–at the very least it will illustrate clearly that there is MUCH good legal debate on this issue and the issue is far from resolved by Black’s Law Dictionary!!

  • ShyButIntrigued

    April 22, 2010

    Junior, I know. I’m a goddamn fucking moron. I, too, know Ray and agree he is no racist. I don’t know him as long as you, so you win. I, too, am (legally) a shrill minority. Although I am a woman, my voice is rather deep, but possessing ovaries and a vagina, I realize I’m still considered shrill.

    I DISAGREE with the opinion in the Dred Scott case. Shoot me and deport me. Well, just deport me, if you can figure out which country I belong to, on both sides of the family.

    Oh, and yeah, I still disagree with Dred Scott definition. I GET IT. I DON’T AGREE. HATE ME. I AM NOT SO STUPID I DON’T GET IT. I THINK IT’S WRONG. My right, as an American, last time I looked.

    I used to think people could discuss this shit. Thank you for being the latest in a long line of people who have shown me I can’t. Also, thank you for saving me the effort of reaching out to those who disagree with me and thinking I could find common ground. Obviously, never going to happen. And I really wish that weren’t so.

  • ShyButIntrigued

    April 22, 2010

    Dear Junior,

    Yes, I DID read Ray’s citations. Have YOU read the basis for denying Dred Scott citizenship in the Supreme Court decision?

    For your complete education and especially interesting to you should you be the descendant of slaves, and instrinsic to your knowledge of American history even, and perhaps especially, if you are not:

    In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, wrote in the Court’s majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

    I really fail to grasp how the logic behind the Dred vs. Scott case was not incorporated or considered before using it in a contemporary citizenship argument. Perhaps I should have stopped my education in 3rd grade and/or failed to question any argument cited by a lawyer able to post his opinion on the Internet or anyone willing to cite him.

    My educational training and inherent sense of ethics prevent me from swallowing the Dred citation as valid supoort for a citizenship argument.

    I told Ray I’d stop reading and commenting. Sorry, Ray.

  • ShyButIntrigued

    April 22, 2010

    Dred Scott, not Dred v. Scott

  • Junior

    April 22, 2010

    I do not call you shrill because you “possess ovaries and a vagina” and I did not even think if you were male of female, or care. I am not surprised though that that is the first conclusion you come to (like the minority who plays the race card). Please go back an read your comments on this post and on the healthcare post and listen to how extremely angry you sound. For example, above you say the following: “this boring subject…something as stupid as this… Just go for it….And really? Really? This is a hot topic for a blog? REALLY?…Eyes bleeding, tongue rolling, ears ringing…” In my world that is not merely shrill–it’s extremely impolite. Ray has an open comment policy here and does not moderate or censor, and I appreciate that, and he has been very patient with you, but you have abused it. And after all your hollering, you can tell me “I used to think people could discuss this shit. Thank you for being the latest in a long line of people who have shown me I can’t. Also, thank you for saving me the effort of reaching out to those who disagree with me and thinking I could find common ground.” WTF!!!??? Do you think you have come across as receptive to discourse? If you do, you are out of touch. You can’t have your cake and eat it too. If you wish to have a civil discussion, then approach people civilly, leaving the insults at the door.

  • ShyButIntrigued

    April 23, 2010

    Junior,

    I think you’re right. I apologize.

  • Dale

    April 9, 2011

    Ray, I’m curious what you think of Trump’s interest in the FACT that Obama is the “undocumented-in-chief”?
    For example, Trump can’t find out anything about the birth other than the advertisements taken out by grandparents a couple days later (does NOT prove citizenship). No doctors, no hospitals, no documents.
    Lucky for him he isn’t trying out for little league: they have a higher standard of proof than Obama had to meet.

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