2012/02/10

Birther benefits

One of the benefits of the birther controversy is that it gets more people to research the historical background of the terms used in the U.S. Constitution. However, it also shows how many people do not know how to read or do constitutional analysis. I have gathered most of the more important documentation at constitution.org, so I will only summarize the main points:

1. Both the Minor v. Happersett and Ankeny v. Governor opinions are correct, if read properly, but too many do not. However, the comment in Minor is only dictum, not precedent. Ankeny is not precedent, but does gather much of the analysis in one place, so it is convenient to cite it for that.

2. It is not correct to cite Vattel. He was Swiss, and discussing the rule on the European continent, jus sanguinis, not the rule in England and its colonies, jus solis. In Switzerland citizenship was based on the citizenship of parents, not the location of birth. In England it was only the location of birth that mattered. The authority for that is Blackstone.

3. The judge in Minor did not say that to be a "natural born citizen" one had to have parents who were U.S. citizens. The only requirement to be "natural born" is to be born on U.S. soil. That also makes one a citizen, unless the parents are foreign diplomats or invaders, as is discussed in Ankeny. The parents don't have to be U.S. citizens. They can be foreign visitors, as long as they entered the country legally, though a port of entry. Now having a parent who is a diplomat of a foreign government does not necessarily exclude one from being eligible to be president. U.S. citizens can be appointed by foreign governments to serve as their ambassadors. The diplomatic exclusion would only apply if the foreign diplomat parent were also a foreign citizen, and not necessarily a citizen of the country he represents.

4. The Ankeny opinion does, however, support the position that the children of aliens who entered illegally should not be considered U.S. citizens, natural born or otherwise. If they came through a port of entry, they are not invaders, even if they overstay a visa. But if they enter without permission, then they are invaders, and the U.S. citizenship of their children could be disallowed. However, a challenge to that citizenship seeking deportation would have to prove illegal entry of the parents, not just illegal presence of them.

5. To make the issue of natural born citizenship more clear, consider a hypothetical case of a child being born on U.S. soil to a mother who is a citizen of another country A, but the ambassador from yet another country B, and to a father who entered the country illegally from country C. Now further complicate it by having the parents divorcing, and the mother getting custody in a U.S. court, but the father getting custody in a court of country C. Now suppose the INS initiates a deportation proceeding against the child. What do they have the burden to prove, and if they prove the child is not a U.S. citizen, to which country can the child be deported? Assume further that none of them are willing to accept him, leaving him stateless if it is decided he is not a U.S. citizen. I will leave it to the reader to try to decide this one.

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