2011/04/25

"Natural born" eligibility

"Natural born" means born on the soil of the nation, regardless of the citizenship of the parents, unless one of them is a foreign diplomat recognized by treaty as not being subject to the jurisdiction of the United States. That's what jus solis means. Location is the only thing that matters. That has been the case in Anglo-American law since before the U.S. was founded. It was not the 14th Amendment that made it so. That amendment only made all such persons state citizens if they are also residents (for an unspecified period of time). They were already U.S. citizens.

The mistake comes from reading Emmerich de Vattel, who was often cited by the Founders, but Vattel was Swiss. He was describing the legal doctrine of the European Continent, where the rule for citizenship was jus sanguinis, or that citizenship was based on the citizenship of one's parents. That was not the doctrine of Anglo-American law, for which the rule was jus solis, or that citizenship was based on the soil of the nation, the location of one's birth, and not on the citizenship of parents. It is discussed in Blackstone, and particularly in the footnotes of Tucker's edition of Blackstone (1803).

Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States.
"Natural" in that context means "according to natural law", in other words, by the rules of the common law then established, which pretended to divine natural law in the ways court decisions were made.

It is a common mistake to think that "natural-born" is synonymous with "citizen at birth". One can also be naturalized at birth by statute. That was done for John McCain, retroactively by a statute passed after he was born on the soil of the Panama Canal Zone, which was a leasehold, and not U.S. soil. McCain was definitely not "natural-born", no matter what a Senate resolution might say.

So Obama is eligible only if we was born on U.S. soil, which could have been in the airspace above U.S. soil, or in U.S. coastal waters, or on the grounds of a U.S. embassy abroad (U.S. soil by treaty), or perhaps on a U.S. flag vessel at sea in international waters. Not if born in the air over international waters if it was not a U.S. flag aircraft, and not if in the airspace over a foreign country.

All this is actually spelled out with some clarity in U.S. code, which at least on this subject happens to get it mostly right, although it is ambiguous because it doesn't address "natural born" at all. Some people manage to mis-read 8 USC 1401, but that section is not defining "natural born". It is defining "citizen at birth", and it is part of Chapter 12, Subchapter III, Part I, titled Nationality at Birth and Collective Naturalization. Only the first two clauses are about natural birth. The rest are about collective naturalization.

A birth certificate is evidence of location and date of birth, and is usually dispositive. However, a "certificate of live birth", which does not show location and date, is not. That is all we seem to have for Obama, and what has been offered is clearly a forgery. More dispositive would be witnesses to the birth. Unless the mother was alone when it happened, there should be some witness, even if no longer alive, who made a record of the event.

The burden of proof of citizenship for purposes of removing an individual from U.S. soil is on the government. However, the burden of proof for purposes of voting or holding office is on the would-be voter or officeholder. Even if the candidate was actually born on U.S. soil, if he can't prove that he should not be deemed eligible. It doesn't have to be proof beyond a reasonable doubt. Likely few of us could offer that. But there does need to be a preponderance of evidence.

There have been some efforts to exclude Obama from the ballot until he proves his eligibility,  but it is useless to try to exclude Obama from the ballot, because it is not Obama that voters vote for. They vote for electors pledged to vote for him. The ballot might show the person to whom they are pledged, but that pledge has no legal status. The same people could be said to be pledged to vote for Mickey Mouse, when everyone knows that Mickey Mouse is a pseudonym for Obama. Or to some real person. Nothing prevents them from voting for anyone else when the time comes.

The only points at which an ineligible candidate might be blocked is (1) the counting of the elector's votes; (2) the certification of the elector's votes by Congress; and (3) inauguration. None of those points are subject to the orders of a court. For each of them, enforcement depends on the people involved voluntarily following the Constitution. Nothing can make them if they choose not to do so.

3 comments:

TOM said...

Best not give your definition out on a reservation, those natives born there are not 'natural born' pertaining to the eligibility clause. No one has to forfeit either of their parents rights to citizenship at birth on American soil, it cannot be legislated by congress someone is not Brittish, Irish or Israeli ect.. therefore every child of a non-citizen parent on american soil is if only by inheritence a duel citizen and subject to at least some rule of foreign law and it cost us at least one prolonged conflict to protect those citizens as such upto the end of 1812 war. It also means blaring contradictions for island peoples, reservations, protectorates, terratories,and possesions ect. I am a natural born citizen because not even my own government can declare me not an nbc, and cannot change that even by ammendment as it would then declare itself a foreign government without the consent of power of its nbc and naturalized citiens guaranteed unalienable rights. Anchor baby chain migration does not produce nbc's. It is the power of the congress to declare citizenship statutes but it cannot contradict itself as to this by arbitralily decaring anyone an nbc who is also a 14th amendment naturalized citizen. The 'colb' in Hawaii does not prove citizenship or the citizens status over time. Obama is not an nbc, and is inelligible where ever he was born. he is not a legal person. Submitting that document [colb] in a court of law is a guaranteed addmission of fraud by an attourney and a high crime and a misdemeanor both.State of Hawaii can conform to the constitution but not decide its questions and it must provide the documents as per 'full faith' as every other state does in fact. Thank You but it is two parents citizens and [not or]on American soil. Both.

Nobody of Consequence said...

Sorry but US Code cannot define any term in the Constitution. If Congress holds the power to define one term, they hold the power to define all terms. The Constitution is moot if that is accepted.

The Congress is subordinate to the Constitution because the Constitution is the Creator and Congress is the created. The subordinate cannot define the superior. Letting Congress get away with such garbage is just one of the myriad of problems we face because of ignorance.

dancingrabbit said...

Natural means descent from parents of the same race or tribe.

This comes from the Anglo Saxon Gecynde.

Kind and Natural have the same meaning. The Framers placed natural born citizen into a Kind.

Shakespeare wrote "were all they children kind and natural?" This comes from Henry the V.

Now you know the real meaning of a natural born citizen. The Constitution has to be amended if millions and millions of Americans want to be President. This includes Mr. Obama

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