ANTI-BIRTHER BRIEF

QUESTION PRESENTED

Does the term "natural born citizen" under Article II, Section 1, Clause 5 of the United States Constitution require both parents to be citizens of the United States at the time of birth?

SUMMARY OF ARGUMENT

Appellants and their counsel appear to be card-carrying members of the so-called birther movement that seek to prove the President is not a "natural born citizen" and hence ineligible to be President. Apparently unable to prove their preposterous theory that the President was born in Kenya, the movement has spawned a number of equally bizarre alternative theories of ineligibility, including the one now before this court. Here, the Appellants are asking nothing less than for this court to overturn a presidential election on a novel definition of "natural born citizen" that requires one's parents to be citizens of the United States at the time of birth. Such a definition, of course, has no support from our courts or our history.

The fact that many terms in our Constitution are not specifically defined has sometimes led people to propose novel and inventive definitions to suit their political causes. However, our courts have always recognized that the Constitution was written mostly by common law lawyers, sent to a convention by states that had adopted the common law and is full of undefined terms that were terms of art under, and in some cases had no other meaning other than with respect to, the English common law. Not surprisingly, the Supreme Court has always told us to look primarily to the common law to define terms in the Constitution, including the phrase "natural born citizen." Thus, the phrase "natural born citizen" has always been understood to descend from the English common law and Lord Coke's famous report in Calvin's Case, 77 eng. Rep. 377, 409 (K.B. 1608) which embraced a rule based upon the locality of birth (jus soli) rather than parentage or descent (jus sanguinis) and made natural born subjects of anyone born within the realm regardless of parentage, subject to a few discrete exceptions. The correctness of such conclusion is underscored by the fact there appears that there were no alternative definitions of "natural born" in the founding era or the early republic, the fact that there is overwhelming authority that the English common law defined citizenship generally in the founding period and early republic and that early interpretation of "natural born citizen" in the Constitution uniformly followed the English common law meaning. The correctness of this conclusion is further underscored by the fact that after the debacle of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the 14th Amendment was adopted to expressly incorporate the English common law rule of Calvin's Case into the Constitution so it would never be ignored or misinterpreted again.

It is clear that the Appellants have little or no authority to support their two-parent theory. Their primary argument appears to be that the meaning of "natural born citizen" can be traced to the writings of Switzerland's Emmerich de Vattel. However, they apparently cannot support this claim with any early American authority at all. Their other arguments appear to consist of cherry-picking insubstantial authority such as the opinion of one Congressman 79 years after the federal convention, trying to re-interpret the 14th amendment based on cherry-picking a few snippets of favorable legislative history from the 39th Congress and trying to read support for their theory into court cases that, honestly read, do not support their theory.

What is clear is that our textbooks, dictionaries and case law have long taught us all that the President must be born in the United States and no one in the last election, save a few political partisans on the far fringes of the Internet, ever imagined parentage mattered at all. The native birth requirement is so ingrained in our culture that the Senate thought it necessary to address John McCain's eligibility due to his foreign born status, even asking two of our foremost constitutional experts to give their opinion on the subject. Apparently, no Senator even thought to question the eligibility of President Obama and the experts the Senate consulted with respect to McCain made clear that birth in the United States alone was sufficient to confer "natural born" status. While electoral losers in banana republics may be able to change the rules after the election results are in, in our democracy we tend to think the rules should not be changed.

ARGUMENT

I. OUR COURTS HAVE MADE CLEAR THAT UNDEFINED TERMS IN THE CONSTITUTION SHOULD BE DEFINED BY THE ENGLISH COMMON LAW

Anyone who went to law school knows that "[t]he whole structure of our present jurisprudence stands upon the original foundations of the common law." Justice Joseph Story, Commentaries on the Constitution of the United States, pg. 65 (1833). The common law was in place in all the states sending delegates to the constitutional convention, see, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793), with most states expressly adopting the common law in their original post-independence constitutions, some adopting it by early statute and in the few states “where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal.” James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894). Although the common law in any state was not necessarily identical to the common law in England due to differences in local precedents and statutes, these differences were minor and it is clear that the common law in place in the states followed the fundamental maxims and rules of the English common law. See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall) at 435; F.W. Hill, The Common Law, An account of its Reception in the United States, Vanderbilt Law Review, pg. 796-97 (1950). While there was bitter debate in the early republic as to whether the English common law was adopted as a matter of federal law, even the most vocal opponents of a federal common law admitted that "its maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature…" St. George Tucker, Blackstone Commentaries, App. E, pg. 429 (1803). Not surprisingly, there is little question that many provisions of the Constitution were derived from the common law and English law generally. See, e.g. Justice Antonin Scalia, Originalism, the Lessor Evil, 57 U. Cin. L. Rev. 849, __ (1989); Cass Sunstein, A Constitution of many minds: why the founding document doesn't mean what it meant before, pg. 200-01 (2009)(quoting Justice Scalia). Regardless of how much of the Constitution was based on the common law, with respect to the language used in the Constitution, the Supreme Court has long recognized the Constitution was mostly written by common law lawyers trained on Blackstone and Coke and should be interpreted in such light. For example, according to Chief Justice Taft:

"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood."

Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).

A. Our Courts Have Specifically Stated the "Natural Born Citizen" Is To Be Defined By The English Common Law.

The term "natural born citizen" is not defined in the Constitution and apparently was inserted into the Constitution without debate. While our courts have told us to look to the common law to define undefined terms in the Constitution generally, our courts have specifically told us to look to the English common law to define "natural born citizen." In U.S. v. Wong Kim Ark,169 U.S. 649 (1898), the seminal citizenship case in our history, the Supreme Court held that the citizenship clause of the 14th Amendment was declaratory of existing law and such existing law was the jus soli English common law rule of Calvin's Case which had defined citizenship under the original Constitution. The court began its analysis by stating that "[t]he Constitution of the United States, as originally adopted, uses the words 'citizen of the United States,' and 'natural-born citizen of the United States'" and that "[t]he Constitution nowhere defines the meaning of these words." Id. at 654. Accordingly, "[i]n this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution....'[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' Smith v. Alabama, 124 US 465, 478 (1888)." Id. at 654-55. The court then goes on to define in detail the jus soli English common law rule of Calvin's Case, concluding as follows:

"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. 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."

Id. at 658. (emphasis added). Hence, the English common law rule of Calvin's Case that defined allegiance by place of birth and made children of aliens natural born subjects "continued to prevail under the constitution as originally established" or, in other words, was incorporated into the Constitution. In case there was any doubt to the applicability of such principle to the definition of "natural born citizen" in the Constitution, the court goes on to quote the only two Supreme Court justices who had specifically defined "natural born citizen" at such point, first citing Justice Curtis in his famous Dred Scott dissent:

"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"

Id. at 662. The court then cited Justice Swayne in U.S. v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866):

"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."

Id. at 662-63. The court went on to cite multiple authorities stating that "citizen" and "subject" were interchangeable terms, id. at 663-65, and authority after authority stating that allegiance and citizenship at birth in the United States had always been determined by place of birth under the jus soli rule of Calvin's Case, id. at 650-67, before holding the 14th Amendment to be declaratory of such jus soli common law rule. Id. at 693. Wong Kim Ark's discussion of "natural born citizen" was technically dicta, it was necessary to the court's holding. Once the court decided that the 14th Amendment was declaratory of existing law, it needed to tell us how the existing law was consistent with the original Constitution, our ultimate law.

Minor v. Happersett, 88 U.S. 162 (1874) also contained dicta telling us to look to the common law to define "natural born citizen.” This court stated that under the common law children born in the United States to citizens parents were "natural born citizens." The court goes on to state that there have been doubts that birth within the jurisdiction confers such status "without reference to citizenship of parents," but declined to resolve such doubts as it wasn't relevant to the case at hand. Appellants try to read some support for their position in such statement of doubt. The court, of course, did not say who had doubts or what the doubts were. The court did not specify if the doubts were about children of aliens generally or about the exceptions to the general rule. Appellants have not shown, as we are not aware of, any authority in England or America stating any doubt under the common law about native born children of aliens being "natural born." If any doubt did exist, it was obviously addressed by the court in Wong Kim Ark where the majority exhaustively examined the common law rules in England and America without finding any such doubt and even the dissent in such case neither expressed or cited any such doubt with respect to the common law. We would suggest that Appellants locate this long lost proponent of doubt and we will then respond to it. Until then, we would hope that Appellants understand that a case that declines to address the only relevant issue with respect to Obama's eligibility, i.e., whether a native child of aliens can be "natural born," is not authority for the issue it doesn't address. The definitive statement from Minor is that "natural born citizen" is to be defined by the common law and the legal authorities on the jus soli common law are clear on the meaning of such term.

While there are a plethora of early cases making clear that the jus soli English common law rules defined citizenship in America, see, ante at pg.__, the first case that appears to specifically define "natural born citizen" appears to be Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829) where the court stated:

"The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like."

Id. at __. The famous case of Lynch v. Clark, 3 N.Y.Leg.Obs. 236 (1844) appears to be the first case to comprehensively examine the subject. After exhaustively looking at the early legal authority in America, the court determined it must look to the English common law to determine the status of a child of aliens temporarily residing in this country. The court concluded:

"Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegience of the United States, whatever were the situation of his parents, is a natural born citizen... The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not."

Id. at 246. In Perkins v. Elg, 99 F. 2d 408, 410 (D.C. Cir. 1938), modified and affirmed, 307 U.S. 325 (1939), the Circuit Court looked to the English common law to determine that Elg was a natural born citizen:

"The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States."

Id. at 410. The Supreme Court acknowledged, but did not comment, on the Circuit Court's determination of natural born status. Finally, in Ankeny v. Governer of the State of Indiana, (Ind: Court of Appeals 2009), the Court, citing mainly Wong Kim Ark, again looked to the English common law to hold that President Obama was a natural born citizen. The court concluded:

"we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States natural-born citizens."

Id. at __. Finally, there have been numerous cases that call native-born children of aliens a "natural born citizen" or simply use the term "natural born citizen" solely in reference to place of birth without explanation. See, e.g., Jacksons v. Sanders, 2 Leigh 109 (1830), Nyman v. Erickson, 170 P. 546 (Wash. 1918), State ex rel. Carroll v. Sup. Ct. of Washington, 193 P. 226 (Wash. 1920), Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961), Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983), DeTomaso v. McGinnis, 970 F2d 211 (7th Cir. 1992), Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999), Sumiye Umeki Yamauchi v. Rogers, 181 F. Supp. 934 (D.C. Cir. Dist. 1960), Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir., 2009).

Appellant has not shown, and we are unaware of, any majority opinion in our history that has stated that a natural born citizen must have two citizen parents or specifically defined the term other than with reference to the common law. Appellants can only point to the two-judge dissent in Wong Kim Ark that stated it did not believe children of aliens could be "natural born citizens," Wong Kim Ark,169 U.S. at 715, without citing any early authority to support such assertion, and the concurring opinion of Justice Daniel in Dred Scott that, in arguing that Dred Scott could not be a citizen, cited the portion of Law of Nations defining "natural born citizen" as requiring two citizen parents. Dred Scott v. Sandford, 60 U.S. (19 How.) at 476. We should note that Daniel was not purporting to define "natural born citizen" and no one joined his opinion. This is, of course, not very persuasive authority, particularly in light that Justice Curtis, as cited above in his famous dissent in Dred Scott, specifically looked to the common law to define "natural born citizen." In addition, while Taney's majority opinion did not touch on the subject of who was a "natural born citizen," it did make clear that Congress' power of naturalization was limited to those born in a foreign country. Id. at 417. This obviously implies that the native-born were citizens unless one believes that anyone thought children of aliens born oversees could become citizens but children of aliens born on U.S. soil could not.

B. Defining "Natural Born Citizen" By The Common Law Is Particularly Appropriate In That There Was No Other Use Of the Term Natural Born In the Founding Era or the Early Republic

Certain terms in the Constitution were not only terms of art under the common law, but had no other meaning or use outside of the common law. Obviously, it is particularly appropriate to look to the common law to define these terms. The term "natural born" appears to fit within this category. Appellants can apparently not show, and we cannot find, any use of the terms “natural born” in America prior to the federal convention that conforms to their two-parent theory nor any early interpretation of the phrase other than in accordance with the common law meaning. As is discussed in more detail on pages __, the Appellants' reliance on Emmerich de Vattel's The Law of Nations defining "natural born citizen" as requiring two citizen parents is frivolous as the English editions that existed during ratification did not include the phrase "natural born citizen" and they have presented no evidence of anyone in America during this period connected such phrase to Vattel.

However, we do know that at the time of the federal convention the term "natural born" was a well known term of art in America, particularly to common law lawyers like those who wrote the Constitution. According to Sir William Blackstone, undoubtedly the greatest legal influence on the founding generation:

"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the Crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it…The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such."

Commentaries on the Laws of England, 1:354, 361 (1765). Blackstone tells us that "natural allegiance" was a debt or gratitude that is due from all men born within the king's dominions immediately upon his birth that could not be forfeited, cancelled or altered but by the legislature. Id. Blackstone also pointed out that by a number of naturalization acts of Parliament "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves." Id. at __. Thus, Blackstone's view appeared to be that children of subjects born oversees were deemed to be natural-born only by an act of Parliament, not by the common law. It is also worth noting that to Blackstone the terms "native" and "natural born" were generally interchangeable. Id. at __ and __.

Appellants appear to argue that the term "citizen" had a different meaning than "subject" and hence Americans would not have conflated "natural born citizen" with "natural born subject." However, the historical record does not support their argument. While the Articles of Confederation and perhaps a majority of post-independence authorities called Americans "citizens," it appears to be an historical fact that the terms "subject" and "natural born subject" continued to be used for decades following our independence in early state constitutions, statutes, case law and treatises in identical contexts as "citizen" and "natural born citizen" making it clear that for a "considerable period after the revolution, the word "subject" was used as synonymous with "citizen." American Jurist and Law Magizene, pg. 251, (January, 1834). According to perhaps the most influential scholar of the early republic:

"Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land."

James Kent, Commentaries on American Law, pg. 258 (1826). See, also, State v. Manuel, 4 Dev. & Bat. 20, 24-26 (1838); Minor v. Happersett, 88 U.S. at 169; Rep. Wilson, 10 Cong. Globe, 39th Cong., lst Sess. 1115- 1117 (1866).

Justice Story, the only early scholar to perhaps match Kent's influence, made clear that if a child was born in New York before July 4, 1776, he was a British subject and if born after July 4, 1776, he was an American citizen regardless of the status of his parents. See, Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 120 (1830)(Story, concurring). Accordingly, for Story, the common law rule remained the same with "citizen" simply replacing "subject."

It is clear that early naturalization statutes often used "citizen" and "subject" and "natural born citizen" and "natural born subject" in nearly identical contexts. For example, in Massachusetts during the period of 1786-89, the legislature couldn't seem to make up its mind sometimes using "natural born subject" and sometimes "natural born citizen" in identical contexts in nearly identical statues, sometimes in the same year. See, Acts and Laws of the Commonwealth of Massachusetts 1786-87, pg ___ (1893); Acts and Laws of the Commonwealth of Massachusetts 1788-89 pg. ___ (1894). Thus, clearly this legislature thought that such terms were interchangeable. In 1797, this legislature proposed to amend the United States Constitution to provide that members of congress, as well as the president and vice president, be "natural born citizens.'" The title to the act stated that "none but Natural Born Subjects be eligible to certain offices" clearing conflating the term of art "natural born subject" with "natural born citizen" as used in the Constitution. Proposed Constitution Amendment, Massachusetts Legislature, June 29, 1798, reported in Acts and laws of the Commonwealth of Massachusetts, pg. 211 (1897). There are many other early authorities that conflated "natural born subject" and "natural born citizen" including as discussed previously Justice Swayne in U.S. v. Rhodes and Leake v. Gilshrist, see, supra at ___. For example, in State v. Foreman, 16 Tenn. 256, 335–36 (1835), the court said the President must be a "natural born subject." See, e.g., The Law Library, Vol. 84, pg. 50 (1854); Banks v. Walker, 3 New York Leg. Obs. 340 (1848); Horace Binney, American Law Register, 2 Amer. Law Reg. 208 (February 1854); McClenaghan v. McClenaghan, 20 S.C. Eq. (1 Strob. Eq.) 295 (1847) Samual Jones, A Treatise on the Right of Sufferage, pg. 136 (1842).

In addition to adopting the common law after independence, many states also adopted the English statutes that were in place in the colonies at the time of independence. Hence, early courts had to apply statutes such as 11 & 12 Will. III (1700) which provided that natural born subjects could inherit through alien parents. Applying such statute following independence almost necessarily involved conflating the terms "subject" and "citizen" as the statute used the term "subject" and Americans were generally considered to be "citizens." Accordingly, the early court cases called the native born persons with alien parents affected by such statute "natural born citizens" or "native born citizens." See, e.g., Palmer v. Downer, 2 Mass. 179 (1806), Jacksons v. Sanders, 2 Leigh 109 (1830), McCreery v. Somerville, 9 Wheat. 354 (1824), Lessee of Levy v. McCartee, 31 U.S. 6 Pet. 102 (1832). The Syllabus to McCreery, written by Henry Wheaton, an eminent scholar in his own right, conflates "natural born subject," "natural born citizen" and "native citizen." Justice Story in Lessee of Levy v. McCartee clearly conflated "natural born subject" and "natural born citizen.' Lessee of Levy v. McCartee, 31 U.S. at __.

Early interpretation of the Article II definition of "natural born citizen" and the use of such term generally in the early republic also make clear the original public meaning of the constitutional provision was in accordance with the English common law. As previously discussed, Wong Kim Ark cited Justices Curtis and Swayne specifically defining "natural born citizen" in accordance with English common law as well did the early cases of Leake v. Gilchrist and Lynch v. Clark. See, supra, at __. There are a multitude of other early authorities that define "natural born citizen" following the convention.

In 1803, St. George Tucker wrote, in what is generally recognized as the first great American Constitutional treatise, that the president must be "native-born" in what was an American edition of Blackstone that, of course, defined "native" in accordance with the common law. Tucker, supra, at 323. Tucker also approvingly cited an historian who defined "natural born citizen" prior to the Constitution as "some one born in one of the states." Id. at 365. The other great early treatises that the court so often relies upon provide similar support to the common law interpretation. William Rawle's treatise is perhaps most explicit stating:

"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity...no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us."

Rawle, supra, at 86. Chancellor Kent stated the president must be native born and defined "native" as "all persons born within the jurisdiction of the United States," Kent, supra, at ___. Similarly, Justice Story made clear that the president must be native-born, as he made clear the exception for those who were citizens at the time of the adoption of the constitution was an exception to the wise rule that that "no one, but a native citizen, ought ordinarily to be intrusted with an office so vital to the safety and liberties of the people." A Familiar Exposition of the Constitution of the United States, pg. 167 (1842). Justice Story had previously called children of aliens "native-born citizens." See, McCreery v. Somerville, 9 Wheat. at 356

Further sources defining "natural born citizen" in accordance with the common law includes John Quincy Adams, Abridgement of the Debates of Congress, from 1789 to 1856,Col. III, John Rivers, pg. 21 (1857); American Jurust and Law Magizene, supra, at 251, the Bouvier Law Dictionary, supra, at 265; Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838); Attorney General Bates, supra, at __, John Codman Hurd, The Law of Freedom and Bondage in the United States, pg. __ (1858); George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (1866); Edward McPherson, The Political History of the United States of America, During the Great Rebellion, pg. 379, (1865), Rep. Wilson,.10 Cong. Globe, 39th Cong., lst Sess. 1115-1117 (1866); George Washington Paschal, supra, at 274, Calvin Townsend, Analysis of Civil Government, pg. 140 (1869), William Story, Edmund Bennett, A treatise on the law of sales of personal property, pg. 17 (1871); Senator Trumbull, 11 Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872), John Joseph Lalor, Cyclopædia of political science, political economy, and of the political history of the United States, Volume 2, pg. 948 (1883), Albert Orville Wright, An Exposition on the Consitution of the United States, (31st Ed.) (1888), Theordore Dwight, Edward Dwight, Commentaries on the law of persons and personal property, pg. 125 (1894), and John Clark Ridpath, The standard American encyclopedia of arts, sciences, history, biography, geography, statistics, and general knowledge, Volume 8, pg 3058 (1897).

It is also worth noting that there may be more early authority stating that the President should be a "native" or "native-born" than there is authority that states he should be "natural-born" indicating that these were clearly interchangeable terms in the early republic. Even though most of these authorities don't specifically defined "native" or "native-born," the Appellants cannot point to, and we are unaware of, any early authority defining "native" or "native-born" other than in accordance with its literal or common law meaning relating to birth in the country. See, e.g., Kent, supra, at 39, Bouvier, supra, at 265. Paschal, supra, at 297; Townsend, supra, at 325; Wiiliam Duer, A course of lectures on the constitutional jurisprudence of the United States, pg. 231, (1845); Francis Hilliard, An abridgment of the American law of real property, pg. 212 (1839); Alexander Mansfield Burrill, A new law dictionary and glossary, pg 736 (1851); John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865). According, unless shown otherwise, we should assume such term to have its literal or common law meaning. Examples of such authorities include future Supreme Court Justice Iredell, who in the North Carolina ratification convention in 1789 said "[n]o man but a native, or who has resided fourteen years in America, can be chosen President." Elliot's Debates – Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution, pg 195-196. Other such authorities include: Joseph Dennie, John Elihu Hall, The Port Folio, pg. 199, (1822); Rep. Russel, Congressional Globe, 24th Cong., 1st Sess. pg 4256 (1836); John Ramsay McCulloch, Daniel Haskel, M'Culloch's Universal Gazetteer: A Dictionary, Geographical, Statistical, and Historical, of the Various Countries, Places, and Principal Natural Objects in the World, pg. 994 (1844), Richard Swainson Fisher, The progress of the United States of America: from the earliest periods. Geographical, statistical, and historical, pg. 9 (1854), Emma Willard, Abridged history of the United States, or, Republic of America, pg. 254 (1856), Samuel Clagett Busey, Immigration: Its Evils and Consequences, pg. 10 (1856), Sen. Butler, 8/05/1856, Reports of Committees: 30th Congress, 1st Session - 48th Congress, 2nd Session, pg. 4., By United States Congress. Senate, Congress, Published 1856; Sen. Henderson, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 387 (1866); John King, A Commentary on the Law and True Construction of the Federal Constitution, pg. 206, (1871).

Prior to Justice Daniel's single concurring option in Dred Scott, which did not even purport to define "natural born citizen," the Appellants point to no early authority, and we cannot find any, connecting the term "natural born citizen" to their two-parent theory.

C. Defining "Natural Born Citizen By The Common Law Is Particularly Appropriate In That There Is No Dispute That The English Common Law Defined Citizenship At the Time of the Founding

Defining Constitutional terms by their common law meaning is also particularly appropriate when the common law was the law of the land with respect to such issue. The Supreme Court in Wong Kim Ark tells us that the jus soli common law rule of Calvin’s Case defined citizenship and allegiance generally in the founding period and in the early republic up through the adoption of the 14th amendment. Wong Kim Ark, 169 U.S. at 658-75. Accordingly, it is difficult to conceive that the framers would incorporate some other notion of citizenship into the Constitution or that anyone during the period would look at such language other than from the perspective of the common law. In addition, if the English common law did define citizenship, then it follows that any citizen by birth would have been understood to be "natural born" as the common law had only two types of persons at birth, the "natural born" and the "alien born." See, Blackstone, supra, at __.

Wong Kim Ark cites overwhelming authority to support its conclusion including, as discussed above, Justices Curtis and Swayne, as well some of the greatest legal giants and most well known citizenship cases of the early republic. The court included several quotations from Chancellor Kent including:

"And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. 2 Kent Com. 258, note. "

Id. at 665. The court cited Justice Story multiple times, including:

"Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince....Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.. Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 155, 164"

Id. at 659. The court cited Horace Binney multiple times, including:

"The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution....The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204."

Id. at 665. The court quoted two well known cases by Justice Sewell, including:

"that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term "citizenship. Garder v. Ward, 2 Mass. 244 (1805):"

Id. at 663. The court contained similar citations from Chief Justice Marshall, id. at 658 Attorney General Bates, id at 664, Lynch v. Clark, 3 N.Y.Leg.Obs. 236, 246 (1844), id. at 664, Kilham v. Ward, 2 Mass. 236, 265 (1806), id. at 663, State v. Manuel, 4 Dev. & Bat at 20, 24-26, id. 663-644. The court also cited a multitude of English authority on the subject. Id. at 655-58.

Justice Gray, writing for the court, clearly made his point. However, he could easily have filled many more pages with a multitude of additional authorities, such as James Madison, for whom place of birth was all that was needed to establish citizenship:

"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other."

James Madison, The Framers' Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789). A partial list of other early authorities Gray could have cited as evidence of the continuance of the rule of Calvin's Case in the United States would include Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, pg. 163,167 (1795), St. George Tucker, supra, at 365, Rawle, supra, at 86, William Duer, supra, at 165, American Jurust and Law Magizene, supra, pg. 251, Burrell, supra at 736-37; Bouvier Law Dictionary, supra at 265, George Washington Paschal, The Constitution of the United States Defined and Carefully Annotated, pg. 274 (1868), George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (1866); Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813), Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822), Barzizas v. Hopkins, 2 Randolph, 276 (1824); Crandall v. State, 10 Conn. 339 (1834), Trezevant v. Estate of Henry Osborn, 3 Brev. 29, 30 (S.C. 1812), West v. West , 8 Paige. 433 (NY 1840) and Pomeroy, supra, at 419.

The 1790 Naturalization Act provided that children of citizens born overseas were "natural born citizens." This provision apparently came from Rep. Burke who stated "[t]he case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III." See, John C. Rives, Abridgment of the Debates of Congress, from 1789 to 1856: From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, pg. 189 (1857). Thus, just as Parliament had by naturalization statute provided that children of citizens born abroad have natural-born status since such were not natural-born subjects under the common law, Congress needed to provide by naturalization statute that children of parents born abroad were natural-born citizens as such were not natural-born citizens under the common law. The clear implication of this mimicking the acts of Parliament was the English common law rules continued to define their understanding of these terms.

The 1802 Naturalization Act provided for citizenship for children of citizens born abroad, but only if the parents were citizens in 1802. Therefor, for a number of decades, there was no naturalization statute for children born oversees of citizens born after 1802. Chancellor Kent said these children were thus left to look to the rules of the English common law for their citizenship. See, Kent, supra, at __. Kent, as discussed above, had made clear that the English jus soli rule of Calvin's Case defined citizenship in this county, see, supra, at __. However, he also stated that some authorities thought the common law included a right to citizenship by descent as well, but he called this principle "dormant and doubtful". Id. at __. Binney later wrote a paper stating more forcefully that there was no right to jus sanguinis citizenship by descent under the English or American common law, only jus soli citizenship by locality of birth, and urged Congress to amend the naturalization laws to provide for children of citizens born oversees. See, Binney, supra, at __. In 1855, Congress listened to him and amended the naturalization laws after stating that such action was necessary as the "better view" was that such foreign born children were aliens under the common law and specifically citing Binney’s article on the subject. Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854). Obviously, there was an assumption during this controversy and in Congress that the common law rule of Calvin's Case defined citizenship. Appellant has not shown, and we are not aware of, any legislative history from the early naturalization debates contending that a native-born child of aliens needed to be naturalized.

When considering the multitude of authority just cited that supports the continuation of the common law rule of Calvin's Case in America after independence, it is hard to imagine any intellectually honest person would dispute this point. However, it seems the Appellants do dispute it despite that fact that they apparently cannot find, and we are not aware of, any significant early authority supporting their theory.

II. THERE IS NO AUTHORITY TO SUPPORT THE CLAIM THAT NATURAL BORN CITIZEN WAS DEFINED BY EMMERICH DE VATTEL'S LAW OF NATIONS

Appellants' primary argument appears to be that “natural born citizen” was derived from The Law of Nations, a French-language treatise on the law of nations, or international law as we generally call it today, written by Switzerland' s Emmerich de Vattel in 1754. The law of nations was generally an effort to set forth uniform rules of decision to address disputes between nations based upon the laws of nature and "[c]ertain maxims and customs, consecrated by long use, and observed by nations in their mutual intercourse with each other." Emmerich de Vattel, Joseph Chitty, The Law of Nations, Sec. 25 (1845). There was, of course, no international court or other means to enforce such law or no binding case law on the subject at such time. Rather there were treatises by writers such as Vattel, Grotius, Pufendorf and Burlamaqui. Nevertheless, Blackstone held the view that the "law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land." Blackstone, supra, Book IV, Ch. 5. What Blackstone meant by this was that with respect to international disputes and relations, it was proper to look to the law of nations for rules of decision. While the law of nations and a nation's municipal law were largely separate spheres of law, one covering state to state relations, one covering domestic issues, when conflicts did arise, it is clear that the municipal law would generally prevail. See, e.g., Antony J. Bellia, Jr., Bradford R. Clark, The Federal Law of Nations, Columbia Law Review, Vol. 109, pg. 115-20 (2009). Vattel was of proponent of jus sanguinis citizenship by descent. Vattel, supra, at __. However, as previously discussed, it is clear that Blackstone, despite his recognition of the law of nations, looked to the jus soli principles from the ancient municipal law of England to define nationality or citizenship, see, supra, at __, not any contrary notion from international law, and that all early American authority appears to conform to such view. See, supra, at__ and __. As citizenship defines one's municipal rights such as ability to inherit, hold property and hold offices, it would seem doubtful that any nation would define its citizens by notions of international law.

A. The Editions of Law of Nations Available to the Framers did not Contain the Term "Natural Born Citizen"

The birthers' corner of blogosphere buzzed with excitement when it was discovered that an edition of the The Law of Nations stated that "[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens." While we hate to dampen all this excitement, the phrase "natural born citizen" was not in the English translations of The Law of Nations that were available to the framers as the early English translations instead stated "[t]he natives, or indigenes, are those born in the country, of parents who are citizens." It appears that it wasn't until a decade after the constitutional convention that an English version of The Law of Nations appeared that included the phrase "natural born citizen." Accordingly, there would have been no reason to think the framers would connect "natural born citizen" to Vattel. In fact, since such term would obviously be connected with the English common law, had they intended the Vattel definition, it is pretty obvious such term would be the last term they would use.

Despite all this, the Appellants refuse to let go of the Vattel theory making somewhat specious arguments that the framers were reading the original French version and were translating it to read "natural born citizen."' They, of course, have no idea how many framers read the French or English versions, much less how they would translate it. The original French included the phrase "Les Naturels, ou Indigènes.” A look at 18th and 19th century french-english dictionaries shows that "Naturel" translates to "natural" or "native" and "indigenes" translates to "indigenous" or "native." See, e.g., Thomas Nugent, A new pocket dictionary of the French and English languages, 301, 361 (1830). Appellants have not shown, and we cannot find, an english-french dictionary that would translate either "Les Naturels, ou Indigènes" into "natural born citizen" as such is clearly not the literal translation.

Appellants also try to argue that the founding generation conflated the terms "native" and "natural born" and hence they argue that the framers were citing the definition of "native" in the original english translations of The Law of Nations that tied such term to two citizen parents. This is, of course, nothing more than rank speculation that is contrary to all early authority we have on the subject. It is true that the founders likely conflated such terms as such were conflated under the common law, not the law of nations, and were understood within the meaning of the common law. In the constitutional convention itself, it is clear from the context of the debates that the delegates born in America thought themselves natives as it was pointed out the a few of them born outside of America would not be eligible under a native-birth requirement. Gaillard Hunt, The Writings of James Madison: Comprising His Public Papers and His Private Correspondence, Including Numerous Letters and Documents Now for the First Time Printed, pgs. 148, 175 (1903). Clearly they were not using the Vattel definition of "native" but clearly the literal or common law definition based solely on place of birth as none would have parents who were citizens. This was confirmed by delegate Baldwin who called the native birth requirement a discrimination by "place of birth." Id. at 179. In addition, as discussed previously, see, supra, at __, Appellants have not shown, and we cannot find" any early authority at all defining "native" or "native-born" other than in accordance with its literal or common law meaning relating to birth in the country. See, supra, at __. Accordingly, there is simply no evidence to support this speculation.

B. There is No Evidence that the Framers Intended to Tie the Definition of "Natural Born Citizen" to Vattel or the Law of Nations

Appellants also try to make an argument, to the best we can discern, that since some framers were wary of foreign influence, they must have wanted to prevent a president from having duel loyalties and therefore adopted the Vattel definition requiring citizen parents. While such might be interesting speculation, there is simply no historical evidence to support it. It does appear to be a fact that the phrase "natural born citizen" was placed into the constitution without recorded debate. The phrase is commonly traced to a letter from John Jay to George Washington during the convention in which Jay states his fear of foreign influence. See, John Jay, Henry Phelps Johnson, The Correspondance and Public Papers of John Jay, 1782-1793, pg. 250 (1793). However, this letter does not define the term and, of course, Jay was not present at the convention. The record of the debates show that there were delegates who had concerns about foreign influence similar to Jay. Gaillard Hunt, supra, at 147-50. It is also clear that some of the most influential delegates, like Madison, were not very concerned about foreign influence and were against imposing requirements of office holders other than citizenship and residency. Id. The delegates who feared foreign influence only proposed longer residence periods or native birth as additional requirements for office holders, particularly for Congress, as it was still assumed at the time of these debates that Congress would elect the President. The native birth proposal was hotly debated and failed due to the opposition of delegates who were against any strict citizenship requirements. Id. at 172-75. Accordingly, it can hardly be believed that there was any great fear of foreign influence amongst the delegates as a whole. For those who argue that natural born citizenship requires parents who are citizens or lack any foreign allegiance, it is notable that no one brought up parentage during these debates or made any proposal with respect to foreign allegiance. It is thus difficult to claim that any intent to impose such restrictions when no one raised them when the issue was discussed.

Appellant's theory also overlooks the fact that there is no doubt that "allegiance" for these common law lawyers would have been defined by place of birth, not parentage, as Madison, see, supra at __, and all early authority made clear. See, e.g., Inglis v. Sailors' Snug Harbor, 3 Pet. at 155, Bouvier, supra, at 100, Burrill, supra, at 737; Swift, supra, at 163, Garder v. Ward, 2 Mass. at 244, Ainslie v. Martin, 9 Mass. at 256, Leake v. Gilchrist, 13 N.C. at 73. Accordingly, they would not have considered someone born in America to be a foreigner. To illustrate this point, one can look to 1798 where the panic over foreigners that lead to the Alien & Sedition Act in 1798 led the federalist leaders in Congress proposed to correct the mistake of letting the foreign-born become citizens and to provide that "none but persons born in this country should be permitted to take part in government." Joseph M. Lynch, True Faith and Allegiance: Immigration and American Civic Nationalism, pg 41 (2005). Apparently, no one was worried about the loyalty of the native born.

There are not many other statements from the framers on the subject. Hamilton drafted a draft constitution only required the president to be a citizen at birth. [citation] It is unclear his language was ever considered but, under English law at the time, subjects at birth were generally deemed to be "natural born" either through the common law or naturalization act. See, Blackstone, supra, at __. Accordingly, it is fair to infer that Hamilton did not support the two-parent theory. The only other framer to speak on the issue appears to be James Pinckney would said that the clause was to make sure the president had an attachment to the country. Charles Pinckney in the United States Senate. 1 – Max Farrand, The Records of the Federal Convention of 1787, vol. 3 [1911] Of course, it would be pure speculation to try to determine if Pinckney thought birth and residency in a country for 14 years would not be sufficient attachment.

Finally, it has been argued that the clause in Article II providing that "a Citizen of the United States, at the time of the Adoption of this Constitution" may be president as evidence of an intent by the framers to prohibit those born with a foreign allegiance from the presidency. Again, they offer no evidence to support this speculation. Since no one at the time of the founding would be 35 and have been born an American citizen, the obvious reading of the clause would be to simply recognize the fact that it would be a while until someone could actually satisfy the requirements. This would be the case whether one defined "natural born" by Blackstone or Vattel so it is unclear what Appellants' point is. However, the general view of early legal scholars seems to be that such provision was meant to apply only to those framers such as Hamilton and Wilson who were not born in America and that native-born framers thought themselves to be natural born. According to Justice Story:

"It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country...."

Joseph Story, Commentaries on the Constitution 3:§§ 1472--73 (1833). See, also, George Bancroft, supra, at 346 (1884); James Bayard, A Brief Exposition of the Constitution of the United States, pg. 96 (1833); Henry Flanders, An Exposition of the Constitution of the United States, pg. 170, (1885); Edward Waterman Townsend, Our Constitution: Why and how it was Made - who Made It, and what it is, pg 186 (1906).

C. There is No Authority that Vattel's Rule of Descent Defined Citizenship in the Early Republic

Appellants try to makes an assert that there is authority that the jus sanguinis rule of citizenship by descent promoted by Vattel had come to define citizenship in the early republic. However, there arguments are mostly based on a misreading of case law. For example, they point out that Chief Justice Marshall cited the section of The Law of Nations that included the rule of descent and the "the natives, or indigenes" language referenced above from the original English translation. See, The Venus, 12 U.S. (8 Cranch) 253, 289 (1814)(Marshall, concurring). However, Marshall was citing Vattel on the question of the domicile of a citizen in an enemy country during wartime, clearly an issue of international law that Blackstone would have thought appropriate for the law of nations to resolve. The citation had nothing to do with citizenship and cannot be cited as authority on such. With respect to native American citizenship, Chief Justice Marshall had earlier defined an American citizen as "a person born in the United States or becoming a citizen according to the established laws of the country," clearly in accordance with the common law. Murray v. The Charming Betsey, 6 U.S. 64 (1804). Appellants also point out that Justice Story later appeared to look to the nationality of father for guidance on the question of the status of minor children during a division of a country in a revolution, and stated that the incapacities of married women under the common law would not apply to political rights, but rather should be governed by principles of the law of nations. See, Shanks v. Dupont, 28 U.S. 3 Pet. 242 (1830). Whatever Story meant by these statements, they had nothing to do with citizenship at birth but were in the context of a case dealing with an international dispute. As previously discussed, in Shanks companion case, Inglis v. Sailors' Snug Harbor, decided the same day, Story made clear that the English common law governed citizenship at birth in America. See, supra at __ and __. In addition, Story apparently did not agree with Vattel that the rule of international law with respect to citizenship was the rule of descent, but was generally the jus soli common law rule. See, Joseph Story, Commentary on the Conflict of Laws, pg. 46 (1865).

Appellants also cite Ludlam v. Ludlam, 26 NY 356 (1863). This reliance is strange as, although the court finds a right to citizenship by descent, the court did so by looking to the English common law which it stated defined citizenship in America. Id. at 361. The court took the position that, contrary to the opinions of Blackstone, Kent and Binney and most other common law authorities, the English common law provided for jus sanguinis citizenship by descent. Id. at 363-64. The court did not dispute that the English common law also followed jus soli principles as well. Id. at 371. Accordingly, this case, at most, stands for the proposition that, under the English common law, "natural born" status can be obtained either through parentage or locality of birth and hence does not help the two-parent theory. It is worth noting the Supreme Court in Wong Kim Ark did not agree with Ludlam's conclusion, see, Wong Kim Ark, 169 U.S. at 669. Appellants also bring up cases like Ex parte Reynolds, 5 Dill., 304 (1879) and United States v. Ward, 42 F. 320 (1890) as supporting the notion that citizenship followed parentage rather than place of birth. However, these cases did not deal with who was a citizen at birth, but rather whether a person with one Indian parent was to be considered to be an Indian and hence be subject to laws or treaties that applied to Indians. In crafting a rule for these situations, these courts look to the rule that the status of the child followed the condition of the father. The court in Reynolds cited Vattel and stated that such rule from the law of nations had become a part of the common law and citing Ludlam for such proposition. Reynolds, 5 Dill. at ___. Of course, as discussed above, Ludlam thought such rule to be supplemental to the rule of Calvin's Case under which the common law based citizenship on locality of birth and these latter cases do not make any claim that such rule had ceased to apply. Any implication to the contrary one may try to draw from these cases would not only be orbital dicta but contradicted by Wong Kim Ark which made clear that there was no rule of descent under the common law in America. See, Wong Kim Ark, 160 U.S. at 669.

Appellants try to rely on Justice Fuller's dissent in Wong Kim Ark clearly failing to realize a two Justice dissent is not very persuasive authority. What appears most notable about Fuller's dissent is that he can cite so little authority to support his assertions nor does he try to explain away the multitude of authority cited by the majority that is contrary to his assertions. Fuller's primary argument appears to be that citizenship belongs in the sphere of international law. Wong Kim Ark (Fuller Dissenting), 169 U.S. at 706. However, Fuller is apparently unable to cite much authority to support such point and really no early authority that some international rule had replaced the jus soli common law rule in the early republic. Fuller other argument seems to be that the doctrine of perpetual allegiance was a necessary characteristic of the common law doctrine and its abandonment in America meant abandonment of the common law doctrine generally. Wong Kim Ark, 169 U.S. at ___. However, Fuller does not cite anyone who says abandonment of such doctrine meant abandonment of the common law rule generally. Fuller also fails to point out that the doctrine of perpetual allegiance was subject to great debate and the majority view in the early republic believed such doctrine to still be in place. See,. e.g., Kent, supra, at 397-98, McIlvaine v. Coxe, 2 Cranch 280-283 (U. S. 1805) and Hebron v Colchester, 5 Day 169 (Conn. 1811).

Appellants finally try to argue that the fact that early naturalization acts provided for derivative citizenship for children of citizens being naturalized without specifically limiting such right to the foreign-born, implies that native-born children of aliens needed to be naturalized. Of course, these acts do not state such is necessary, rather it is only a possible implication that is neither necessary or consistent with any other legal authority of the period. The more obvious implication is that it was understood that the native-born did not need to be naturalized and there was thus no need to make any distinction for the native-born in these acts. This latter interpretation is what is supported by early legal authority, as was discussed previously, there is really no dispute that citizenship in the early republic was defined by the jus soli common law rules that generally disregarded parentage. See, supra, at __ to __. Appellants only authority seems to be ambiguous language in the 1779 Naturalization Act in Virginia which could arguably be read to require a native born child of aliens to take an oath upon obtaining majority, however, such is clearly not the better reading and such act was replaced with an act in 1783 by language that unambiguously bestowed citizenship upon the native born without qualification. See, Laws of Virginia, Henings Statutes at Large, pg. 323 October, 1783. Besides this, Appellants have not shown, and we are unaware of, any legislative history, court case or scholar in the early republic that claimed that the native-born children of aliens needed to be naturalized. On the contrary, it appears the term "naturalization," another common law term of art, was understood, by definition, to be a power "confined to persons born in a foreign country," Dred Scott v. Sanford, 60 U.S. at 417, as "[t]o make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power." Paschal, supra note 274, at __. This view was widely held in the early republic. For example, James Madison doubted that expatriated Americans could be re-admitted as citizens as the Constitution only granted to power to admit aliens. See, John Rives, Abridgment of the Debates of Congress, from 1789 to 1856: From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, pg. 556 (1860). Finally, one of the principle reasons why the constitutionality of the Civil Rights Act of 1866 was doubted, was that Congress' power of naturalization was limited to the foreign born and freed black were not foreign born. See, e.g., William Horatio Barnes, History of the thirty-ninth Congress of the United States, pg. 208, (1868). Appellants have not shown, and we are unaware of, any early authority suggesting naturalization applied to anyone other than the foreign born or aliens, see, e.g., Bouvier, supra, at __, Townsend, supra, at 325, Burrill, supra at 737; United States v. Rhodes, 1 Abbott, US at __, or any early authority defining "alien" as anything other than a foreign born person in accordance with the common law rules. See, e.g. Kent, supra, at __, Tucker, supra, at __, Bouver, supra, at __, Duer, supra, at 233; William Charles White, A Compendium and Digest of the Laws of Massachusetts, pg.80 (1809).

As discussed elsewhere in detail throughout this brief, the bottom line appears to be that there is no evidence whatsoever that the framers intended to define "natural born citizen" in accordance with Vattel. Appellants apparently cannot find, and we are unaware of, any quotes from the framers in the convention or otherwise tying "natural born citizen" or "native" to Vattel. They also apparently cannot find any legal authority in the founding period or in the early republic prior to Dred Scott that ties such terms to Vattel or embraced Vattel's views of who was a citizen at birth at all. Accordingly, their arguments boil down to nothing more that fact-free assertions and speculation.

III. THE OPINION OF ONE CONGRESSMAN 79 YEARS AFTER THE FEDERAL CONVENTION PRESENTS NO EVIDENCE OF THE ORIGINAL INTENT OF THE FRAMERS

Appellants inexplicably point to the statements of Congressman John Bingham in 1866 as authoritative as to the original meaning of “natural born citizen” in the Constitution. It is abundantly clear that this is because Bingham appears to be the first person they can find who makes a statement in accordance with their two-parent theory as he stated that "natural born citizens" were "of parents not owing allegiance to any foreign sovereignty…." Cong. Globe, 39th, 1st Sess., 1291 (1866). Let us put aside the somewhat bizarre notion that anyone would think that we should let foreign sovereigns decide who can be President, as whether parents owed allegiance to a foreign sovereignty would be based upon the laws of allegiance and expatriation such sovereignty. Clearly the opinion of one congressman 79 years after the federal convention is not worth much weight with respect to the original understanding of the Constitution. This is particularly the case when multiple members of the same 39th Congress, as well as a multitude of other earlier authority discussed throughout this brief, contradict him and there is no evidence any other Congressman in such Congress agreed with him. For example, Rep. Wilson, the house judiciary committee chairman of such Congress, declared that “natural born citizen” was defined by the English common law, citing, amongst others, Blackstone and Rawle. Id. at 1115-17 (1866). Senator Henderson, Rep. Boutwell, and Senator Davis all stated that the president must be native born. Id. at pg. 387, The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877), and Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913). Senator s Trumbull, author of the Civil Rights Act, also later stated the president must be native born and made clear that "natural born citizen" should be defined in accordance with the English common"

"in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born....I read from Paschal's Annotated Constitution, note 274: "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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons."

Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872). Bingham did not write the citizenship clause in either the Civil Rights Act or the 14th Amendment so it is not clear why his opinion should be given any extra weight. It is also worth noting that some of the most influential conservative legal scholars of the 20th century have seriously questioned Bingham's thinking as being muddled, inconsistent and idiosyncratic or confused. Part of this was due to Bingham's apparent belief that the bill of rights applied to the states prior to the adoption of the 14th Amendment. See, e.g., Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949); Raoul Berger, Government by Judiciary, pg. 1445 (1978; Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 5 n. 13 (1955). Such position was clearly inconsistent with the history and text of the bill of rights.

IV. THE FOURTEENTH AMENDMENT REAFFIRMED THE JUS SOLI RULE OF THE ENGLISH COMMON LAW

Appellants appear to also argue that Wong Kim Ark was wrongly decided and the 14th Amendment was actually intended to abandon the rule of Calvin's Case and require that children cannot owe allegiance to any other sovereign and hence supports the two-parent theory. This is a somewhat curious argument as even it the 14th Amendment was interpreted in such manner, it is not clear why that would affect the meaning of the Article II definition of "natural born citizen" as there neither the text nor the legislative history indicates any intent to change such meaning. Despite this, it is not necessary to address such point, as the Appellants' theory is based mostly on cherry picking a few misleading quotes and ignoring the vast majority of the legislative history and the plain text of the Amendment. Wong Kim Ark's conclusion has been reaffirmed by subsequent courts on multiple occasions. See, e.g., Afroyim v. Rusk 387 U. S. 253 (1967), Rogers v. Bellei, 401 U. S. 815 (1971). In addition, actual history and the language of the 14th Amendment clearly inform us the 39th Congress enacted the 14th Amendment to expressly incorporate the English common law rule of Calvin's Case, which they believed to have always been the law in the United States and was present in the original Constitution, into the Constitution so that there could never be another Dred Scott.

Any analysis of the 14th amendment must begin with a look at the Civil Rights Act of 1866. The Act stated:

"That 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..."

This clause was written by Senator Trumbull who repeatedly said such clause was declaratory of existing law. See.e.g., William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868). He said that his intent was to remove any doubt that all person born in the United States were citizens, See, Cong. Globe, 39th Cong. 1st session. 475 (1866). Trumball also made clear that he intended native born children of aliens to generally be considered citizens as he made clear that the Act would make citizens of children of the chinese born in this country, id. at 493, said it was his understanding that under current law "children who are born here of parents who have not been naturalized are citizens," id., and, in his reply to President Johnson's veto said "even the infant child of a foreigner born in this land is a citizen of the United States long before his father." Barnes, supra, at 255. At one point Trumbull described the Act in accordance with the common law rule saying it was his desire to make a citizen of "everybody born in the United States who owe allegiance to the United States, " and adding that "[w]e cannot make a citizen of a child of a foreign minister who is temporarily residing here." 10 Cong. Globe, 39th Cong., lst Sess., at 572. However, he added that he didn't want to make citizens of temporary residents who only owed a "sort of allegiance" to the United States. Id. He didn't say anything directly about children of such temporary residents. Rep. Wilson introduced the bill in the House stating it was declaratory of existing law which he made clear in a long speech was the English common law rule of Calvin's Case citing, amongst others, Blackstone, Rawle and Kent. 10 Cong. Globe, 39th Cong., lst Sess. 1115- 1117 (1866). However, Wilson seemed to think that the English common law rule did not apply to children of temporary sojourners. Id. at 1117. Numerous other members of Congress made statements tying the Act to the jus soli common law rule without mentioning any exceptions for temporary residents or sojourners. For example, Congressman Broomall said the Act was declaratory of existing law and defined citizen as someone "born within the jurisdiction of the government." Id. at 1262. Senator Morrill thought the language declaratory of existing law and stated "does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone." Id. at 570. Senator Johnson stated that "that as far as the United States is concerned, all persons born within the limited of the United States are citizens." Id. at 1780. Sen. Cowen seemed to want to exclude children of Chinese aliens, but didn't appear to have issues with children of aliens from Europe becoming citizens. Id. at 493. Rep. Raymond said the Act made citizens of all persons "born within the limits and jurisdiction of the United States." Barnes, supra, at 234. President Johnson made clear in his veto message that the Act would make citizens of children of the Chinese aliens. Id. at 246. Rep. Bingham, as discussed, made his bizarre claim that parents must not owe allegiance to a foreign country, even though such would let foreign nations determine who are our citizens. Cong. Globe, 39th Cong., lst Sess. at 1291. It does not appear that anyone else in Congress expressed agreement with Bingham's view. However, Rep. Thayer did say the Act applied to persons born in the United States "not owing allegiance to a foreign power." Id. at 1152. However, Thayer goes on to state the common law rule defining citizenship and allegiance by place of birth was the universal rule. Id. Accordingly, if such rule was seen as the universal rule, persons born on our soil would not owe allegiance to a foreign power unless a child of an ambassador or indians, who were treated as members of a foreign nation, owing a foreign allegiance, even if born within our territory. Id. at __. Hence, an overall reading of the debates leaves little reason to think that the Civil Rights Act did not generally confer citizenship on children of aliens, leaving perhaps only a question of whether it applied to temporary residents or sojourners.

As is well know, the constitutionality of the Civil Rights Act was doubted, leading to the introduction of the 14th Amendment shortly thereafter. The first draft of the amendment did not define citizenship. However, Senator Howard did define "citizen" generally in accordance with the English common law rule at that point:

"A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws..... They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States."

Id. at 2765-66. Senator Wade shortly thereafter suggested adding language defining citizen in the amendment as "persons born in the United States or naturalized by the laws thereof." Id. at 2765-66. Wade also made clear he was talking about the English common law rule:

"The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States."

Id. A few days later, Sen. Howard introduced the first draft adding "subject to the jurisdiction" to Sen. Wade's proposed language that we now know as the citizenship clause. In introducing this amendment, Sen. Howard stated:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Id. at 2890. Appellants try to assert that this ambiguous statement supports their theory. Howard, however, did not say what persons are born foreigners. He didn't say they are children of foreigners. Indeed, if he meant to exclude all children of foreigners why would he include the common law exception for children or ambassadors or foreign ministers, which would then be superfluous? Accordingly, the most sensible reading of this statement would be "who belong to the families of ambassadors or foreign ministers" was intended to modify both "foreigners" and "aliens," in which case the entire quotation reads like a recitation of the common law. Only this reading makes sense when looking at Howard's statement on citizenship a few days earlier and the statement of Senator Wade, whose language he was supplementing, which both reflect the common law rule. It seems implausible that he meant to completely change the meaning, particularly considering the fact he raised no objections to Wade's statements or the other many other statements about children of aliens being citizens in the Civil Rights Act debates discussed above or the 14th Amendment debates discussed below.

Following Howard's statement, Sen. Cowens stated that he thought children of gypsies and Chinese should be excluded. Id. at 2890. Sen. Conness replied that he was in favor of making children of Chinese parents citizens stating he had "voted for the proposition to declare that children of all parentage whatever, born in California, should be citizens of the United States" and he was in favor of the proposal to "incorporate the same provision into the fundamental instrument of the nation." Id. At 2891 No other Senator contradicted this statement including Howard and Trumbull, though Howard remarked that the supreme court of California overturning discriminatory laws against the Chinese to be a "very just and constitutional decision." Id. at 2892

There were a number of senators who thought Howard's proposed language would include Indians. Trumbull and Howard resisted. Trumbull insisted the "subject to the jurisdiction" meant "complete jurisdiction… Not owing allegiance to anybody else…" Id. 2893. Sen. Howard stated that the provisions should be "construed to imply a full and complete jurisdiction on the part of the United States …" Id. at 2895. Several senators thought that Indians were subject to the laws of the United States were not convinced by the explanation of Senators Trumbull and Howard that they would not be made citizens. Id. at 2892-97. The quotes by Trumbull and Howard are relied upon by the Appellants to support their theory. However, these remarks read in context are clearly an unsuccessful attempt to convince skeptical senators that Indians would not be covered by stretching the plain meaning of the language. We know Howard defined the current law he claimed not to be changing as requiring a person to be "born within the limits of the United States and subject to their laws" just a few days earlier and this seemed to be the definition the other senators had in mind. We know Trumbull specifically stated that children of aliens were citizen in the Civil Rights Act debates and, as discussed earlier, a few years after these debates he would state the 14th amendment to be declaratory of the English common law with no qualification for children of temporary residents and agreeing with Rep. Thayer that the common law rule was the univeral rule. Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872). Senator Johnson described the Amendment by stating "I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States." Cong. Globe, 1st Session 39th Congress, at 2893

Finally, several members of the 39th congress spoke of the amendment in debate a few years later. They included Rep. James Garfield, the future president, who cited Paschal, Kent, Attorney General Bates and Justice Swayne in arguing the 14th amendment declaratory of the common law doctrine that already existed. Cong. Globe. 1st Session, 42nd Congress, pt. 2, pg. 152 of appendix (1871). A similar opinion were stated by Rep. Kerr who said "[w]hy the world knows that ... that every human being born within the jurisdiction of any nation...is, by virtue of those facts alone, a citizen of that country...." Id. at pgs. 47. Two other representatives (Holman and Williard) made similar statements, however they were not members of the 39th Congress. Id. at 189, 259-60.

Clearly the legislative history read in total does not support their two parent theory. When read in total it is abundantly clear the most, in not all, Congressmen were trying to incorporate the rule of Calvin's Case into the Constitution just as Wong Kim Ark concluded and there is no indication during the 14th Amendment debates that its provisions would not apply to alien parents who were temporary residents or sojourners.

Beyond the legislative history, it is clear he "plain meaning" of he language is even more incompatible with any two-parent theory. The bottom line is that in the English language, the plain meaning of "subject to the jurisdiction" is not "not owing allegiance to anybody else" or "complete jurisdiction" and the debates seem to indicate that Trumbull and Howard were not very persuasive to the other senators that it did not mean subject to the nation's laws which is how Howard himself originally defined citizenship in the debates. The plain meaning of being subject to the laws of the nation seems to be a much better fit for the common law doctrine based upon locality of birth as it would seem that anyone within the jurisdiction of the United States is subject to the laws and authority of the United States except ambassadors with diplomatic immunity or an occupying enemy (the exceptions to the common law doctrine). Wong Kim Ark points to Chief Justice Marshall in The Exchange 7 Cranch. 116 (1812) which looks at what person are subject to the jurisdiction of the United States and carves out these exceptions to the common law doctrine. Wong Ark Kim, 169 U.S. at __.

Wong Kim Ark also points out that no one at the time of adoption would have thought that the Amendment was changing existing law. Id. at __. This is made clear from the legislative history where it appear no proponent of the Amendment seemed to think they were changing existing law and, in fact, the primary argument made that the Civil Rights Act was constitutional was that it was declaratory of existing law. As previously discussed, legal authorities prior to such time overwhelming declared a that citizenship was defined by the common law and any delegate picking up a case book or treatise to determine what the existing laws were would have understood it to be the common law rule. The radical republican who championed the 14th amendment had for years maintained that Dred Scott was wrong and that blacks were citizens by operation of the common law as made clear by Lincoln's Attorney General Bates. Bates, supra, at 8. Such could not have been their belief if parents needed to be citizens as citizenship would have never passed to freed blacks under such rule.

Although Wong Kim Ark is the first case to directly address the issue of children of aliens under the 14th amendment, the Appellants somehow appear to argue that we should assign importance to arguably contrary dicta in earlier cases. For example, they point to orbital dicta in the majority opinion in the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1872) that said the amendment excluded "citizens or subject of foreign States as evidence of the original public meaning contrary to Wong Kim Ark. The four justices’ dissent stated that "it makes their citizenship dependent upon the place of their birth." As the meaning of the citizenship clause was not at issue, it is impossible to know how many Justices held either opinion as Justices generally sign on to the holding of an opinion, not necessarily all of its dicta. Appellants also point to language in Elk v. Wilkins, 112 U. S. 94 (U.S. 1884) a case dealing with Indians that paraphrases some of the language from the debates regarding Indians. The opinion was written by Justice Gray, who in Wong Kim Ark made clear that the fourteenth amendment was declaratory of existing law and there is little dispute that existing law did not grant Indians birthright citizenship and the legislative history of the amendment makes clear that no one in Congress intended to confer birthright citizenship to Indians. Thus, there clearly is a basis to distinguish these decisions.

Appellants also fail to point out the post-ratification sources that understood the 14th amendment to be declaratory of the common law doctrine of locality of birth. As discussed above, this would include the Congressmen in 1871 debat3 implementing the 14th amendment. This would also include such authorities as IN RE LOOK TIN 200. Circuit Court of the U. S. 2d Circuit, (1873) or Mackay v. Campbell 16 F.Cas. 161, 167 (D.C.SING, 21 F. 905, 907 (C. C. Cal. 1884), The United States v. Susan B. Anthony, 11 Blatohford, Or. (1871).; James Kent, Oliver Wendell Holmes, Commentaries on American Law, pg ___, (1873) and Hamilton Fish, Secretary of State, Papers Relating to the Foreign Relations of the United States, By United States Dept. of State, pg. 1192 (1873).

V. THERE IS NO AUTHORITY TO SUPPORT THE ASSERTION THAT THERE IS A DIFFERENCE BETWEEN A NATIVE-BORN CITIZEN AND A NATURAL BORN CITIZEN OR A 14 AMENDMENT CITIZEN AND A NATURAL BORN CITIZEN

Apparently because of the authority declaring children of aliens to be native-born citizens in accordance with its literal or common law meaning, the Appellants attempt to argue that there has been a difference between a native-born and natural-born citizen in our history. It is difficult to imagine an argument in which historical authority rejects more forcefully. At previously pointed out, there are an overwhelming number of early authorities defining the requirements for the presidency as a native birth requirement hence indicating “native” and “natural born” were viewed as equivalent terms.

From what we can discern is that the Appellants' argument is a desperate attempt to support their theory by misinterpreting Wong Kim Ark as making a distinction between "native-born" and "natural-born" citizens. This is apparently because the court in its conclusion of pre-14th amendment law called children of aliens "native-born citizens" rather than "natural born." It should go without saying that when a court is addressing the question of who is a “citizen” rather than who is a “natural born citizen” as there is no need to call a person “natural born” if such issue is not before the court. However, even a cursory reading of the case shows this to be a frivolous argument. First, the court actually quotes one authority stating "native" and "natural born" are equivalent terms, Wong Kim Ark, 169 U.S. at ___, and positively cites multiple other authorities that held the same view including legal giants such as Kent and Story. Id. at. ____. Second, the court cites authority after authority describing the rule of Calvin's Case in England and America and some authorities call persons subject to such rule "natural born" or “natural born citizen,” some call them simply citizen or subject and one authority specifically calls then natives or native born. Id. at __ to __. Thus, it is clear that these were interchangeable terms for the same common law principle. There simply are not multiple classes of citizens by birth under the common law as, at birth, were either aliens or natural-born subjects. See, Blackstone, supra, at ___. Of course, as previously discussed, the court had already made clear the "natural born citizen" is to be defined in accordance with the English common law. See, supra, at __.

Appellants also try to argue that Wong Kim Ark implies there is a difference between a natural born citizen and a citizen under the 14th amendment. Again, this is a frivolous claim. As discussed previously, the court stated that natural born citizen was to be defined by the rule of Calvin’s Case from the English common law. See, supra at __. The court concludes that the 14th Amendment was declaratory of the same rule:

"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."

Wong Kim Ark,169 U.S. at 693. Their argument appears to be based on ignoring the entire ruling and focusing on a single quote by Horace Binney. In the court's conclusion, after citing Lord Coke and Calvin’s Case for the proposition that children of aliens where “natural born subjects,” the court ended the sentence by quoting Binney stating that children of aliens “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” If one reads Binney’s paper, the “same principle” he is talking about is clearly the rule of Calvin’s Case. Thus, if we can discern the Appellants' argument, the court, immediately after citing Coke and Calvin's Case for the proposition that children of aliens are natural born subjects, then cites Binney for the proposition that children of aliens, made citizens by operation of the rule of Calvin's Case, are nevertheless not natural born citizens. This is a court that previously cited Chancellor Kent for the proposition that "subject" and "citizen" were interchangeable terms, id. at __ and Justice Swayne for the proposition that “natural born subject” and “natural born citizen” were interchangeable. What Binney is actually saying the children of aliens and natural born children of citizens were both citizens by operation of the rule of Calvin’s Case. Binney was determining who were citizens, not natural born citizens, and hence had no reason to call children of aliens “natural born.” Interestingly, if you read Binney paper, in the previous sentence Binney rejects de Vattel's concept of citizen by descent:

"The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute."

Binney, supra, at 206. Binney later stated:

"But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely..."

Binney, supra, at 208. Thus, Binney believed that our law is the same as England and birth within the limits and jurisdiction of America made such persons natural born citizens absolutely. This is clearly another case of the Appellants are trying to read an implication into a fragment of a case that devastates their cause that is not only not a necessary implication but one contrary to the context it is used and contrary to the opinion in general.

VI. THE TERM "NATURAL BORN CITIZEN" HAD A CLEAR MEANING TO THE VOTERS IN THE 2008 ELECTION

It is unnecessary to point out to this court that there is little dispute that the phrase has a well known meaning in modern America. The native-birth requirement for the presidency is so ingrained into our culture that the Senate thought it necessary to pass a resolution declaring him to be natural born even consulting with two of our foremost constitution experts on the subject. [cite] It apparently never even occurred to any Senator that such would be needed for Barrack Obama. In fact, at least three Senators in such Senate who were at some point members of the Senate Judiciary Committee (Senator Hatch, Senator Nickles and Senator Graham) had unambiguously stated that a "natural born citizen" was defined by birth in the United States. [add citiations] We are unaware, and Appellants have not pointed to, any current member of Congress with an alternate opinion. In fact, the experts that the Senate consulted about McCain's eligibility made clear that birth in the United States alone was sufficient to confirm "natural born" status" stating:

"If the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain’s birth, then that fact alone would make him a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory and allegiance of the United States…" Letter by Theodore Olson and Laurence Tribe, reported in 154 Cong. Rec. S3645-46 (Apr. 30, 2008).

One would be hard pressed to find any modern legal dictionary, treatise, textbook or law review that defined "natural born" as other than in accordance with the common law. For example: Black's Law Dictionary, Eighth Addition (1999) ("Natural Born Citizenship Clause. The clause of the U.S. Constitution barring persons not born in the United States from the presidency."); Kenneth Robert Redden, Enid Veron, Modern Legal Glossary, pg. 263 (1980)(“NATURAL-BORN CITIZEN. A person whose citizenship derives from the nation where he or she was born.”); Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) ("Thus, those persons born within the United States are "natural born citizens" and eligible to be President."); William Carroll, Norman Smith, American Constitutional Rights: cases, documents, and commentary, pg. 130 (1991) ("Natural-born citizens can acquire that status by being born in the United States, on the basis of jus soli…”); Kermit Hall, The Oxford Companion to the Supreme Court of the United States, pg. 24 (1992)( “The requirement that the president be a “natural born” citizen implies that the framers recognized the principle of jus soli"); Joseph M. Bessette, American Justice, Volume 1‎ – Page 129 (1996)("“Americans are accustomed to the concept of automatic citizenship granted to persons born in the United States, who are called “natural-born citizens…”); Sarah Helene Duggin & Mary Beth Collins, 'Natural Born' in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005) ("United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens"); Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, at 881 and n. 2 (1988) ("It is well settled that "native-born" citizens, those born in the United States, qualify as natural born." "Native-born citizens are natural born by virtue of the nearly universal principle of jus soli, or citizenship of place of birth"); Lawrence Freedman, An Idea Whose Time Has Come--The Curious History, Uncertain Effect, and Need for Amendment of the "Natural Born Citizen" Requirement for the Presidency, 52 St. Louis U. L.J. 137, 143 (2007) ("It is now generally assumed that the term "natural born" is synonymous with "native born." "It [therefore] is clear enough that native-born citizens are eligible [for the presidency] and that naturalized citizens are not"); J. Rebekka Bonner, "Why John McCain Needs The Living Constitution" on Balkinization, May 15, 2008 ("The most straightforward argument is that "natural born" was a well recognized term of art, based upon the most commonly applied principle of traditional British common law dating from the 16th century.") We could literally cite hundreds of modern authorities along these lines if the court would desire.

The bottom line is that American voters have been taught from childhood that the President must be born in the United States and had the right to depend upon the Senate's deliberations on the issue. Any re-definition of such term at this point would not only be outside the bounds of any arguable judicial authority in the Constitution, but would be an offense to the very nature of democracy by overturning an election by changing the facts that the voters understood when exercising their franchise.