PART 2 of 2
January 10, 2016
The following was written by Leo Donofrio. It is an excerpt from his longer analysis here.
NATURAL BORN CITIZEN DEFINED THROUGH HISTORY
I could understand rabid attacks if the legal theory I was relying upon had been thoroughly discredited by a Supreme Court decision or by statute, or even by historical texts, but it’s quite the opposite. Beside 200 years of Presidential precedent, the great weight of authority supports the argument that Obama is not a natural born Citizen.
I understand the countering argument and I’ve welcomed debate of both sides of the issue in comments to this blog. But most of the published arguments on the natural born Citizen issue are recently published law review articles which haven’t done a very good job of presenting the whole truth and nothing but the truth.
THE FRAMERS OF THE 14TH AMENDMENT
Despite popular belief, the 14th Amendment does not convey the status of “natural born Citizen” in its text. It just conveys the status of “Citizen”. And it’s very clear that in the pre-amendment Constitution, the Framers made a distinction between a “Citizen” and a “natural born Citizen”. The requirement to be a Senator or Representative is “Citizen”, but the requirement to be President is “natural born Citizen”.
From the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
But even as to this conveyance of citizenship, those who were responsible for drafting the 14th Amendment made it clear that - to them - the meaning of “subject to the jurisdiction thereof” meant subject only to the jurisdiction thereof.
Dr. John Fonte, Senior Fellow of The Hudson Institute had this to say about the issue at a Congressional hearing on dual citizenship from September 29, 2005:
The authors in the legislative history, the authors of that language, Senator Lyman Trumbull said, ”When we talk about ’subject to the jurisdiction of the United States,’ it means complete jurisdiction, not owing allegiance to anybody else.” Senator Jacob Howard said that it’s ”a full and complete jurisdiction.”
This illustrates that Congress recently discussed the issue, and they can’t claim they were unaware. But we don’t have to take Dr. Fonte’s word for it. The following discussion by the various 14th Amendment Framers took place on the Senate floor. I took it from P.A. Madison’s research at http://www.14thamendment.us(use his link for footnotes):
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil. Again, we are fortunate enough to have on the record the highest authority tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee… and the one who inserted the phrase:
[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ’subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Then Madison quotes Sen. Howard, another Framer, concurring with Trumbull:
Sen. Howard concurs with Trumbull’s construction:
Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Mr. Madison continues with even more proof of what the 14th Amendment Framers meant:
Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:
[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power–for that, no doubt, is the meaning of the committee who have brought the matter before us–shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon 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 to parents who at the time were subject to the authority of the United States.
No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:
In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States…All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, ’subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.
Madison saves for last the greatest authority on the issue:
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[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…
It’s important to note this statement was issued by Bingham only months before the 14th Amendment was proposed.
In conclusion, I would like to thank reader “John Boy” for pointing to Justice Scalia’s opinion in District of Columbia Et Al. v. Heller. In that case, Justice Scalia took into consideration a certain historical legal reference:
The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant… Other legal sources frequently used “bear arms” in nonmilitary contexts.
Now look at “footnote 10?:
E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”);
Since Justice Scalia cited to this legal textbook in March of 2008, it’s not outrageous to think he might also refer to “The Laws of Nations” on the natural born Citizen issue?
I’ll leave you now with the relevant textbook definition of natural born citizen. The following was published in 1758. This definition, added to all of the above, certainly establishes a rational legal basis to hold that Barack Obama is not a natural born Citizen. And more than that, it puts the burden on those who deny it to don the tin foil hat of despair and bring forthwith to the table of honest debate their own bed of authority to lie in:
§ 212. Citizens and natives.
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 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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. For part one click below.
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Devvy Kidd authored the booklets, Why A Bankrupt America and Blind Loyalty; 2 million copies sold. Devvy appears on radio shows all over the country. She left the Republican Party in 1996 and has been an independent voter ever since. Devvy isn't left, right or in the middle; she is a constitutionalist who believes in the supreme law of the land, not some political party. Devvy is a member of the Society of Professional Journalists.
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