Sunday, August 21, 2011

The Rule of Law and the “Natural Born Citizen” Clause

                                           The Rule of Law and the “Natural Born Citizen” Clause


                                                            By: Mario Apuzzo, Esq.
                                                                 August 21, 2011



 Watch this video of putative President Obama at http://www.telegraph.co.uk/news/worldnews/us-election/8712959/Barack-Obama-accuses-Congress-of-holding-back-recovery.html. His point, which was also made by George Washington in his Farewell Address of 1796, http://www.ourdocuments.gov/doc.php?flash=true&doc=15, is that we can bring our nation back to greatness if politicians would only put country before party. But what is Obama talking about? When we talk about putting country before party, are we not really saying that we should put first what is good for the country as a whole rather than what is good for a particular political party? But how could Obama pretend to promote and defend the greater good of the country without at the same time honoring and respecting the rule of law that keeps that country together? The answer is that the country and the rule of law are inseparable. We cannot have one without the other.

The rule of law is nothing more than intelligence and reason applied to produce a just and predictable result concerning the distribution to people of benefits and obligations offered by the society in which they live. It is a fundamental component of good government and its proper administration. The rule of law, joined with military might, has made our country great and will allow us to prevail in the future. The Founders and Framers, being passionate students of ancient history, recognized the vital importance of the rule of law. In fact, they saw the rule of law to be so critical to life, liberty, and the pursuit of happiness that as a testament of that understanding they gave us a constitutional republic in which military power is subordinate to civilian power. Indeed, the rule of law, which picked up where the Roman Empire ( http://www.usu.edu/markdamen/1320Hist&Civ/chapters/08ROMFAL.htm) left off when it transitioned into the medieval ages, has brought both quantity and quality to world populations. It has given our lives order and civility, allowing Americans to freely study, pray, work, trade, and travel, and thereby to live healthy, prosperous, and peaceful lives.

There exists plenty of historical and legal evidence that Obama is not and cannot be an Article II "natural born Citizen" and is therefore ineligible to be President. Since the Founding, a “natural born Citizen” has been understood to be a child born in the country to citizen parents. The Founders and Framers were particularly careful to keep out of the Office of President and Commander in Chief of the Military foreign and monarchial influence. They therefore demanded that future presidents be "natural born Citizen[s]." By demanding such birth status, they assured that future presidents would be born with no allegiance to any foreign power and therefore loyal and attached only to the United States from birth.

A "natural born Citizen" was well-defined in natural law and the law of nations upon which the Founders and Framers heavily relied in the early years of our Republic. Founder historian, David Ramsay (http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html) who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) ( http://www.scribd.com/doc/33676461/Founder-and-Historian-David-Ramsay-Defined-Natural-Born-Citizenship-in-1789-by-Atty-Mario-Apuzzo) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth.  This definition surely came from natural law and the law of nations and not from the English common law which in defining a “natural born subject” made no reference to the nationality of the parents.  In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth.

Other relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (http://www.constitution.org/vattel/vattel_00.htm), tell us: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

Then we have Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZS.html), which providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80.  We can see from this American common law definition of a "natural-born citizen" that the Supreme Court did not rely upon the English common law for the definition, but rather on natural law and the law of nations as set forth by Vattel in Section 212 of The Law of Nations.  We can also see from the Minor decision that an American “natural born Citizen” is much different from a British “natural born subject,” for the latter did not consider the nationality of the parents and also included naturalized British subjects “at birth” and after birth.

Then there is U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZS.html), which cited and quoted Minor and its definition that a “natural-born citizen” is a child born in the country to citizen parents. Wong then decided that a child born in the country to alien parents who were domiciled in the U.S. was a "citizen" under the Fourteenth Amendment. The Court did not nor did it have to rule that he was an Article II "natural born Citizen" which the Court told us was defined by Minor. Rather, the Court told us that he was a "citizen" under the Fourteenth Amendment. So what the Court actually did was naturalize Wong to be a “citizen of the United States” “at birth” like the Exchequer Chamber in Calvin’s Case (1608), creating the English rule of jus soli birthright citizenship, naturalized Calvin (the postnati) based on “procreation and birthright” to be a “natural born subject.” It is interesting to note that neither the British Parliament which started to debate the matter in 1604 nor the U.S. Congress prior to 1898 were willing to naturalize persons like Calvin and Wong, respectively, so the matter fell upon the courts of justice, and that those who were born prior to 1603 (the antenati), when James VI of Scotland inherited the throne of England as James I, could naturalize only by statute. Hence, the jus soli rule of Calvin’s Case is really a naturalization rule used to bestow citizenship or nationality at birth.  This is confirmed by Vattel who in Section 214 of The Law of Nations, entitled, Naturalisation, said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” Hence, the jus soli rule of Calvin’s Case, as applied by Justice Gray in Wong Kim Ark, is a rule allowing person to become naturalized “at birth” and not a rule that can be used to establish “natural born Citizen” status in the new republic, for being naturalized “at birth” one cannot be a “natural born Citizen.” Our courts have incorporated the jus soli rule of Calvin’s Case into the application of the Fourteenth Amendment. By doing so, they have declared children born in the United States to one or two alien parents to be “born” “citizens of the United States.” But these children, being naturalized “at birth” under jus soli are not “natural born" “citizens of the United States.” 

There are other historical sources and cases which inform on the definition of a “natural born Citizen” but for the sake of brevity, I will not include them here.

We know from Vattel and Minor that "citizens" can be the parents of "natural born Citizens" but are not necessarily "natural born Citizens" themselves. Being born in the country to citizen parents allows a child to be born with no foreign allegiance and with loyalty and attachment only to the country of his or her parents. Such birth circumstances allow a child to be born under the full and complete allegiance and jurisdiction of the United States.

Obama's father, a British citizen, was never a U.S. citizen. Hence, Obama was not born in the country to citizen parents. Because Obama’s father was not a U.S. citizen, Obama, even if born in Hawaii which he has yet to conclusively prove, was also born with allegiance to and citizenship in Great Britain. Consequently, Obama was not born with no foreign allegiance and with sole loyalty and attachment to the United States. He was not born with sole allegiance and unity of citizenship in the United States at birth, a natural condition that the Founders and Framers wanted in future presidents and commanders in chief. He was not born under the full and complete allegiance and jurisdiction of the United States. He is not and cannot be an Article II "natural born Citizen." Under Article II, Section 1, Clause 5, he is therefore not eligible to be President and Commander in Chief.

But how can we expect to achieve and maintain greatness as a nation when our own president does not follow the rule of law as it pertains to his eligibility to be President? Being the putative President and Commander in Chief, Obama should be the first one to follow his own advice of putting country first. He and his enablers should put the Constitution (country) before his personal political ambitions (party). But up to now, Obama and his enablers are just saying "do as I say, not as I do."

A great number of Americans have come to understand these fundamental truths and are not happy with how Obama and political and legal institutions have turned a blind eye to Obama’s ineligibility to be President. These Americans are demanding justice on a daily basis. If Obama and his enablers were to follow Obama’s advice, these Americans, who have lost respect for their political and legal institutions, could once again get behind their political leaders and help them solve the many social and economic issues which are currently disrupting our nation. On the other hand, some Americans believe that the “natural born Citizen” issue is a “distraction” from the real issues pressing our country. But as we have seen, the "natural born Citizen" issue goes to the heart of our constitutional republic, the rule of law. Without the rule of law, we have no constitution or republic. I would not consider any of that a "distraction."

This state of affairs leaves Americans who truly care about their country and the rule of law with having to continue this fight on their own. Their fight will not go unrewarded, for as history has shown, those who persevere will in the end win.

Mario Apuzzo, Esq.
August 21, 2011
####

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved



81 comments:

Frank Davis said...

Let's see if I can break this down clearly:

Claim 1: ""The Court held that Minor was a member of the “class” of persons who were natural-born citizens."

This is, in fact, true.

Claim 2: "They defined this class as those born in the US to “parents” (plural) who were citizens."

This is NOT true. These were the facts of Minors case - it described her. The Court stated that there was no doubt that such a person is a member of the class.

That is an EXPRESS statement that this type of citizen qualifies as a natural-born citizen, but does not describe the class as a whole.

That would be like saying because the court said "Granny Smiths, are green and sour, have always been considered apples" it means the court is defining the class of apples as having the necessary qualities of being green and sour.

Claim 3: "The Court also noted that the “citizenship” of those born to non-citizen parents was subject to doubt. Since Virginia Minor was in the class of natural-born citizens, that doubt didn’t need to be resolved."

This is true, indeed. However, this statement defeats an assertion that there is a requirement FOR dual-parent citizenship.

The Court states that there were differing judgments as to whether such a citizen would qualify as a natural born citizen. Because the Court does not resolve the question, it remained OPEN. Further, considering that a citizen with such characteristics was not the subject of the suit, resolving such a question would be improper.

The "restraint" that your site refers to also undermines the argument he makes. Because the Court did not have the question in front of them, it was judicially improper for them to resolve whether such citizens were natural born citizens.

In fact, the only thing that Minor asserts is that someone born in the U.S. and has citizen parents is definitely part of the class of natural born citizens. Looking at Cornell's annotated Constitution, we see that the is of what the entire class consists of is STILL a question, left open by the Court:

All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Inde[p.434]pendence. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is “a natural born citizen” in the sense of the clause. Such a child is a citizen as a consequence of statute.94 Whatever the term “natural born” means, it no doubt does not include a person who is “naturalized.” Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that “[a]ll persons born or naturalized in the United States” are citizens.95 Significantly, however, Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that “the children of citizens of the United States, that may be born beyond the sea, . .. shall be considered as natural born citizens. . . .”96

This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural–born subjects of the crown.97 There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.98 Whether the Supreme Court would decide the issue should it ever arise in a “case or controversy” as well as how it might decide it can only be speculated about.

http://www.law.cornell.edu/an...

Continued...

Frank Davis said...

...Continued Part 2


Further, although you dispute the holding based on his misconception of Minor, the current precedent states that minor holds nothing about whether any other class of citizens are also natural born citizens:

Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. CONST. amend XIV, § 1.

Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4.

The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v Happersett, 88 (21 Wall.) U.S. 162, 167 (1874).

In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that: The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. Id. at 167-168.

Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen. 1212. Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen
of the United Kingdom.

http://www.in.gov/judiciary/o...

SaipanAnnie said...

Bravo!

jayjay said...

Great post, Mario ... kudos!!!

Puzo1 said...

Frank Davis,

I of II

Let's see if I can answer you. You argue that Minor did not really give us a definition of a “natural born Citizen,” but rather only a factual scenario involving Virginia Minor. The Minor Court had to determine whether Virginia Minor was a “citizen” so that it could determine whether she had a constitutional right to vote in Missouri under the privileges and immunities clause which extends only to “citizens” and which privileges and immunities are given constitutional protection from state deprivation under the Fourteenth Amendment. To determine whether Virginia Minor was a “citizen” or a “natural born Citizen,” the Court had to find a time-tested and accepted legal definition, not just some factual scenario. So, the definition of a “natural-born citizen” laid down in Minor does not simply reflect the facts of the case as you allege but rather is based on what the Court called the “common-law.” In referring to that “common-law,” the Court referred to material elements of a legal rule, not just to facts of a legal problem. Also, I have shown that this “common-law” was not the English common law, which made no reference to the citizenship of the parents, but rather to American common law which grew out of natural law and the law of nations and which became part of Article III “Laws of the United States” as confirmed by Article I, Section 8, Clause 10 (the “Law of Nations” offenses clause).

You argue that Minor left open the door for the “natural-born citizen” class to include children born in the United States to alien parents. Minor did not leave open the possibility that the “natural-born citizen” class would be expanded in the future by another court deciding the question that it did not need to decide. The “natural born Citizen” class confirmed by Minor is not a class that can be expanded at will. Remember that “natural born Citizen” is a presidential eligibility requirement. The Founders and Framers would have used finite elements for eligibility (like 35 years of age and 14 years a resident) and not some concept that can morph over time at the will of Congress or some court. That is why as the Minor Court explained there was no doubt as to what a “natural-born citizen” was. Additionally, allowing the “natural born Citizen” clause to be amended by either Congress or the courts is tantamount to amending the Constitution without going through the required amendment process of Article V.

You maintain that Minor did not require that both of a U.S.-born child’s father and mother be United States citizens in order for that child to be a “natural-born citizen.” How can you reasonably assert that there is no “requirement FOR dual-parent citizenship” when Minor said “all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens…” First, Minor used the plural, “parents.” Second, as I have explained in numerous of my essays, at the time of Vattel’s writing his treatise, The Law of Nations (1758), and the Founding and the Minor decision, the wife and husband enjoyed unified citizenship which followed the husband. So, “parents” referred to both the father and mother since the father and mother would always have the citizenship of the husband.

You argue that Minor left open the question of whether children born in the United States to alien parents could be “natural-born citizens.” You are misstating what the Minor court said. It said: “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80.

Continued . . .

Puzo1 said...

II of II

The Court, in referring to these other children who were born in the United States to alien parents, said they belonged to a different class from the class to which the “natural-born citizens” belonged. If the Court meant to potentially include these other children who are born in the United States to alien parents within the same class as the children born in the United States to citizen parents, it would have said that “there have been doubts” whether those children (born to alien parents) belong to that same class (that of those children born to citizen parents), not whether they belong to another class. So we can see that the Minor Court distinguished between being a “citizen” (the class about which there were doubts) and a “natural-born citizen” (the class concerning which there were no doubts). Therefore, the question that Minor left unanswered was whether Minor would have even been a “citizen” if she had been born in the country to alien parents, not whether she would have been a “natural-born citizen” if born under those circumstances. Hence, the question left open by Minor concerned the “citizen” class, not the “natural-born citizen” class. And it is the question regarding the “citizen” class that Wong Kim Ark decided under the jus soli naturalization “at birth” principle of Calvin’s Case. Therefore, Wong Kim Ark held that Wong was a “born” “citizen of the United States” under the loser standards of the Fourteenth Amendment, not a “natural born” “Citizen of the United States” under the stricter standards of Article II.

Finally, you invoke the aid of Cornell’s Annotated Constitution to support your thesis that any citizen “at birth” is a “natural born Citizen.” Cornell concludes: “There is reason to believe, therefore, that the phrase [“natural born Citizen”] includes persons who become citizens at birth by statute. . .” But this source is wrong in its conclusion. Again, the Founders and Framers would not have left the class of “natural born Citizen[s],” which was the eligibility standard for a would-be president, subject to being expanded over time by Congress or the courts without a constitutional amendment. Simply put, “natural born Citizen” was a natural law concept that was divine, binding, and immutable. The Founders and Framers did give Congress naturalization power which it could use to create or increase the class of “citizens.” But that power did not include the ability to increase the “natural born Citizen” class which was created by natural law and not by positive law.

Regarding Cornell’s reliance upon the Naturalization Act of 1790 and your attempt to extend its "at birth" logic to those born in the United States, first, this act was repealed by the Naturalization Act of 1795 (which took us from “natural born citizen” to just “citizen of the United States”). Second, the 1790 Act was only retroactive. Third, as I explained above, the Constitution did not give Congress the power to create a “natural born Citizen” through a naturalization act. Fourth, the Naturalization Act of 1790 was just that, a naturalization act, and Cornell itself concedes that a “natural born Citizen” “no doubt does not include a person who is ‘naturalized.” Fifth, the notion that a citizen “at birth” by naturalization statute (or even the Fourteenth Amendment) is a “natural born Citizen” is as oxymoronic as a cold fire.

Hence, any “citizen of the United States” “at birth” who acquires that status by the Fourteenth Amendment or 8 U.S.C. Sec. 1401(a) (both applicable to those born in the United States to one or two alien parents and “subject to the jurisdiction thereof”) or any other Act of Congress (applicable to persons born out of the United States to one or two United States citizen parents), being a status gained by naturalization “at birth,” is necessarily only a “citizen of the United States” and not an Article II “natural born Citizen.”

SaipanAnnie said...

Frank Davis says:

Granny Smiths, are green and sour

Your setting is showing, sir.

Oh, dear. You must be tired of playing 'Atticus'.

jayjay said...

SaipanAnnie:

"Playing 'Atticus'", indeed!!

Additionally in his Part II, Mario could have noted that one G. Washington signed the 1790 Act and that very shortly after that (using congressional "speed" as a basis of judging) and in 1795 that same G. Washington signed the 1795 Act which repealed the earlier Act.

Had the President at the time felieved the 1795 Act was in error as Atticus - err; Frank - seems to believe he could have refused to sign it. The indication is, then, that George believed the 1795 Act corrected the earlier 1790 congregational error.

cpanon said...

Mario
You are and I pray remain indefatigable against these disingenuous at best, seditious sophists at the beginning of the worst. Just a little more and we will have them popping out writhing on the floor piercing their own tongue.

Stockrock50 said...

The Judiciary branch has left this issue to the political branches after Obama meet with them. (Constitution's allocation of powers) The judicial branch,the Court, has always respected foreign sovereigns "perfect rights (and close analogues)as a means of ensuring any decision that would lead the nation to war should rest exclusively with the political branches.

Remember what Paul Valley said about the FBI and CIA.

Frank,MSNBC,MSM and others have never read the Constitution.They make comments like (How did George Washington become President? Was he a Natural Born citizen?)

The Law of Nations, all legal scholars understand that the Constitution was created from it.

Columbia Law Review VOL.109
Federal Common Law of Nations

Frank Davis said...

(1) "You argue that Minor did not really give us a definition of a “natural born Citizen,” but rather only a factual scenario involving Virginia Minor."

No. I state that the factual situation allowed for the Court to state only that Minor qualified, clearly, as a natural born citizen. That means that a person born in the U.S. of citizen parents IS a natural born citizens, but does not state what IS NOT a natural born citizen. It is not an exclusive definition, in other words, nor could the Court legally give an exclusive definition as it is limited to holding on the facts before it.

(2) "So, the definition of a “natural-born citizen” laid down in Minor does not simply reflect the facts of the case as you allege but rather is based on what the Court called the 'common-law.'"

Again, I never said that it was wholly based on the facts. That is impossible, as the Court MUST resort to law, history, precedent etc. in its determination of law. I am saying that the Court is limited in terms of applying the FACTS to the LAW - that is the basic process of legal analysis. In doing so, it is limited in showing how the facts relate to the law, and must not go beyond the facts to include hypothetical situations to make a determination on those hypotheticals.

As the facts were limited to a person born in the U.S. to citizen parents, the Court ONLY spoke to whether that was a natural born citizen, and it cannot be the holding that they stated anything about someone born to non-citizen parents, outside the country, etc. - it can only be said that the question was left open, and rightly so.

(3) "The 'natural born Citizen' class confirmed by Minor is not a class that can be expanded at will."

See above - the class is not expanded because the Court could not define the class beyond the individual facts before it. That the class includes Minor was all they could say. If it commented on people other than Minor, that's an advisory opinion.

Let me ask - do you know what an advisory opinion is?

(4) "How can you reasonably assert that there is no 'requirement FOR dual-parent citizenship' when Minor said 'all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens…"

Look at my apple analogy again. The statement would have to be "[Only] [t]hese were natives or natural born citizens." Stating that a type qualifies as a member of the group is not about exclusivity.

I'll leave the rest of the discussion alone, as it really is dependent on your understanding of what I'm saying above

atticus finch said...

Stockrock50 wrote:
"The Law of Nations, all legal scholars understand that the Constitution was created from it."

Response:

The United States Constitution was not created by Law of Nations but rather it must be interpreted in light of our English common law heritage from the days of Magna Carta.


The drafters of the Constitution did not write the Constitution in a vacuum but were cognizant of English common law. "The framers of the Constitution were familiar with common-law concepts and the words and phrases employed by common-law lawyers." In re Gannon, 27 F. 2d 362 , 363 (ED PA 1928)

Moreover, "“The principles and history of the common law were well known to the framers of the Constitution and the members of the First Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly. Southern Pacific Co. v. Jensen, 244 US 205 , 230 (1917) (Pitney, J. dissenting)

In fact even Justice Thomas acknowledged the influence of common law in the Constitution. "[I]s true that we frequently consult English history and common law in attempting to determine the content of constitutional provisions.” Loving v. United States, 517 US 748, 779 (1996) (Thomas, J., dissenting)

Similarly the Supreme Court in Moore v. United States 91 U.S. 270(1875) noted: “That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.” Id at 274

Chief Justice Marshall noted the influence of English common law on our laws when he wrote "whose language is our language and whose laws form the substratum of our laws." U.S. v. Burr 25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807

As such, the Constitution itself must be read in light of our English common law heritage. "The 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 U. S. 465, 478 (1888).

Lansing Pink said...

Interesting arguments, even if it does make my brain hurt.

Puzo1 said...

Frank Davis,

I will only address the points of your reply which merit a response.

(1) Notwithstanding the “natural born Citizen” clause being one prescribing a presidential eligibility standard, you insist that Minor’s definition of a “natural-born citizen” contains no negative, restrictive, or exclusionary words and therefore the power remains in the courts to add to that definition at it may please. Your argument is nothing more than wishful thinking. You provide absolutely no support for your position. Rather, you basically say, without providing any policy reason, that since Minor did not say that no one else who is not a child born in the country to citizen parents may be a “natural-born citizen,” then there can be other types of citizens who can qualify to be “natural-born citizen[s].” It is highly doubtful that the Founders and Framers would have given us a definition of a “natural born Citizen” which the judicial branch of government could change at its whim given the political winds that may be blowing. Rather, they used an idiom and word of art which has only one meaning which Minor told us has never given us any doubt. The clause would not be doubt free if a court could simply come along and change that clause to suit any particular individual. Using your logic, there would be no stability and predictability in any of our laws and statutes, for someone could simply come along and say that the law did not say that the elements prescribed were exclusive or inclusive. Rather, we must consider the policy that a rule of law is seeking to promote and allow that policy to guide us on whether the given rule is exclusive or inclusive. You have not done so here so your argument must be rejected.

(2) Does not merit any response.

(3) Does not merit any response. By the way, it appears that you are the one who does not know what an advisory opinion is, confounding it with dicta.

(4) See my answer to No. 1 above.

Finally, please refrain from addressing me in a condescending manner which is so typical of Obots. You have not shown here any superiority in your arguments or intelligence.

Puzo1 said...

Atticus finch,

You are now repeating the same arguments that you have already made about the English common law. I do not deny that the English common law has had an important influence in our jurisprudence on the state level. Rather, what I do contend is that you have failed to address the specific point which is that Minor v. Happersett said that under the "common-law," we define a "natural-born citizen" as a child born in the country to citizen parents. You cannot erase this definition by cutting and pasting courts' statements indicating that the English common law has been influential in the legal development of our states.

atticus finch said...

Puzol wrote:" It is highly doubtful that the Founders and Framers would have given us a definition of a “natural born Citizen” which the judicial branch of government could change at its whim given the political winds that may be blowing."

Response:


Courts have recognized that the drafters of the constitution of who most were lawyers were influenced by the principles and history of the common law that we inherited from the English. “The principles and history of the common law were well known to the framers of the Constitution and the members of the First Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly.” Southern Pacific Co. v. Jensen, 244 US 205, 230 (1917)(Pitney, J. dissenting); See also Smith v. Alabama, 124 U. S. 465, 478 (1888)(“The 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.”)

Since the drafters of the Constitution wrote it in the language of the English common law then according to statutory construction that unless otherwise defined in the Constitution, words are to be taken at their ordinary and contemporary meaning.“ A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 US 37,42 (1979).

Moreover, if the use of words in the Constitution had a common law meaning then the courts must infer the incorporation of this common law meaning unless the language of the Constitution compels a different meaning.”[G]uided by the principle that where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” Standard Oil Co. of NJ v. United Sates, 221 US 1, 59 (1911); Neder v. United States, 527 US 1, 21 (1999)(It is a well-established rule of construction that "`[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.')(internal citations omitted)

Furthermore, if words were created not by positive law but rather by judicially created concept then any interpretation of those words other than their common law meaning must be specific and clear. "The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific." Stillians v. Iowa, 843 F.2d 276, 280 (8th Cir.1988)(quoting Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986)). Thus, it is proper to consider that Congress acts with knowledge of existing law, and that "absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction." Johnson v. First Nat'l Bank of Montevideo, 719 F.2d 270, 277 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). Estate of Wood v. CIR, 909 F. 2d 1155,1160 (8th Cir. 1990)

In other words, If drafters of the Constitution used words in the Constitution that have a common law meaning then it is PRESUMED that drafters intended common law application of the words UNLESS there is language in the Constitution that intended a contrary interpretation of the words.

atticus finch said...

Frank Davis wrote: "the class is not expanded because the Court could not define the class beyond the individual facts before it. That the class includes Minor was all they could say. If it commented on people other than Minor, that's an advisory opinion."

Response:

I agree.

The problem with Chief Justice Waite's gratuitous comment about “natural born citizenship” is that it had absolutely nothing to do with the decision of the court in finding that the Privilege Clause of the 14th Amendment didn't confer the right to vote to women even if women were citizens. That is why his "natural born citizenship" comments were dicta.

If Minor's citizenship status were germane to her right to vote then Chief Justice Waite would have addressed the issue of her status as a citizen of the United States. Moreover, there was no discussion as to the citizenship status of Minor’s PARENTS. In fact, the court noted “She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship.” Minor v. Happperset, , 88 U.S. 162, 170 (1875)

Furthermore his comment about "doubts" of native born or natural born citizenship status of children born to other than citizen parents, he himself remarked “For the purposes of this case it is not necessary to solve these doubts [citizens children born without reference to citizenship of their parents].” Id at 168.

As such, Chief Justice Waite's gratuitous comments about natural born citizen weren't germane to his decision and in fact no subsequent courts have relied on his "comments" as law of the land in defining natural born citizen.

Twenty-three years later, in the Wong Kim Ark case, Justice Gray made a passing reference to the Minor case when he observed:

Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship." United States v. Wong Kim Ark, 169 U.S. 64, 680 (1898)

It is noted that Justice Gray mentioned that Minor being "born of citizen parents within the United States was a CITIZEN" not a NATURAL BORN CITZEN.

jayjay said...

Puzo1:

I suppose it's good from a tautological standpoint that you let the various Flying Monkeys flit about the blog dropping their rhetorical dung wherever they alight.

It sure is boring, though, reading the same old nonsense from these folk rather than anything connected with either law or reason.

It's a shame they don't get some new material, though. Keep up the good work and let's hope that the HI court system will come to its senses and open the HI DOH Obama documentation - ALL of it - to official scrutiny in order to mitigate this repeated nonsense by those seeming not to care that the country's top gun is actually not only a criminal, but a felonious one to boot. They are probably of the mind set that fosters political parties such as the Mafia.

Puzo1 said...

Stockrock50,

It is well established that the courts, invoking the standing, political question, or separation of powers doctrines, normally refuse to get involve in matters involving executive or legislative political discretion over government programs. Invoking the law of nations and relying upon the principle of separation of powers, they have also rightfully left foreign affairs issues (especially ones implicating war) to be resolved by the political branches of our federal government. But the Obama eligibility issue is an internal constitutional one involving the interpretation and application of Article II, Section 1, Clause 5 which does not involve any type of government political discretion or foreign affairs and is ripe for judicial resolution.

Stockrock50 said...

Frank,Articus

The Founders clearly expected that the customary law of nations was binding, was supreme law, created (among others) private rights and duties, and would be applicable in United States federal courts. 1 For example, at the time of the formation of the Constitution John Jay had written: "Under the national government ... the laws of nations, will always be expounded in one sense ... [and there is] wisdom .. in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government...." 2 In 1792, the supremacy of the customary law of nations within the United States was affirmed in Ross v. Rittenhouse; 3 and Attorney General Randolph declared: "The law of nations, although not specially adopted ... is essentially a part of the law of the land." 4

In 1793, then Chief Justice Jay recognized that "the laws of the United States," the same phrase found in Article III, section 2, clause 1 and in Article VI, clause 2 of the Constitution, includes the customary "law of nations" and that such law was directly incorporable for the purpose of criminal sanctions. 5 Also in 1793, the Chief Justice stated that prior to the Constitution:



The United States had ... become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character ...

With the questions about who could be President, David Ramsay wrote his essay.

Historians of today regard the best information to reflect accurate history comes from the known facts within the first ten years of the event.

Puzo1 said...

Atticus finch at 8-23-11, 7:57 a.m.,

Chief Justice Waite’s statements about citizenship were not gratuitous. He had to first decide the question of citizenship before he could decide the question of voting rights. The Court asked and answered two questions: whether Virginia Minor, being a woman, was a citizen of the United States, and whether if she was a citizen did she then necessarily have the constitutional right to vote. The court devoted a great part of its decision to first explain what citizenship in the United States was after which it analyzed whether a citizen has the constitutional right to vote. As you concede, even Wong Kim Ark, in referring to the Minor case, said: “Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship." United States v. Wong Kim Ark, 169 U.S. 64, 680 (1898). Hence, what the Court said about citizenship was central to the court’s holdings which were that Virginia Minor was a citizen and that even though she was a citizen, she did not have the constitutional right to vote.

Your contention that Minor did not discuss Minor’s parents citizenship status is specious. First, the Court referred to Mrs. Minor as being “native born,” an expression at that time which was equivalent to saying she was a “natural-born citizen.” Second, the court said that a “natural-born citizen” was a child born in the country to citizen parents. The Court also said that “there have been doubts” whether a child born in the country to alien parents was a “citizen” and did not resolve those doubts. Since the Court ruled that Virginia Minor was a citizen without resolving the doubts that it identified, the Court had to have been satisfied that Virginia Minor was not only born in the country but also to citizen parents. Finally, even Wong Kim Ark acknowledged that Minor found that Mrs. Virginia's parents were U.S. citizens when it said that Virginia Minor was "a woman born of citizen parents. . . ."

That Justice Waite said that Mrs. Minor was a “citizen” rather than a “natural-born citizen” has no significance given the Court’s holding. As I have shown above, given the Court’s statement about there being doubts (which it did not resolve) whether a child born in the country to alien parents was even a “citizen,” the Court had to conclude that she was a “natural-born citizen.” We can also conclude that the Court had to find she was a “natural-born citizen” or else the Court would not have said she was a “citizen.” Additionally, we can see from the Court’s expressed doubts about who is a “citizen” and its at the same time declaring Mrs. Minor to be a “citizen” that all “natural-born citizens” are “citizens,” but not all “citizens” are “natural-born citizens.” Under the Court’s definition, two “citizens” are the parents of the “natural-born citizen.” The Court left for another day the question of whether a person born in the country to alien parents was even a “citizen” (let alone a “natural-born citizen”), a question which in 1898 Wong Kim Ark answered in the affirmative, provided the alien parents were domiciled in the United States.

cpanon said...

Hi All
Is it possible for a group project to create a "Euler flip-chart" or similar Tufte graphic, from the Constitution forward on all issues and milestones reduced graphically. That diagram is correct but poorly done visually for easy apprehension. We should be able to create a series of these per each Mario citation.

Yes I realize this is a degradation of thought and the necessary precision for truth, many are not/deliberately there yet. This is that same precision in a differernt medium with its own uniquness and leverage.

MichaelN said...

@ Atticus.

What did Lord Coke mean by "nature & birthright"????

Quoting Lord Coke (Calvin's case)

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a"

"[42. ][Ed.: natural, absolute, pure and unlimited allegiance.]"

"[42a. ][Ed.: high allegiance.]"

"Ligeance is a true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject; for as soon as he is born he oweth by birth right ligeance and obedience to his Sovereign."

Seems like there is no 'municipal law' that makes 'subditus natis' (natural born subject).

The framers of USC obviously concur.

atticus finch said...

Puzo1 wrote: "Your contention that Minor did not discuss Minor’s parents citizenship status is specious. First, the Court referred to Mrs. Minor as being “native born,” an expression at that time which was equivalent to saying she was a “natural-born citizen.” Second, the court said that a “natural-born citizen” was a child born in the country to citizen parents."

Response:

So how many types of citizenships are there in the United States?

You claimed that there are four classes of residents in the United States:
1) natural born/native born citizens who are born of parents who are United States citizens;

2) naturalized citizens who have been naturalized by Act of Congress;

3) Children born in the United States to alien parents who you considered are aliens themselves despite the fact they were born in the United States.

4) Aliens.

With this understanding then Obama should be considered an alien under your theory of citizenship.

In other words, we have two classes of persons who were born in the United States: natural/native born and alien. Since Obama was born to a foreign national father then he is an alien.

As I mentioned previously, the courts only recognized two types of citizenships: natural born/native born citizens(jus soli) and naturalized citizens.
There is no third type of citizen who was born in the United States to alien parents. Under your legal theory, that person is an alien because he wasn't born to parents who were United States citizens nor was he naturalized.

Puzo1 said...

Atticus finch,

There are only two types of citizens in the United States. There are Article II “natural born Citizens” and naturalized citizens. The latter citizens are either naturalized “at birth” or thereafter.

Starting with the Naturalization Act of 1790, Congress considered any child born in the United States to alien parents to be an alien. Under unity of citizenship between husband and wife, that means that both parents had to be citizens. When the husband naturalized, his wife also became a U.S. citizen. If their child was still a minor (not over 21), he or she also automatically became a citizen (called derivative citizenship). If the husband did not naturalize by that time, the son or daughter had to naturalize on his or her own right. So under the original scheme of things, Obama was born an alien.

In fact, in Wong Kim Ark (1898), the United States argued that Wong, even though he was born in the United States, was still an alien because he was born to alien parents. Justice Gray (who was appointed to the U.S. Supreme Court by President Chester Arthur who himself was born an alien) changed things as did Lord Coke in Calvin’s Case by relying on the principle of jus soli and naturalizing Wong “at birth” and declaring Wong a “born” “citizen of the United States.” But the fact still remains that both Calvin (Calvin’s parents were antenati and therefore aliens in England) and Wong were naturalized “at birth.” Vattel in Section 214 of The Law of Nations on “naturalisation” confirms the fact that England naturalized its subjects at birth by the mere fact of being born in its territory. Being so naturalized at birth, both Calvin (if born in the U.S.) and Wong were not “natural born Citizen[s].” Lord Coke called Calvin a “natural born subject” because the British gave that clause a different definition than did the Founders and Framers gave to an Article II “natural born Citizen.” The British gave their clause a much more broader definition, considering all their subjects to be “natural born subjects” whether they so became by birth or naturalization. On the contrary, relying on natural law and the law of nations, the Founders and Framers considered only the children born to citizen parents to be truly a “natural born Citizen,” for these were the only children who from birth became U.S. citizens by nature and not by positive law and therefore did not need any naturalization “at birth” to be declared born citizens. This is the reason the Founders and Framers in Article II chose “natural born” and not just “born.”

So, Obama was really born an alien. But through Wong Kim Ark, was naturalized "at birth" to become a 14th Amendment "born" “citizen of the United States” (assuming he was born in Hawaii). But again, this does not make him a an Article II “natural born" "Citizen of the United States” who does not need any positive law such as the 14th Amendment or any Congressional Act or treaty to inherit that natural birth quality.

atticus finch said...

Puzo1 wrote: "Starting with the Naturalization Act of 1790, Congress considered any child born in the United States to alien parents to be an alien."

Response:

If as you suggested that "jus solis has been no part of U.S. naturalization law since 1790" then why haven't any Naturalization Acts since 1790 made any particular reference to native born children born to aliens in their sections regarding children of aliens. The Acts of 1790, 1795 and 1802 all contained the phrase "dwelling in the United States" as one of the conditions of granting citizenship to the children born of persons duly naturalized.

If these Acts did include children born in the United States to alien parents then why the insertion of the phrase "dwelling within the United States" since if a child is born in the United States then the child is also dwelling in the United States then phrase is redundant and superfluous?

UNLESS, the phrase "dwelling within the United States" as a condition for a child's citizenship means that the child born OUTSIDE the United States would have to be dwelling in the United State at the time of his or her parent's naturalization.

The interpretation that the phrase "dwelling within the United States" applies to those children born OUTSIDE the United States and not to those children born INSIDE the United States is supported by United States Supreme Court case in 1810 where the court observed:

"Congress meant to provide for the more common case of a MAN COMING WITH HIS CHILDREN. They intended that ALL WERE WITH HIM, under age at the time of his naturalization should partake of the benefit of his act. But they could not mean that the naturalization of a father should naturalize all his progeny under age, wherever they resided. Reasons of policy would forbid it. Their education, manners, habits, prejudices, and prepossessions would all be foreign, and uncongenial with our manners, principles, and systems of government. A child might in this manner become a citizen without renouncing his title of nobility. Campbell v. Gordon, 10 U.S.176 (1810)(emphasis added)

Jus Soli was alive and well in colonial America and is still alive and well today. Thanks in part to Congress recognizing that naturalization acts do not apply to native born citizen in the United States regardless as to the citizenship status of his or her parents.

atticus finch said...

Puzo1 wrote: "So, Obama was really born an alien. But through Wong Kim Ark, was naturalized "at birth" to become a 14th Amendment "born" “citizen of the United States” (assuming he was born in Hawaii). But again, this does not make him a an Article II “natural born" "Citizen of the United States” who does not need any positive law such as the 14th Amendment or any Congressional Act or treaty to inherit that natural birth quality."

Response:

The 14th Amendment did not "create" a new form of citizenship that was neither native/natural born (jus soli)nor naturalized but rather the 14th Amendment codified the existing common law concept that those born within the jurisdiction of the United States regardless as to the citizenship status of their parents were natural born citizens.

“It was a fundamental rule of the common law of England, that persons born in England and under the allegiance and protection of that government, were English subjects regardless of the nationality of the parents. Those born in England of ambassadors and of enemies having hostile occupancy of a portion of English soil, were not subjects; because not born within the allegiance. An alien domiciled in England owes temporary allegiance in return for protection afforded him and, hence, his child born in England is born in the allegiance of the crown which allegiance, in the child's case, is permanent. Such was the law of the colonies and the law of the United States down to the 14th amendment; and such is still the law here and in England. . . ..The 14th amendment affirms the common-law rule that citizenship follows birth. An alien owes allegiance to the United States while domiciled here, and his children born here are born in the United States and under its jurisdiction. Such allegiance is but local and temporary; still it is strong enough to confer citizenship on his children born here. Samuel Fox Mordecai, Dean of the Law School, Trinity College. “Law Notes –Brief Summaries of the Law (1911) page 167

Prior to the ratification of the 14th Amendent in 1868, the executive branch of the United States through the Secretary of State and Attorney General had recognized the native born status of children born of alien parents in the United States.

Mr. Marcy, Secretary of State, in 1854, in an instruction to Mr. Mason, United States Minister to France, said: "In reply to the inquiry which is made by you, . . . whether 'the children of foreign parents born in the United States, but brought to the country to which the father is a subject, and continuing to reside within the jurisdiction of their fathers country, are entitled to protection as citizens of the United States,' I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship." Mr. Marcy to Mr. Mason, June 6, 1854, MSS. Inst. France.

Attorney General Black, in 1859, held that "a free white person born in this country of foreign parents is a citizen of the United States." 9 Ops. Atty. Gen. 373.

Attorney General Bates, in 1862, held that a child born in the United States of alien parents who have never been naturalized is, by the fact of birth, a native-born citizen of the United States, entitled to all the rights and privileges of citizenship. 10 Ops. Atty. Gen. 382.

James said...

Frank Davis is probably the Obot Frank Aurdini. Watch him! He's vicious. It has always been assumed that if you are born in this country you are a Natural Born Citizen however attached to that there is unspoken assumption that being born in this country regarding NBC means being born of citizen parents. The notion that a person could be eligible to be the POTUS being born of noncitizens or aliens is simply absurd.

MichaelN said...

@ Atticus.

Four different conditions/circumstances at birth does not equate to four different types of 'residents/citizens'.

There are two types of citizens, i.e. born & naturalized.

Of the born variety, there are several/different conditions/circumstances of birth.

There are at least two types of born citizens.

One of them is an Article II "natural born Citizen"

Puzo1 said...

Michaeln,

I would be careful in juxtaposting born citizens with naturalized. There is a lot of confusion regarding what a born citizen is. I would give "natural born" citizen its own category to avoid confusion.

James said...

"Starting with the Naturalization Act of 1790, Congress considered any child born in the United States to ALIEN parents to be an ALIEN."


They would then made "citizens" under the act of 1790 but only citizens and not natural born citizens but those children born OUTSIDE the country were considered "Natural Born Citizens" if born of PARENTS who were US Citizens.

MichaelIsGreat said...

Hello Mr. Apuzzo,

I read the following interesting article. See "Romney to Trump: Obama Doesn't Need a Birth Certificate - Forbes" at http://www.forbes.com/sites/danielfreedman/2011/04/12/romney-to-trump-obama-doesnt-need-a-birth-certificate/

It is rather appalling that the Democrats try to hide the truth on the lack of eligibility of Obama but that Romney is ignorant on this matter is quite shocking!

Puzo1 said...

MichaelIsGreat,

The headline of the article is misleading. According to the article itself, it is the old Romney family lawyers, serving the interests of George Romney, who was born in Mexico and who was considering running for President, who may have said place of birth does not matter, not Mitt Romney.

Also, I do not agree with their position. First, the Naturalization Act of 1790, which used "natural born citizen," was only retroactive. Second, the Third Congress in 1795, in referring to children born out of the U.S. to citizen parents, changed their status from "natural born citizen[s]" to "citizen[s] of the United States." It looks to me like the early Congresses considered place of birth to be as important as it considered the citizenship of the parents.

jayjay said...

All:

You'll note the Flying Monkey hype has already started for Mario Rubio being a nbC even though he was born in the US of alien parents several years before they became naturalized.

Much like Chester Arthur.

These feathered flappers are determined to destroy as much of the rule of law by the Constitution as they possibly can.

MichaelN said...

Puzo1 said...
Michaeln,
I would be careful in juxtaposting born citizens with naturalized. There is a lot of confusion regarding what a born citizen is. I would give "natural born" citizen its own category to avoid confusion.
August 24, 2011 1:38 PM
---------------------
Mario.
Important to note (according to Coke - Calvin's case)that everyone in the realm of the English sovereign was considered to be a 'subject', save enemy aliens & foreign diplomats.
Not so in USA.
But in England, friendly aliens were 'subjects' & the children of said those (alien) 'subjects', if born in the realm, were called 'natural born subjects'.
Therefore a 'natural born subject' of England was one born in the English realm to a 'subject' father (wife took the subject status of the husband)
Jus soli and jus sanguinis were the two essential elements to produce a 'natural born subject'.
Although an enemy alien (invading)was cited by Coke as the example as not able to produce a NBS child, it was the fact that the invading alien was not a 'subject' that caused his child to be NOT eligible as a NBS.

Coke said...
"And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject"

Puzo1 said...

Atticus finch at 8-23-11 at 7:50 a.m.,

I of III

We both agree that the Founders and Framers relied upon the “common law” for their definition of a “natural born Citizen.” What we disagree on is to which “common law” did they look. You say they looked to English common law. I say they looked to natural law and the law of nations which as incorporated into Article III “Laws of the United States” became American common law.

First, you state: “In other words, If drafters of the Constitution used words in the Constitution that have a common law meaning then it is PRESUMED that drafters intended common law application of the words UNLESS there is language in the Constitution that intended a contrary interpretation of the words” (your emphasis supplied). But the clause “natural born Citizen” did not exist in the English common law. “The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing. Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated.” U.S. v. Wong Kim Ark 169 U.S. 649, 709 (1898) (C. J. Fuller, dissenting). Hence, the Founders and Framers could not have relied on the English common law for the meaning of a “natural born Citizen” if the clause did not exist in that law. As further proof that the Founders and Framers did not follow English common law to define the new nationality, the First Congress abrogated the English common law when it passed the Naturalization Act of 1790 which considered children born in the United States to alien parents as aliens.

Second, you have no U.S. Supreme Court cases which support your position that the Founders and Framers looked to the English common law for a definition of a “natural born Citizen.” On the contrary, I have several such cases showing that the meaning of the clause comes from natural law and the law of nations and thus American common law. Here is my list:

The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cites Vattel and provides his definition of natural born citizens and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”

Continued . . .

Puzo1 said...

II of III

The Venus is a very important case on defining a “natural born Citizen.” John Marshall ( Sept. 24, 1755 to July 6, 1835), was the Chief Justice at the time. He served on the Court from February 4, 1891 until July 6, 1835. John Marshall served in the Continental Army during the American Revolutionary War. He was First Lieutenant of the Culpeper Minutement of Virginia, and then Lieutenant in the Eleventh Virginian Continental Regiment. He was a personal friend of George Washington. He was selected as a delegate to the Virginia convention responsible for ratifying or rejecting the United States Constitution, which had been proposed by the Philadelphia Convention a year earlier. Together with James Madison and Edmund Randolph, Marshall led the fight for ratification. He debated for ratification of the Constitution in the Virginian General Assembly. The other Justices on the Court were also of the time period. Contemporaneous evidence of the time period is highly persuasive as to the intent of the Founders and Framers.

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority of the Court, which included Chief Justice John Marshall, in Inglis did not rely upon the English common law jus soli rule but rather the law of nation jus sanguinis rule when it held that if the demandant was born in New York after July 4, 1776, his minority incapacitated him from making any election as to which citizenship to chose and he therefore inherited the character and election and therefore the citizenship of his father who, if born a British subject and if he continued that national character as of the time of his son’s birth, made the son British also, subject to the son renouncing the citizenship chosen for him by his British father during minority and choosing U.S. citizenship upon becoming an adult. Id. at 124 and 126.

Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring cites Vattel and The Law of Nations and provides his definition of natural born citizens and takes out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, stated: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .”

Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated:

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.

Id., at 167-68.

Continued . . .

Puzo1 said...

III of III

Minor did not cite Vattel but its definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common-law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Given that the “common-law” rule that the Court provided included the citizenship of child’s parents (jus sanguinis), the “common-law” could not be mean the English common law which contained no reference to the citizenship of the parents and focused only on the place of birth (jus soli).

Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the “common-law,” it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never has been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” Since Minor was being asked to apply the 14th Amendment, it then applied the “common-law” rule to the 14th Amendment which only speaks of “citizens” and not “natives or natural-born citizens.” It then concluded that any person who is a “natural-born citizen” is necessarily also a “citizen.” The Court, was not, however, willing to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the 14th Amendment, let alone a “natural-born citizen.” The Court added that “there have been doubts” as to whether that child is even a “citizen.” Having decided that such a child is not a “natural-born citizen,” it left the question of whether such a child is a “citizen of the United States” under the 14th Amendment to be decided on another day.

Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879): “[T]he offspring of free persons…follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen -- as old as the common law, or even as the Roman civil law… No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”

U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): It answered the question left open by Minor regarding defining a “citizen.” It distinguished between a “natural born Citizen” and a “citizen of the United States.” It relied on the English common law and Calvin’s Case (1608) to define a born “citizen of the United States” under the Fourteenth Amendment. But when it came to defining a “natural born Citizen,” it cited Minor and quoted its definition of a “natural-born citizen.”

Puzo1 said...

Atticus finch at 8-24-11 at 7:24 a.m.,

You argue that Congress could not have meant to include children born in the United States in the Naturalization Act of 1790 and others that followed because it included the phrase “dwelling in the United States” as a condition for children to be granted U.S. citizenship when born to alien parents. You add that only children that are born out of the United can possible not be “dwelling in the United States.” You argument has no merit. First, the text of the act is clear that it applies to children no matter where they are born. Second, we have three very famous cases of children being born in the United States but yet not “dwelling in the United States.” See Lynch v. Clark, (1844) 1 Sandf.Ch. 583 and Perkins v Elg 307 U. S. 325 (1939) and the Steinkauler case cited and discussed therein.
Jus sanguinis and jus soli that comprise the “natural born Citizen” clause were alive and well during the time the Constitution was adopted and are still alive and well today thanks to neither the Constitution nor the U.S. Supreme Court changing that formula.

Puzo1 said...

Atticus finch at 8-24-11 at 7:39 a.m.,

Why do you insist to insert in the 14th Amendment the clause “natural born Citizen” when it is not there? Do you not think that the framers of that amendment knew quite well that Article II for births after the adoption of the Constitution uses “natural born Citizen” rather than “Citizen of the United States?” Hence, we cannot just invent the notion that when they wrote “citizen of the United States,” they meant to say “natural born Citizen” or that it even includes “natural born Citizen.”

You continue to plug for the English common law as the basis for defining national citizenship in the new nation. But again, that law was abrogated on the national level, and especially when it came to national citizenship. The first great abrogation occurred when the Founders and Framers chose “natural born Citizen” rather than “natural born subject” and the natural law and law of nations definition that went with it. The second big abrogation occurred with the Naturalization Act of 1790 and all the other acts that followed.

The opinions of Attorney Generals Black (1859) and Bates (1862) are noted. But Minor v. Happersett, at U.S. Supreme Court case decided in 1875, said: “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Hence, our U.S. Supreme Court acknowledged such “authorities” but did not say they were correct. Also, Minor reduced the dispute over citizenship to arguing over what is a “citizen,” not to arguing over what is a “natural born Citizen,” the definition of which the Court said there were no doubts. Finally, note that notwithstanding opinions such as those by various Attorney Generals that you cite, the United States in the 1898 case of Wong Kim Ark argued that the U.S.-born Wong was an alien because he was born to alien parents.

Puzo1 said...

Our investigators have confirmed through incontrovertible evidence that we are not to only ones that have been following the arguments of Atticus finch here in which he maintains that the Founders and Framers used the English common law to define national citizenship in the new republic and to specifically define the eligibility requirements for future Presidents and Commanders in Chief of the Military.

Here is the investigators' report:

Subject: Virginia QUAKE NEWS....................


BREAKING NEWS!!!!!
The USGS has determined that the epicenter of the VA earthquake was located in a cemetery just outside of Washington, DC. The cause appears to be all of our founding fathers rolling over in their graves.

atticus finch said...

Re: Naturalization Acts and children born outside the United States to alien parents.

Case law:

“Thus, the children of aliens, no matter where BORN OUT OF THE UNITED STATES, are made citizens by the act of naturalization of their parents; Young v. Peck, 21 Wend. 389, 391 (N.Y. Sup. Ct. 1839)(emphasis added)

Children BORN OUTSIDE THE UNITED STATES, of alien parents, acquire U.S. citizenship automatically if before their eighteenth birthday they move to the United States, and one or both of their parents become U.S. citizens. Wedderburn v. INS, 215 F. 3d 795, 786 (7th Cir. 2000)(emphasis added)


"For children born abroad to two alien parents, the 1940 Act changed traditional derivative citizenship rules by (i) lowering the age under which a child could derive derivative citizenship from twenty-one to eighteen, 8 U.S.C. §§ 714(d), (e); and (ii) requiring that, unless the custodial parent was widowed or divorced, both parents needed to become naturalized for the child to acquire derivative citizenship, 8 U.S.C. §§ 714(b), Langhorne v. Ashcroft, 377 F. 3d 175, 181 (2nd Cir. 2004)(emphasis added)

"As respects the two children who were born in this country while their parents were resident and permanently domiciled here, the decision of the supreme court in the case of United States v. Wong Kim Ark. 169 U. S. 649, 693, 704, 18 Sup. Ct. 456, seems to me not distinguishable from the present; and I must therefore hold that these children, BEING CITIZENS OF THE UNITED STATES AND NOT ALIENS, were not subject to the jurisdiction of the immigration officers under the statute upon which they have been excluded.”
In Re Giovanna, 93 Fed. 659, 660 (District Court, SD NY 1899)
(emphsis added)

The Act of April 14, 1802, was made applicable to children born WITHOUT THE UNITED STATES of alien parents, provided such parents became naturalized during the minority of such child and further provided that citizenship should begin at the time such minor begins to reside permanently in the United States. United States v. Karnuth, 19 F. Supp. 581, 582 (WD NY 1937)(emphasis added)

Revised Statutes of 1874, § 1993. The law was enacted in response to scholarly concerns that its predecessor statute granted citizenship to only the FOREIGN-BORN CHILDREN of persons who were U.S. citizens on or before April 14, 1802, and not to foreigners whose parents had become citizens after that date. Aguayo v. Christopher, 865 F. Supp. 479, 481 (ND Il 1994)(emphasis added)

atticus finch said...

Puzo1 wrote: "You add that only children that are born out of the United can possible not be “dwelling in the United States.” You argument has no merit."

Response:

You misread my comment. I stated that as a CONDITION for a child born out of the United States to be naturalized with his or her parents that the child must be "dwelling in the United States" at the time his or her parents' naturalization.

In other words, a child born out of the United States to alien parents must be dwelling within the United States with his or her parents to acquire United States citizenship automatically at the time of his or her parents naturalization.

If the foreign born child is not dwelling in the United States at the time of his or her parents' naturalization then the child is not naturalized as a United States citizen.

Puzo1 said...

James at August 24, 2011 1:46 PM,

I want to comment on your comment to make sure that our readers understand your good point.

The point to understand is that the First Congress gave controlling effect to the citizenship of a child's parents. For those children born in the United States to alien parents, they were willing to allow them to naturalize. But the best national status that they could achieve was that of a "citizen of the United States." On the contrary, for those children born out of the United States, if born to United States citizen parents, they were willing to declare them as "natural born citizens." The critical importance of the distinction that Congress made in this act between a “natural born citizen” and a “citizen of the United States” is evidenced by the fact that the grandfather clause grandfathered “Citizen[s] of the United States” to be eligible to be President, but only if they had that status as of the time the Constitution was adopted. For any person born after the adoption of the Constitution, that person would have to be a “natural born Citizen.”

In this connection, we also have to understand that the Naturalization Act of 1790 was only retroactive. Hence, the act may have been a sort of grandfather clause for children born out of the United States during the Revolutionary War. Moreover, this naturalization act was just that, a naturalization act. Hence, it can be argued that the "natural born citizen" status granted to children born out of the country was actually a product of naturalization, which would put into doubt whether that person was truly a “natural born Citizen” and thus constitutionally eligible to be President under the "natural born Citizen" clause of Article II. The Third Congress in 1795 probably recognized the retroactivity of the act and the problem of the limitation on Congress’s naturalization powers and so removed "natural born citizen" and replaced it with "citizen of the United States."

Twenty of the 79 members of the First Congress had been delegates to the Convention with eight of these having been members of the Committee of Eleven, the committee that drafted the presidential eligibility clause. This legislative activity by our early Congresses, which were joined by many influential Founders and Framers, shows that it was both place of birth and citizenship of the child's parents that both the Founders and Framers and Congress found to be controlling in creating the national character of a “natural born Citizen.” What this also shows is that the Founders and Framers and Congress were well aware that a “natural born Citizen” under American common law was not the same thing as a “natural born subject” under English common law, for the British considered their subjects born in the King’s dominions to alien parents to be “natural born subjects” (see Calvin’s Case) and out of the King’s dominions to British subject to be “natural born subjects” (see the various British naturalization acts starting with De Natis Ultra Mare, 25 Edw. 3, stat. 2 (1350); An Act for naturalizing Foreign Protestants, 7 Anne, ch. 5, § 3 (1709), clarified by An act. . . For naturalizing the children of natural-born subjects of the crown, 4 Geo, 2, ch. 21 (1731); An Act ... For naturalizing the children of natural-born subjects of the crown, 4 Geo. 11, ch. 21 (1731); An Act for naturalizing such foreign Protestants ... as are settled, or shall settle, in any of his Majesty's colonies, 13 Geo. 2, ch. 7 (1740), clarified by 13 Geo. 3, ch. 25 (1773). In contradistinction, our First Congress considered children born in the United States to alien parents who naturalized to be at best “citizen[s] of the United States” and not “natural born Citizens’ and the Third Congress considered children born out of the United States to United States citizen parents to be at best “citizens of the United States” and not “natural born Citizens.”

juniper55 said...

More earthshaking news - we finally got some dates regarding Marco Rubio.

Now, I like very much what I hear from the guy, but I disagree that he is NBC. Citizen, yes. Natural-born, no.

Mario and Charles, please try to talk to him (if you haven't already). If he is interested in pushing the legal definition and making a run for the Presidency, maybe a new legal challenge is in order?

Of course, the press will gladly declare he is eligible because then it takes Obama's status off the hook.

However, if he can be dissuaded, perhaps he might become the best spokesman regarding NBC.

After all, even if I am a fantastic football player (I'm not, but suppose I am), try as I might, I can never play NFL football. Why? Because I'm a natural born female. Sometimes you just gotta go on with something else.

From WorldNetDaily today: (cut and paste)

Rubio's press secretary Alex Burgos told WND the senator's parents "were permanent legal residents of the U.S." at the time Marco was born in Florida in 1971.

Then four years after Marco was born, "Mario and Oriales Rubio became naturalized U.S. citizens on Nov. 5, 1975," Burgos indicated.

When asked specifically if Sen. Rubio considered himself to be a natural-born citizen, Burgos responded, "Yes."

Read more: News media taking stance on Marco Rubio eligibility http://www.wnd.com/?pageId=337385#ixzz1W4Hf1TLM

Or link at: http://www.wnd.com/index.php?fa=PAGE.view&pageId=337385

Happy hurricane, everybody!

Puzo1 said...

Atticus finch 8-25-11 7:51 a.m.,

You said: “Thus, the children of aliens, no matter where BORN OUT OF THE UNITED STATES, are made citizens by the act of naturalization of their parents; Young v. Peck, 21 Wend. 389, 391 (N.Y. Sup. Ct. 1839)(emphasis added). The problem with our citation and your position is that the Naturalization Act of 1790 and others following did not say “born out of the United States,” which would support your position that they applied only to children born outside of the United States. Rather, it said: “And the children of such person so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States.” Here we can see that the First Congress made no distinction between whether these children were born in the United States or abroad. They considered the children born in the U.S. to alien parents to be aliens who upon the naturalization of their parents if done before reaching the age of majority became naturalized citizens or upon their own naturalization if done after reaching that age became “citizens of the United States.”

The cases that you cite to support your position are all post-Wong Kim Ark. We know that Wong Kim Ark changed the rule regarding whether a child born in the U.S. to alien parents is a “citizen.” After that decision, of course our courts are expected to interpret those acts in a way that is consistent with the Wong Kim Ark decision. But the fact still remains how those acts were originally written and intended (which Wong Kim Ark totally avoided addressing) and what it proves regarding the intent of the Founders and Framers on what they meant when they wrote the “natural born Citizen” clause.

Puzo1 said...

Atticus finch at 8-25-11 8:23 a.m.,

I did not misread your comment. In your comment, you did not use the clause “dwelling in the United States” simply as a way to show what conditions children who were born out of the United States would have to satisfy in order to gain U.S. citizenship. Such an argument on your part would not help you in any way. Rather, you used the clause to attempt to show that by inserting the clause in the statute, Congress believed that no child born in the United States would ever present an issue of not “dwelling in the United States” and so the statute only applied to children born out of the United States. When I show the absurdity of your argument through the cases of Lynch, Elg, and Steinkauler, you attempt to run from what you said and hide behind a harmless argument concerning naturalization of foreign born children which is not even the issue.

atticus finch said...

Puzo1 wrote:

" The first great abrogation occurred when the Founders and Framers chose “natural born Citizen” rather than “natural born subject” and the natural law and law of nations definition that went with it."

The term "natural born citizen" in the Constitution was derived from the English common law term "natural born subject" since the term citizen is analogous to the common law term subject.

Courts have long recognized that the term "citizen" and "subject" were interchangeable to reflect the change of government.

“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." 2 Kent Com. 258. Medvedieff v. Cities Service Oil Co., 35 F. Supp. 999, 1002 (SD NY 1940)

The Supreme Court of North Carolina in State v. Manuel, 4 Dev. & Bat. 20, 26, (quoted in United States v. Wong Kim Ark, 169 U.S. 649,) said: "The term `citizen,' as understood in our law, is precisely analogous to the term `subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a `subject of the King' is now `a citizen of the State.'" Hennessy v. Richardson Drug Co., 189 US 25, 34 (1903)

"The term `citizen,' as understood in our law, is precisely analogous to the term `subject' in the common law, and the change of phrase has entirely resulted from the change of government."). Rather, the terms are meant to encompass persons living under distinct forms of government: "A monarchy has subjects; a republic has citizens.” Matimak Trading Co. v. Khalily, 118 F. 3d 76 , 85 (2nd Cir. 1997)


Did you know that after the Declaration of Independence and before the ratification of the United State Constitution that the term Natural Born Subject was written in several state Constitutions?

1786 Vermont Constitution

XXXVI. Every person of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or. by other just means, acquire, hold and transfer land, or other real estate; and, after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a NATURAL BORN SUBJECT of this State, except that he shall not be capable of being elected Governor, Lieutenant-Governor, Treasurer, Counsellor, or Representative in Assembly, until after two years' residence. (emphasis added)

1776 Pennsylvania Constitution

SECT. 42. Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a NATURAL BORN SUBJECT of this state, except that he shall not be capable of being elected a representative until after two years residence.
(emphasis added)

See also the 1778 Constitution of the State of Maryland ("immunities, rights, and privileges of a natural-born subject of this State.");
1776 Constitution of the State of Delaware ("immunities, rights, and privileges of a natural-born subject of this State")

Now if Vattel was such an "inspiration" to the drafters of the Constitution then why didn't they use Vattel's term "Natural born citizen" in their respective state Constitutions since most of the drafters of the Constitution were also the drafters of their respective state Constitutions?

cfkerchner said...

Obama’s Own Secretary of State Hillary Clinton Admits America’s Founders and our Constitution were Inspired by the Ideas and Values of Emer de Vattel
http://cdrkerchner.wordpress.com/2011/08/25/obamas-own-secretary-of-state-hillary-clinton-admits-americas-founders-and-our-constitution-were-inspired-by-the-ideas-and-values-of-emer-de-vattel-birtherreport-com/

CDR Kerchner (Ret)
ProtectOurLiberty.org

bdwilcox said...

Were citizen and subject interchangeable? Absolutely not, as Thomas Jefferson spoke from the grave when, in the drafting of the Declaration of Independence, he very purposely erased ‘subject’ and replaced it with ‘citizen’, proving the terms were NOT simply interchangeable and were very different in meaning and connotation.

From the article:

‘Subjects.’

“That’s what Thomas Jefferson first wrote in an early draft of the Declaration of Independence to describe the people of the 13 colonies.

But in a moment when history took a sharp turn, Jefferson sought quite methodically to expunge the word, to wipe it out of existence and write over it. Many words were crossed out and replaced in the draft, but only one was obliterated.

Over the smudge, Jefferson then wrote the word “citizens.”

No longer subjects to the crown, the colonists became something different: a people whose allegiance was to one another, not to a faraway monarch.”

atticus finch said...

Puzo1 wrote:" you have no U.S. Supreme Court cases which support your position that the Founders and Framers looked to the English common law for a definition of a “natural born Citizen.”

Response:

First, the Constitution was written in the language of English common law. See Smith v. Alabama, 124 U. S. 465, 478 (1888)("The 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.")

Secondly, the term "natural born" has common law meaning. See Calvin's Case (1608)

Thirdly, subject and citizen are analogous terms. Viewed against the background of history and the context of the times, it is not surprising that the men who drafted the Constitution equated "citizen" and "subject".
"Until the Colonies had successfully won their freedom from England, their inhabitants were subjects of the King. With the birth of the United States, the sovereignty that had previously been that of one man,—the King,—was transferred to the collective body of the people. Those who had been subjects of the King were now citizens of the State. Van Der Schelling v. US News & World Report, Inc., 213 F. Supp. 756 ,761 (ED PA 1963)

Moreover, if the drafters of the Constitution who understood the concept of statutory construction wanted to use Vattel's definition of Natural Born Citzen instead of its common law meaning then the drafters should had manifested their intent by defining natural born citizen with its CIVIL LAW
definition in the Constitution. So. Utah Wilderness Alliance v. Bureau of Land Management, 425 F. 3d 735, 763 (10th Cir. 2005)("When Congress legislates against a backdrop of common law, without any indication of intention to depart from or change common law rules, the statutory terms must be read as embodying their common law meaning.")Mars Inc. v. Kabushiki-Kaisha Nippon Conlux, 24 F. 3d 1368, 1372 (Fed. Cir. 1994)("we bear in mind that when Congress borrows a common law term in a statute, absent a contrary instruction, it is presumed to adopt the term's widely accepted common law meaning.")

Finally, "Our Government is founded upon a written Constitution. The draftsmen expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated to them. The Framers of the Constitution, and the people who adopted it, must be understood to have used words in their natural meaning, and to have intended what they said. Coolidge v. New Hampshire, 403 US 443, 500(1971) (Black, J concurring and dissenting)

bdwilcox said...

Is the US Constitution based on English Common Law? I'm sure some modern, brilliant scholars say yes, but those know-nothing authors of the Constitution beg to differ:
“The common law of England is not the common law of these states.” -George Mason, delegate from Virginia, in the notes from the Federal Constitutional Convention – Thursday, June 19, 1788

MichaelN said...

It appears that Lord Coke (per Calvin's case)said that friendly aliens visiting the English sovereign's realm, were 'natural subjects' & as such, children of such 'subjects', if born in the realm, were 'natural born subjects'.
UNLIKE England, in USA, aliens (of any stripe)visiting, were/are NOT citizens.
England required both the parents to be subjects/citizens AND the child to be born in the realm, for their children to be 'natural born subjects'.
It is apparent that ANYONE visiting or in the English sovereign's realm, save foreign diplomats and enemies, was considered a 'subject'.
ONLY if the parents were 'subjects' could their children (if born in the realm) be NBS.
If they were not 'subjects', then their children, even if born in the realm, were not even 'subjects', let alone NBS.
Coke:
".... that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject..."
The learned Framers were conversant with Calvin's case.

MichaelN said...

UNLIKE England, in USA, the only way an alien could become a 'citizen of the United States' was via application and subsequent approval with swearing of an oath of allegiance.
In USA it was/is only after an alien became a 'citizen of the United States', that their children, if born in USA,could be a 'natural born Citizen' of the United States.

Let us move forward said...

Atticus Finch:

Unfortunately you do not realize how revolutionary the US Republic and its Constitution was.

The development of our republic in the time of kingdoms was an evolutionary process. Various groups settled in North America, becoming British Colonies. The Colonies followed a path to independence from Britain, and declaring the same in 1776. The Articles of Confederation were written in 1777 and ratified in July 1781, during the revolutionary war. The Framers had more experience in governing and had explored ideas in the federalist papers before developing the Constitution, completed on September 17, 1787. "Citizen" does not appear in the Declaration of Independence, and appears once in the Articles of Confederation, which also includes a reference to subjects of a State.

The Constitution does not refer to any individual of The People as a subject. As to the criticisms that the English version of Vattel available to Framers during the Constitutional Convention did not define natural born citizen as a child born on the soil to citizen parents, the next edition did provide that definition. The meaning of "citizen" was transformed by the formation of our most liberal and first modern republic, the Federal Government of the United States. The definition of natural born citizen included in the next edition of Vattel may have very well come from the United States, the experts on "citizens" at that time.

It is true that several State Constitutions from the time of the revolutionary war (and beyond) did use "subject" when referring to its permanent residents and "natives". There were other vestiges of the Colonial American government that survived the Revolution and Federal transformation. The English Common Law idea (from feudalism) of born on the soil for natural born status is one, and the Colonial Era Court of Chancery that survived in New York State until 1847 is another. I am sure that there are other examples in the former Colonies if you will look for them. The newer States were less burdened with the past.

Unnecessary and often non-functional vestiges are indications of the history of the development of our republic. Consider the other vestiges with which you may be familiar. Biological: you have an appendix, tail bones and sinuses, that all had a use in your distant ancestors. Fashion: buttons are sewn on the sleeves of suit coats although there is no longer an opening in the sleeve that requires a means of closure. Legalese contains many archaic words no longer in general use (Hear Ye, Hear Ye, Court is now in session). Vestiges can also disappear with the passage of time. It took some time for the idea of "citizen" to be incorporated into our society and for the State Constitutions to be rewritten.

(Note: Your example from the Vermont Constitution: note that Vermont was an independent State during the revolution and did not join the Union until after the US Constitution was ratified.)

phil stone said...

Obama claimed on his website that he was a "native born citizen" and also claimed British citizenship. We know that the constitution requires "natural born citizenship" to be eligible for the presidency and if Obama has any real legal training he should be able to come to the conclusion that is obvious to the most casual observer - he is not eligible. Since he must know this - the question is - has fraud been committed now by Obama and his bundlers raising campaign money if he is not eligible to run??

MichaelN said...

Atticus Finch wrote:
<>
The English term 'natural born subject' was used to describe one who was born in the realm of the English sovereign and (according to Lord Coke - Calvin's case) 'under the ligeance of a subject' for if one were to be born in the realm & not 'under the ligeance of a subject' then that 'issue is no subject'.
Furthermore the English term 'natural born subject' was used to describe a 'subject' of a sovereign who could never attain highest office and not a qualification for any high office, whereas the framers' USC Article II term 'natural born Citizen' was a qualification for highest office and such a citizen was NOT subject to any sovereign.

jayjay said...

Puzo1:

Atticus just can't seem to stop himself in citing (really mis-citing) inappropriate cases and writings as though they are meaningful.

That is the sure sign of a Flying Monkey and it it a technique they widely use. Even their ringleader Kevin Davidson (doc c.) uses this technique extensively when he's not heaping abuse and derision on those who do not agree with him ... or when he's not out and out lying.

MichaelN said...

Correction to prior posting - (Atticus Finch's text was missing)

Atticus Finch wrote:
"The term "natural born citizen" in the Constitution was derived from the English common law term "natural born subject" since the term citizen is analogous to the common law term subject."

Response:
The English term 'natural born subject' was used to describe one who was born in the realm of the English sovereign and (according to Lord Coke - Calvin's case) 'under the ligeance of a subject' for if one were to be born in the realm & not 'under the ligeance of a subject' then that 'issue is no subject'.
Furthermore the English term 'natural born subject' was used to describe a 'subject' of a sovereign who could never attain highest office and was not a qualification for any high office, whereas the framers' USC Article II term 'natural born Citizen' was a qualification for highest office and such a citizen was NOT subject to any sovereign.

Chief said...

Did the founding fathers not start with a fresh slate when drafting our constitution? Were the framers of our constitution not opposed to English Common Law having just jetisoned England? For those Progressives who say otherwise, why would Franklin order copies of Vattel's Law of Nations for the reference books to be used by the frammers? It would appear to me to be that the framers wanted something different for our new nation; not a model of England which they had just defeated on the field of battle to separate our new nation from English control. Hence when you read the rationale of the Progressives that our nation's foundatation, and legal system is based on English Common Law they are only playing to their Progressive wishes for all of us bedamned our Constitutional Republic which our founding father forged out of winning the battle to oust England from our lands. Was Englishe Common Law practiced in some of the states, yes, but when our constitution was ratified that all became moot. English common does not influence our laws, only our constitution does. I know the Progressives hate this thought, and reasoning, but reality is reality our laws are derived from our constitution; those which are not should be espunged from our leagal system by the courts, including SCOTUS whos job it is to monitor the decisions of the courts, and where decisions are inconsitent with constitutional dictates struck down. It is the court's job according to our constitution. As we go about cleaning up our federal government we should also go about cleaning up our judicial system. God save our nation from within.

Frank Davis said...

What makes you think that I'm an "Obot"? I haven't attempted any support of Obama here, have I?

In the end, your first response shows just how mediocre your understanding of legal precedent is. I'm a lawyer...I also have literally been trained in this. It was the courts (and not "Obama courts" mind you) that has shown you have no argument...for the very reasons I'm stating.

Carlyle said...

Perhaps the Obama situation is now a Lost Cause. Even if a smoking gun is found soon, it will take considerable time for the legal niceties to transpire.

I am sure the Establishment will strongly prefer to just let him "die a natural death" by losing the election than an outright act of "political homicide" in prematurely forcing him out of office.

Is it time to turn all our efforts to PREVENTING future and further rape of the constitution. How can we ensure that The Message gets out about Rubio and Jindal and to prevent them from being on the presidential ticket?

For constitutionalists this would seem to be the current most urgent and pressing problem.

Carlyle said...

PS - didn't mean to diss anybody "in the fray" against the Muslim Usurper Tyrant, so let me ask a question.

What is the status of anything and everything that is still in-play.

All I am aware of is Orly Taitz going back to HI on Sep 14 to have another go at prying loose vital records.

cfkerchner said...

Re. The Obama stolen SSN case dismissal by Judge Lambert today:

They all in Washington DC think they are doing this to prevent riots in the streets if Obama is removed as the fraud and ineligible person he his. They think they are protecting the country and saving lives, etc., by preventing riots. But this is only short term rationalization on their part to protect themselves for allowing this fraud to go on this long. It is only going to get worse as they in Wash DC completely destroy the Rule of Law and our fundamental governing document the U.S. Constitution in order to protect Obama and their own butts for their respective parts in the cover up over the last 3+ years. They have painted themselves in a corner with the ongoing cover up and no institution is beyond corruption for the establishment in DC to protect themselves and thus Obama. They think they are saving the nation from a catastrophe (i.e., riots if Obama is removed) when instead they are destroying the very fiber this nation was built on ... the rules of law, not man. Homeland Security is likely briefing all the powers to be in the various institutions in background ... saying we have to keep the lid on this. If it blows there could be race riots in 100 cities. And Obama would likely do it too to stay in power. But, fear of some riots, real or conjured up by the cover up squad, are in the end going to lead to much much worse in this nation as the People learn more and more how corrupt the establishment in DC has become to the point of just ignoring the Constitution and the Rule of Law ... maybe even another Civil War. And the Obama cover up and all those who lead it and enabled it will be the cause. Of course they in DC will place the blame elsewhere and label the supporters of the Constitution and the Rule of Law as the troublemakers. They always do. JMHO.

CDR Charles Kerchner (Ret)
ProtectOurLiberty.org
cdrkerchner.wordpress.com

Puzo1 said...

See this article by Commander Kerchner on how Secretary of State Hillary Clinton has recently recognized the importance of Emer de Vattel to the Founders and our Constitution:

http://cdrkerchner.wordpress.com/tag/law-of-nations-principles-of-natural-law/

Now is this not just grand. The court in Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009), which gave us a definition of a "natural born Citizen" which I contend is wrong, did not even know who Vattel was.

Ankeny, among the many shortcomings of its decision, conducted no independent historical research or analysis regarding what the Founders and Framers intended when they wrote the “natural born Citizen” clause in the Constitution in 1787. In fact, no where in the decision did the court even raise the issue of the Founders’ and Framers’ intent when they wrote the clause in Article II. The Founders and Framers place their trust in “the Laws of Nature and of Nature’s God.” The Declaration of Independence, para. 1. They came to learn what natural law was from studying ancient history and its influence in the then modern world. They knew from studying this history and the great publicists, including Emer de Vattel who was the Founders’ and Framers’ favorite, that natural law became the law of nations. And Vattel in Section 212 of his The Law of Nations (London 1797) (1st ed. Neuchatel 1758) defined what a “natural born Citizen” is. There he said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The Indiana state court in Ankeny did not even discuss natural law and the law of nations. The court hardly knew who Emer de Vattel was. This should be an indication to anyone who has seriously studied the Obama eligibility issue of how much reliance we can place on the Ankeny court's ruling as to what a “natural born Citizen” is.

Margie said...

It takes SOLE Allegiance to the USA to become CIC. Neither of his Father's were American citizens. In Kenya, they are building or built a Barack Hussein Obama Cultural Center in the Village of his Birth.

atticus finch said...

Margie wrote:"It takes SOLE Allegiance to the USA to become CIC. Neither of his Father's were American citizens. In Kenya, they are building or built a Barack Hussein Obama Cultural Center in the Village of his Birth."

Response:

At birth, Obama's sole allegience was his place of birth which was the United States.

Dual citizenship at birth does not equate dual allegiance. the child at birth does not acquire the allegiance of his alien parents. In other words, a child born in the United States is not bound by the allegiance of his alien parents.

At birth, a child acquires only one allegiance that is the allegiance of his place of birth. William Blackstone wrote: “Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth.” Blackstone, William. Commentaries on the Laws of England. Book One chapter 10 (1765).

James Madison observed ““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. The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)

"All persons born in the allegiance of the king are natural born subjects, and allpersons born in the allegiance of the United States are natural born citizens. Birthand 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. United States v. Rhodes 27 F Cas 785,789 (Cir. Court D. Kentucky 1866)(internal citations omitted)


In McKay v. Campbell, 2 Sawyer 118, 162 (District Court D. Oregon 1871) it is said:
"The rule of the common law upon this subject is plain and well settled, both In England and America. Except In the case of children of ambassadors, who are in theory born upon the soil of the sovereign whom the parent represents, a child born In the allegiance of the king, is born his subject, without reference to the political status or condition of Its parents. Birth and allegiance go together. “

As such, “At common law, a native is a person born within the jurisdiction and allegiance of a country, irrespective of the allegiance of his parents, except the child of an ambassador. Ex parte Palo, 3 F. 2d 44, 45 (W.D. Wa 1925) (internal citation omitted)

Puzo1 said...

Atticus finch,

How can you refuse to acknowledge that either place of birth or parents are a source of allegiance? Even your own Madison quote acknowledges this long-established truth. To justify your untenable position on Obama, you argue that place of birth is all that drives allegiance and therefore citizenship. You avoid admitting that one can gain allegiance and therefore citizenship from one's parents. How then can you explain that John McCain was born in Panama but yet, because he was born to U.S. citizen parents, was declared by Tribe, Olson, and our Senate in SR501 to be a "natural born Citizen" of the United States."

Your reliance on Hamilton’s quote as a source to define a “natural born Citizen” is misplaced. Madison was only defining a “Citizen of the United States” under Article I, not a “natural born Citizen” under Article II. Madison relied upon the common law of Carolina to define a “Citizen of the United States.” He did not rely on that common law to define a “natural born Citizen.” Additionally, the common law of Carolina was abrogated by the Naturalization Act of 1790 which treated any child born in the United States to alien parents as an alien. We can also see that Madison did not recite the English common law in defining Smith’s citizenship which we know always referred to a subject as owing allegiance to the King. Rather, Madison said that a “citizen” owed allegiance to the “new community.” He did not say that any such allegiance was owed to the President. Consistent with Pufendorf and Vattel, what Madison did was define the first citizens that came into being as a result of revolution. We also know from his Federalist No. 42 that Madison, who called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution, would not have relied upon the English common law to define a “natural born Citizen” or a “Citizen of the United States.” Finally, even Smith himself during the debates cited and relied upon Vattel and not the English common law to show that he was a “citizen of the United States.”

There cannot be citizenship without allegiance. Even our citizens who are naturalized after birth swear sole allegiance to the United States in order to become "citizens of the United States" after birth.

You refuse to recognize dual allegiance at birth produced by jus soli. Your irrational position is easily contradicted by the cases of Lynch v. Clarke (1844), U.S. v. Wong Kim Ark (1898), and Perkins v. Elg (1939) and our own State Department and Foreign Affairs Manual which clearly explain how dual allegiance is produced by either jus soli (citizenship acquired from one’s place of birth) or jus sanguinis (citizenship acquired from one’s parents). I will follow this post with a separate brief comment on dual allegiance.

Finally, we are defining an Article II “natural born Citizen” not a “citizen of the United States.” A simple reading of the text of Articles I, II, and the Fourteenth Amendment shows that these are two separate and distinct concepts. Basic rules of constitutional construction inform us that every word or clause in the Constitution has to be given its own meaning. But you continue to conflate a “natural born Citizen” with a “citizen of the United States.” You simply cannot use the meaning of a “citizen of the United States” as the meaning of a “natural born Citizen.” You have to provide specific sources that give an exact definition of a “natural born Citizen” rather than through wishful thinking try to weasel your way in by relying on sources that define what a “citizen of the United States” is.

Puzo1 said...

Atticus finch,

You said: “At birth, Obama's sole allegience was his place of birth which was the United States. Dual citizenship at birth does not equate dual allegiance. the child at birth does not acquire the allegiance of his alien parents. In other words, a child born in the United States is not bound by the allegiance of his alien parents. At birth, a child acquires only one allegiance that is the allegiance of his place of birth. William Blackstone wrote: 'Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth.' Blackstone, William. Commentaries on the Laws of England. Book One chapter 10 (1765).”

The following cases, among many, show that you are simply wrong in saying that citizenship can somehow be separated from allegiance. Rather, since the beginning of time, we have always recognized that citizenship and nationality follow allegiance and that allegiance is the basis of citizenship and nationality:

Savorgnan v. United States, 338 U.S. 491 (1950): “The United States has long recognized the general undesirability of dual allegiances.”

Kawakita v. United States, 343 U. S. 717 (1952): “one who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting,” that one with dual nationality cannot turn that status “into a fair-weather citizenship,” and that “circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,”

Justice Brennan, concurring in Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), a case about native-born citizens, said: “We have recognized the entanglements which may stem from dual allegiance. . . .”

Rogers v. Bellei, 401 U.S. 815 (1971): “The Congress has an appropriate concern with problems attendant on dual nationality. These problems are particularly acute when it is the father who is the child’s alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child’s own primary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary.”

bdwilcox said...

From FactCheck.org:
"When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children:"

I'm still trying to figure out how a Natural Born Citizen of the United States can, at birth, have his citizenship status governed by a foreign country's act (as admitted here by FactCheck).

MichaelN said...

Atticus Finch wrote:
'At birth, a child acquires only one allegiance that is the allegiance of his place of birth. William Blackstone wrote: 'Natural allegiance is such as is due from ALL men born within the king's dominions immediately upon their birth.' Blackstone, William. Commentaries on the Laws of England. Book One chapter 10 (1765).” '
-----------------------------

Response:

Not true!

Lord Coke said (Calvin's case)that NOT ALL men born within the king's dominions have natural allegiance.

Quote from Coke:
"that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject,"

According to Lord Coke, it was the ligeance of the subject father (wife same as husband)that was PARAMOUNT & ESSENTIAL in determining the NB subject status of the child.

cfkerchner said...

To @Atticus Finch

Hello Mr. Finch: My name is CDR Charles Kerchner (Ret). You write like a lawyer or a person legally trained. What is your real name? What is your profession? The owner of this blog posts under his real name and I think you should too given your proliferation of posts here. I'd like to know who you are. What is your real name and profession? Thank you.

CDR Charles Kerchner (Ret)

Julie said...

Obama is eligible to be president because they added the amendments under 1401 in the US Code of Laws creating his eligibility.

Puzo1 said...

Julie,

You argue that Obama is eligible to be president under 8 U.S.C. Section 1401(a). But 8 U.S.C. Sec. 1401(a) does not create an Article II “natural born Citizen”

First, concerning citizenship, Congress only has naturalization powers under Article I, Section 8, Clause 4. Hence, it has no power to create an Article II "natural born Citizen" which exists under natural law and not by positive law and which has always been defined by our U.S. Supreme Court as a child born in the country to citizen parents.

Second, recognizing that Congress's powers are limited when it comes to citizenship, 8 U.S.C. Sec. 1401 only addresses "citizens" of the United States, not Article II "natural born Citizens" of the United States.

This means that if Obama is a "citizen" of the Unites States under Sec. 1401 through birth in Hawaii (a fact which he has yet to conclusively prove), that does not make him an Article II "natural born Citizen."

cfkerchner said...

To Julie: You are wrong. A Citizen at Birth is not necessarily a Natural born Citizen at Birth. Read this essay for more on this:

http://puzo1.blogspot.com/2010/11/of-trees-and-plants-and-basic-logic_05.html

CDR Charles Kerchner (Ret)
ProtectOurLiberty.org
CDR Kerchner's Blog

Chief said...

Julie -- you are so wrong; congress cannot codify what our constitution does not allow; in this case to change the meaning of NBC congress would need to prepare and amendment, pass it, send it on the the president to sign off, and then the hard part, get 3/4 of the various states to say "yes"; and in today's political climate that is impossible. I think you miss read the USC.

Julie said...

At what point did I dispute anyone here writings on NBC? The US
Code of Law is not a change to the Constitution or a change to the amendment. But the law can be used as a supporting clause of interpretation if such clause falls under a section in the constitution or a word in the constitution....ie immigration. So....the amendments added to 1401 by the then Democratic held House in 2008 1 year before Obama simple clarification and gives support of the legal citizenship to those identified in the amendment in the event it may be challenged in a court of law. I am not trying to say what it was, i am simply trying to say that congress made these changes 1 year before Obama become President..opening the door for him to become President.

I appreciate everyone being clear on their standing on NBC because I believe in that and understand it and I hope we can uphold that in the Presidency. Unfortunately, in today's world with the President and the DOJ they are recreating the law thru the code to minimize the strength of the Constitution to dissolve the strength of the very thing the Constitution was built on....the LAW.......

Puzo1 said...

Julie,

You said:

"Obama is eligible to be president because they added the amendments under 1401 in the US Code of Laws creating his eligibility."

To understand what you are saying, please provide what language Congress added as an amendment to Section 1401 and when it added that language. Also, provide a citation with a link.

Chief said...

Julie I can understand, that the Progressives in congress, and through out the United States want to change our constitution's NBC dictate; they have used every means possible to do this; but again they cannot write laws that are contrary to our Constitutional Republic's laws so derived therefrom. So I have to assume you are a Progressive. Any legislation that purports to change the intent, and meaning of our constitution is in, and off itself flawed. Just as the Senate tried to do for McCain to make him an NBC, it did not hold water in my opinion as it was the Progressive's in the Senate's one more attempt to legitamize what cannot be legitamized, and was outside their authority to do so; but that never matters to the Progressives sitting in congress, or those who support them. So, Julie I disagree with you in your assumption about Obama's eligibility.

4zoltan said...

Mr. Apuzzo,

I read Dr. Ramsay's dissertation, but he provides no authority for his views.

Why should we accept Dr. Ramsay's view as being the standard for what the Framers thought? Especially as this view was rejected by James Madison.

What evidence does Dr. Ramsay cite to support his conclusion on how citizenship is acquired?

Puzo1 said...

4zoltan,

First, Madison in making that statement was only defining a “Citizen of the United States” which is a requirement to be eligible to be a Representative, not an Article II "natural born Citizen."

Second, both our early Congress and our U.S. Supreme Court agreed with David Ramsay.

The early Naturalization Acts all show that a child born in the United States to alien parents is an alien. Except for the Naturalization Act of 1790, which was passed by the First Congress and which was repealed by the Third Congress in 1795, the same is true of Congress by process of elimination, i.e., in all its naturalization acts Congress has never had to tell us that a child born in the U.S. to two citizen parents is a “citizen of the United States.”

No U.S. Court has ever ruled that a person born on U.S. soil to one or two alien parents is an Article II “natural born Citizen.” On the contrary, the only definition of a "natural born Citizen" ever given to us by the U.S. Supreme Court is a child born in the U.S. to citizen parents. As authority for this definition, there exists the following cases: The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cites and quoted from Emer de Vattel, Section 212 of The Law of Nations); Inglis v. Trustee of Sailor's Snug Harbor, 29 U.S. 99 (1830); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (gives the same Vattelian definition); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (not a Supreme Court case but persuasive); Ludlam v. Ludlam, 26 N.Y. 356 (1883) (not a U.S. Supreme Court case but persuasive); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (not a U.S. Supreme Court case but persuasive); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cites and quotes Minor’s Vattelian/American common law definition of a “natural-born citizen”) and Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the U.S. to citizen parents, even if those parents are naturalized U.S. citizens, is a “natural born Citizen”); contra the state case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (declared 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.” But the court never even raised the issue that there was no proof before the court that Obama was "born within the borders of the United States." In fact, the Ankeny court, while dismissing the plaintiffs' case, never ruled that Obama was "born within the borders of the United States." Nor did it rule that he was a "natural born Citizen." Ankeny did not even know who the very influential Vattel was and mistakenly concluded that the 14th Amendment case of Wong Kim Ark ruled Wong Kim Ark to be an Article II “natural born Citizen” rather than a Fourteenth Amendment born “citizen of the United States.” In so ruling, the Ankeny court also incorrectly equated a British "natural born subject" with a U.S. "natural born Citizen" and incorrectly relied upon Wong Kim Ark). So, there exists no U.S. Supreme Court decision that ever said that a "natural born Citizen" is a child born in the U.S. to one or two alien parents. They all said born in the U.S. to citizen parents.