Musicmystery
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Supreme Court cases relating to citizenship
Although the U.S. Supreme Court has never specifically determined the meaning of "natural born citizen", they have occasionally discussed the term as an obiter dictum in cases concerning who is eligible for citizenship at birth.
Dred Scott v. Sandford, 60 U.S. 393 (1857): In regard to the "natural born citizen" clause, the dissent states that such citizenship is acquired by place of birth (jus soli), not through blood or lineage (jus sanguinis):
The first section of the second article of the Constitution uses the language, 'a natural born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
(Much of the majority opinion in this case was overturned by the 14th Amendment in 1868.)
Elk v. Wilkins, 83 U.S. 36 (1872): The Court denied Elk, a Native American, the right to vote as a US citizen even though he was born on US soil, because he was born on an Indian Reservation. Elk was not born subject to the jurisdiction of the US, because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and not to the United States. The Court held Elk was not “subject to the jurisdiction” of the United States at birth.
The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.[21]
This ruling was rendered moot when native Americans were granted citizenship in the Indian Citizenship Act of 1924.
Slaughterhouse Cases, 83 U.S. 36 (1872): The Court discussed the Citizenship Clause of the Fourteenth Amendment:
the phrase 'subject to the jurisdiction thereof' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.
Minor v. Happersett, 88 U.S. 162 (1874): In this case decided after the adoption of the Fourteenth Amendment, the Court stated (pp. 167–68):
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. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
United States v. Wong Kim Ark, 169 U.S. 649 (1898): In this case, the majority of the Court held that a child born in U.S. territory to parents who were subjects of the emperor of China and who were not eligible for U.S. citizenship, but who had “a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China” was a U.S. Citizen.
The Court stated that:
The constitution nowhere defines the meaning of these words [citizen and natural born citizen], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'[22]
Since there was no definition of "natural born citizen" or "citizen" found in the constitution, the majority adopted the common law of England:
The court ruled:
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.
The dissent argued that the meaning of the “subject to the jurisdiction” language found in 14th Amendment was the same as that found in the 1866 Civil Rights Act, which provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” On the meaning of “natural born citizen,” the dissent also cited the treatise on international law by Emerich de Vattel entitled “The Law of Nations” which may have influenced the drafters of the original constitution:[23] "The natives, or natural-born citizens, are those born in the country, of parents who are citizens."[24] The dissenters also noted, arguing that birth on the soil was not sufficient to grant citizenship at birth, that:
it is unreasonable to conclude that 'natural born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.[22]
Perkins v. Elg, 307 U.S. 325 (1939): The U.S. Supreme Court concluded that Marie Elizabeth Elg, who was born in the United States of Swedish parents naturalized in the United States, had not lost her birthright U.S. citizenship because of her removal during minority to Sweden and was entitled to all the rights and privileges of that U.S. citizenship. In this case, the U.S. Supreme Court affirmed the decree that birthright citizenship and natural born citizenship mean the same thing and declared Elg "to be a natural born citizen of the United States."
Schneider v. Rusk, 377 U.S. 163 (1964): The Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland.
We start from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President.
Rogers v. Bellei, 401 U.S. 815 (1971): Reviews the history of citizenship legislation and of the Fourteenth Amendment's Citizenship Clause.
Standing in eligibility challenges
Several United States District Courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot.[25] Alternatively, there is a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress.[26]
Some legal scholars assert that, even if eligibility challenges are nonjusticiable in lower federal courts, and are not undertaken in Congress, there are other avenues for adjudication, such as an action in state court in regard to ballot access.[27]
Presidential candidates whose eligibility was questioned
While every President and Vice President to date (as of 2009) is widely believed either to have been a citizen at the adoption of the Constitution in 1789 or to have been born in the United States, one U.S. President (Chester A. Arthur) and some presidential candidates either were not born or were suspected of not having been born in a U.S. state.[31] In addition, one U.S. Vice President (Albert Gore) was born in Washington, D.C. This does not necessarily mean that they were ineligible, only that there was some controversy (usually minor) about their eligibility, which may have been resolved in favor of eligibility.[32]
Chester A. Arthur (1829–1886), 21st president of the United States, was rumored to have been born in Canada.[33][34] This was never demonstrated by his Democratic opponents, although Arthur Hinman, the attorney in charge of the investigation, raised the objection during his vice-presidential campaign and after the end of his Presidency. Arthur was born in Vermont to a U.S. citizen mother and a father from Ireland, who was eventually naturalized as a U.S. citizen. Despite the fact that his parents took up residence in the United States somewhere between 1822 or 1824,[35] Chester Arthur additionally began to claim between 1870 and 1880[36] that he had been born in 1830, rather than in 1829, which only caused minor confusion and was even used in several publications.[37] Arthur was sworn in as president when President Garfield died after being shot. Since his Irish father William was naturalized 14 years after Chester Arthur's birth,[38] his citizenship status at birth is unclear, because he was born before the 1868 ratification of the 14th Amendment, which provided that any person born on United States territory and being subject to the jurisdiction thereof was considered a born U.S. citizen, and because he also held British citizenship at birth by patrilineal jus sanguinis.[39] Arthur's natural born citizenship status is therefore equally unclear.
George Romney (1907–1995), who ran for the Republican party nomination in 1968, was born in Mexico to U.S. parents. Romney’s grandfather had emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. Romney's monogamous parents retained their U.S. citizenship and returned to the United States with him in 1912. Romney never received Mexican citizenship, because the country's nationality laws had been restricted to jus-sanguinis statutes due to prevailing politics aimed against American settlers.[40]
Barry Goldwater (1909–1998) was born in Phoenix, in what was then the Arizona Territory of the United States. During his presidential campaign in 1964, there was a minor controversy over Goldwater's having been born in Arizona when it was not yet a state.[33]
Lowell Weicker (born 1931), the former Connecticut Senator, Representative, and Governor, entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France to parents who were U.S. citizens. His father was an executive for E. R. Squibb & Sons and his mother was the Indian-born daughter of a British general.[41]
Róger Calero (born 1969) was born in Nicaragua and ran as the Socialist Worker's Party presidential candidate in 2004 and 2008. In 2008, Calero appeared on the ballot in Delaware, Minnesota, New Jersey, New York and Vermont.[42]
John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born of two U.S. citizen parents at the naval hospital at the Coco Solo submarine base in the Panama Canal Zone.[43] This is confirmed by a brief birth announcement in a local newspaper, The Panama American, which stated that the birth had taken place at "the Submarine Base Hospital." [44][45] The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[46] but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company; 8 U.S.C. § 1403 was cited in Judge Alsup's 2008 ruling, described below. A paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe published in March 2008 opined that McCain was eligible for the Presidency.[47] In April 2008 the U.S. Senate approved a non-binding resolution recognizing McCain's status as a natural born citizen.[48] In September 2008 U.S. District Judge William Alsup stated obiter in his ruling that it is "highly probable" that McCain is a natural born citizen from birth by virtue of 8 U.S.C. § 1401, although he acknowledged the alternative possibility that McCain became a natural born citizen retroactively, by way of 8 U.S.C. § 1403.[49] These views have been criticized by Gabriel J. Chin, Professor of Law at the University of Arizona, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court's Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[50] The US Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.[51] It also states in general that "it has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen […]".[52] In Rogers v. Bellei the Supreme Court only ruled that "children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment", and didn't elaborate on the natural born status.[53][54]
Barack Obama (born 1961), 44th president of the United States, was born in Honolulu, Hawaii to a U.S. citizen mother and a British subject father from what was then the Kenya Colony of the United Kingdom (which became the independent country of Kenya in 1963). Before and after the 2008 presidential election, arguments were made that he is not a natural born citizen. On June 12, 2008, the Obama presidential campaign launched a website to counter what it described as smears by his opponents, including these challenges to his eligibility.[55] The most prominent issue raised against Obama was the claim made in several lawsuits that he was not actually born in Hawaii. In two other lawsuits, the plaintiffs argued that it was irrelevant whether he was born in Hawaii,[56] but argued instead that he was nevertheless not a natural born citizen because his citizenship status at birth was also governed by the British Nationality Act of 1948.[57] The relevant courts have either denied all applications or declined to render a judgment due to lack of jurisdiction. Some of the cases have been dismissed because of the plaintiff's lack of standing.[25] On July 28, 2009, Hawaii Health Director Dr. Chiyome Fukino issued a statement saying, "I ... have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American citizen,".[58] On July 27, 2009, the U.S. House of Representatives passed H.R. 593, commemorating the 50th anniversary of Hawaii's statehood, including the text, "Whereas the 44th President of the United States, Barack Obama, was born in Hawaii on August 4, 1961." [59] The vote passed 378-0. [60]
Proposed constitutional amendments
More than two dozen proposed constitutional amendments have been introduced in Congress to relax the restriction.[61]
Two of the more well known were introduced by Representative Jonathan Bingham in 1974, to allow for Secretary of State Henry Kissinger to become eligible,[62] and the Equal Opportunity to Govern Amendment by Senator Orrin Hatch in 2003, to allow eligibility for Governor of California Arnold Schwarzenegger.[61] The Bingham amendment would have also made clear the eligibility of those born abroad to U.S. parents,[62] while the Hatch one would have allowed those who have been naturalized citizens for twenty years to be eligible.[61]
< Message edited by Musicmystery -- 3/29/2010 11:41:42 AM >
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RE: Thanks a whole lot, Republicans. - 
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