“Folks, this is so damn clear-cut, but it requires a result that the political class doesn’t like, including way too many Republicans. The question is: are we too far gone on this issue to be able to get back to the constitutional requirements?” Mark R. Levin August 13, 2010

Liberal conservatism is alive & well. It has so deeply infiltrated every aspect of the true conservatism movement that some days it’s hard to tell a friend from a foe. Take for example Mark Levin’s latest attempt at explaining the original meaning the text of the 14th Amendment to the Constitution & the definition of the ‘subject to the jurisdiction’ clause therein. Mark has spent his lifetime studying the Constitution and he openly admits that he isn’t anywhere near done. To this later admission I whole heartedly agree because there are aspects of the 14th that Mark either conveniently leaves out or perhaps it is that he has yet to research these pertinent historical references & 1 major Act of Congress that are crucial to defining the 14th Amendment. Historical research from the annals of Congress that is easily available through the Heritage Foundation & Hillsdale College. As far as Mark’s neglect in this area, I am leaning toward that of political convenience as Mark has clearly stated his position that Gov. Bobby Jindal, LA is looking to be a good contender for the presidency in 2012 or 2016. Folks, Bobby Jindal was born a citizen of India as both his parents were students residing is the US on temporary student visa when Jindal was born. NEITHER of Jindal’s parents were US citizens at the time of Jindal’s birth thus the irony of Mark’s claim that we need to get back to the original text & meaning of the constitution.

As always, I will let my readers make the determination for themselves as to whether Mark is a genuine constitutional conservative or just another liberal conservative. Below is the audio of Mark’s dialogue from Friday, Aug 13th, 2010.

When the Constitution was drafted & ratified, there were only 2 paths to citizenship. You were either born into an American family (father had to be a citizen or if born out-of-wedlock, mother had to be a citizen at the time of the child’s birth) or you were naturalized. Naturalization came through parents(father) who was naturalized or you applied for it on your own at the coming of age if the parents had not opted to become American citizens.

Erler gets it right on the definition of ‘subject to the jurisdiction’. He quotes Howard & Trumbull but what he leaves out is another pertinent quote from Rep. Bingham, co-author of the 14th, in which Bingham states:

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 – Rep. John Bingham, framer of the 14th Amendment, before The US House of Representatives (March 9, 1866 )

Mark also leaves out is Erler’s testimony of the Wong Kim Ark case of 1898 wherein Justice Gray uses the English feudal law definition of a ‘subject’ which is in complete contradiction to over a 100 years of US law. Gray uses an unsubstantiated argument that the founders had adopted some form of the feudal doctrine of perpetual allegiance which is quite ironic since he objected to any notion thereof in a former deciding opinion he wrote that held that the definition of ‘subject to the jurisdiction’ meant exactly what Trumbull & Howard stated to be:  ‘not owing allegiance to any foreign power’. But what Mark probably hasn’t researched and thus would probably cast off those who are brave enough to actually report the truth is the fact the Gray was appointed by Chester Arthur who was born a British Subject as Arthur’s father did not become a US citizen until Arthur was 13 yrs old. Arthur lied about the date of his birth to conceal this fact that would have deemed him ineligible for the Vice Presidency which later lead to the Presidency after to the death of Garfield. Having a president who has loyalties to a foreign nation according to Washington, was to be avoided at ALL costs. But enough of this little history lesson that has slipped through cracks and into the depths of the abyss of the progressive cover-up, what about the 100 plus years of US legislation on citizenship?

We know that the only power US Congress has regarding citizenship is to legislate in the area of naturalization & immigration. They have absolutely no power over natural law other than to restrict through positive law by the consent of the people which rights under natural law we wish to relinquish to them, thus giving them the power to regulate those areas. The constitution clearly cites 2 types of citizenship, citizenship in general which includes natural citizens & naturalized citizens under Article 1 &  then the specific natural citizen requirement under Article 2. Citizens born by the laws of nature require no act of congress as there was no foreign power at the time of the birth of the citizen that could lay claim to that person. This is the law which the founders spoke of in the Declaration of Independence as the law of the new nation, the United States of America. How do we know this? The most clear & concise example comes from Thomas Jefferson when he wrote the 1st citizenship law for the state of Virginia that was passed in May of 1779:

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.

This also is reflected in the 1st Naturalization Acts passed by the US Congress:

Naturalization Act of March 26, 1790 (1 Stat 103-104) That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. FREDERICK AUGUSTUS MUHLENBERG, Speaker of the House of Representatives. JOHN ADAMS, Vice-President of the United States, And President of the Senate. APPROVED, March 26th, 1790: GEORGE WASHINGTON, President of the United States

And the Naturalization Act of 1795: SECTION 1. BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise. First, he shall have declared, on oath or affirmation, before the Supreme, Superior, District, or Circuit Court of some one of the states, or of the territories northwest or south of the Ohio River, or a Circuit or District Court of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject…that he will support the Constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever and particularly by name the prince, potentate, state, or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Thirdly. The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years. It shall further appear to their satisfaction that during that time he has behaved as a man of a good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the same…SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization,…signed by: FREDERICK AUGUSTUS MUHLENBERG, Speaker of the House of Representatives. JOHN ADAMS, Vice-President of the United States, And President of the Senate. APPROVED, January the 29th, 1795: GEORGE WASHINGTON, President of the United States

No where does the US Congress with the President concurring by signing the legislation distinguish the children of aliens as to the location of their birth. They merely declare that all children of the alien father under the age of 21 & residing in the US are declared citizens upon the naturalization of the father. This follows natural law. It was considered unnatural for a child to be considered an alien to the father. It was unnatural for any household to have immediate family members(spouse & children) that held conflicting allegiances, thus the reason that the wife also followed the nationality of the husband. This is the natural unity of a civilized society going back to its formation. It is the only way a civilized society could naturally protect its sovereignty & freedom.

From 1798 to 1855 there were 9 other subsequent Acts of Congress on Naturalization dealing with race, length of time an immigrant must be a resident before naturalizing, land holding and also clarification of the wife follows the citizenship of the husband per natural law, etc but the one fact that never changed was the fact that all children of any alien immigrant were aliens themselves until the father/single or widowed mother became a citizen. If the parents remained aliens, the child could apply upon coming of age.

Next comes the 1866 Civil Rights Act which states that “all children born to parents not owing allegiance to any foreign power” that was ratified into the Constitution per the 14th Amendment. What Mark and also Erler in his testimony leave out is the Expatriation Act of 1868. This Act was passed on July 27th, 1868 just 18 days after the ratification of the 14th Amendment (July9, 1868):

CHAP. CCXLIX – An Act concerning the Rights of American Citizens in foreign States. Approved July 27, 1868. 

Right of ex- patriation de- clared.

Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this princi-ple, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendents, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed; Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.

Protection to naturalized citizens in foreign states.

Sec. 2. And be it further enacted, That all naturalized citizens of the United States, while in foreign states, shall be entitled to, and shall receive from this government, the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances.

John C. Eastman (also of the Claremont Institute) in his March 30, 2006 legal memorandum at the Heritage Foundation titled “From Feudalism to Consent: Rethinking Birthright Citizenhsip” says this of the Expatriation Act of 1868:

“Thus, when Congress passed as a companion to the Fourteenth Amendment the Expatriation Act of 1868, which provided simply that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happi­ness,” it necessarily rejected the feudal birthright citizenship doctrine of medieval England as fun­damentally incompatible with the principles of the Declaration of Independence. As Representa­tive Woodward of Pennsylvania noted on the floor of the House of Representatives: “It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it…Such remnants of feudalism were rejected by our nation’s Founders when they declared to a candid world that they no longer owed allegiance to the king of their birth. They were rejected again by the Congress in 1866 and by the nation when it ratified the Fourteenth Amendment.”

And for even more resourses, I encourage you to read the Amicus Brief of March 29, 2004 submitted on the behalf of Rumsfeld by former US Att. Gen. Edwin Meese III (whom Mark Levin served under) and John C. Eastman of the Claremont Institute in the case of Hamdi v. Rumsfeld.

In another of my research days at the online Library of Congress I found this SoundexIndex to Naturalization, Petitions for the United States District and Circuit Courts, Northern District of Illinois, and Immigration and Naturalization Service District 9 (1840-1950) Under the section on the background of Naturalization . . . .” (A1, S8, C4) this official government document states that:

Married women and children under the age of twenty-one derived citizenship from their husband or father respectively. Children of unsuccessful applicants could apply for citizenship in their own right, at the age of twenty-one.

The Library of Congress on Immigration & Naturalization also states:

The 1st major exception to this 1790 Act was that “derivative” citizenship was granted to wives and minor children of naturalized men. From 1790 to 1922, wives of naturalized men automatically became citizens. This also meant that an alien woman who married a U.S. citizen automatically became a citizen. (Conversely, an American woman who married an alien lost her U.S. citizenship, even if she never left the United States.) From 1790 to 1940, children under the age of 21 automatically became naturalized citizens upon the naturalization of their father.

The current US State Dept website states that there is no law which prohibits dual citizenship. This couldn’t be further from the truth and that is why they also claim that one can lose ones citizenship by acts & words spoken by any person that holds citizenship of another country. Also, one can barely change the page of the US State Dept website without finding them contradicting themselves and sometimes they do so several times on the same page. In several areas of the website, the US State Dept states that it does not encourage the practice of holding dual allegiances. The reason?  The only changes made to the Expatriation Act (which has never been repealed) pertain to treason and the right of the US government to revoke the citizenship of a naturalized person convicted of treason or for acts by that person that the government deems treasonous. The last change came in 1952. The threat of communist infiltration into the US government was very much a threat and on the minds of the true patriots elected to office at that time. They were acting very “Washingtonian” and liberal progressive history has written them all off as kooks.

As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils. Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter…Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government... Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people, to surrender their interests…(excerpts from Washington’s Farewell Address)

Who are the kooks now? We have the communist manifesto which includes multiculturalism (dumbing down of citizenship) unfolding right before our eyes right from the oval office of the White House from a president who was born subject to a foreign power and the so-called conservatives aka liberal conservatives are still wanting to pick & choose which parts of the Constitution they wish to define under original intent as it fits their liberal agenda. But I digress.

Going back to defining citizenship however, let’s not forget that we must look to international law. From the 1st day of our founding on July 4, 1776, the US has always respected the laws governing the citizenship of the immigrants or temporary resident aliens making sure that US laws do not override or veto that of the foreign government in which the person is a citizen or subject of. For further clarification we go to Dicey, Savigny, Philimore, Hall, Westlake but the one I go to most is Story’s Conflict of Laws Vol 1 & Vol 2.

First, the place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents. Patris originem unusquisque sequatur*. This is usually denominated the domicil of birth or nativity, domicilium originis. But, if the parents are then on a visit, or on a journey, (in itinere), the home of the parents (at least if it is in the same country) will be deemed the domicil of birth or nativity.

Now I know, you are going to say domicil is a persons place of residence. You would be completely wrong. Domicil in the day was a person’s nationality. Later it was changed to domicil(e) and thus the confusion brought forward by many legal scholars who either didn’t bother to actually learn the difference or they purposefully meant to confuse the two definitions to push their personal political agenda as Justice Brennan did when he wrote that the founding fathers merely substituted the word citizen for subject leaving the feudal definition in tact. In Olson & Tribes most recent testimony to Congress on citizenship, they cite Brennan and I have to say although Mark was dismayed by Olson’s recent work on Prop 8, it came as no surprise to me.

We also have this cite from the 1903 Cyclopedia of law and procedure, Volume 7 (America Law Book Company, New York) By William Mack, Howard Pervear Nash. It refers to citizenship of parentage which is the citizenship of natural law & adopted by the United States at the time of the Declaration of Independence as referenced earlier by the 1st citizenship law passed by the state of Virginia in 1779:

Children Of Aliens. The child of a citizen father and of an alien mother is a citizen ; but one born of an alien father and of a citizen mother is not a citizen

You also will not find the term dual allegiance in the 1903 law cyclopdia either, it only speaks of double citizenship or as some in those days called it, double character and it is defined as:

DOUBLE CITIZENSHIP: In this country a double citizenship exists, for the term applies both to membership in the nation considered as a whole and to membership in the state in which the individual may reside.

The problem we have today is the usurping of natural law by both parties, but especially those who claim to be constitutional conservatives and spout off about original intent, yet they also turn a blind eye when natural law is inconvenient or not expedient to their political cause. The founding fathers knew full well that the sovereignty & security of the country came from unity in the home. But it wasn’t just the founding fathers or framers of the constitution such as Wilson who knew this. They got their wisdom through the study of the early philosophers, especially the wisdom of John Locke as quoted by Wilson in Vol 1 of his works:

‘Tis plain,” says he, ” by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under ; what body politick he will unite himself to.”

Or how about this quote from Cicero that is also found in these works of Wilson’s:

” O glorious regulations!” says Cicero, ” originally established for us by our ancestors of Roman name ; that no one of us should be obliged to belong to more than one society, since a dissimilitude of societies must produce a proportioned variety of laws; that no one, contrary to his inclination, should be deprived of his right of citizenship ; and that no one, contrary to his inclinations, should be obliged to continue in that relation. The power of retaining and of renouncing our rights of citizenship, is the most stable foundation of our liberties.”

Now I think that a guy who was a signer of the Declaration & the Constitution, who was commissioned to write the 1st law books on American law & who helped establish the 1st American Law school would be the ultimate authority on the subject of US citizenship. And while congress may have the authority to pass a statute that says a child born to a legal alien resident may be a citizen at birth, it does not change the language of the constitution that requires a president to be born a US citizen & nothing else. But more importantly, Mark & Erler are right, there is no such thing as birthright citizenship for legal or illegal aliens. Permanent residents or not. I would also welcome Mark’s commentary on when & how US Statute changed the laws pertaining to conferring citizenship at birth. When did the law transfer that natural right from the father to the mother when the child is born in wedlock? Is this not in direct conflict to natural law, the law adopted by the founders & thus the law that defines who are the natural citizens of the United States? The natural law that is so well explained by Grotius, Pufendorf, Locke & Vattel, all of whom the founders where very well learned in & all of whom are referenced in the listing of “Laws of Nature” to whom they refered to that is archived in the annals of the Continental Congress of 1783:

The Committee [Mr. James Madison, Mr. Hugh Williamson and Mr. Thomas Mifflin] instructed on the motion of Col. [Theodorick] Bland to report a list of books proper for the use of Congress, recommend that the Superintendt. of Finance and the Secy. of Congress be empowered to take order for procuring the books enumerated below: the same when procured to be under the care of the said Secy.

Encyclopedie Méthodique.

Dictionaire de l’homme d’État.

Law of Nature and Nations

Madison’s committee then goes on to list several versions from the different philosophers of the laws of nature which you will find by following the provided link to the Congressional record above.

We either have a Constitution or we don’t & the right questions to ask is: Is political expediency more important than the rule of law & is the true patriotism and meaning of constitutional US citizenship gone forever? Congress has been very busy over the past 60 years working to usurp the constitution, especially citizenship laws. It is either time to stand strong & steadfast on our founding principles & the rule of law or retreat into submission. I have never been one of the later and neither do I intend on becoming one lest it be at the barrel of a gun and still then I am unlikely to concede.

In closing, I encourage all my readers to listen to Mark Levin, take notes, but do not stop there. Expand on those tidbits that Mark throws out, employ due dilligence & research for yourself. The art of interpretaing the Constitution & the original intent of the founders is not rocket science.  As Justice Joseph Story stated, it’s mostly just good ole plain & obvious common sense:

In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.  Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research.  They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.  The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.