Thursday, January 21, 2010

Was Senator John McCain a U.S. Citizen at Birth?


A - The Insular Cases and Unincorporated Territories
B - Zimmer et al. v. Acheson: A Comedy of Errors
C - Physical Presence: Lefty's Magic Wand

Appendix A

The Insular Cases and Unincorporated Territories
(The Special Case of the Panama Canal Zone)

The Panama Canal Zone was a territorial anomaly because it was a jointly controlled possession over which the United States wielded ultimate sovereignty contingent on the terms of a mutually binding contract. It was never purchased or annexed by the United States or ceded to it. It was leased in perpetuity. Constitutionally, this is a distinction that makes a difference. No one could have U.S. citizenship conferred on them or be declared a U.S. national for reasons of birth there.  The Hay-Bunau Varilla Treaty of 1903 stipulated that the Canal Zone was Panamanian soil, not American soil. In other words, the United States was a tenant extraordinaire.

Subsequent statute never recognized the Canal Zone as part of the United States, but other statute, as a result of the Court's imposition of the British rule of birthright citizenship in United States v. Wong Kim Ark (1898), seemed to imply that unincorporated territories like the Canal Zone were in some sense territorial possessions under the jurisdiction of the Fourteenth Amendment. That was a problem, one that was sorted out by the Court in what are known as the Insular Cases.

The Fourteenth Amendment does not define what "the United States" is, and, with regards to the vital concerns of national allegiance and sovereignty, the matter proved to be complex.

Before the Spanish-American War, the United States had never consisted of anything but the several states and territorial possessions that were fully incorporated from the moment of acquisition by treaty. The several states and the incorporated territories were indisputably part of the United States under the jurisdiction of the Fourteenth Amendment. Previously, all of the territories annexed by the United States were either sparsely populated wildernesses or regions governed by American settlements. What was America going to do with ceded territories densely populated by persons whose political and cultural affinities were foreign?

In the first of the Insular Cases, adjudicated in 1901, the Court declared that the provisions of the Constitution did not automatically extend to the inhabitants of all territories under U.S. control. But that was just the beginning. The Court erected a partition between the distinct jurisdictions of the United States with regard to the newly acquired islands of Puerto Rico, Guam and the Philippines (with Cuba under military rule until 1902).1 Unlike these formally owned possessions, the Canal Zone, acquired later, was not part of the United States in any sense. Nevertheless, it was initially believed that the legislative remedies were essentially the same for both types of unincorporated territories—that is, owned and leased.

Congress passed a series of statutes designating the precise nature of each of the new territories and the jurisdictions that applied to them. These essentials were consolidated into a general statutory declaration in 1926. Congress also passed a non-binding resolution declaring that the previously established statutory requirements for citizenship still applied for those born in the Canal Zone of U.S. citizens (or in one of the formerly Spanish colonial islands). Persons whose parents had met the residency requirements were citizens and need not fret over their status.2

Because the consequent legislation of the Insular Cases addressed the specific circumstances of the children of U.S. military and diplomatic personnel, lots of folks have been confused about the rules of citizenship ever since. Some folks have simply gotten it into their heads that because some provision affirmed the U.S. citizenship of persons whose circumstances were such-and-such, they were affirmed to be U.S. citizens because of such-and-such. No! They were affirmed to be U.S. citizens because they were reconciled to the Constitution's law of the bloodline; their circumstances just so happened to be such-and-such. A natural-born citizen of the United States is a person who is duly born on the soil and/or of the blood of the nation. Period.

At the time, none of the insular territories were part of the United States proper under the Fourteenth Amendment's jurisdiction, and the Canal Zone never would be. And the nature of one's service or place of assignment abroad, for example, military or diplomatic personal serving on the premises of military installations or diplomatic facilities—none of these things are pertinent to the acquisition of U.S. citizenship. None of these things in any sense constitute a tie to American soil or a form of American soil for constitutional purposes alone.3 In fact, during the first half of the Nineteenth Century, U.S. citizen parents, including military and diplomatic personnel, who had not acquired their citizenship before April of 1802 could not transmit their citizenship to children born to them abroad. Between 1802 and 1855, Congress suspended the grant of U.S. citizenship by the law of the bloodline.
1The Court's conduct in the Insular Cases was not the stuff of judicial activism. On the contrary, the era of the Insular Cases was one of the Court's finest moments in history, for it preserved the integrity of Congress' discretionary powers over the terms of citizenship. Where Congress failed, the Court protected the national sovereignty of the people's Republic. It rebuffed the temptation to broaden the scope of Wong Kim Ark—a decision in which the Court imposed a foreign doctrine of nationality and trampled on the constitutional will of the people.

2However, due to an undetected legal technicality, this proved not to be entirely true, i.e., not for those born in the Canal Zone before 1937. Nevertheless, the State Department has always regarded the children born in the Canal Zone of U.S. citizens to be citizens at birth.

3In 2008, Senator Obama of all people proposed a bill that would have specifically granted citizenship at birth to the foreign-born children of military and diplomatic personnel—another example of the sort of idiocy we have come to expect from this know-nothing political panderer. There was no need for such legislation. Extant statute, in accordance with the Natural Born Citizen Clause, already provided citizenship at birth for all foreign-born children of U.S. citizens, and the proposed legislation could have been construed to mean that only the foreign-born children of military and diplomatic personnel acquired natural-born citizenship. Hence, such legislation would have been both redundant and potentially destructive. Certainly, it would not have passed constitutional muster with regard to the principle of equal treatment under the law.

Appendix B

Zimmer et al. v. Acheson: A Comedy of Errors

In addition to being ignorant of the fact that no federal court has ever officially ruled whether or not jus sanguinis imparts natural-born citizenship beyond the legal tradition of hereditary allegiance, that is, whether or not Congress' 220-year-old practice of the principle is valid under constitutional law, Soilers1 are generally ignorant of the source of the only dictum that emphatically comes down against it. Though the Tenth Circuit's blather in Zimmer et al. v. Acheson (1951) holds absolutely no water, especially given what was at the time the Supreme Court's prevailing dictum on the matter enunciated in Weedin v. Chin Bow (1927), one might expect its infamous asseveration to hold a prominent place in the Soiler's canon of repudiation along side the more ambiguous judicial line of dicta spawned by Wong Kim Ark.

The Appellate Court prattles:
There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer, provided: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

If Werner Herman Zimmer, by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.2

In Zimmer, the plaintiff's attorney argued that because the plaintiff's father (Werner Herman) had been a citizen of the Untied States at the time of the plaintiff's birth, the plaintiff (Harry Ward), though born in Germany, was a citizen of the United States and had been since the moment of his birth. The plaintiff's attorney would have been correct except for one thing: even if a certain requirement of citizenship retention for persons born abroad of U.S. citizens did not apply to him, he had indisputably forfeited his citizenship no later than March of 1940 by making an oath of allegiance to the Fuhrer when he was inducted by the German Army. And since the plaintiff had ceased to be a citizen of the United States before his daughter's birth, his daughter, born in July of 1940, was not a U.S. citizen either.

That's all the Tenth Circuit had to say in order to affirm the lower court's decision. Instead, because it conflated the terms native born and natural born in its mangled version of the Graysian concept from Wong Kim Ark, the Tenth Circuit got itself all tangled up in the trivia of residency requirements that may or may not have even applied to the plaintiff in any wise.

Of course, this calls for further explication.

As the Tenth Circuit observed, the plaintiff was born in Germany in 1905 under the terms of the Revised Statutes, Section 1993 of 1878. The plaintiff's father was a naturalized U.S. citizen at the time of the plaintiff's birth; hence, the plaintiff was indisputably a U.S. citizen at the moment of his birth under Congress' prevailing iteration of jus sanguinis. But because the Tenth Circuit alleged that all U.S. citizens were either native-born or naturalized, it stupidly wasted space considering the requirements of citizenship retention that applied to persons born abroad of U.S. citizen fathers and those that applied to persons naturalized in the United States. Statute did not allow for such a convoluted regime of citizenship retention; Congress stipulated one set of requirements for those who acquired citizenship abroad at the moment of birth via the law of the bloodline and another set of requirements for those who acquired citizenship in the United States subsequent to birth via the naturalization process. Considering both sets of requirements was senseless.

The term native born does not appear anywhere in the Constitution. Neither the Constitution, statute nor even the rest of case law contemplates a native-born citizenship in any sense whatsoever outside the principle of jus soli, and the first sentence in Section 1 of the Fourteenth Amendment that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." is not and was never intended to be a comprehensively exclusive definition of U.S. citizenship. Persons who become citizens of the United States subsequent to birth must be residents of the United States at the moment of their naturalization. The plaintiff was never a resident of the United States, and he acquired his citizenship before Congress ever imposed any requirements of citizenship retention on persons born abroad of U.S. citizens.

In other words, Congress does not countenance the Tenth Circuit's narrow view of jus sanguinis, let alone require persons on whom it confers natural-born citizenship by the law of the bloodline to satisfy the requirements of citizenship retention imposed on naturalized citizens proper. The very idea of the latter is especially absurd given that Congress cannot revoke the citizenship of any minor on whom it confers citizenship at birth, but did impose residency requirements on all naturalized citizens, including minors, in the Revised Statutes Act of 1906, Section 2, 34 Statute 1228; 2 F.C.A. Title 8, § 17 (effective March 2, 1907):
When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years. . . .

While the parent(s) or guardian(s) of minors—whether the latter be natural-born or naturalized citizens—cannot renounce their charge's citizenship, because the citizenship of naturalized minors is contingent on the citizenship of their naturalized parents, a naturalized adult could, at the time, forfeit the citizenship of his naturalized children as he forfeited his own by causing them to reside outside the territorial and jurisdictional limits of the United States for two or five years respectively.3
In its obiter dictum, the Tenth Circuit reasoned that if the plaintiff did not forfeit his citizenship by failing to make a declaration of intent with a U.S. consulate before his eighteenth birthday as required of persons granted citizenship at birth by statute, then he forfeited it at the age of twenty-three by residing for five or more years abroad past his eighteenth birthday. But since the plaintiff had never in his life established residency in the United States and was allegedly a naturalized citizen, why didn’t he lose his citizenship at the age of two or five?

The Revised Statutes Act of 1906, Section 6, 34 Stat. 1228, 1229 reads:
[A]ll children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.

Because the plaintive was born in 1905 under the 1878 version of Section 1993, it was not clear whether or not the requirements attached to the 1906 version (effective March 2, 1907) could be applied to him. A strict interpretation of the statute's language and the conditional nature of citizenship by statute notwithstanding, legal precedent argued against the retroactive imposition of additional provisos.

Before 1907, Congress had never attached any additional provisos to the conferral of citizenship via jus sanguinis, and the attorney for the plaintiff argued that Congress could not impose new requirements on persons who had already obtained their citizenship under a previous statutory regime, especially not on those who had acquired their citizenship at birth. On the other hand, he argued, Congress never intended to apply the new provisos retroactively anyway, insisting that legal tradition coupled with the terms of the Nationality Act of 1940, which superceded the technically flawed and ambiguous language of the Revised Statutes of 1906 and 1934, corroborated his contention.

In other words, this would appear to be one of those reasonable exceptions to the general rule enunciated by the Court in United States v. Manzi (1928) that "[c]itizenship is a high privilege, and when doubts exist concerning a grant of it, generally at least, they should be resolved in favor of the United States and against the claimant."4 While the conceivably strictest interpretation of a statute's language should be applied against claimants who were born after the statute's effective date, any retroactive potentialities of ambiguous language should be interpreted in favor of claimants. After all, wouldn't a statute that unambiguously imposed retroactive stipulations that negatively impacted persons who had already attained their citizenship under more favorable terms be unconstitutional or, at the very least, violate a well-established principle of American jurisprudence?

In Zimmer, the Tenth Circuit, like the district court before it, implicitly allowed that the attorney for the plaintiff was right.

But had the plaintiff not effectively renounced his U.S. citizenship in 1940 and had the lower court unreasonably held that the retroactive provisos of 1906 were constitutional, the Tenth Circuit, in all probability, would have happily rejected the attorney's argument and upheld the lower court's decision on that basis as well, for it appears that the Tenth Circuit, given its unwarranted classification of the plaintiff's citizenship and, as we shall see, its convoluted application of the residency requirements imposed on naturalized citizens proper, was determined to quash the plaintiff's claim one way or another.

If additional provisos could not be retroactively imposed on persons who obtained their citizenship at birth by the law of the bloodline, then, perhaps, in violation of the same principle, additional provisos could be retroactively imposed on persons who obtained their citizenship subsequent to birth through the naturalization process. That's the ticket! But even laying aside the facts that Congress obviously did not legislate the latter and has held since 1790 that jus sanguinis proper imparts natural-born citizenship, exactly how would this tortured bit of lunacy work?

Well, as it turns out, the provisos enacted by Congress as rewritten by the Tenth Circuit would work together, albeit, each in their turn. According to the logic of the Tenth Circuit, if Congress had not granted children born abroad of U.S. citizens eighteen years to declare intent should they continuously reside abroad, the plaintiff would have lost his citizenship at the age of five, not two, since "the foreign state from which he came" would not have been the Republic of Germany, but the Republic of the United States of America. That’s oddly rational, as the original country of the plaintiff's allegiance, as far as the United States was concerned, was America, not Germany. But because he was supposedly a naturalized citizen, after continuously residing "for five years in any other foreign state" past his eighteenth birthday, he lost his citizenship at the age of twenty-three.


In other words, since the plaintiff acquired citizenship at birth by the law of the bloodline, he was required to declare his intent to establish U.S. residency and make an oath of allegiance no later than the age of eighteen in order to retain his citizenship, which the plaintiff did not do, by the way. Ah! But perhaps these provisos could not be constitutionally applied to him since he acquired his citizenship before they were enacted. In that case, since the plaintiff was not a native-born citizen, he was subject to the provisos that revoked the naturalized citizenship of those who resided abroad for more than two years in the country from which they came or for more than five years in any other foreign country. But the plaintiff was indisputably a U.S. citizen at the moment of birth and, therefore, could not lose his citizenship before the age of eighteen. The country of his origin was America as far as U.S. law was concerned. Hence, he could not be stripped of his U.S. citizenship after only two years of residency in Germany past his eighteenth birthday, but he could be stripped of it after five years of residency in Germany past his eighteenth birthday. (But he was not "naturalized" in the United States, and short of an act of expatriation, if the retroactive provisos pertaining to persons who acquired citizenship via the law of the bloodline could not be applied to him, he could never lose his citizenship! Oh, never mind.) But even if neither one of these distinct sets of requirements could be retroactively applied to the plaintiff, he forfeited his citizenship in 1940 by committing an act of expatriation.

Well, it took the indirect route and entertained some rather bizarre notions along the way, but--by God!--the Tenth Circuit did finally arrive at the very same destination as that of the lower court before it: that is, he lost his citizenship in 1940 at the age of 35 as a result of committing an act of expatriation.

While Jill A. Pryor goes on to defend original intent, albeit, with what this critic regards to be a needless concession to the dicta of a renegade judiciary, she writes:
The first sentence of the Fourteenth Amendment has been interpreted to mean that there are only two methods of acquiring citizenship: by birth in or by naturalization in the Untied States. But this dichotomy is not a proper basis for concluding, as the circuit court in Zimmer v. Acheson did, for example, that the only two classes or citizens are native born and naturalized. . . .5

That's an understatement. Given that the Tenth Circuit's ratio decidendi was correct and its absurdities were merely the dicta of an appellate court, Zimmer is by no means the most tragic decision ever handed down by the judiciary, but it is certainly one of the most tragically stupid.
1See The Obama Controversy and the Soiler Factor, Michael David Rawlings.

2191 F.2d 209; Zimmer et al. v. Acheson; No. 4259; September 27, 1951; paragraphs 12-14;

3Though never directly tested, Congress essentially admitted in the Nationality Act of 1940 that the opened-ended language of 34 Statute 1228 of the Revised Statutes Act of 1906 was unconstitutional—insofar as it could be construed that a minor could lose his U.S. citizenship accordingly. The Nationality Act of 1940 made it clear that only adult citizens could lose their citizenship as a result of failing to fulfill the requirements of retention or by committing an act of expatriation, though a competent minor can renounce his citizenship.

4United States v. Manzi, 276 U.S. 463 (1928), No. 204, paragraph 15,

5"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two-Hundred Years of Uncertainty, III. The ‘Naturalized Born’ Approach", The Yale Law Journal, Vol. 97, 1988, pg. 893,

Appendix C

Physical Presence: Lefty's Magic Wand

In Plyler v. Doe (1982), the Court struck down a Texas state law that denied illegal alien children access to public education. The majority, citing United States v. Wong Kim Ark (1898), which left the door wide open, held that the Fourteenth Amendment's phrase subject to the jurisdiction thereof (that of the federal government) and its phrase within its jurisdiction (that of the respective state) to be synonymous in terms of physical presence in the United States.1 That was devastating enough, but then it went on to opine that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful".2 Talk about chutzpa. It was precisely that distinction on which the several states based their denial of nonessential public services to illegal aliens.

Under natural and constitutional law, the American people do not owe illegal aliens anything. The drafters of the Fourteenth Amendment never intended that "the equal protection of the laws", let alone the privileges of U.S. citizenship, be extended on the basis of physical presence alone. By definition, neither illegal aliens nor even the children born to them in the United States are subject to the jurisdiction of the United States or to those of the several states. Further, illegal aliens—including minors—are still subject to immediate detention and deportation, that is, when leftist judges and civil rights attorneys aren't circumventing their apprehension by concealing their true identities from the citizenry's enforcement agencies behind "John" or "Jane Doe".

The word "and" coupled with the phrase "subject to the jurisdiction thereof" in the Fourteenth Amendment plainly means that certain persons born in the United States may be excluded from citizenship and nonessential public services. For example, the federal government cannot compel public schools at the state or local level to educate the children of foreign diplomats. But like the mysterious right of privacy over the lives of others unearthed by the Court in Roe v. Wade (1973), physical presence was the magic wand that the Court wielded in Plyler in order to make yet another inconvenient exception of a general rule—namely, illegal aliens—disappear. Presumably, the American-born children of foreign diplomats and foreign invaders of the traditional sort are still excluded from partaking of the judiciary’s (legislative) largesse since they weren't specifically mentioned in the binding component of the Court's decision. They will be strapped to the back of the American taxpayer later when it dawns on the Court that the doctrine of physical presence logically erases all exceptions.3

Now that the jurisdiction of the Fourteenth Amendment and, consequently, those of the several states are the hostages of mere physical presence, only an amendment to the Constitution would vacate the betrayal of America's national sovereignty perpetrated by the Court in Wong Kim Ark and Plyler v. Doe.
1Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2Plyler v. Doe, 457 U.S. 202 (1982), No.80-1934 (Origin No. 80-1538, Fifth Circuit Court of Appeals), pg. VI,

3The Heritage Foundation estimates that Plyler v. Doe costs American Taxpayers $30 billion a year in state and federal services.

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