Why most citizens of “The United States” can’t be President
April 11, 2014 1 Comment
Are you an American attorney? Maybe even an immigration attorney? If you are, -as well as if you are not, it is almost certain that you do not understand the origin, history, and nature of the thing you know as “citizenship”.
Why would you not understand something so basic? Because your teachers did not understand it, nor did theirs, nor the authors of their textbooks, -and on back for countless generations and centuries.
I’ve managed to illuminate the subject in large numbers of expositions, but a new and very surprising realization has come to my awareness, one that will be revealed following these few re-capping paragraphs:
Are you an American citizen? What actual proof do you have? Do you have a Citizenship Certificate? Probably not, but most likely you have a birth certificate that says you were born in such-&-such state, right? Well, by American law, that does not necessarily make you a citizen. Nor does it explain what a citizen actually is (nor explain what “The United States” actually is).
Federal law and Federal policy are two different things, as is seen in what Barack Obama has done with the Affordable Care Act. It has specific legal deadlines and commencement dates which he simply tossed out the window and replaced with his own self-chosen policy, one which his executive branch is ordered to follow in contradiction to the United States Constitution.
You probably recall learning in history class about the so-called “Gentleman’s Agreement” between the U.S. President and the Emperor of Japan which informally limited Japanese immigration.
Wikipedia has this to say about gentlemen’s agreements:
“This type of agreement may allow a nation to avoid the domestic legal requirements to enter into a formal treaty, or it may be useful when a government wants to enter into a secret agreement that is not binding upon the next administration. The essence of a gentlemen’s agreement is that it relies upon the honor of the parties for its fulfillment, rather than being in any way enforceable.
According to another author, all international agreements are gentlemen’s agreements because, short of war, they are all unenforceable. Osmańczyk pointed out that there is a difference between open gentlemen’s agreements and secret diplomatic agreements.”
The Secretary of State’s agreement with the Japanese foreign minister was known as a gentleman’s agreement because it was not actual law nor treaty. Congress never voted on it. It was simply an adopted policy by the chief executive, and followed by the branch of government that he ruled. Similarly, the U.S. State Department and the U.S. Citizenship & Immigration Service do not follow the actual law.
They adhere to a policy put in place in 1898, which goes decidedly beyond the law and thus is without legal foundation.
By that policy you are considered to be a citizen, but that policy is not based on a delineated principle but on a sort of “Cliff notes”, “rule of thumb” or symptom-indicator when it comes to citizenship, and it is the location of one’s birth as shown on a birth certificate.
Since it is essentially true that those born in the United States are almost without exception American citizens, everyone born here is therefore assumed to be a citizen, -but exceptions nevertheless do exist and maybe you are one of them.
Were you born in the U.S. of a foreign ambassador serving here? How about American Natives who refuse U.S. citizenship? How about illegal aliens? How about aliens who have over-stayed their Visas? How about aliens who are merely tourists or guests of the U.S. government?
None of those types of foreigners are subject to the fully sovereign authority of the American government, and therefore no child born to them is either. That disqualifies such a child from the citizenship bestowed by the 14th Amendment which only extends to children of immigrants because only they can be presumed to be fully subject to American authority.
Everyone who has followed what I’ve written already knows that, but what is new is my realization of the fact that such citizens are different from the type of citizen that you are. How so, you ask? Because not only is the origin of their citizenship not natural, (unlike you who were born of Americans) but the entity of which they are citizens is different also.
The entire subject of citizenship cannot be understood without understanding the dichotomy between their form of citizenship and yours. You inherited your citizenship from your parents who possessed the unalienable right to own you and have you belong to the same family, society, State, and nation to which they belonged.
Those born of immigrants had no such parents and their parents had no such American right. Their children were allowed to be Americans by the grace of the U.S. Supreme Court which reinterpreted the 14th Amendment, with its inherently ambiguous nationality clause.
Just as African-Americans were allowed to be accepted as Americans, so the children of immigrants joined their ranks three decades later thanks to a Supreme Court opinion. They were allowed to be American citizens from the day of their birth, but what sort of citizen were they? What was the distinction that differentiated them from those born of Americans?
As previously stated, they had foreign parents, but there is something else that is different also, and that can only be explored by asking the question: “ What, exactly, are they a citizen of? Are they a citizen of 1.) The United States, 2.) the UNITED STATES of AMERICA, or 3.) a State that is a member of the union of the States of America, iow; the united States?
Those are three distinctly different entities, and that difference explains everything once it is understood. And what it explains is something that has hardly ever entered the mind of anyone born in the last century or more.
The bottom line of the difference is that if you are a citizen of “The United States” then you are likely to not be a natural born citizen and thus not eligible to be President. And that is even more likely to be true if you were born as a citizen of “The United States” because most so born were born of immigrant foreigners.
One cannot be born as a citizen of The UNITED STATES of AMERICA because that name represents the entirety of the nation, -all 50 States, Federal territories, government offices and personnel, plus the military. One cannot be born in (nor of) more than one sovereign entity unless born in more than one body.
But one can be born as a citizen of “The United States” in one of two possible ways: by being born of American parents on Federal Government land, or by being born of immigrants anywhere in The UNITED STATES of AMERICA.
All immigrants’ alien-born children are included as U.S. citizens via the 14th Amendment’s nationality clause, -which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
Two government entities are referenced: The United States and the individual State. It is not worded with a small-case letter “U” in “United”, indicating it was referencing the nation and not “The united STATES of America. It was labeling such immigrant-born children as being Federal Government citizens first. If “the united States” were assumed to be its intent, then the result would be an impossibility. One cannot be a citizen of all of the States of the union unless sovereignty does not exist.
With the eventual Supreme Court ruling regarding what the words of the 14th Amendment meant for children of immigrants, it is clear that the amendment got the order of those two entities listed in the proper order, -with the nation or national government mentioned first, and the State of birth mentioned second.
For babies born of American parents, the opposite was true. They were first and foremost citizens of the State of their birth, and through its membership in the Union of the States, their State citizenship extrapolated by extension into national citizenship.
But those born of foreigners were first and foremost citizens of the American government, and secondarily were citizens of the State of their birth since they were citizens primarily by national law and not State law.
They may have also been citizens by original State law dating back to a State’s independence and first Constitution, -pre-dating the high court opinion by a century, but since there was a disharmony, a divergence between State law and national policy regarding limitations on citizenship, (the feds not recognizing dual-citizenship by native-birth) the high court’s opinion settled the matter in favor of federal constitutional (amendment) law, and native-birth citizenship was officially “in” at the Federal level, -no longer just limited to the State level.
That supposedly over-rode the authority of State law since it was based on an amendment to the Constitution. So if a State’s citizenship law said that its native-born children of foreigners were not recognized as citizens, the court opinion would have nevertheless recognized them as national citizens as well as State citizens.
Barack Obama is considered to be a citizen of “The United States”, but that status, -as connected to his birth circumstance, renders him unqualified to be President. Let’s explore the “why” behind that fact.
Before the Declaration of Independence, all of the colonies had one sovereign; King George III, but after the declaration they had no sovereign. They also had no American nation. They instead had a new alliance of the 13 independent, sovereign nation-states of America. Each of them was a unique separate country, having their own history, traditions, government Charter, municipal law, and within months or years, their own Constitutions and central governments.
Everyone in the greater aggregate country of “America” was acknowledged internally as a member of one thing and one thing only, and that was the country of their habitation, and probable birth. They were citizens of their colonial homeland turned newly independent nation-state, -joined in an alliance with the 12 others in order to fight for their liberty.
They were citizens of the self-labeled Commonwealths of Virginia, Pennsylvania, and Massachusetts, as well as nation-states such as New York, Maryland, Rhode Island, etc. There was no such thing as a United States Government because there was no American nation yet. All citizens were citizens of the individual sovereign nation-states of America.
So, since there was no United States government and thus no nation; there was no such entity as “The United States of America” signifying a nation, its constituent parts, and its government, existing as an entity on the world’s stage.
What existed was simply The united States (nations) of America, -an alliance of the several States of America, -and with far less central control than the European Union has today. It has economic union and cooperation and central control in other matters, but not political union.
Because of that lack of political unity, no one can say: “I’m a citizen of the United States of Europe”. They can only say; “I’m a citizen of France”, -or Germany, etc. But if one were very cosmopolitan, one might say; “I’m a citizen of the European Union.” just as the representatives of the fledgling nations of America could have said; “I’m a citizen of the American Union of States.
So just as Europe remains politically separated, the situation was exactly the same in post-July 4th 1776 America. One could not say: “I’m a citizen of The UNITED STATES of AMERICA since the nation those words (and capitalization) represent, simply did not exist yet.
But when it came to writing a national Constitution 11 years later, candidates for elective national office had to be described in order to prescribe qualifications for office, the first of which was citizenship, followed by age and years of citizenship.
They wrote that a candidate for Congress had to be a citizen of the United States at the time of the adoption of the Constitution, but with the “U” in “united” capitalized, the effect was an ambiguity. A constitutional nation did not yet exist since the Articles of Confederation were not a strong enough bond with a strong enough central government to constitute a unified sovereign entity. So the word “united” probably should have not been capitalized, -but doing so was the habit in that day, as seen throughout the entire Constitution. Nouns are capitalized everywhere. But undoubtedly, the meaning behind the words was that one had to be a citizen of the united STATES of America… (for X number of years).
Reading it as printed erroneously conveys the idea that one had to be a citizen of the nation for X number of years, but that thought did not exist in anyone’s mind. Everyone only recognized State citizenship as a primary reality, and nation membership as a secondary extrapolation or extension of citizenship connecting one to the individual State of his residence (and… probable birth).
An aspiring candidate, or an elected one, had a duty not first and foremost to serve an aggregate union of states but to serve the people of the nation-state that granted him its citizenship via it’s naturalization process. That meant the State that one emigrated into, and became a citizen of.
They would represent their State interests, -even if in opposition to the interests of other States. They were not one big happy family of States. [They were akin to a the early Greeks of the city-state era, drawn from large clans of competitive cities, but united for defense or sports competition.]
There was much they had in common, but also much that separated them, with the North vs the South, Free-states vs Slave-states being the biggest divide.
Another divide was that between the States and Federal territory. Federal territory was not an element of the Union of the States and their constitutional compact. It was property of the federal government alone, -just like the American colonies were the personal property of the King of England, and not the property of Great Britain.
What was the nationality status of a baby born on federal land, such as Louisiana, or Alaska? It was not a citizen of the father’s home State since he and his wife may have abandoned it for emigration westward. There was no State government in the westward lands, so by default, such a child had to be seen as a National of the United States Government, and by extension, the nation as a whole.
With States, it was sort of the opposite. State citizens were first and foremost just that, and only by extension, also citizens of the nation.
One could call such U.S. Territory-born children “natural born nationals” of the American Government by being born of Americans, -with the States having no factor in the relationship.
In a way, that situation is akin to the Calvin case in the early 1600’s Britain. The union of the united States would be equivalent to the nation of England, while federal lands would be equivalent to the kingdom of Scotland. What connected the two?
In Britain it was the fact that one King became the monarch of both Kingdoms and held both Crowns. In America, the federal government replaces the King by it being the connecting sovereign of the two separate and detached realms. Thus, by extension, each realm was connected and those born in “the West” were natural members of the joint realm known as “The United States of America ”.
Therefore, although they were not natural citizens of any State of the Union, they were natural members of the nation as an aggregate entity, born as Americans, -and as such could be viewed as eligible to be President of the aggregate entity.
Since the Constitution’s “natural born citizen” requirement doesn’t say what entity one must be a natural citizen of, by default it is in reference to a man’s citizenship in his sovereign home State, not the future aggregate nation.
It states: “No Person, except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.”
So, since “THE UNITED STATES” did not yet exist at the time the Constitution was adopted, all citizens were citizens of the united (but separate) STATES. State citizens, -either natural ones or naturalized ones. Both could serve. And later, one who was something new, -a citizen-born non-State American national, could also claim quite reasonably that they were a natural born citizen of the American nation.
U.S. Territories progressed from wilderness to civilization to statehood. The non-State Federal District of Columbia developed at the most rapid pace, but not toward statehood. With the development of civilization, the inhabitants became the CITIZENS of a Territory, -having responsibility to obey and support the rule of law & order.
They were not citizens of a State, but were nevertheless citizens of an American entity, and subject to the American government and its agents.
To progress beyond this point, it is necessary to come to an understanding of the difference between citizenship and nationality. Citizenship is a status related to the internal rights and obligations of natural national members, but nationality is strictly a perspective of governments; mostly toward members of other nations, but also toward some members within a government’s sovereignty.
As seen in the Constitution of Cuba, one can be a resident and national of Cuba, and yet not be a citizen because one has no natural right of citizenship due to foreign parentage.
If a couple with children emigrates to Cuba, and eventually seeks and obtains naturalization, it will make the parents Cuban citizens (but of a limited nature with restricted rights) while their children will not be acknowledged as Cuban citizens before a certain age because they were born as foreign citizens. But they will be viewed, via their parental connection, as Cuban Nationals.
They belong to the nation of Cuba, just as their parents then do also. That means they are not viewed as foreigners or aliens, but they are not elevated to the status of Citizen. They are Cubans but not Cuban citizens.
America has a similar situation when it comes to the native inhabitants of American Samoa and the American Virgin Islands, -with Puerto Rico and Guam previously being in the same status. They are United States Nationals, but are not U.S. citizens. Nationals do not have the rights nor the obligations of citizens.
It would have been within the sovereign authority of the Cuban government’s Constitution writers to allow immigrants only the status of Nationals but not Citizens because they were not indigenous Cubans nor born of Cubans. They would be a product of the national government via its nationality law.
It was the same in America in regard to the still sovereign governments of the nation-states of America. They could make foreigners into whatever they wanted to, -whether new citizens or merely new State nationals.
Wanting all members of society to be Americans and equal, they chose the high road of making them (via naturalization) co-citizens endowed with all of the civic and property rights of fellow citizens.
That covered both those who immigrated & naturalized as well as their children, -whether born within the State or not. What they were allowed to be was the result of a decision of the natural citizens of each State when writing their nationality clauses.
Anyone that a State considered as one of its citizens was to be recognized by the other States as being just that. That was a reciprocal arrangement. “You make citizens as you see fit, and we will recognize them as such, and you will do the same in regard to our citizens.”
That would be the arrangement with or without a new central government. But once one was formed, it had to have a policy regarding nationality for dealing with Americans traveling, living, or being born beyond U.S. borders. It had to act as a nation acts in regard to those it deemed to be its own.
So then the question was, who would be its own? Are those who are citizens of only the American States deemed to be Americans? What if they are also a citizen of another nation as well?
end of Part 1.
by a.r. nash april 2014