After my recent discussions with Mario “The Mangler” Apuzzo, Esq. (see notes below), it looks like there must be THREE KINDS of natural born citizens. Once, there were but two:
1. Natural born citizens born inside the United States;
2. Natural born citizens born outside the United States as declared by Congress.
If we assume for a moment that Apuzzo is right, and that natural born citizens born inside the United States must be born to two citizen parents, then what in the world do we do with the Third Kind of natural born citizen??? The kind described in the Wong Kim Ark (1898) (WKA) decision.
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,  [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.
And, the kind described in this case, cited with approval in WKA:
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
So, let’s see, Rhodes says:
All persons born in the allegiance of the United States are natural-born citizens;
And the Supreme Court says the same thing, and defines “allegiance” to boot:
1. aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance of the English Sovereign, [unless within the two exceptions.]
2. 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.,
Well, that means that children born here of aliens, who are not foreign diplomats or invading soldiers, are within the allegiance and thus natural born citizens. That sounds right to me. I wonder if the WKA Court ever said any of this again??? Yep. Lookee! Here’s a big one, from Section V:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;
Wow! it looks like the WKA Court is even tying the 14th Amendment into this whole thing, but let’s ignore that for a moment. The Court clearly calls these children born here of aliens, natural born. And, the WKA Court is very comfortable equating natural born subject and natural born citizen, because in section III, they cited this case with approval:
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
Well, lets substitute the terms subject and citizen, and see what we get:
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural citizen, for if he hath issue here, that issue is a natural-born citizen;
All of the above analysis is unnecessary for most of us, because any honest and intelligent reading of Wong Kim Ark readily leads to the conclusion that the 14th Amendment simply affirmed the Article II common law notion of natural born citizenship and put it safely into the U.S. Constitution.
The reason I am going through all this to show that even to Birthers, there was definitely some kind of creature discussed in WKA called a natural born citizen who did NOT have two citizen parents. This creature, this WKA natural born citizen, could even have two alien parents, as long as he was born inside the country. Birther cryto-zoologists should be high-fiving each other and rushing off to the woods with camera traps. This is the equivalent of finding Big Foot!
Non-Birthers already knew about this, and it is no surprise to us. In fact, we tend to notice a suspicious lack of the phase “two citizen parents” running through the case at all. But why haven’t the Birthers ever admitted that there is some species of Natural Born Citizen in WKA that doesn’t match up to their Imaginary Law requiring two citizen parents??? The common law creature is certainly discussed and talked about. My goodness, Sections II and III of the decision are all about him, and he surfaces periodically throughout the rest of the decision.
Hmmm, let’s redo our list and see what the reason might be:
1. The Birther natural born citizens born inside the United States, to two citizen parents, based on French law, and checked-out library books;
2. Natural born citizens born outside the United States as declared by Congress; and
3. The WKA natural born citizens born inside the United States, to parents who are neither foreign diplomats, nor invading soldiers, based on English common law, American common law, and a long line of legal cases.
Yes, comparing No. 1 to No. 3, I can see why the Birthers treat the WKA natural born citizen like a red headed stepchild at a family reunion. That whole French law-library book foundation seems a tad shaky. Is it safe??? Here, let me touch it with my mouse. . .click. . .
Note 1. The Image. I do not know which movie this is from. I saved this picture in the past without a link. I searched images of old science fiction movies without success. If anybody knows, please tell me.
Note 2. The Squeeky – Mario Discussions link:
Note 3. Ignore This Note! I am just giving myself a place to link a silly picture: