Supreme Court in Obama NJ Ballot Challenge
By Mario Apuzzo, Esq.
July 2, 2012
Today, I filed on behalf of my clients, Nicholas E. Purpura and Theodore T. Moran, a Petition for Certification with the New Jersey Supreme Court. The petition may be read here:
In the petition, we argue that the Administrative Law Judge, whose opinion was adopted by the Secretary of State and affirmed by the Appellate Division, erred in allowing candidate Barack Obama to be placed on the ballot for the primary and general election and to run for office in New Jersey without providing any evidence to the New Jersey Secretary of State showing his identity or where he was born, when challenged to do so.
We argue that, in light of Obama conceding that the State of New Jersey has no evidence of his identity or place of birth, including the 2011 internet image of his alleged birth certificate, the ALJ had absolutely no evidence before him upon which to base his finding that Obama was born in Hawaii
We also argue that the ALJ misapplied Article II, Section 1, Clause 5, the Fourteenth Amendment, Minor v. Happersett, 88 U.S. 162 (1875), and United States v. Wong Kim Ark, 169 U.S. 649 (1898), all which he used to find that Obama is a “natural born Citizen.” Article II, Section 1, Clause 5 provides that if one was born before the adoption of the Constitution, one could be a “Citizen of the United States United States
The Founders and Framers had good reason for including the “natural born Citizen” clause into the Constitution and requiring that future Presidents have that birth status. St. George Tucker tells us why the Founders and Framers used the “natural born Citizen” clause as a requirement of presidential eligibility:
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom.”
George Tucker, Blackstone's Commentaries: with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of The Commonwealth of Virginia (1803) (Philadelphia: published by William Young Birch and Abraham Small; Robert Carter, Printer, 1803), http://constitution.org/tb/tb2.htm . So we can see that the Founders and Framers used the “natural born Citizen” clause as a national security measure designed to make sure that the President worked only in the best interest of the United States United States
The Fourteenth Amendment by its clear text gives the status of a “citizen of the United States ” to those born or naturalized in the United States
Again, Minor v. Happersett confirmed the American “common-law” definition of a “natural-born citizen,” which Minor said the Founders and Framers were familiar with and used when they wrote the “natural born Citizen” clause. That definition is a child “born in a country of parents who were its citizens.” Id. United States to alien parents is a “citizen of the United States
Wong Kim Ark answered the single question left open by Minor. It held that Wong, born in the United States to domiciled and resident alien parents who were neither diplomats nor military invaders was born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” from the moment of birth. The Court’s single task was to interpret and apply the Fourteenth Amendment, not Article II, Section 1, Clause 5. The Court found that Wong’s parents being domiciled and residents (not “citizens”) was enough to give jurisdiction to the United States United States United States United States
The clause “natural born Citizen” is a word of art, an idiom, a unitary clause, which has a very special meaning as confirmed by Minor. It is constitutional error to conflate and confound a “citizen of the United States United States United States
There is no other U.S. Supreme Court case that has changed the meaning of a “natural born Citizen” as confirmed by Minor. That definition, which is the definition from the Founding, it therefore the supreme law of the land and stands today until amended by Constitutional amendment. And that definition is a child “born in a country of parents who were its citizens.”
We know that candidate Barack Obama was not born to “citizen” parents. His father was a British/Kenyan citizen who never became a “citizen of the United States Hawaii United States
I will update this post as circumstances warrant.
Mario Apuzzo, Esq.
July 2, 2012
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Mario Apuzzo, Esq.
All Rights Reserved
Remember a week or so ago that I posted here that Larry Klayman had incorretly read Florida election law and tried to apply general primary requirements to the presidential primary that do not apply? Y'all do remember that don't you? I was called stupid and ignorant by a bunch of people here. I don't care who said what because it was pretty much a gang action led by your fearless leader.
ReplyDeleteWell did y'all read Judge Terry Lewis' order today dismissing the Voeltz case?
Well who will be man enough to step up and apologize? You know who you are.
Frank Bailey,
ReplyDeleteJudge Terry Lewis does not address my position.
Frank Bailer:
ReplyDeleteSorry Frank ... but that's not an apology; instead it is an expressuion of sympathy for you in not being able to realize the judges decision is not based upon facts OR law and is exceedingly flawed.
Klayman should havwe some easy goings to pick out some of that trash for climbing the oadder.
You still lose, pal.
I of II
ReplyDeleteHere is a comment directed to me by Reality Check on his blog, http://rcradioblog.wordpress.com/2012/06/28/funk-wagnalls-president-obama-is-eligible/
“You must have just learned that term [referring to begging the question]. You have been using it like a new toy the last few days at OCT [referring to Obama Conspiracy Theories]. Unfortunately, you are not using it correctly. No, Guthrie was just a smart attorney who knew that since WKA [referring to U.S. v. Wong Kim Ark] was ruled a native born citizen that equates to natural born status - something every attorney in the country knew then and knows today except two or three with a hopeless case of confirmation bias. When I am not busy I will post the other source.
**************
Here is my response to him:
Reality Check,
I did not learn the term just recently. It's just that there has been so much begging the question lately. I also see that Dr. Conspiracy just used the term lately. He must like the way I have been using it.
If New York Attorney William Dameron Guthrie had studied the history of citizenship in our country before hastily making his comment on the meaning of the holding in U.S. v. Wong Kim Ark, he would have learned that just being born in the United States did not convey “natural born Citizen” status. He would have learned that our nation adopted the principle that the law of nature provided that being born to “citizen” parents made one a native of a country and that positive law made one a citizen of a country by birth in the territory of a nation. When the Founders and Framers selected “natural born Citizen” as the standard for presidential eligibility, they accepted both natural law (birth to “citizen” parents) and positive law (birth in the country) as the basis for creating that status. The combination of these elements created what the constitution and our early naturalization acts of Congress recognized to be “perfect citizenship” (“a state of perfect citizenship, under the constitution and laws of the union”-St. George Tucker), as confirmed by Vattel in Section 212 of The Law of Nations.
Mr. Guthrie did not understand that Congress in the early naturalization acts (1790, 1795, 1802, and 1855) did not adopt the rule that mere birth in the country made one a “citizen of the United States.” On the contrary, Congress always treated children born in the United States to alien parents as aliens who could naturalized to be “citizens of the United States” upon the naturalization of their parents if the child was still a minor and dwelling in the United States. Hence, our positive law since 1790 had never been that simple birth in the territory made one a “citizen of the United States.”
Continued . . .
II of II
ReplyDeleteAlso, you are simply wrong, thinking that a Fourteenth Amendment "citizen of the United States" is the same as an Article II "natural born Citizen." The only thing that the Fourteenth Amendment did for children born in the United States was to establish a positive law which had not existed before and which grants the status of a “citizen of the United States” to those who are born in the United States while being “subject to the jurisdiction” of the United States. Simply stated, the Fourteenth Amendment neither repealed nor amended the Article II “natural born Citizen” clause. If the Fourteenth Amendment was designed to confer "natural born Citizen" status, it would have said so. The framers of the Fourteenth Amendment knew that the Constitution in Article II, Section 1, Clause 5 distinguished between a “natural born Citizen” and a “Citizen of the United States,” with only the former being eligible to be President for those born after the adoption of the Constitution. They knew that other than presidential eligibility, all other U.S. “citizens” shared the same rights and privileges. They knew that there is a great difference between a constitutional provision and a statutory one. They also knew that Congressional Acts, being positive laws, only use “citizen of the United States.” They knew that Congress was not in the business of creating by positive law “natural born Citizens.” So, they therefore knew that the standard of “citizen of the United States" is not the same as the constitutional "common law" standard of "natural born Citizen," which was put into the Constitution as a future requirement for presidential eligibility.
Even though the amendment’s framers had all that knowledge, they still just gave the status of “citizen of the United States” to those children who are born or naturalized in the United States, who cannot show they are born to “citizen” parents, but who can show that they are born “subject to the jurisdiction” of the United States. So, the Fourteenth Amendment framers accepted that birth in the country by positive law would only produce the status of a “citizen of the United States,” but not that of a “natural born Citizen,” which under the “common law” had always required both birth in the country (by positive law) and birth to “citizen” parents (by natural law).
You have a losing argument. You just ride on the back of politics rather than on the back of history, reason, logic, and law.
So Bari, now you pose as Frank Bailey, do you never stop making up new names to mask your sad sack self. You acted with full "confidence" when you told America you were fit to be its President. And now? You skulk around the internet in fake people's identities. Why do you do this. Why do you not speak in your own name. Though of course we all know it is not Obama, not to mention how mad Malcolm is at you for hiding the fact that you are his son.
ReplyDeleteIt seems to me that every judge so far who has something to say about Obama’s eligibility has gone out of his way to avoid addressing the merits of the case. Instead they have used illogical reasoning and reached conclusions without evidence.
ReplyDeleteOne would think that the fix is in and there is a mandate that the judge must do everything in his power to dismiss the case.
If there is a conspiracy, this is indeed a very well disciplined conspiracy. Has there ever been a conspiracy that has been this perfect such that no one has broken ranks and has done the right thing?
In other words, I cannot fathom what is happening and why. Can someone provide some rational analysis for the events so far and ease my sense of befuddlement?
Mario,
ReplyDeleteI say again. If 'citizen' = 'Natural Born Citizen', then a) why did the framers draw a bright line between the two?, and b) what is the difference between the two in the Constitution?
In order to believe that they are equal in the Constitution, you must also believe that the framers were imprecise in their reasoning, or that they just made a mistake since they really meant there was no difference and should have just used 'citizen' instead.
I've not yet seen an OBOT answer for this.
Keep up the good work Mario.
Kanbun,
ReplyDeleteThe Obots avoid “citizen of the United States” more than the plague. They have a three-pronged approach to dealing with it:
1. The Obots do not address that Article II disqualifies “Citizens of the United States” from being eligible to be President if born after the adoption of the Constitution.
2. The Obots will not acknowledge the existence of “citizen of the United States” at all and just speak in terms of “natural born Citizen” and naturalized citizen. They then argue that if one is a “citizen” and not “naturalized” (they limit the term to naturalized after birth), then one is a “natural born Citizen.” This argument makes everyone who is a “citizen,” regardless of where born and to whom born, except those who became “citizens” after their birth, a “natural born Citizen.” The Obots love this approach becase under the guise of being “good guys” and generous with U.S. citizenship, they allow Obama to skate by as a “natural born Citizen.”
3. The Obots will take the clause “citizen of the United States,” no matter in what case law, statute, or literature it may be found and say that the source actually said or meant “natural born Citizen” when a plain reading of the text of the source shows that it did not do any such thing. One prime example is Minor v. Happersett (1875), where the court left open the question of who was a “citizen” and the Obots say the Court left open the question of who was a “natural born Citizen.” Another example is U.S. v. Wong Kim Ark, where the Court held Wong to be a Fourteenth Amendment “citizen of the United States” and the Obots insist the Court held him to be an Article II “natural born Citizen.” And a third example is 8 U.S.C Sec. 1401 et seq., which prescribes the rules for acquiring the status of being a “citizen of the United States,” not a “natural born Citizen.” They will argue that the statutes make one a “natural born Citizen” when in fact the statute only says that one is a “citizen of the United States.”
So this is the little game the Obots and their supporters play to scam the American people.
Can our Sheriff's, as Constitutional officers, confiscate and void any illegal ballots issued within their jurisdictions?
ReplyDeleteIt would seem that the offering of illegal ballots would come under election fraud and racketeering statutes. All who authorize and distribute them should be criminally liable for their actions. They, at least, should not be able to benefit from them.
Mr. Obama, by his own admission, is not eligible to hold the office of President. Every cent he accepts and spends towards this end is fraudulent. Every speech he makes towards this end is fraudulent. Every poster, sticker, button, TV/radio commercial, etc. that he distributes or that is distributed in his name or in his behalf is complicit in this fraud.
What are the remedies available to address judges who ignore the laws or make up new laws be arrested and tried for contempt (or anything else)?
Puzo1:
ReplyDeleteOut of curiosity, what does the term in your description of filing the NJ Supreme Court petition connote when you say "for Certification"??
Is that, in effect, requestion permission to be heard??
jayjay,
ReplyDeleteAppeals may be taken to the New Jersey Supreme Court from final judgments either as of right or on certification. The Supreme Court must hear an appeal when it is as of right. The Supreme Court may hear an appeal when it is on certification. The New Jersey Supreme Court certification process is similar to the U.S. Supreme Court certification process.
@Doublee said...
ReplyDeleteI cannot fathom what is happening and why.
July 3, 2012 12:16 PM
=============================
Aye, there's the rub.
There is no story (not his autobiography, not his campaign website, nor even 'birthers') that makes any sense.
I take it from your moniker that you are an engineer, as am I. There is nothing that irks or befuddles a scientist or engineer more than things not making sense. It makes one lose all confidence in what we hold to be so dear - a rational explanation, to believe that the dots can always be connected.
In Physics or Chemistry, for instance, one is usually trying to select among possibilities that have been put forward. Sometimes it is so bizarre that not even a tentative explanation has yet been conceived. But that is about features of the universe yet to be discovered.
In this case, where only flesh and blood is involved, there is a truth - and many people must know it. How and why it can be so completely suppressed is almost beyond comprehension.
Given the vast amount of suppressed information and the breadth of the conspiracy (yet, even the existence of such a conspiracy doesn't itself make sense), the truth must be ONE EFFING HUMDINGER.
In fact, from what we already know, this is shaping up as the biggest fraud and biggest con in the history of the universe.
And, that in-turn raises the biggest mystery of all. What is so special about this particular person?
As far as I can tell, BS/BHO is a very common ordinary criminal street thug. You know, the kind that are a dime a dozen in any inner city.
Given all his baggage - and given that the DNC has other very credible candidates (HRC, for instance), why was not this "problem child" jettisoned long ago?
It makes no sense.
No one has come even close to making sense of this whole thing. Why him? Why now? It is enough to make the paranoid (and even the not-so-paranoid) worry themselves sick that some awful trap is set to spring. Soon.
Rather than just whining and belly aching and wringing our hands, however, I am beginning to believe that the greatest urgency for us is to find out the big secret. Perhaps there is still time to defuse it.
Very specifically I am suggesting that Socialism, Islam, Eligibility, and everything else are just smokescreens. At most, only the tip of the iceberg. We need to break this thing wide open and get it all aired out.
What could be *bad* enough to threaten and frighten ALL these people? Or get them to change their mind at the last minute?
You can't hold everyone's children hostage individually. It has to be a single thing of a national or international scale that effects everybody. "You snitch on me and I will do _________". What?
@Carlyle July 3, 4:42 P.M.
ReplyDeleteYes, I am engineer and I am retired.
Your response to my post gave me some minimal comfort. The comfort you gave me is of the nature, “Yeah, you’re right. The iceberg ripped a big hole in the ship and it’s going to sink.”
If the judges in Mario’s appeal and the Florida appeal perform logical summersaults to dismiss the appeals, then that will only confirm my suspicions. Then there’s always the old standby: you don’t have standing.
Doublee,
ReplyDeleteNew Jersey statute specifically allows a New Jersey voter to object by petition to a candidate being placed on the primary election ballot.
New Jersey statute, among other technical requirements regarding the nominating petition, also requires that both the petition circulator and the candidate certify that the candidate is eligible for the office he seeks. If by state statute there is a requirement for such certification and if Obama has not so certified, how can his name be allowed on any election ballot? Moreover, even if he so certified but is by law not eligible, how can his name be allowed on any ballot?
While New Jersey statute provides that a presidential candidate does not have to consent to the nominating petition and has until April 12, 2012 to withdraw his name as a candidate, there is no provision in any such statute that a presidential candidate does not have to certify his eligibility. Additionally, that such consent is not needed does not obliterate the requirement that he be eligible for the office of President, especially when there has not been any withdraw as a presidential candidate by Obama not only in New Jersey but in any other state.
Finally, under New Jersey statute, lack of eligibility is also a ground for election contest.
Doublee:
ReplyDeleteThat old "standing" canard is gettin harder and harder to rely upon by the courts. They now are beginning to realize that the citizenry (other than the obotic horde, of course) are onto them.
Who knows perhaps before long an honest judge will have a REAL hearing on merit complete with discovery, evidence, etc. If so, "our pals" will all be going down.
Don't you suppose that the OOPS (Obama Onager Posse Slugs) Troops will soon be flocking here to praise Mario and admit how screwed up in the head they were?? :-) (Yeah right!!)
Nothing malicious is happening. Any who do not believe the term "natural born citizen" applies to anyone born in the US (with exceptions for children of ambassadors, etc., and invading armies) go to GoogleBooks. Enter a search for natural born citizen, limit the time frame to the 19th century. There are loads of books, by experts at the time, writing on the subject.
ReplyDeleteGoogleBooks even highlights the search words for you within the books. It is easy.
Raisondete,
ReplyDeleteMaybe you can cite the best sources that you found so that we can see if what you are saying is correct .
You would think that at least one cub reporter out there would jump at a chance to become as famous as Jesus and as rich as Croesus. But, no - not a single one.
ReplyDeleteAnd the observation that they are all Lunatic Liberals won't wash. While not as common, there are lots of Conservative reporters.
I think we need to create a blog dedicated to brainstorming what could be the Big Secret. You KNOW there is a rhyme and reason to this somewhere.
Some think FKO is not all that special - he is just a dufus and a convenient puppet. But that begs a number of questions. Among others - he is/was not all that convenient (given his baggage) - surely there is another more better useful idiot somewhere? Also, if he himself is not the Clear and Present Danger, then who are his puppet masters?
And then there is THIS riddle. Any election cycle their are maybe like 1000 possible candidates - all governors, all congress critters, high ranking current and former gov officials, and a handful of others. Out of all that rabble, in 2008, FKO was among the least qualified. By any measure at all, he was easily in the bottom handful out of that 1000. So, how did he prevail? If he can overcome THAT hurdle, he can surely manage to stay in office for a 2nd term. So this question is incredibly important to resolve.
And, finally - Here's one for you, Mario<
Let's just say, for sake of argument, that there is no Big Secret and FKO turns out to be basically OK. We are still left with a major MAJOR conundrum: Suppose there were another president in the future, a true foreign agent and domestic enemy. Suppose further, for reasons of bribery, party machinations, or whatever, Congress could not muster a majority to impeach and remove him. What redress is left to us, We The People, the sovereign citizens?
I am very worried.
Carlyle and Doublee:
ReplyDeleteIn order to understand some physical device, process, system, etc., engineers create and use "models". Likewise, in order to explain what you're seeing happening in this country, you have to have some kind of a model. The successful model will need to account for relevant, generally accepted historical facts, it will have to explain current events, and it will predict what will likely happen in the future.
Most people, having been extensively propagandized since childhood, and who are now fully indoctrinated, have developed belief systems that just "won't go there"; i.e., they simply refuse to believe what their own eyes are showing them.
Some of us have been able to overcome our brainwashing and have pieced a few things together.
Basically what's happened is that some "people" have been working a long time to undermine our culture and to subvert and control our political process. And they've been wildly successful.
Apparently the idea is that the "U.S. government" will dominate and control the world, and our special "people" will control the "U.S. government".
Anyway, once the "people" felt they had sufficient control (e.g., enough power and influence to prevent an investigation), they staged a dramatic false-flag attack and used that as a pretext for a fraudulent "war on terror"; i.e., the vehicle used to overthrow the rule of law. (After all, what good is control of the "U.S. government" if Constitutional obstacles and various legal issues prevent you from using U.S. military, economic and political power to beat the rest of the world into submission).
Anyway, the "people" that control our political process, the star-makers, are carefully picking and choosing their front men. Bush was the ideal stooge to preside over 9/11 and to get the PNAC agenda/police state rolling.
Likewise, they picked "Obama" for phase II; a much more dangerous and destructive phase.
To summarize, a group of intelligent, resourceful, hard-working, dedicated, highly-motivated, highly-organized, yet demonically-inspired, breathtakingly evil, bloodthirsty, criminally insane madmen, have corrupted, subverted, and now fully control our politics (not to mention our media and financial institutions). And most honest people have been purged from any position of influence or authority and replaced with amoral career opportunists or treasonous ideologues).
They seek global governance on behalf of their "group"; i.e., their ultimate goal is the end of the concept of national sovereignty, apparently starting with their ostensible "enemies" in the Mideast.
And what's the role of "Obama"? I believe they saw in him someone so deceptive, so generally morally bankrupt, (and so unattached to America in any meaningful sense), that he could literally "push the button" when it comes time for the ultimate sacrifice.
IOW, the end-game approaches and our Masters needed a real-life "Greg Stillson" puppet, and "Obama" was their guy.
Obama was born a citizen of Great Britain.
ReplyDeleteNot one of the signers of the US Constitution would ever imagine the level of treason we have witnessed as Congress itself fails to do its duty to insure that our Constitution is upheld. They all would roll over in thier graves.
Raisondete said...
ReplyDelete"Nothing malicious is happening. Any who do not believe the term "natural born citizen" applies to anyone born in the US (with exceptions for children of ambassadors, etc., and invading armies) go to GoogleBooks. Enter a search for natural born citizen, limit the time frame to the 19th century. There are loads of books, by experts at the time, writing on the subject.
GoogleBooks even highlights the search words for you within the books. It is easy."
You make a very valid point. If you execute such a search you will find that those sources do not support the assertions made by Mr. Apuzzo at all. Following the Wong Kim Ark decsion there seems to be no discussion at all that he was not a natural born citizen and only a "citizen of the United States". Some articles even state specifically that the ruling meant he would be eligible to run for president when he was old enough as would any person born in the US of Chinese nationals.
On the other hand Mr. Apuzzo seems to have not had much luck using the same search criteria. If his arguments were as solid as he proclaims them to be one would expect him to list dozens of contemporary articles in support.
Frank Bailey said...
ReplyDelete"Remember a week or so ago that I posted here that Larry Klayman had incorretly read Florida election law and tried to apply general primary requirements to the presidential primary that do not apply? Y'all do remember that don't you? I was called stupid and ignorant by a bunch of people here. I don't care who said what because it was pretty much a gang action led by your fearless leader.
Well did y'all read Judge Terry Lewis' order today dismissing the Voeltz case?
Well who will be man enough to step up and apologize? You know who you are."
Wrong. Lewis' dismissal is full of nonsense. Florida election statutes DO NOT make ANY differentiation betweem a Presidential election, and any other election. What Lewis wrote came straight from Obama's minions, who wish to create a parallel universe outside of the statutes that is totally against the laws of statutory construction. NO WHERE do the statutes differentiate between a Presidential, and any other election. The statutes say I can challenge ANY CANDIDATE, HOWEVER they are nominated. The statutes say that Obama WAS NOMINATED by being the only one qualified to be on the ballot. Federal statute says he was elected (100.2(c)(5)) as an unopposed candidate. You have no clue what you are talking about, and are the typical child cheering the destruction of America. TOTALLY not unexpected. I will appeal, and make every judge I come in contact with lie and do the mental gymnastics Lewis did to sully his black robe. His dismissal is very weak, but I have no illusions.
102.168 Contest of election.—(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.
ReplyDelete103.101(4) The names of candidates for political party nominations for President of the United States shall be printed on official ballots for the presidential preference primary election and shall be marked, counted, canvassed, returned, and proclaimed in the same manner and under the same conditions, so far as they are applicable, as in other state elections. If party rule requires the delegates’ names to be printed on the official presidential preference primary ballot, the name of the presidential candidates for that political party may not be printed separately, but the ballot may reflect the presidential candidate to whom the delegate is pledged. If, however, a political party has only one presidential candidate, neither the name of the candidate nor the names of the candidate’s delegates shall be printed on the ballot.
101.252 Candidates entitled to have names printed on certain ballots; exception.—(1) Any candidate for nomination who has qualified as prescribed by law is entitled to have his or her name printed on the official primary election ballot. However, when there is only one candidate of any political party qualified for an office, the name of the candidate shall not be printed on the primary election ballot, and such candidate shall be declared nominated for the office.
ALL of these Florida statutes fit together independently and complimentary, as a cohesive whole.
"Any candidate for nomination who has qualified as prescribed by law. "---- NOPE, no exceptions there. It even says "who has qualified as prescribed by law"--- I guess that covers however they qualify--- even as POTUS candidate by 103.101!
"related statutory provisions must be read as a cohesive whole. See Sun Ins. Office, Ltd. v. Clay, 133 So. 2d 735 (Fla. 1961)."
"A statutory provision
will not be construed in such a way that it renders meaningless or absurd any other
statutory provision. See Amente v. Newman, 653 So. 2d 1030 (Fla. 1995)."
The judge's dismissal is very weak, and easily blown out of the water. The arguments are the same over and over--- plus he makes a weak attempt at establishing manufactured precedent w/ regard to the neaning of nbC, after he said there was no standing--- just like Ankeny. All from the same playbook.
Raisondete said...
ReplyDelete"Nothing malicious is happening. Any who do not believe the term "natural born citizen" applies to anyone born in the US (with exceptions for children of ambassadors, etc., and invading armies) go to GoogleBooks. Enter a search for natural born citizen, limit the time frame to the 19th century. There are loads of books, by experts at the time, writing on the subject.
GoogleBooks even highlights the search words for you within the books. It is easy."
Google is in the bag for the Usurper. google ANY TERM related to nbC and you will find OBOT sites that are optimized to the top of the list, propagandizing, lying and rewriting history.
A view of the Constitution of the United States of America
ReplyDeleteBy William Rawle
THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED.
By GEORGE W. PASCHAL
A treatise on the law of dower, Volume 1
By Charles Harvey Scribner, Alfred I. Phillips
Opinion of Attorney General Bates on citizenship
By Edward Bates
The Examiner, and journal of political economy: devoted to the ..., Volume 2
edited by Condy Raguet
Atlantic reporter, Volume 5
By West Publishing Company
A treatise on citizenship: by birth and by naturalization, with reference to ...
By Alexander Porter Morse
The Central law journal, Volume 24
The political history of the United States of America, during the great ...
By Edward McPherson
Connecticut reports: containing cases argued and determined in ..., Volume 54
By Connecticut. Supreme Court of Errors
Clement's civil government: studies of the federal Constitution
By R. E. Clement
The Law of Freedom and Bondage in the United States, Volume 2
By John Codman Hurd
House documents, otherwise publ. as Executive documents: 13th congress, 2d ...
By United States Congress House
A Law Dictionary, Adapted to the Constitution and Laws of the ..., Volume 2
By John Bouvier
Outlines of the constitutional history of the United States ...
By Luther Henry Porter
Frank Bailey,
ReplyDeleteI do not need any articles to read and understand what the U.S. Supreme Court said in Minor v. Happersett and Wong Kim Ark.
Also, you talk about these articles that support your view. Provide links so that these articles can be examined.
House documents, otherwise publ. as Executive documents: 13th congress, 2d ...
ReplyDeleteBy United States Congress House
Outlines of the constitutional history of the United States ...
By Luther Henry Porter
A view of the Constitution of the United States of America
By William Rawle
An exposition of the Constitution of the United States
By Albert Orville Wright
Handbook of politics for ...
By Edward McPherson
Opinion of Attorney General Bates on citizenship
By Edward Bates
The Examiner, and journal of political economy: devoted to the ..., Volume 2
edited by Condy Raguet
A treatise on citizenship: by birth and by naturalization, with reference to ...
By Alexander Porter Morse
The political history of the United States of America during the great rebellion
By Edward MacPherson
Clement's civil government: studies of the federal Constitution
By R. E. Clement
The Eastern Reporter: Containing All the Decisions of the States ..., Volume 6
By John Thomas Cook, Buel C. Andrews
A Law Dictionary, Adapted to the Constitution and Laws of the United States ...
By John Bouvier
The Constitution of the United States defined and carefully annotated, with ...
By George Washington Paschal, United States
The Law of Freedom and Bondage in the United States, Volume 2
By John Codman Hurd
Theodore William Dwight
0 Reviews
Little, Brown, and Company, 1894 - 748 pages
The Alienigenæ of the United States Under the Present Naturalization Laws
By Horace Binney
@Mr. Apuzzo After I posted, I reread your comment and saw you said to list the best. I did not go through all the pages of books available and I did not list them in any particular order.
ReplyDelete@Mick These are books that are available. If you think Google has screened the books they have that are available, please list similar items from the 19th century that support your position.
@Mr. Apuzzo, I reread your comment after I posted some of the book titles. FYI, I did not go through all the sources available and I did not put those I did use in any particular order.
ReplyDelete@Mick, these are books that are available online. If you believe Google has edited out source materials, please list those 19th century volumes that support your position. I would be interested in looking through them.
An new essay by the Obama ballot challenger in FL:
ReplyDeletehttp://obamaballotchallenge.com/proof-that-the-congressional-research-service-is-not-non-partisan
Part 1
ReplyDelete@Mario A.
Since it seems I won't get an answer to questions I ask at John Woodman's blog, I guess I can ask them here.
You write now:
The Obots avoid “citizen of the United States” more than the plague.
Huh? What's to avoid? Most read "citizen of the United States" together with "at the time of the Adoption of this Constitution" to allow for eligibility for those born here before the U.S. became a nation.
They have a three-pronged approach to dealing with it:
1. The Obots do not address that Article II disqualifies “Citizens of the United States” from being eligible to be President if born after the adoption of the Constitution.
What's there to address? If a person was born after the adoption of the Constitution, the NBC clause provides for eligibility. The CotUS clause isn't one of disqualification; rather qualification for a class of persons who were born before adoption of the Constitution.
2. The Obots will not acknowledge the existence of “citizen of the United States” at all and just speak in terms of “natural born Citizen” and naturalized citizen.
That's because 236 years later there aren't many persons around who were citizens at the time of the adoption of the Constitution.
They then argue that if one is a “citizen” and not “naturalized” (they limit the term to naturalized after birth), then one is a “natural born Citizen.”
Which is a very succinct and accurate argument. The case of foreign-born children, as always, may entail some further discussion, but as to U.S. born persons "native" and "natural born" are completely interchangeable terms.
One prime example is Minor v. Happersett (1875), where the court left open the question of who was a “citizen” and the Obots say the Court left open the question of who was a “natural born Citizen.”
In the context of the Minor court's discussion, "natural born citizen" and "citizen" are used to mean the same thing. This is easily noted:
"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 [p168] 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."
The first thing to observe is this is all part of a single paragraph. In a carefully structured writing (like a SCOTUS opinion), a paragraph contains a set of sentences all related to a single topic. And the paragraph starts with a topic sentence identifying and organizing that topic. Above, the topic sentence shows the paragraph is ABOUT who are "natural born citizens" ("The Constitution does not, in words, say who shall be natural-born citizens.")
So when further on in the paragraph, Justice Waite remarks "Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents" -- we know that "citizens" here means "natural born citizens" because reading in context we know that "natural born citizen" is the topic of this paragraph!
And that "open question" about the U.S.-born children of alien parents is what is taken up later in greater detail in Wong Kim Ark.
Part 2
ReplyDeleteAnother example is U.S. v. Wong Kim Ark, where the Court held Wong to be a Fourteenth Amendment “citizen of the United States” and the Obots insist the Court held him to be an Article II “natural born Citizen.”
To state it a bit more precisely, in WKA Justice Gray shows how "natural born" under the common law and "born . . . in the United States, and subject to the jurisdiction thereof" under the Fourteenth Amendment mean the same thing; the latter being an incorporation of the common law rules relating to citizenship at birth. So in finding that Mr. Wong fell under the 14th Amendment, the Court's reasoning compels the equal conclusion that he was also NBC for Presidential purposes. That's why C.J. Fuller writing in dissent strenuously objects that the majority has made a person like Mr. Wong eligible under Article II!
So now, I'll turn back to the questions asked on J. Woodman's blog:
A few questions suffice to show how utterly you fail to think through a case:
1) Why, under your supposition that the Minor court formally defined “natural born citizen” in such a way as to exclude Mr. Wong, does Justice Gray spend 10 – 12 pages exploring the meaning of “natural born citizen” and “natural born subject?” Under your view, this whole discourse shouldn’t be in the opinion at all.
2) Why, under your view that this case was just about Mr. Wong’s status under the 14th Amendment, does Justice Gray cite to Lord Coke, Calvin’s Case and several other English authorties? What do those have to do with the 14th Amendment? Your take on WKA leaves this completely unanswered.
3) If the English term “natural born subject” has no relevance to the meaning of the term “natural born citizen,” then why does Justice Gray discuss cases involving the former to explain the meaning of the latter?
Do you understand what “precisely analogous” means and what an “argument from analogy is?” I don’t think you do. Either that, or you’re doing a great ostrich head-in-the-sand-act on these points.
And a point and question remaining from my prior post to you:
It’s implausible to suggest Fuller fundamentally misconstrued the majority opinion in this regard and J. Gray just sat silent. And your position skids down the slope from implausible to ridiculous under the Birther view that the Minor court “defined” NBC in a way that excluded Mr. Wong as NBC from the get-go. Why would Fuller “sound the alarm” in the face of an earlier decision that supposedly precludes that concern?
To be able to answer these questions is to show one understands the opinion. Avoidance will show the opposite.
For those who want to read about the meaning of being an American citizen, read this article by Robert Klein Engler, entitled The Citizenship War, accessed at
ReplyDeletehttp://www.americanthinker.com/2012/07/the_citizenship_war.html
@Mario, July 3 8:25 P.M.
ReplyDeleteI appreciate your response to my somewhat flippant post. I normally try to write more seriously, but my frustration with the sequence of events regarding the Obama eligibility cases has taken its toll, I guess.
Yet, until every case now in the pipeline is finally resolved, we won’t be able make a final judgment.
I wish you and the attorneys in the other eligibility cases well.
"nbc" is “educating the confused” that the English “common law” defines an Article II “natural born Citizen.” His efforts may be followed at his blog at http://nativeborncitizen.wordpress.com/2012/07/03/educating-the-confused-freepers-and-the-ruling/#comment-34308 This is my response to his educational effort:
ReplyDeletenbc,
Yes, indeed, the confused need to be educated.
Your premise that the English common law defines an Article II "natural born Citizen" is mistaken. Our national law on U.S. citizenship (not state citizenship) comes from the law of nations which we adopted as American "common law.” It does not come from the English “common law.” That American "common law" defined a "natural born Citizen" as a child born in a country to parents who were "citizens" of that country. Minor v. Happersett (1875). This definition has never been changed, not even by the Fourteenth Amendment or U.S. v. Wong Kim Ark (1898), and is still the supreme law of the land today.
BrianH,
ReplyDeleteThank you for your detailed comment. You just proved that what I wrote is correct.
Again, thank you for contributing to finding the truth on the meaning of a "natural born Citizen."
BARI - or must I address you this time as Frank Bailey?Anyway now you add yet one more fake id so you can have some one here to agree with you. Do you not know that we can look at 'Raisondete' profile and right away find he was just made up so you could use "him'.
ReplyDeleteYou really are slipping which of course is sad for you but not at all sad for us. As for this crazy new name where do you get the also crazy idea that you are one who is able to reason. No, this is NOT something any one says about you not even your Obots. A fake label, Bari. Real fake.
Too bad Andy Griffith is no longer with us. Or his friend Gomer. On this America's birthday they would say to you "for shame, for shame, for shame."
One burning question the Obots never answer is WHY do you want the looser definition of NBC?
ReplyDeleteEven if you really firmly believe it is so loose that you could not filter maggots out of soup, why aren't you wringing your hands and crying OMG OMG!?
Don't we all want it tight enough to preclude Foreign Agents and Domestic Enemies? If there is any doubt at all, or any possible wiggle room for interpretation, should we not choose the more restrictive meaning?
Some of you just don't make any sense! You are way out on a limb, sawing behind yourself, and are happy about it.
Puzo1:
ReplyDeleteI note that the OOPS Troops are busy here shooting themselves in the foot or other appendae. That's priceless.
And speaking of other types of constitutional violations, the new "Jackalope Law" comes to mind. If you've not read about it, it's decidely worth the time:
http://www.thepostemail.com/2012/07/04/beware-the-fearsome-jackalope/
I of II
ReplyDeleteBrianH,
You argue that a comment that Chief Justice Fuller made in his dissent proves that the majority in Wong Kim Ark held that Wong was not only a Fourteenth Amendment “citizen of the United States,” but also an Article II “natural born Citizen.” Here is the comment upon which you rely:
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Wong Kim Ark, at 715.
But reliance on this comment is misplaced. Chief Justice Fuller’s dicta in Wong Kim Ark about presidential eligibility was a gratuitous comment of dicta that Fuller made in protest to a general notion that children born out of the United States to U.S. “citizen” parents were not eligible to be President, but children born in the United States to temporary visiting alien parents, even if those parents were of monarchial or royal status, were. Fuller said that “it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances.” Id. at 715. Remember that Lynch v. Clark, 1 Sandf.Ch. 583 (1844), cited by the majority, had said that even children born to aliens temporarily residing in the United States could grow up and be President. But the majority did not make the same statement. What the majority said about children born out of the United States to U.S. “citizen” parents made them not eligible to be President (it said they were naturalized “at birth” by a Congressional Act), but it did not hold or even say in dicta like Lynch that children born in the United States to temporary visiting alien parents were. In fact, the Wong majority did not find Wong’s parents to temporary visiting aliens. Rather, if found that they were domiciliaries and residents of the United States. It was because of that permanent status that the majority was willing to ignore that his parents could not become U.S. citizens by naturalization and find that Wong was born “subject to the jurisdiction” of the United States. So Fuller protested the majority’s treatment of children born abroad to United States citizen parents, saying that such children should not be treated second rate to children born in the United States to aliens who could even be found to be eligible to be President (Fuller did not say that the majority so found them). And in fact, the majority never held that children born in the United States to alien parents temporarily living here or even living here as domiciliaries were eligible to be President. So, Fuller could have been justified in protesting how the majority treated children born abroad to U.S. citizen parents. But since the majority did no so hold, his protest about children born in the United States to aliens temporarily residing here (“irrespective of circumstances”) could not have been directed to the majority because it never so held.
Continued . . .
II of II
ReplyDeleteThe majority did not interpret Article II and its “natural born Citizen” clause. There is absolutely no discussion about presidential eligibility in the majority opinion. Rather, it interpreted the Fourteenth Amendment and its “subject to the jurisdiction” and “citizen of the United States” clauses. Fuller’s comment is not only dicta, but also stated in a dissenting opinion.
The Fuller dicta comment made not only in the dissent but also not in contradiction to anything that the majority held or even said in dicta, proves nothing when it comes to presidential eligibility. It also does not matter what the dissent said. After all, the dissent is the dissent. What matters is what the majority held and what it meant by its holding which we can read and glean on our own from its written words.
Many times dissents (and opposing counsels) will argue that the majority decision is ruling in a way which will lead to great calamity (the slippery slope argument). The majority will usually just ignore what the dissent is complaining about or simply explain how it is not true. Just because the dissent says something about the majority opinion does not make it correct and many majority opinions tell us so. One would think that if the majority in Wong Kim Ark actually held that Wong was eligible to be President, it would have responded to Fuller’s comment, showing why it was just that someone in Wong’s circumstances should be eligible to be President. But the majority simply ignored Chief Justice Fuller’s one sentence presidential eligibility dicta protest.
Under the totality of these circumstances, we cannot reasonably make Fuller’s dissenting comment some binding legal precedent to be applied to the question of what is an Article II “natural born Citizen.”
You said: “To be able to answer these questions is to show one understands the opinion. Avoidance will show the opposite.” I will therefore expect you to live up to the same standard that you imposed upon me and provide your response.
BrianH,
ReplyDeleteA “citizen” and “natural born Citizen” are not analogous to a “subject” and “natural born subject.” The historical record shows that the two types of memberships are much different and that it was the Founders’ desire to be “citizens” and not “subjects” that gave impetus to the American Revolution.
So what do you have to say about that?
BrianH,
ReplyDelete“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Wong Kim Ark at 715 (C.J. Fuller dissenting).
The English common law jus soli rule of subjectship excepted only children born in the King’s dominions whose parents were “diplomats” or hostile invaders. The English common law had a specific definition for a “diplomat.” And we surely know what a hostile invader is. The Founders and Framers specifically prohibited through the Constitution and loyalty oaths any monarchial or royal status or influence in the new republic. Early Congress did the same through its loyalty and naturalization oaths. We therefore know that the Founders and Framers could not have allowed persons born within the United States to alien parents to be president because that would have allowed the children of “royal parentage” to be eligible to be President. Can we just imagine, after just having eliminated all vestiges of monarchy and royalty in the republic, they were going to allow the child of monarchial or royal parents to be President and Commander in Chief of the Military.
So what do you have to say about that? Remember we need responses.
@ Harold Smith said...
ReplyDeleteJuly 3, 2012 10:48 PM
-----------------------------
This is why we need a focused blog to discuss The Big Secret.
I believe you are right on some of what you say. But even on those points you are silent as to WHO and WHY? And even the specifics of HOW?
Other parts of your post - while I withhold judgment as to whether they may actually prove to be true - seem indefensible given the current facts and frankly sound a little outlandish and non-credible.
I think one of the things we must be especially careful of is to avoid making premature conclusions. If nothing else it makes us sound like the dreaded "truthers". Or, even worse, UFO-type "conspiracy theorists".
I hope you are not offended if I take your thoughts as a bit of valuable input to a larger and wider process, and not as the Final Answer.
Keep the brainstorm coming.
An Obot by the name of "Scientist" tells me at nbs's blog that I have sued in the wrong court because the law of nations is international law which is to be address in the Court of Justice in The Hague. Here is what I told him:
ReplyDeleteIn 1792, the supremacy of the law of nations within the United States was affirmed by Chief Justice McKean in Ross v. Rittenhouse:
"The Congress on the 15th of January, 1780, resolved (inter alia) 'that the trials in the Court of Appeals be according to the usage of nations, and not by Jury.' This has been the practice in most nations, but the law of nations, or of nature and reason, is in arbitrary states enforced by the royal power, in others, by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered."
Ross v. Rittenhouse, 2 U.S. 160, 162 (1792).
Upon independence from Great Britain, the United States "were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). Chief Justice Marshall considered the law of nations in the 1812 case of The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). Because the Court found the case to explore "an unbeaten path" it "found it necessary to rely much on general principles," and turned to the practice of the civilized nations and the writings of Vattel and Bynkershoek for guidance. Id. at 136, 137, 143-46. In The Nereide, Justice Marshall stated that the “Court is bound by the law of nations, which is part of the law of the land.” 13 U.S. 388, 423 (1815). Even William Blackstone recognized the importance of the law of nations which he considered "universal law" and the life blood of a nation wanting to be part of the "civilized world." 4 W. Blackstone, Commentaries on the Laws of England 67 (1769).
@Raisondete
ReplyDeleteThe Constitution was written in the 18th century. Anything written after September 17, 1787 is immaterial to the thinking of the Framers.
@Carlyle
ReplyDeleteOne burning question the Obots never answer is WHY do you want the looser definition of NBC?
It's not a question of personal preference. The Constitution says what it says, and the U.S. Supreme Court has delved deeply into the NBC language (Wong Kim Ark) and the Court has said what it's said. Since then several federal courts (including two federal circuit courts) have quite matter-of-factly described children of aliens as "natural born citizens." We "Obots" just acknowledge the state of the law.
Even if you really firmly believe it is so loose that you could not filter maggots out of soup, why aren't you wringing your hands and crying OMG OMG!?
Because we are reasonable, thinking people and can see what the NBC clause does as presently interpreted without having to read more into it than the simple phrase allows. The Framers put in a few basic, minimum requirements for presidential eligbility. They didn't add in something to the effect of "and bearing no taint of foreign influence whatsoever." They didn't do that. They left such issues to the political process. Very wise.
The NBC clause as understood provides a hindrance to the sort of political manipulation that had gone on in Europe for centuries. Monarchs, for example, would marry off their second daughter to some third son of some other monarch. If, as things sometimes happened, the prior heirs apparent mysteriously died off, then the Monarch could be in a position to gain influence over the other kingdom. To say the least, having to send someone across an ocean to the U.S. to pop out a baby at least 35 years in advance puts a real kink into that sort of thinking.
Conversely, under our Constitution, someone born in the U.S. could leave at age 14 and live abroad for the next 21 years -- the most formative years as far as education and political maturation -- and return and be eligible for the presidency. And the Framers were JUST FINE with that.
Birthers severely overplay the "foreign influence" card.
Don't we all want it tight enough to preclude Foreign Agents and Domestic Enemies?
I trust you meant the children of such. But the NBC clause, even in the jus soli version many advocate, precludes those children already.
@Mario A
ReplyDeleteYou argue that a comment that Chief Justice Fuller made in his dissent proves that the majority in Wong Kim Ark held that Wong was not only a Fourteenth Amendment “citizen of the United States,” but also an Article II “natural born Citizen.” Here is the comment upon which you rely:
***
But reliance on this comment is misplaced.
To the contrary, I think the argument that C.J. Fuller, having participated in the arguments and intra-court discussion about the case, had very good understanding of what the majority opinion said is a very sound argument.
Chief Justice Fuller’s dicta in Wong Kim Ark about presidential eligibility was a gratuitous comment of dicta that Fuller made in protest to a general notion that children born out of the United States to U.S. “citizen” parents were not eligible to be President, but children born in the United States to temporary visiting alien parents, even if those parents were of monarchial or royal status, were.
The majority opinion notes there was a split of authority under the common law as to foreign born children of subjects (citizens). I don't see where Justice Gray took a definite stance either way on the issue. There was no reason for him to do so, and that portion of the opinion such is truly dicta and not part of the rationale of the decision since Mr. Wong didn't present that fact situation. So did Fuller overstate his point here? Perhaps.
But as to the jus soli natural born subject / natural born citizen analogy and argument, Justice Gray is very clear, and he takes a very definite stance that this "same rule" has been followed from English common law days through the adoption of the Consitution and up to the decision in WKA:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
I think C.J. Fuller had but no option other than to observe that the majority opinion -- as to U.S. born persons -- embraced a purely jus soli view of "natural born." On this point, his objection is clear and reliable.
But all this, again, brings me back to my questions to you, one of which was:
"3) If the English term “natural born subject” has no relevance to the meaning of the term “natural born citizen,” then why does Justice Gray discuss cases involving the former to explain the meaning of the latter?
@ BrianH
ReplyDelete"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that......"
Brian the SCOTUS said that the Constitution does NOT say who shall be natural born citizens and the 14th Amendment is a part of the Constitution.
The court also found Virginia Minor to be a natural born citizen WITHOUT RESORT to the Constitution AT ALL.
So where id they SCOTUS get the meaning or definition of natural born citizen from?
They court said "at common law", but it could not have been the English common law, because the English common law holds no doubts that native birth suffices to make a natural born subject, but the SCOTUS recognized and gave merit to doubts that native birth in US was sufficient to even make a citizen, never mind a natural born citizen.
So what "common law" was it that the SCOTUS was referring to?
@Mario A
ReplyDeleteThe majority did not interpret Article II and its “natural born Citizen” clause.
The majority opinion first notes the Article II "natural born citizen" clause at the outset, notes (citing Smith v. Alambama) that Constitutional phrases are to be interpreted with a view to the language of the English common law, and then notes a host of English cases and authorities pertaining to the "precisely analogous" phrase "natural born subject."
True, the Court didn't mention much about presidential eligibility, but since it wasn't a presidential elgibility case your observation draws a big "so what?" in response.
But the fact remains that Justice Gray spent about 10 - 12 pages exploring the meaning of "natural born citizen," either directly or by analogy to "natural born subject."
Which brings me back to the question I've asked you twice now, which you've yet to address:
"1)1) Why, under your supposition that the Minor court formally defined “natural born citizen” in such a way as to exclude Mr. Wong, does Justice Gray spend 10 – 12 pages exploring the meaning of “natural born citizen” and “natural born subject?” Under your view, this whole discourse shouldn’t be in the opinion at all."
Rather, it interpreted the Fourteenth Amendment and its “subject to the jurisdiction” and “citizen of the United States” clauses.
Yes, but before it gets to the 14th Amendment discussion, the opinion spends a lot of time on "natural born citizen" and "natural born subject." I still contend you have absolutely no idea why Justice Fuller does that.
The Fuller dicta comment made not only in the dissent but also not in contradiction to anything that the majority held or even said in dicta, proves nothing when it comes to presidential eligibility.
It proves Chief Justice Fuller viewed the majority opinion of Wong Kim Ark in the same light that every court to date which has addressed the "two citizen parent" rule has viewed WKA: that it is fatal to the birther claims and renders their arguments "without merit."
Many times dissents (and opposing counsels) will argue that the majority decision is ruling in a way which will lead to great calamity (the slippery slope argument).
You made this identical point to me on Woodman's blog. My reply, and the question I asked you in turn, remain unanswered:
"It’s implausible to suggest Fuller fundamentally misconstrued the majority opinion in this regard and J. Gray just sat silent. And your position skids down the slope from implausible to ridiculous under the Birther view that the Minor court “defined” NBC in a way that excluded Mr. Wong as NBC from the get-go. Why would Fuller “sound the alarm” in the face of an earlier decision that supposedly precludes that concern?"
The problem Fuller's dissent has for your position is that not only does he read the majority opinion in a way that's fatal to your claims, but clearly Fuller didn't read Minor to have established some "NBC definition."
Under the totality of these circumstances, we cannot reasonably make Fuller’s dissenting comment some binding legal precedent . . .
Strawman argument alert. I never said anything about the dissent being "binding." Merely that Fuller was in a pretty good position to have grasped the thrust of the majority opinion correctly.
@Mario A
ReplyDeleteA “citizen” and “natural born Citizen” are not analogous to a “subject” and “natural born subject.”
Whether they are in all respects is beside the point. The salient point remains that is that SCOTUS, in the seminal case addressing the citizenship status of a person born in the U.S. of alien parents, stated that the terms "citizen" and "subject" are "precisely analogous" terms insofar as the "natural born" analysis. Justice Gray cites with approval:
"The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a "subject of the king" is now "a citizen of the State."
So SCOTUS has stated that as to "natural born" the terms are "precisely analogous." That's why (to answer my question #3 above) Justice Gray analyses all those English "natural born subject" authorities as he analyzes the constitutional "natural born citizen" phrase.
So what do you have to say about that?
I made the comment to you on Woodman's blog that you don't seem to have any idea what "precisely analogous" means. I still claim that.
@Mario A
ReplyDeleteThe English common law jus soli rule of subjectship *** We therefore know that the Founders and Framers could not have allowed persons born within the United States to alien parents to be president because that would have allowed the children of “royal parentage ,. . ."
So what do you have to say about that? Remember we need responses.
A reminder (yet again) how SCOTUS has analyzed this matter:
"The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
***
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
***
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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."
All you stated above leads one to question whether you here are playing the role of history professor, or that of attorney actually trying to present a Constitutional law question to a court for decision.
If it's the former, I suppose you can muse as you see fit. It's just that: musing.
But in a court of law, what matters is case law and how courts have analyzed the question at issue, especially the SCOTUS. Your historical sources at this point are insignificant footnotes at best.
So if as pseudo-history professor you wish to argue that some other rule SHOULD have entailed, have at it. But the moment you put on your attorney hat, you must confront the fact that the SCOTUS has analyzed the "natural born citizen" question as being a matter "precisely analogous" to the English common law jus soli rule of "natural born subject." If you wish to argue Justice Gray erred -- that he should never have made that analogy so directly -- fine. Have at it. But don't expect any court below SCOTUS to do anything but toss your case and invite you to take it to Washington. Because how you are saying a court should analyze the question is fundamentally at odds with how SCOTUS in Wong Kim Ark analyzed it.
That's what I have to say.
How many times has "your" definition of natural born citizens been rejected by the courts?
ReplyDelete10...12?
Do they ALL get it wrong by not agreeing with you?
Really?
ALL of them?
BrianH,
ReplyDeleteYour personal spin on the meaning of the "natural born Citizen" clause, of course to justify Obama's holding the position of president, does not amount to a hill of beans. If you have an opinion, then you better produce some historical sources from the Founding that support your wishful thinking. Anybody can write anything they want and make it sound just so nice. Give us the historical sources and not just your rhetoric.
BrianH,
ReplyDeleteYou simply repeating how Justice Gray talked about the English common law does not prove anything. Where is the evidence that the Founders and Framers relied upon the English common law to define a "natural born Citizen?" You have none and neither did Justice Gray if he was defining a "natural born Citizen" which he was not.
If Dear Leader was convinced that his citizenship was appropriate for the office of President, why would he have chosen another definition to justify John McCain?
ReplyDeleteAlso, why wouldn't he just go ahead and produce his actual birth records instead of cheap forgeries? What about his false selective service registration and stolen social security documentation?
Obots, before you try to convince Mr. Apuzzo or anyone else on this blog that a natural born citizen is someone other than one born in the country to citizen parents you would be well advised to convince Mr. Obama first.
By his actions, Obama doesn't believe a word you say.
BrianH,
ReplyDeleteYou asked:
Why, under your supposition that the Minor court formally defined “natural born citizen” in such a way as to exclude Mr. Wong, does Justice Gray spend 10 – 12 pages exploring the meaning of “natural born citizen” and “natural born subject?” Under your view, this whole discourse shouldn’t be in the opinion at all."
You are just making stuff up. Justice Gray did not spend any pages discussing a "natural born Citizen." You just simply do not get it that the Founders and Framers did not consider a "natural born Citizen" to be a "natural born subject." You are forgetting that we had a bloody revolution.
BrianH,
ReplyDeleteThe only one on here who is hopelessly lost in not understanding something is you, my friend.
That North Carolina case talks about citizenship in North Carolina, not U.S. Citizenship. It applied the English common law which still prevailed in some states and determined citizenship of the State of North Carolina. But as you may not know, state citizenship was not national citizenship and was surely not "natural born citizen[ship."
BrianH,
ReplyDeleteYou said: "[T]he SCOTUS has analyzed the "natural born citizen" question as being a matter "precisely analogous" to the English common law jus soli rule of "natural born subject.'"
Minor analyzed what a "natural born Citizen" is, using American "common-law."
Wong Kim Ark analyzed what a Fourteenth Amendment "citizen of the United States" is, using the English "common law" as a historical aid in that endeavor. Not even Wong itself settled on the English "common law," for it required that Wong's parents be domiciled and residents, requirements nonexistent in the English "common law."
BrianH,
ReplyDeleteI do not have to seek to seek to overturn Wong Kim Ark. It did not change the meaning of an Article II "natural born Citizen." On the contrary, it confirmed it. First, it cited and quoted Minor and its definition of a "natural-born citizen." Second, it confirmed that a child born in the country to alien parents, while being a "citizen," is not a "natural-born citizen." Justice Gray acknowledged the difference between an Article II “natural born Citizen” and a Fourteenth Amendment “citizen” “at birth” when he said that a child "‘if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle’" (citing and quoting Horace Binney). Id. at 693.
Carlyle said:
ReplyDelete"I believe you are right on some of what you say. But even on those points you are silent as to WHO and WHY? And even the specifics of HOW?"
############################
I didn't mention the "who and the why" because I believe it'll be edited out.
############################
Carlyle said:
"Other parts of your post - while I withhold judgment as to whether they may actually prove to be true - seem indefensible given the current facts and frankly sound a little outlandish and non-credible."
###########################
Outlandish? Yes of course it is.
But that's reality. Our situation IS outlandish and simply pathetic beyond words. Indefensible? Not at all.
gobillgo,
ReplyDeleteIf you want to comment here, add something intelligent.
Mr. Apuzzo: Happy 4th of July and thank you for being a patriot. It's a sad day in America. I read an article today that there are motions in Congress to outlaw the publication of conspiracy theories and to detain those who perpetuate them. So much for the First Amendment. Obama, the Congress, and the courts are trampling the Constitution.
ReplyDeleteIn your petition you stated, "If anyone, including the petitioners, will be voting for Obama, they need to know whether Obama is eligible for the presidency before the general election." There's the rub, because if the court says that Obama is not eligible to be on the ballot, then they have just officially indicated that Obama is a usurper and not the POTUS. And then we can throw out all his illegal appointees, executive orders, etc. And throw out obamacare too.
CBS News stated that Obama was possibly too perfect with his only character flaw being that he still smoked. CBS quoted Democrat Jim Jordan as saying, "It's almost inconceivable that he's going to be linked to some scandal that goes to personal morality. It's an extraordinary thing that we are debating whether the commander in chief is too virtuous." If that is the case then I'll have to believe that Obama was telling the truth during the 16 year period from 1991 to 2007 when his official bio stated "born in Kenya." That's by his own admission. State secretaries of state removed Eldridge Cleaver, Larry Holmes, Roger Calero, Peta Lindsay, etc. from the presidential ballot because of their Article 2 ineligibility. So don't say it can't be done. Dr. Edwin Vieira said, "Now that Obama’s citizenship has been seriously questioned, the burden of proof rests squarely on his shoulders." Bute v. Illinois, 333 U.S. 640, 653 (1948). Why hasn't Obama produced any valid proof that he's a natural born citizen or even a US citizen in any of these lawsuits? The fraudulent birth certificate on the White House website says it all.
@ BrianH.
ReplyDeleteOn the topic of English "subject" and US "citizen" being supposedly analogous.
What do you suppose Lord Coke (Calvin's case) meant when he stated that there were four types of ligeance and said....
"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 BIRTH RIGHT, and is called alta ligeantia42a and he that oweth this is called subditus natus."
What did Coke mean by "nature" AND "birth right" that was attributed to those with the highest allegiance?
What were the TWO qualities that "nature" and "birth right" represented?
Where they perhaps native born and native born?
That would be silly wouldn't it?
Do you suppose the TWO qualities might be natural descent and native birth?
Do you suppose that allegiance just might be inherited from parents?
What do you suppose did Coke mean when he said....
"There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the PARENTS be under the actual obedience of the king.
2. That the PLACE of his birth be within the king’s dominion.
And 3. the time of his birth is chiefly to be considered"
He did mean that the parents allegiance was paramount? ... did he not?
What about where Coke makes it clear that with the absence of subjecthood on the father's part, the child cannot be a subject even if born in the dominion of the king?
So what happened to native-birth being good enough BrianH?
It doesn't appear to be good enough to make a "natural born subject".......... does it BrianH?
Coke basically states that if dad is not a subject, then his kid cannot be a subject, even if native born.
And by the way, why or how the father is or is not an English "subject" is irrelevant to the point that according to English common law per Lord Coke:
subject father = child a natural born subject
none subject father = the child NOT a subject, even if native born.
Coke (Calvin's case)
"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 OS A SUBJECT, nor under the protection of the King."
Doesn't Coke clearly state that it is the allegiance the father SUBJECT status which is the paramount factor, crucial in determining whether a native-born child is a "natural born subject"?
The English held that anyone visiting the dominion in friendship was a "subject" (i.e. "subject" being analogous, they made visitors "citizens")
But the US doesn't to that, the US doesn't make anyone a US "citizen" by way of the visitor merely visiting in friendship; an alien-born of alien parents must make a statement of intention, make application, be approved and swear an oath of allegiance and renounce any other allegiances to become a citizen/subject of US.
So if English "subject" and US "citizen" are analogous, then for a child to be a US "natural born citizen", the child would need to be "born under the ligeance of a citizen" .............. would that be right BrianH?
"gobillgo,
ReplyDeleteIf you want to comment here, add something intelligent"
Could you please just answer the simple question?
Every court you have presented "your" definition of natural born citizen has rejected your definition.
I simply ask if you think that ALL of them have it wrong?
This is not an attack, it's a simple question.
Is it your belief that all these judges have it wrong, and You are the enlightened one who sees what no other judge can comprehend?
I am serious in this question. I truly want to know if people such as yourself and folks like Orly Taitz think that every court room defeat is a vast conspiracy, or if you are simply incapable of considering the fact that maybe...just maybe,you are wrong.
@MichaelN
ReplyDeleteBrian the SCOTUS said that the Constitution does NOT say who shall be natural born citizens and the 14th Amendment is a part of the Constitution.
Right. And your point here is what?
The court also found Virginia Minor to be a natural born citizen WITHOUT RESORT to the Constitution AT ALL.
I'm not sure what you're saying here. The Court noted the Constitution contains the term "natural born citizen" and then proceeded to discuss (albeit somewhat briefly) Virginia Minor's citizenship status. So it's not like the Constitution was out of view. The Court referenced (resorted to?)the Constitution rather clearly.
So where id they SCOTUS get the meaning or definition of natural born citizen from?
They court said "at common law", but it could not have been the English common law, because the English common law holds no doubts that native birth suffices to make a natural born subject, but the SCOTUS recognized and gave merit to doubts that native birth in US was sufficient to even make a citizen, never mind a natural born citizen.
So what "common law" was it that the SCOTUS was referring to?
The Court doesn't state or spend much time citing to the specifics of the common law here. It doesn't cite to even a single authority. Virginia Minor's citizenship status (or, analogously, her "subject" status were this to be viewed under English common law cases) was not the least bit in doubt. The question before the Court in Minor was whether her citizenship status gave her the right to vote. The Court undertakes the analysis of her citizenship to show that -- under pre-Fourteenth Amendment law -- Mrs. Minor was a citizen, but that such citizenship then did not carry with it the inherent right to vote. Thus, the 14th Amendment doesn't give her anything more than what she would have had before it's enactment.
Though later the SCOTUS, when it took up the question of citizenship in the context of a person of alien parents in WKA, made clear that the Constitutional phrase "natural born citizen" (like other Constitutional language) is to be interpreted and understood in light of the history of the English common law:
"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."
The SCOTUS then goes on to show how the English concept of "natural born subject" provides the etymology and understanding of our Constitutional phrase "natural born citizen."
This, obviously, is the part of WKA that Mario can't fathom -- he has in his mind this notion of this complete "casting off" of everything British by the Framers and simply won't acknowledge that the SCOTUS actually dared to state English common law holds the key to understanding our Constitution.
It seems you stumble upon the same point, too.
@Mario A
ReplyDeleteYour personal spin on the meaning of the "natural born Citizen" clause, of course to justify Obama's holding the position of president, does not amount to a hill of beans. If you have an opinion, then you better produce some historical sources from the Founding that support your wishful thinking.
Your comments here illustrate very well how quickly off-track you get on this topic. You're eager to cite to historical sources, while the SCOTUS in WKA did no such thing (other than insofar as caselaw and legal commentary on caselaw is historical).
What the SCOTUS said in undertaking an analysis of the Constitutional provisions regarding citizenship, including the phrase "natural born citizen":
"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."
What you WISH the SCOTUS had said instead:
"The interpretation of the Constitution of the United States is necessarily influenced by the fact that [it was written by the Framers, so] its provisions [are to be understood by reference to the writings of the Framers and contemporaneous commentators like St. George Tucker and events like the McClure case]."
One of the manifest problems your position has is that how YOU want to analyze and answer the question of the meaning of "natural born citizen" is so obviously NOT how the SCOTUS undertook to analyze that question. Does Justice Gray cite to James Madison or St. George Tucker? No! Rather, he cites at length to all those English common law cases and authorities, explaining the meaning of "natural born citizen" by analogy to the English notion of "natural born subject."
So pardon me if I don't spend much time digging through historical sources from about the time of the Constitutional period. I'm merely following the lead of the U.S. Supreme Court here. When one is arguing a matter of Constitutional law, that's a sound practice to follow.
@BrainHemmoroids
ReplyDeleteWhy do you say Justice Gray spent 12 pages in the WKA decision on the term natural born? It is used only once in context to Binney's quote which proves our point the children of aliens are citizens of the United States in form in America, while the children of citizens are natural born citizens if born in the United State.
@MarioA
ReplyDeleteYou simply repeating how Justice Gray talked about the English common law does not prove anything.
Actually, it proves Justice Gray for the SCOTUS majority undertook to interpret U.S. Constitutional provision in light of the history of the English common law. Again:
"The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
***
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion,*** In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
***
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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."
So the SCOTUS has said that Constitutional provisions, including "natural born citizen," which it quotes directly, are to be interpreted in light of the history of the English common law. That's why Justice Gray cites to Calvin's Case and the other "natural born subject" authorities. They provide the etymology and meaning underlying the Framers' term "natural born citizen."
Got it yet?
Where is the evidence that the Founders and Framers relied upon the English common law to define a "natural born Citizen?"
The SCOTUS has said (at least twice, in WKA and Smith v. Alabama) that our Constitutions provisions are framed in the language of the English common law and are to be interpreted in light of the history of the English common law. On the matter of "natural born citizen," since that phrase was directly included in the WKA discussion, the Court has thus rendered a purely historical inquiry as to what the Framers did or didn't rely upon IMMATERIAL!!!
Supereme Court authority trumps historical sources. On every day in every courtroom.
You have none and neither did Justice Gray if he was defining a "natural born Citizen" which he was not.
He wasn't? Why then does he explicitly mention the term "natural born citizen" immediately before the portion I quoted where he quotes Smith v. Alabama on the importance of English common law? And immediately following that is Justice Gray's discussion of the English common law decisions on "natural born subject."
But you can't see the connection here. Amazing. Apparently the mind won't see what it wishes so desperately not to see.
You'd do better (at least insofar as a coherent argument, you still won't win a case) to acknowledge what is so totally obvious: that in your view there are such manifest differences between the English "natural born subject" and the U.S. "natural born citizen" that Justice Gray was simpy IN ERROR to discuss these concepts side by side as he did; and this is all the more so because Mr. Wong was so obviously NOT a British subject, so all these English authorities Gray cites on "natural born subject" simply have no place in the discussion to begin with. And because he discusses "NBC" and "NBS" side by side it leads to the false conclusion (e.g., Fuller's dissent) that the same jus soli rule applies under both.
@Mario A
ReplyDeleteYou are just making stuff up. Justice Gray did not spend any pages discussing a "natural born Citizen."
Sure he did. And this is REALLY easy to verify.
At page 655 of the opinion Gray cites to the Minor court about the term "natural born citizen" being undefined:
"In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that."
Then follows the citation to Smith v. Alabama I keep flogging you with about the need to interpret Constitutional language in light of the history of the English common law.
What follows then are two sections of the opinion: Part II where Justice Gray documents the English jus soli "natural born subject" rule; and Part III where he observes how this "same rule" has been followed in the U.S. And in Part III, J. Gray again explicitly refers to the "natural born citizen" concept:
"In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, "a natural-born citizen."It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
And note his next citation:
"In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
We're now up to page 663. The discussion, including citations to the effect that "citizen" and "subject" are interchangeable terms, continues in Part III up to page 666.
So my point that Justice Gray devotes a considerable portion of the opinion to analyzing the meaning of "natural born citizen" is true. All of Parts II and III are directed to that.
You just simply do not get it that the Founders and Framers did not consider a "natural born Citizen" to be a "natural born subject."
You and Justice Horace Gray have a very obvious difference of opinion on this point. His opinion indicates the Framers' use of the very similar term "natural born citizen" means they were adopting the same rule as pertained under the English "natural born subject." I'm siding with the Supreme Court justice on this one.
You are forgetting that we had a bloody revolution.
Yeah, I know. The WKA majority forgot that, too. How silly of them to keep importing in these English NBS cases and using those to explain NBC under our Constitution. What a pack of proto-Obots they were.
BrianH,
ReplyDeleteWhen you tell us that the Founders and Framers defined an Article II "natural born Citizen" by resort to the English "common law" rather than to what I maintain was natural law and the law of nations which the Founders and Framers incorporated into the Constitution as national law and which Minor v. Happersett called "common-law," and when you tell us that a "natural born Citizen" is "analogous" to a "natural born subject," please heed the following warning.
"This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (April 2012)." From Wikipedia.
Although I will not actually remove your unsourced arguments (rhetoric), I think you get the point.
@Mario A
ReplyDeleteThat North Carolina case talks about citizenship in North Carolina, not U.S. Citizenship.
You obviously can't recognize an argument by analogy when it's staring you in the face.
So why then is Justice Gray citing a state law decision in a federal/Constitutional case? The easy answer is that "just as the state court recognized that "subject" and "citizen" were analogous terms, so, too, J. Gray is citing that for the proposition that "citizen" and "subject" are analogous for purposes of a federal citizenship question."
That's a much better analysis than what appears to be your "J. Gray was just a dolt for citing to a state law decision in a federal law case" posture.
Minor analyzed what a "natural born Citizen" is, using American "common-law."
Except the Minor court doesn't explicitly reference "American" common law nor cite to any American caselaw. You merely reason that it must be a unique American law because you see a distinction with English common law.
Now, there's nothing wrong with reasoning as such. Just that if you're going to do that with Minor, then you can't in the next breath complain, when we assert that under the rationale of WKA that Mr. Wong is NBC, that the Court there didn't explicitly use the term "NBC" in the same sentence as the name "Wong." Minor didn't speak explicitly of "American" common law either, but that doesn't stop you from "reasoning" to that conclusion.
You can't have it both ways.
Wong Kim Ark analyzed what a Fourteenth Amendment "citizen of the United States" is, using the English "common law" as a historical aid in that endeavor.
OK, now we're moving forward a bit here. But do explain. The Amendment was passed four score years after the Constitution was originally adopted. How does English common law aid in understanding the Fourteenth Amendment? What's the connection?
Not even Wong itself settled on the English "common law," for it required that Wong's parents be domiciled and residents, requirements nonexistent in the English "common law."
It sufficed for Justice Gray to show by analogy that the jus soli rule under "natural born subject" was carried forward and adopted under the similar expression "natural born citizen."
"“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
(The WKA opinion notes Mr. Wong's parents were resident, but doesn't makes such an added element to the rule it sets out.)
You keep making the error of assuming "analogous" must mean "identical in all respects." Justice Gray finds in American law of "natural born citizen" the same jus soli rule with the same exceptions. That one can look and find some distinctions elsewhere between "subject" and "citizen" doesn't render the analogy improper.
Larry Klayman has filed a new case in Florida on behalf of Mike Voeltz. The case makes the same arguments as the one that Judge Terry Lewis dismissed. This effort is doomed and should earn Klayman sanctions if the defendants choose to pursue them for blatantly violating the doctrine of res judicata since the original case was dismissed with prejudice.
ReplyDelete@Mario A
ReplyDeleteJustice Gray acknowledged the difference between an Article II “natural born Citizen” and a Fourteenth Amendment “citizen” “at birth” when he said that a child "‘if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle’" (citing and quoting Horace Binney). Id. at 693.
One of the incidents to being a "natural born citizen" is presidential eligibility. If another child is said to be "as much a citizen" as the NBC, then the former must also enjoy the privilege of presidential eligibility.
Otherwise, "as much" really isn't "as much." Right? Or are we in an "all men are created equal, but some are more equal than others" Orwellian semantic world here.
I mean, really, this should be just obvious.
@MichaelN
ReplyDeleteOn the topic of English "subject" and US "citizen" being supposedly analogous.
A reminder that the majority opinion in Wong Kim Ark cited two authorities to the effect that the terms are analogous and interchangeable as to citizenship at birth.
"Supposedly" is a bit of an amusing qualifier you put on given its the SCOTUS making this analogical comparision.
What do you suppose Lord Coke (Calvin's case) meant when he stated that there were four types of ligeance and said....
"There is found in the law four kinds of ligeances: .. . "
Michael, I'll refer to my recent post to Mario (which is hung up in moderation as I type this, so I can't quote myself verbatim) that the both of you make the fundamental error of confusing "analogous" with "identical in every respect."
Justice Gray most clearly compares "natural born subject" and "natural born citizen" and refers to the former to explain the meaning of the latter. And Gray explains both under the same jus soli principle and noting the same exceptions. And Gray states explicitly that the "same rule" which had operated in England carried forward to the Colonies and continued under the Constitution.
Now, clearly, you and Mario DO NOT like that he says this; it's unfathomable to you that Justice Gray could POSSIBLY compare two things you see as fundamentally different. And clearly it's a real damper on your attempt to claim the Vattel "two citizen parent" rule, since Justice Gray obviously rejects that. So you both resort to the same technique: find some other detail relating to "subject" and "citizen" that seems different to you and hold that up so as to pretend the NBS/NBC comparison really isn't there.
What did Lord Coke mean in what you quoted above? Whatever he may have meant, it's irrelevant!! Justice Gray did NOT cite Lord Coke for any of those propositions. Therefore, they are extraneous to the SCOTUS analysis comparing NBS and NBC.
What did Coke mean by "nature" AND "birth right" that was attributed to those with the highest allegiance?
If you can show me where the WKA court concerned itself with this, then I'll be concerned myself. But since they didn't, I won't either.
I'll just "ditto" the rest of your post with this same comment.
You see, Michael, in the real world where lawyers argue actual cases and judges decide actual cases, trying to make a point about things in the cases cited by the SCOTUS which the SCOTUS opinion doesn't deem important enough to include is really NOT an effective argument.
What you're hauling out from Lord Coke doesn't change what Justice Gray concluded:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
If you want to argue J. Gray was in error, that he oversimplifed the actual law of England as to NBS, fine, have at it. But as things stand, the Supreme Court's analysis on this point is going to stand in any court that reads WKA.
gobillgo,
ReplyDeleteLike I said, please provide intelligent input here.
Cite for me where in these court decisions my arguments on the meaning of a "natural born Citizen" have been thoroughly addressed by way of a written opinion. If you can do that and if the arguments are reasonable, then I will concede that I have been proven wrong by the courts.
Also, do not try to associate me with any of your so-called conspiracy theories.
nbc at his blog insists that I am wrong because Wong Kim Ark rejected the law of nations as a source for defining U.S. citizenship. Here is my response to him:
ReplyDeletenbc,
Too bad that you have such poor reading comprehension. Wong Kim Ark rejected the law of nations as limiting the application of the Fourteenth Amendment in 1898 and in defining what a "citizen" was thereunder. It did not reject the law of nations as defining an Article II "natural born Citizen" which Minor in 1875 had already shown was the source of the definition of a "natural-born citizen" (calling it “common-law”) and to which Wong Kim Ark did not object.
@Mario A
ReplyDeleteWhen you tell us that the Founders and Framers defined an Article II "natural born Citizen" by resort to the English "common law" . . .
Strawman argument alert #3.
I'm not telling you that of my own opinion. Rather, I've been citing (how many times now? 3? 4? 5?) the portion of WKA where J. Gray cites to Smith v. Alabama on the point that our U.S. Constitution is framed in the language of the English common law known to the Framers and that Constitutional terminology is to be understood in light of the history of the English common law. And that Constitutional language includes the phrase "natural born citizen," which J. Gray explicitly references right before he quotes Smith v. Alabama.
Although I will not actually remove your unsourced arguments (rhetoric), I think you get the point.
I'm coming around to the view that when I cite portions of WKA that are inconvenient truths, the level of denial that takes place inside you is SO profound as to render what I quote effectively "invisible" to you. A pure cognitive dissonance avoidance mechanism. I really struggle for an alternative explanation for how I can cite and quote the SCOTUS every time I've made this "NBC/NBS" comparison, and yet have you make this claim that I'm making "unsourced" claims.
Truly, there must be some odd cognitive function in your mind that when I offer as my "source" statements such as this:
"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."
That what your mind "sees" is:
"23y29r7q23rh*&Yh-H-hSDWERN(*nknn :lknpon{nhyIJQJEWR4Q3[J&%&^YGOHOUHHHIOHU(*TRRR"
So the net result is my proposition followed by . . . (gasp!) no source whatsoever!
@Mario A
ReplyDeleteWong Kim Ark rejected the law of nations as limiting the application of the Fourteenth Amendment in 1898 and in defining what a "citizen" was thereunder.
This statement is flat-out wrong. WKA explicitly discussed whether the "law of nations" (international law) impacted or changed the common law rule. Now, in a prior post, I outlined how in Parts II and III, Justice Gray analyzed the common law jus soli rule in England (Part II) and how that rule was adopted without change in the U.S. up through and after the adoption of the Constitution (Part III).
Now observe how he begins Part IV:
"IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.
But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France, . . .[citations omitted.]"
So per WKA, the "common law" rule was the jus soli rule of England. The U.S. government was arguing for a modification of that common law rule by operation of international law. The WKA opinion rejects that argument and hold firms to the jus soli common law principle.
So to argue that Minor's "common law" reflects some adoption of the "law of nations" is silly. Minor makes absolutely no reference to any "law of nations," and when the "law of nations" concept was expressly discussed by SCOTUS in WKA it was rejected.
BrianH,
ReplyDeleteYour response to MichealN is pathetic.
MichealN’s question to you is: “So what "common law" was it that the SCOTUS [Minor] was referring to” when it defined a “natural-born citizen?”
Your response: “The Court doesn't state or spend much time citing to the specifics of the common law here. It doesn't cite to even a single authority.”
My response: And what authorities does Justice Gray cite to show that the English common law jus soli rule survived the American revolution at the national level? None. So are you then saying that you do not agree with the unanimous (9 Justices of the Court) U.S. Supreme Court in Minor in how it defined a “natural-born citizen?” That is rather hypocritical because the Obots tell me that I have to accept a court’s decision regardless of whether the court provided any authority for what it said.
Your underhanded attempt to reduce the significance of the Minor decision on the matter of U.S. citizenship by trying to focus on voting rights is noted.
You said: “Though later the SCOTUS, when it took up the question of citizenship in the context of a person of alien parents in WKA, made clear that the Constitutional phrase "natural born citizen" (like other Constitutional language) is to be interpreted and understood in light of the history of the English common law: ‘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.’
The SCOTUS then goes on to show how the English concept of ‘natural born subject’ provides the etymology and understanding of our Constitutional phrase ‘natural born citizen.’"
My response: There you go again replacing “natural born Citizen” for where the Wong Kim Ark said “citizen of the United States.” Wong did not say that a “natural born subject” defines a “natural born Citizen.” It only said that the English common law definition of a “natural born subject” can help in interpreting and applying the Fourteenth Amendment “subject to the jurisdiction” clause and in ultimately determining who was a “citizen” thereunder. You cannot provide any holding of Wong Kim Ark which mentions anything about a “natural born Citizen.” This is one of your scam techniques that I have already identified.
Puzo1:
ReplyDeleteThe various OOPS Troops - "BrianH" & others - are surely wasting a lot of electrons here.
I suspect that many of them do not realize that the recent SCOTUS opinion on what is now known as the "Jackalope Tax" (in The Post & Email editorial on this July 4th) is not only hugely composed of flawed, misshapen logic but is also an unconstitutional tax not allowed by that document.
It is almost incomprehensible that five SCOTUS justii are so bereft of both legal and common sense that they cannot see that the Jackalope Tax as they define it is in fact a direct tax yet violates the 16th Amendment which specifically was passed to make the income tax (also a direct tax not otherwise allowed by that document) we now have "constitutional". The Jackalope Tax does not clear the Constitutional hurdle of the XVI Amendment.
Unfortunately for those justices of the looney left AND the OOPS Troops, there are just enough citizens left who now realize the end run they are attempting - much like the eligibility end run in progress by someone who has never shown himself to be eligible to hold the office he now occupies.
But then again, these Obots don't want the truth even when it is clearly evinced in black and white electrons right in front them. Perhaps that situation is as much an indictment of our generations-long far left liberal "education system" that has succeeded not only in dumbing down not only the OOPS Troops and many other citizens, but at least five of the Justices which are products of that "education system".
It seems that the fact-set that "ignorance is correctable by learning but stupid is forever" applies here to both the justii AND the OOPS Troops. I'm not yet sure about the others, but the "forever" part seems to apply to the Obots.
.
Hello Mr. Apuzzo,
ReplyDeleteAn "Anonymous" blogger left a curious comment at my blog and I wondered if it could possibly be the real story behind Obama's false nativity story? Would it be worth the effort to fight in court on the Indonesian citizenship issue which, as you probably already know, means that Obama must have reliquished his American citizenship at the time?
The comment was left at this posting on Talk Wisdom:
http://talkwisdom.blogspot.com/2011/06/obamas-soebarkah-name-is-confirmation.html
Here is a copy of the comment I received at my blog:
Anonymous said...
Obama's vital records and DNA analysis will confirm he was at birth a natural born American citizen, as Dr. Fukino said in her press release of 27 July 2009. He was probably the son of Stanley Armour Dunham and an obliging native Hawai'ian wahine.
He voluntarily relinquished his American citizenship in 1981 on a trip to Indonesia by confirming as an adult his juvenile naturalization. He did this in part to evade criminal liability for failing to register with the American Selective Service System. He also got an Indonesian passport, and returned to the States on a student visa.
In shedding his American citizenship, he also shed his eligibility to the Office of President.
Obama is not now and never has been President - nor has he held any elective office for which American citizenship is prerequisite.
June 28, 2012 8:02:00 PM PDT
Thank you for all of the hard work you are doing to get to the truth about Obama!
The GA ballot challenge has now been presented to the U.S. Supreme Court via a Petition for Cert. Here is a link to where you can get a copy of the Petition:
ReplyDeletehttp://cdrkerchner.wordpress.com/2012/07/04/welden-et-al-v-obama-u-s-supreme-court-petition/
CDR Kerchner (Ret)
ProtectOurLiberty.org
@Mario A
ReplyDeleteAnd what authorities does Justice Gray cite to show that the English common law jus soli rule survived the American revolution at the national level? None.
I've noted (twice now) that in Part III of the opinion, J. Gray analyzes how the English jus soli rule which he documented in Part II was recognized since Colonial days in America. And in Part III J. Gray cites as authorites: The Charming Betsy, Inglis v. Sailors' Snug Harbor, Shanks v. Dupont, Levee v. Mccartee, Dred Scott v. Sanford, U.S. v. Rhodes, Gardner v. Ward, Kilham v. Ward, and State v. Manuel. Plus he cites to commentary by Chancellor Kent.
Now, no doubt you have at the ready (or will soon prepare) some 7-part post trying to show that none of these authorities support the proposition of jus soli citizenship. Spin your wheels as you see fit. The salient point remains that the WKA majority signed on to the truth of the proposition.
So are you then saying that you do not agree with the unanimous (9 Justices of the Court) U.S. Supreme Court in Minor in how it defined a “natural-born citizen?”
I agree with the statement that Virgina Minor's status as natural born citizen under the common law isn't controverted. I disagree with the following claims that Birthers attempt to tack on beyond that: 1) that the Minor court purported to set forth a "definition" of NBC (it said no such thing), 2) that the "common law" refers to some purely "American common law" (the court makes no mention of such a thing), or 3) that the "common law" or the recitation of the common law as to Mrs.Minor reflects some incorporation of the "law of nations" (the Court makes absolutely no mention of this, and, as noted in my prior post, the WKA explicitly rejects that idea).
That is rather hypocritical because the Obots tell me that I have to accept a court’s decision regardless of whether the court provided any authority for what it said.
If it's a SCOTUS case, and it's the seminal decision on the matter (which WKA is as regards the question of a person born in the U.S. of alien parents), then, yes, you're rather stuck with it insofar as the propositions set forth are clearly established. If you want to disagree and claim the opinion poorly reasoned or supported and should be overturned, have at it. "Birther" Tracey Fair remarked on Woodman's blog that WKA is unconstitutional and should be overturned. I applaud her directness. You keep dancing around the point, ending up in effect claiming that J. Gray cites to authority he shouldn't be, that he makes claims he doesn't support, and further that C.J. Fuller is "sounding the alarm" needlessly because the majority opinion doesn't say what Fuller makes it out to say, and further that Minor should have precluded Fuller's concern at the outset.
Your underhanded attempt to reduce the significance of the Minor decision on the matter of U.S. citizenship by trying to focus on voting rights is noted.
Well, her being denied the vote was what she was challenging. She wasn't being denied citizenship.
Yeah, I'm clearly being underhanded here.
There you go again replacing “natural born Citizen” for where the Wong Kim Ark said “citizen of the United States.”
Actually, it said "natural born citizen," too:
"The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
Following this is the portion I've been citing about understanding Constitutional provisions in light of the history of the English common law.
So let's call this Strawman argument alert #4. I wasn't substituting anything.
BrianH,
ReplyDeleteYou know very little regarding how the U.S. Supreme Court interprets the Constitution. Case precedent is only one tool that it uses. Other tools that are just as important if not more important which it uses are:
1. the text of the constitutional provision involved. If the text is clear and unambiguous, the issue is decided by the text alone. If the text does not resolve the matter, then the Court will look to other tools for interpreting the Constitution. These tools are:
2. relevant state constitutional provisions that were passed at the same time or immediately after the constitutional clause in question was passed;
3. any information that helps “determine the public understanding of the legal text of the constitutional provision in the period after its enactment or ratification” which includes but is not limited to “post-ratification commentary,” case law, and Congressional legislation;
4. binding precedent of the U.S. Supreme Court which forecloses the adoption of the original understanding of a constitutional provision. This factor turns on whether the specific question has presented itself before the U.S. Supreme Court and the Court has specifically decided that question and therefore the matter is “well-settled and uncontroversial,” or whether the specific constitutional question has been “judicially unresolved” or “remained unilluminated” during our history.
See District of Columbia v. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (discusses and applies these factors when it interpreted the meaning of the Second Amendment’s “right of the people to keep and bear Arms”).
The only item of relevant evidence that you put forth as supporting your argument that the English “common law” defined an Article II “natural born Citizen” and not the law of nature and the law of nations which became American “common-law is the U.S. Supreme Court case of United States v. Wong Kim Ark, 169 U.S. 649 (1898). You in effect argue that this case settled the question of what is a “natural born Citizen” and that what it said about a “natural born Citizen” is binding precedent which forecloses any analysis of original intent and understanding. But the case did no such thing. Wong’s holding defined a “citizen” under the Fourteenth Amendment, not a “natural born Citizen” under Article II. Wong Kim Ark made no reference to presidential eligibility when it defined a “citizen” under the Fourteenth Amendment. On the other hand, Minor specifically referred to a “natural-born citizen” and not only defined the clause, but also told us that there was no doubt as to that meaning. Hence, as far as Minor is concerned, the meaning of “natural born Citizen,” i.e., a child born in a country to parents who were “citizens” of that country, was “settled and uncontroversial” when it rendered its decision in 1875. Wong Kim Ark did not change that understanding and precedent. Wong Kim Ark did not take issue with that definition when it cited and quoted it and we can interpret the Court to have said that it did not object to that definition.
All of the historical and legal evidence that I have presented under these factors shows that the original understanding of a “natural born Citizen” was a child born in the country to “citizen” parents and that that definition has never been changed or amended by either any constitutional amendment, including the Fourteenth Amendment, or any U.S. Supreme Court case, including Wong Kim Ark. You simply cannot overcome the force of the totality of this evidence.
BrianH,
ReplyDelete"There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion."
Wong at 667.
Justice Gray refers to "international law" that may have applied at the time the Fourteenth Amendment was adopted.
First, the Founders and Framers did not view the law of nations as "international law."
Second, Justice Gray also limited his conclusion only to the application or not of "international law" at the time the Fourteenth Amendment was adopted.
@Mario A
ReplyDelete"There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion."
And this statement is contained within the noted Part IV of his opinion. And while this sentence read in isolation speaks narrowly to the time of the passage of the Amendment, just before and just after Justice Gray shows that the same holds true well before that time:
"But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and
mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;"
And in his summary of Part IV J. Gray writes:
"Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."
So Justice Gray makes clear that even prior to the 14th Amendment, children of foreigners were native (i.e., natural) born. That is, if they were white. Hence, the need for the 14 Amendment to declare the same true for non-whites.
And I note many of the authorities you've cited in the past (Quintilianus, Vattel and Blackstone) used "native born" and "natural born" interchangeably. It's clear enough the SCOTUS does, too, so the accuracy of my parenthetical isn't easily challenged. J. Gray's summary at the end of Part IV flows directly from his analysis in Parts II and III where, as I've shown previously, note how the jus soli rule under English common law was carried forward to the common law in America.
@Mario A
ReplyDeleteOther tools that are just as important if not more important which it uses are:
And if the case is one of first impression, the Court has, at various times and for various provisions, adopted one or more of these considerations.
But the discussion of NBC is at this point not a matter of first impression. The Court in WKA explicitly noted that phrase prior to its remark about English common law history and also within its discussion of English "natural born subject" cases. The Court didn't find reason to undertake any of these other considerations you've listed. So at this point they are largely irrelevant.
The only item of relevant evidence that you put forth as supporting your argument that the English “common law” defined an Article II “natural born Citizen” and not the law of nature and the law of nations which became American “common-law is the U.S. Supreme Court case of United States v. Wong Kim Ark, 169 U.S. 649 (1898). You in effect argue that this case settled the question of what is a “natural born Citizen” and that what it said about a “natural born Citizen” is binding precedent which forecloses any analysis of original intent and understanding.
Since I've been noting when you've mistated my arguments, I should also point out when you state one correctly. Here you have.
My position is that J. Gray undertook an extensive discussion which shows: 1) the English common law rule as to "NBS" was jus soli with a few noted exceptions, 2) that this understanding carried forward to the American understanding of "NBC" which accepted the same jus soli rule, with the same exceptions (though not without a few dissenting voices, as both Minor and WKA note), and 3) that the 14th Amendment's "born . . . in the United States, and subject to the jurisdiction thereof" is a more formal incorporation of that very same common law rule, with the same jus soli operation and subject again to the same exceptions (adding also the special case of Native Americans not known to the common law of england).
If one tracks the argument through Parts II, III and IV, his analytical framework is easily seen, leading up to this conclusion in Part V which ties this all together:
"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42."
J. Gray makes clear that "natural born" under the common law and "born . . . in the U.S., and subject to the jurisdiction thereof" mean the same thing. Except now with the 14th Amendment, the principle is declared also as to non-whites.
C.J. Fuller in dissent saw this. Every court that's taken up the "two citizen parent" argument has seen it, too.
You simply cannot overcome the force of the totality of this evidence.
Such a mighty force that hasn't yet caused the pen of a single judge to scratch one letter suggesting it has any credence.
But I'll grant you, you have a nice rhetorical flourish going there.
BrianH,
ReplyDeleteAt the Founding a “native” did have the same meaning as a “natural born Citizen.” Here is the evidence: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758).
But later in our history, “native-born citizen” was introduced and given a different meaning than that given to “native.” Native-born” was given the meaning of one born in the U.S. to alien parents who it was assumed became a “citizen” “at birth” as distinguished from one who became a “citizen” either “at birth” by birth abroad to U.S. “citizen” parents or who became a “citizen” by naturalization after birth.
We can see that Justice Gray used this different definition of a “native-born citizen.” He said:
“At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.”
Wong Kim Ark, at 667.
Under the original definition of a “natural-born citizen” as confirmed by Minor, only a child born in a country to “citizen” parents could be a “natural-born citizen.” Justice Gray spoke of “native-born children of foreign parents.” So clearly, these children born to “foreign parents,” while considered “native-born,” could not be “natural-born citizens.”
And we can see that Justice Gray recognized that “native-born citizens” were not “natural-born citizens.” Indeed, he recognized the distinction between a “natural-born citizen” and a “native-born citizen.” Justice Gray acknowledged the difference between an Article II “natural born Citizen” and a “native-born citizen” (Fourteenth Amendment “citizen” “at birth”) when he said that a child "‘if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle’" (citing and quoting Horace Binney). Id. at 693. The same principle referred to “birth in the country.”
Finally, Justice Gray did not correctly state what the French citizenship rule was at the time of the French Revolution.
“The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [p667] The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle.”
Wong Kim Ark, at 667.
So, Justice Gray said that France practiced jus soli well before the French Revolution and that it was incorporated into subsequent constitutions and that it was replaced with jus sanguinis only with the Code Napoleon. As per William Blackstone what Justice Gray said is not correct. Here is what Blackstone said in 1765-1769 about the French law:
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.”
http://www.lonang.com/exlibris/blackstone/
So who was right, Justice Gray or William Blackstone? Such an error by Justice Gray, among other things he said in his opinion, puts into grave doubt the accuracy of his whole analysis on the law of nations which he calls “international law.”
BrianH,
ReplyDeleteYou said: “But the discussion of NBC is at this point not a matter of first impression. The Court in WKA explicitly noted that phrase prior to its remark about English common law history and also within its discussion of English "natural born subject" cases. The Court didn't find reason to undertake any of these other considerations you've listed. So at this point they are largely irrelevant.”
You are begging the question here.
@Mario A
ReplyDeleteBut later in our history, “native-born citizen” was introduced and given a different meaning than that given to “native.” Native-born” was given the meaning of one born in the U.S. to alien parents who it was assumed became a “citizen” “at birth” as distinguished from one who became a “citizen” either “at birth” by birth abroad to U.S. “citizen” parents or who became a “citizen” by naturalization after birth.
Oh?? When did this change in meaning first occur? To say the least, this paragraph is long on assertion and short on sources and support. One might actually say you are just making this up.
We can see that Justice Gray used this different definition of a “native-born citizen.” He said:
In looking at what "he said," let's look at what you've excerpted in its larger context:
"The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21."
So let me see if I've got your argument here correct. You are saying that J. Gray's noting passage of the English Naturalization Act in 1870, which he discusses solely in the context of changes happening on the European context, is your "proof" that the meaning of "native-born" changed in the U.S. since the adoption of the Constitution. And you are making this assertion in the face of the opening sentence of that paragraph, where J. Gray states explicitly: "The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect on the Constitution of the United States.
Desperate times call for desperate arguments, don't they?
I think it's clear that nothing here changes the view that, as to U.S. born persons, the terms "native-born" and "natural born" have always been used interchangeably. So J. Gray's statement I cited, that the children of white foreigners were "native-born," even before the adoption of the Fourteenth Amendment, stands as succinct challenge to your "two citizen parent" theory.
@Mario A
ReplyDeleteI didn't add in this part of your post:
Under the original definition of a “natural-born citizen” as confirmed by Minor, only a child born in a country to “citizen” parents could be a “natural-born citizen.”
Minor nowhere says "only a child born in a country to citizen parents could be a natural born citizen." You're simply fabricating this.
Justice Gray spoke of “native-born children of foreign parents.” So clearly, these children born to “foreign parents,” while considered “native-born,” could not be “natural-born citizens.”
They are interchangeable terms. J. Gray's speaking of "native-born" children of foreign parents is the same as saying "natural born" children of foreign parents.
Subsequently, the SCOTUS made this clear in Luria v. U.S., 231 U.S. 9 (1913):
"Under the Constitution of the United States, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827."
The court here uses "native" as an equivalent for the Constitutional term "natural born." That's consistent with J. Gray's analysis which indicated that the jus soli english rule of NBS was carried forward to American and colors the meaning of "NBC."
Native-born. Natural born. Same thing as to U.S. born persons. Parental citizenship is irrelevant.
You are begging the question here.
How so?
BrianH @7-5-12, at 5:36
ReplyDeleteI fail to see that anything you said was responsive to what I wrote. You are just off on your own and lost in your own words.
BrianH,
ReplyDelete(1) Your analysis of Minor is so dishonest. Did Minor say that any child other than one born in the country to “citizen” parents could be a “natural born Citizen?” No. Your dishonesty is eloquently captured by Justice Black:
"Professor Fairman’s 'history' relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and, most importantly, said by the men who actually sponsored the Amendment in the Congress. Duncan v. Louisiana, 391 U.S. 145 (1968) (Black, J., concurring opinion ).
So your telling us what Minor did NOT say is really desperate and surely not supportive of your position. Taking your approach to constitutional construction, there would be no end to any argument that one could make about what any court said or did not say. The argument would always be: “yes, but the Court did NOT say that . . . .”
Here is an example of the absurdity of your reasoning: John Smith, born in South Africa to parents who are “citizens” of that country, argues that he is “citizen of the United States” under the Fourteenth Amendment because the Fourteenth Amendment does NOT say that one who is born in South Africa to “citizens” of that country is NOT a “citizen of the United States.” LOL.
(2) You quote Luria v. U.S., 231 U.S. 9 (1913):
"Under the Constitution of the United States, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827."
But note that Luria cited to Minor and not to Wong Kim Ark on the question of presidential eligibility. The simple reason is that Minor confirmed the meaning of a “natural-born citizen,” which is the presidential standard, and Wong Kim Ark construed the Fourteenth Amendment which has nothing directly to do with presidential eligibility. Also, since Luria said “native citizen” and cited to Minor, it could only have meant that a “native citizen,” as it used the term, meant a “natural-born citizen” which Minor defined as a child born in a country to “citizen” parents. The term “native citizen” could mean nothing else, for Minor defined no other native “citizen” from the post-revolutionary period other than a “natural-born citizen” and said it meant a child born in a country to “citizen” parents. Luria’s citing of Minor on presidential citizenship also totally destroys the Obot’s disingenuous argument that Minor was a case only about women’s voting rights.
Finally, if there is any doubt as to the meaning of a “native citizen,” the matter was very well cleared up by Schneider which told us that only a “natural born Citizen” can be president: "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II,§ 1. Schneider v. Rusk, 377 US 163, 165 (1964)
BrianH Obot Troll alert.
ReplyDeleteHis profile says he's been a blogger since July 2012. How many think the H stands for Hemorriod; as in trying to be a pain in our ass?
Teo Bear:
ReplyDeleteMost likely "BrianH" appears on more than one of the various OOPS Troops sites under other nom de prevarications.
I think that several of them do that. FYI, I know that Kevin Davidson - Dr. Con. - claims that John Woodpecker (or whatever his name was) has now "retired" from his formerly over-active site.
@Mario A
ReplyDeleteYour semantic gymnastics on the "native born" / "natural born" are most amusing.
In the opening post related to this comments section, you quote St. George Tucker:
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence."
So, clearly, "native born" equates to "natural born."
Then I quoted Justice Gray in WKA saying:
"it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."
And I've noted how C.J. Fuller in dissent complains how the majority opinion makes a person like Mr. Wong presidential eligible. So it's apparent Fuller understood "native born" and "natural born" mean the same thing.
But you claim that somewhere along the way(in some mysterious, undocumented fashion, as you don't demonstrate this in the least) the term "native born" came to acquire a meaning that wasn't equal to "natural born." And your "proof" of this is a statement by J. Gray ("At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway") which refers just to statutes enacted in Europe, and which Gray states at the outset of that paragraph "have no important bearing upon the interpretation and effect on the Constitution of the United States."
Then I show how in Luria the court speaks of the "native" being eligible for the Presidency. Has "native" now morphed back to mean "natural," where apparently (under your view) it didn't a few years back in WKA?
And since Luria, Schneider v. Rusk, 377 U.S. 163, used "native" and "natural born" interchangeably:
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1."
The Court here indicates no semantice difference between "native born" and "natural born." It uses "native born" where the Luria court used "natives" as to presidential eligibity in contrast to the rights of the naturalized.
And the dissent in Schneider reinforces this:
"Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1. A naturalized citizen must wait seven years after he obtains his citizenship before he is eligible to sit in the House, Art. I, § 2. For the Senate, the waiting period is nine years, Art. I, § 3"
The distinction in the Supreme Court cases is between "natural/native born" and "naturalized" persons. The Court makes no distinction between "native born" and "natural born." You simply wave the magic Birther wand and declare that any time "native" is used as to presidential eligibilty it means "natural born," but any time you see it associated with someone of alien parents you claim it means something else.
That's the sort of absurd argument that nets one's legal theory a 0 for 9 record.
@Mario A
ReplyDeleteDid Minor say that any child other than one born in the country to “citizen” parents could be a “natural born Citizen?”
Yes. It expressly allowed for that possibility. And that is the case if one but reads the Court's statements in context as I noted in my first post on this thread. Now, no one interacted with that argument. But to repeat the lesson on English composition, here it is again:
"In the context of the Minor court's discussion, "natural born citizen" and "citizen" are used to mean the same thing. This is easily noted:
"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 [p168] 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."
The first thing to observe is this is all part of a single paragraph. In a carefully structured writing (like a SCOTUS opinion), a paragraph contains a set of sentences all related to a single topic. And the paragraph starts with a topic sentence identifying and organizing that topic. Above, the topic sentence shows the paragraph is ABOUT who are "natural born citizens" ("The Constitution does not, in words, say who shall be natural-born citizens.")
So when further on in the paragraph, Justice Waite remarks "Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents" -- we know that "citizens" here means "natural born citizens" because reading in context we know that "natural born citizen" is the topic of this paragraph!
And that "open question" about the U.S.-born children of alien parents is what is taken up later in greater detail in Wong Kim Ark."
And in WKA, J. Gray resolves the "doubts" in favor of finding that children of alien parents are "native (natural) born:"
"Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."
And what follows, as noted, is the aghast object by the dissent that J.Gray's majority has just made persons like Mr. Wong eligible for the presidency.
Reading a paragraph in context and with proper consideration of elemental rules of composition is never "dishonest."
BrianH,
ReplyDeleteAll that you are doing is manipulating the clauses “natural born Citizen” and “native born citizen,” and trying to do an end run around “natural born Citizen” by playing with how the courts commented on “native born citizen.”
First, at the founding “natural born Citizen” and “native” meant the same thing. “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). This is the original meaning of a “natural born Citizen” that was incorporated into the Constitution. What is controlling in that statement is the definition provided. That definition does not change unless consciously and legally changed by way of constitutional amendment.
Second, case law shows that “native” did take on a different meaning from “natural born Citizen.” The courts created much confusion in how it used the term “native born.” But in all the confusion, Schneider was clear that only a “natural born Citizen” is eligible to be president. "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II,§ 1.” Schneider v. Rusk, 377 US 163, 165 (1964). The Court did not say that only the “native born” is eligible to be President.”
Third, it does not matter how the courts later used or defined “native born citizen” because Article II, Section 1, Clause 5 says “natural born Citizen,” not “native born citizen.” So, how the courts later came to use or define “native born citizen” does not affirm or change the definition of a “natural born Citizen,” unless that court possessed the requisite constitutional authority to address the issue, considered a “natural born Citizen” to have the same meaning as a “native born citizen,” and actually confirmed or changed the definition of an Article II “natural born Citizen” by telling us what the meaning of a “native born citizen” was. No court with such constitutional authority has ever equated the meaning of a “natural born Citizen” to that of a “native born citizen” and then defined a “native born citizen” under some standard that is different from the original definition of a “natural born Citizen.” Not even Wong Kim Ark did that. If you think you have a case that did that, you are welcomed to cited it here and then I will respond accordingly.
@Mario A
ReplyDeleteAll that you are doing is manipulating the clauses “natural born Citizen” and “native born citizen . .
So are you going to release from moderation my post to which this comments seems addressed? (And there's a second I posted right after which isn't showing yet either.)
This is the original meaning of a “natural born Citizen” that was incorporated into the Constitution.
Now here is a textbook example of "begging the question." One can only admire your "logic" here:
1. Assert without any historical proof that Vattel's definition was the "original meaning."
2. Admit that "native" and "natural born" at that time were used interchangeably.
3. Then when the SCOTUS in WKA uses the term "native born" as a person of alien parents, hold up that unproven original meaning and posit there was some mysterious, unidentified "case law" along the way that had changed the meaning of "native born." (This, despite the obvious reality that C.J. Fuller in dissent was still reading "native born" and "natural born" to mean the same thing as had always been the case.)
4. Attempt to side-step that Luria used the term "native" in the context of presidential eligibilty by asserting that cases coming later don't count.
5. Then hold up an EVEN LATER case (Schneider) and proudly show that it uses "natural born" as to presidential eligibilty, ignoring that it cites Luria and uses "natural born" where Luria used "native" (without attempting to clarify any supposed difference between the terms) and ignoring that the dissent in Schneider uses "native born" as to presidential eligibility in the same spot where the Luria court did and where the Schneider majority did.
6. But then proclaim that "native" and "natural born" are not used interchangeably by the SCOTUS in the same way they were used interchangeably by Blackstone, Vattel, St. George Tucker, etc. Just somewhere, somehow -- for a brief moment in time -- that 'change' happened so that you can pretend WKA doesn't sink your argument completely.
Wonderful work.
@ BrianH
ReplyDeleteWhat "common law" do you suppose the SCOTUS in the Minor case was referring to when in the same paragraph where the SCOTUS held that one who is native-born to US citizen parents is a "natural born citizen", the court also introduced and stated that there was merit in, and acknowledged the merit, in the doubts that native-birth sufficed to make a citizen?
BrianH said .....
ReplyDelete"Desperate times call for desperate arguments, don't they?
I think it's clear that nothing here changes the view that, as to U.S. born persons, the terms "native-born" and "natural born" have always been used interchangeably. So J. Gray's statement I cited, that the children of white foreigners were "native-born," even before the adoption of the Fourteenth Amendment, stands as succinct challenge to your "two citizen parent" theory."
Seems like generally the court was in most if not all instances careful to be precise when discerning between native-born and natural-born.
So BrianH, you would say that Perez was a natural born citizen, or perhaps a native-born alien?
Quote:
"U.S. Supreme Court
Perez v. Brownell, 356 U.S. 44 (1958)
In proceedings to deport a person born in the United States, the Government denied that he was an American citizen on the ground that, by voting in a Mexican political election and remaining outside of the United States in wartime to avoid military service, he had lost his citizenship under § 401(e) and (j) of the Nationality Act of 1940, as amended. He sued for a judgment declaring him to be a citizen but was denied relief.
Held: It was within the authority of Congress, under its power to regulate the relations of the United States with foreign countries, to provide in § 401(e) that anyone who votes in a foreign political election shall lose his American citizenship, and the judgment is affirmed. Pp. 356 U. S. 45-62."
By the way BrianH, still waiting for your answer as to what "common law" was the SCOTUS in the Minor case referring to.
@ BrianH
ReplyDeleteHere's an example of the courts use of "native-born citizen", which was used by the plaintiff to describe one who claimed to be native-born in US to alien Italian parents.
Quote:
"Plaintiff brought this suit pursuant to section 360(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. 1503(a) for a declaratory judgment (1) declaring him to be a national of the United States (28 U.S.C.A. 2201) and (2) declaring an order for a warrant of deportation to be null and void. From a judgment dismissing the complaint on the merits and sustaining the deportation warrant plaintiff appeals.
2
The issue here is entirely factual. Plaintiff claims that he is a native born citizen of the United States, having been born in Yatesboro, Pennsylvania on August 7, 1905; the government claims that he was born in Sarradifalco, in Sicily, Italy, on August 17, 1903. There is no question that a child, Leonardo, was born in Italy to the admitted parents in August 1903 and with an older sister was brought to this country by the mother in August 1904, the father having previously been admitted."
And there's heaps more BrianH.
@ BrianH
ReplyDeleteWhat was the basis, for the SCOTUS in the Minor case, to hold that Virginia Minor was a "natural born citizen", if the definition was not to be found in the US Constitution and without resort to the 14th Amendment?
Where did the SCOTUS get the definition from?
@MichaelN
ReplyDeleteWhat "common law" do you suppose the SCOTUS in the Minor case was referring to when in the same paragraph where the SCOTUS held that one who is native-born to US citizen parents is a "natural born citizen", the court also introduced and stated that there was merit in, and acknowledged the merit, in the doubts that native-birth sufficed to make a citizen?
You've asked this, and I've answered it before.
Your question seems to assume that "common law" as used by the Court must refer to the common law of a single country or jurisdiction. I see no reason to assume that, for the following reason.
"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."
"Born in a country" speaks very generally. The Court doesn't say "born in this country." It seems to refer more to "any country." The point being that no matter which decisional law of which nation one looked to at the time of the Constitution, a person born to citizen parents of that country would certainly be considered a citizen by birth.
And that's all the Minor court is trying to show: that unquestionably Mrs. Minor would have been considered a citizen at birth under pre-14th Amendment law.
And, as I noted before, unlike the court in WKA, which gives many specific examples of the common law it looks to in its analysis, in Minor the court doesn't undertake that. So trying to claim the Minor Court meant any one particular jurisdiction's common law is an exercise in inference and speculation.
the court also introduced and stated that there was merit in, and acknowledged the merit, in the doubts that native-birth sufficed to make a citizen?
Right. And in that regard the Court may have had in mind either the rules of specific countries or decisions made in a state court. We don't know. The court doesn't give any specific examples to indicate what it had in mind.
@ BrianH
ReplyDeleteThe court calls the children born in US, of aliens parents, "citizens of the United States" and "native-born American citizens", but never "natural born citizens".
Why do you suppose the that was BrianH?
Quote:
"The issue presented by this appeal is whether the Attorney General abused his discretion in failing to find that the deportation of an alien husband and wife, whose three of their four minor children are citizens of the United States, would occasion them extreme hardship. We find that the Board of Immigration Appeals, in its determination of extreme hardship, failed to consider cumulatively the evidence of hardship, both economic and otherwise, presented by the petitioners. We, therefore, reverse and remand for further consideration.
2
Patricio Hernandez-Cordero, age 32, and his wife, Maria Guadalupe Ortega de Hernandez, age 35, are natives and citizens of Mexico. They have four children, Victor, age 13, a Mexican citizen, the natural son of Mrs. Hernandez, who has been adopted by Hernandez; Patricio, Jr., age 9; Lisa, age 8; and Veronica, age 7, all of whom are native-born American citizens."
Here's an interesting holding of the court on how natural descent governs what constitutes a "natural born" member of a nation.
ReplyDeleteUnited States Court of Appeals, Eighth Circuit. - 677 F.2d 645
Submitted Dec. 16, 1981.Decided May 3, 1982
"The class-based claim that Shortbull urges on appeal is that he was discriminated against because of his status as a non-enrolled member of the Tribe. He asserts that he is being denied the right to run and vote in tribal elections solely because of his membership in the class of N.E.s, and that such discrimination is impermissible and actionable under § 1985(c).
We must disagree.
The Oglala Sioux have an important interest in setting the standards for who may vote and run in tribal elections.
In Daly v. United States, 483 F.2d 700 (8th Cir. 1973), this Court held that the Crow Creek Sioux Tribe could uniformly require the Tribal Council members be one-half or more Indian blood, because "the Tribe has a sufficient cultural interest in setting a higher blood quantum requirement to hold office than for mere membership in the Tribe if it so desires." Id. at 705-06 (footnote omitted).
THE COURT VIEWED SUCH A STANDARD AS SIMILAR TO THE ONE CONTAINED IN THE UNITED STATES CONSTITUTION THAT THE PRESIDENT OF THE UNITED STATES BE A NATURAL BORN CITIZEN."
- end of quote - emphasis added.
@MichaelN
ReplyDeleteSeems like generally the court was in most if not all instances careful to be precise when discerning between native-born and natural-born.
Actually, looking at the SCOTUS opinions in several decisions, it used the terms interchangeably.
So BrianH, you would say that Perez was a natural born citizen, .
The statement of facts indicates Perez was born in Texas in 1909. So he was a natural born citizen.
I have no idea what your point about the Costa case is.
And there's heaps more
I think you need to sort your heap a bit and weed out the ones that really don't have any bearing on the present discussion.
Re: the state ballot chalenges.
ReplyDeletehttp://law.justia.com/cases/federal/district-courts/ohio/ohndce/5:2012cv00426/185750/10
"Ms. Yeager's Complaint is premised on the belief that no State has the authority to impose qualifying laws for a Presidential candidate to be placed on the ballot.
The claim is neither supported by the Constitutional nor statutory authority.
The generic claims she raises, attacking each state’s Presidential ballot access statute as onerous or invidious, PRESUPPOSES THAT ANY BURDEN, BEYOND AGE AND CITIZENSHIP REQUIREMENT FOR PRESIDENT SET FORTH IN THE CONSTITUTION, ESTABLISHES A PER SE VIOLATION OF THE CONSTITUTION.
IT DOES NOT."
@Michael N
ReplyDeleteWhat was the basis, for the SCOTUS in the Minor case, to hold that Virginia Minor was a "natural born citizen",
Michael, it's apparent you think your question about the "common law" reference in Minor is some really clever question you have going. I've seen you ask the same to many people.
But since the Minor court doesn't provide any further detail other than the general reference to "common law," all you've got in the end is inference. And, as I've noted in my first post tonight to you, no matter which law of which jurisdiction in the late 18th century one might have looked to, a person in Mrs Minor's situation would pass muster as citizen at birth. And that her citizenship status was beyond question -- even gauged under the law before enactment of the Amendment she was relying upon -- was the point the Court was trying to establish.
So speculate as you wish. You're not making any point in the end.
LyinH has propped up his phony argument with so many false paradigms that it makes one's head spin. Talk about building your house on shifting sands. To buy into his argument one must make one mental leap to the next, all of them either half-truths, outright lies or pure sophistry.
ReplyDeleteLet's look at his argument that all terms in the Constitution need to be analyzed in light of English Common Law.
James Madison, at the Virginia Constitutional Ratifying Convention speaks about the terms used in the Constitution: "In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An attention to this may satisfy gentlemen that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the Constitution. There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations. Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the laws of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used, that we should find ourselves authorized to introduce it into the laws of the United States."
Notice the disdain for English Common Law and the reverence for the Law of Nations. This attitude is found throughout the convention. This quote is from the same convention where George Mason stated plainly "The common law of England is not the common law of these states." Throughout this convention there is constant reference to the English common law not being in affect or included in the Constitution (other than the Bill of Rights) and a constant referral to the Law of Nations. One member, Mr Grayson, said of the Constitution, once ratified: "This paper will be called the law of nations in America; it will be the Great Charter of America; it will be paramount to every thing." There was discussion surrounding the Bill of Rights where the members claimed that if a citizen's rights were violated by the President, they could seek relief in the Law of Nations.
Another preposterous claim is that citizen and subject have the same meaning because they're "precisely analogous". What the heck does precisely similar even mean? If one wants to build their argument on an oxymoron, congratulations. Mario, did you know that citizen and subject are totally similar? And, somehow by extension, that makes Natural Born Subject and Natural Born Citizen totally similar, too? Isn't that good law? I mean, saying they have exactly the same meaning and therefore carry the same force of law would be too much to ask, am I right? Talk about sophistry and a leap of logic.
And never mind Jefferson blotting out subject and overwriting it with citizen. I mean, he could have left it at subject since it's "precisely analogous" with citizen, anyway. LOL
And I'm still waiting to see the proof that English Common Law term "Natural Born Subject", rather than the Law of Nations, was used as the source of the term "Natural Born Citizen" and that NBC and NBS have the same exact meaning.
(Part 1 of 2)
(Part 2 of 2)
ReplyDeleteThe funniest is the outrageous claim that MvH doesn't say what it says and that you must read the paragraph through LyinH's amazing BS technique that makes everything mean what he needs it to mean.
The court was first establishing if Minor was a citizen. Since she was born on the soil to citizen parents, her citizenship was confirmed by sake of her Natural Born Citizenship. The court said they didn't need to examine whether the children of aliens were even citizens since Minor was already determined a citizen since she met the criteria of being a Natural Born Citizen. (This was confirmed as a holding, not dicta, in Ex Parte Lockwood.) WKA later answered the question they left open by declaring a child born of domiciled aliens on the soil as a citizen through the 14th Amendment's naturalization power (Ankeny, Footnote 14). In the WKA decision they also reiterated the meaning of Natural Born Citizen twice, both times defining it as birth on the soil to citizen parents.
Notice also LyinH's tendency to play fast and loose with the false paradigms he sets up. On one hand, he claims the Supreme Court writes with absolute precision in reference to paragraph construction, but then claims they write with wild abandon when it comes to terminology. The term citizen is freely substituted with subject, native-born is freely substituted with natural-born, and natural born subject is freely substituted with natural born citizen. So which is it, do they write with absolute precision or free verse?
It seems Obama's "truth team" throws one stooge after another over the fence to try to confuse the situation as much as possible. From the voluminous replies they must be either well compensated or true believers. It wouldn't surprise me to see any of them yell, "Look at me, Damien! It's all for you." before taking a leap.
BrianH,
ReplyDeleteYou are simply wrong in concluding that Wong Kim Ark treated “native-born” the same as “natural-born.”
Regarding “natural-born,” here is what the Court said: “the natural-born child of a citizen.” p. 668 . Hence, the Court reserved “natural-born” only for the children born to “citizen” parents.
Regarding ‘native-born,” here is what the Court said” “native-born children of foreign parents.” p. 668. Hence, the Court reserved “native-born” to children born in the country to alien parents.
Justice Gray also explained that all “natural-born citizens” are “native-born citizens” because both are “born within the sovereignty of the United States.” Id.
But not all “native-born citizen” are “natural-born citizens” because only the latter are born to “citizen” parents.
So one could be a “native-born citizen” but not be a “natural-born citizen” because even though having been born in the country, he or she was not born to “citizen” parents.
One who is a “natural-born citizen” is always a “native-born citizen” because a “natural-born citizen” must be “born within the sovereignty of the United States,” and being “born within the sovereignty of the United States” is sufficient to make one a “native-born citizen.”
@Michael N
ReplyDeleteThe court calls the children born in US, of aliens parents, "citizens of the United States" and "native-born American citizens", but never "natural born citizens".
Why do you suppose the that was BrianH?
Well, hmmm. Now that's most interesting. A Federal Circuit Court of Appeals calling a person born in the U.S. to alien parents "native born."
But, then, what are we to suppose of these:
1) Diaz-S1alazar v. INS, 700 F.2d 1156 (7th Cir. 1983)
"Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. *** The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States."
The Seventh Circuit Court of Appeals calls U.S.-born children of an illegal alien "natural born children."
2) Mustata v. US Dep't. of Justice, 179 F.3d 1017 (6th Cir. 1999)
"Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States."
The Sixth Circuit Court of Appeals calls the children of Romanian citizens "natural born citizen of the United States."
So, Michael, this is quite something!! Here we see the Federal Circuit Courts calling U.S. born children of alien parents both "native born" and "natural born." Gosh, that's just like how the SCOTUS has spoken of presidential eligibility both in terms of persons being "natural born" and "native born" (e.g., Luria v. U.S., 231 U.S. 9 (1913), Schneider v. Rusk, 377 US 163, 165 (1964)(dissenting opinion).
So, Michael, say it together with me: "Natural born. Native born. In . .ter . .change . a . ble . . terms."
Got it?
I of II
ReplyDeleteBdwilcox,
That is a great quote from Madison that you posted. I wanted to provide more detail about it which our readers should find very interesting. Here is the quote in greater detail:
“Mr. MADISON. Mr. Chairman, permit me to make a few observations, which may place this part in a more favorable light than the gentleman placed it in yesterday. It may be proper to remark that the organization of the general government for the United States was, in all its parts, very difficult. There was a peculiar difficulty in that of the executive. Every thing incident to it must have participated in that difficulty. That mode which was judged most expedient was adopted, till experience should point out one more eligible. This part was also attended with difficulties. It claims the indulgence of a fair and liberal interpretation. I will not deny that, according to my view of the subject, a more accurate attention might place it in terms which would exclude some of the objections now made to it. But if We take a liberal construction, I think we shall find nothing dangerous or inadmissible in it. In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An attention to this may satisfy gentlemen that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the Constitution. There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations. Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the laws of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used, that we should find ourselves authorized to introduce it into the laws of the United States. The first question which I shall consider is, whether the subjects of {532} its cognizance be proper subjects of a federal jurisdiction. The second will be, whether the provisions respecting it be consistent with safety and propriety, will answer the purposes intended, and suit local circumstances.”
James Madison, at the Virginia Constitutional Ratifying Convention http://constitution.org/rc/rat_va_17.htm
See also The Federalist No. 42 (James Madison explained that the English common law and statute law was a “dishonorable and illegitimate guide” to defining terms in the Constitution).
Continued . . .
II of II
ReplyDeleteComments:
1. Madison tells us the difficulty the convention had with establishing the eligibility standards for the President.
2. Madison informs that there could be confusion regarding that eligibility given the terms used in that connection.
3. But then Madison tell us, by referring to defining piracies and felonies, that under no circumstance is anything related to understanding the eligibility requirements for the President to be defined by the English common or statutory laws.
4. Madison states that British law was only to be adopted as part of the laws of the states, not as part of the laws of the federal government. Hence, how could the English common law have provided the definition of a “natural born Citizen?” It could not.
5. It was considered “dishonorable and illegitimate” to resort to the English common law for a definition of a term used in the Constitution. Hence, how could the English common law have provided the definition of a “natural born Citizen?” It could not.
6. The law of nations was accepted as a law to define terms used in the Constitution. Hence, it was the law of nations that provided the rules of decision for defining an Article II “natural born Citizen.”
7. Madison talked to us in code about the meaning of a “natural born Citizen.” He spoke about how piracies and felonies were to be defined under the “law of nations” and not under the English common or statutory laws.
8. The law of nations became part of “the laws of the United States.” And so any term that was defined under the law of nations also became part of “the law of the United States.” And we know this to be true because the law of nations was accepted as national law and the supreme law of the land. Since the law of nations became national law with the force of supreme law of the land, the definition of a “natural born Citizen” that was based on that law became national law and supreme law of the land which can be changed only by constitutional amendment. To date, that law of nations definition has never been changed. This means that that same law of nations definition still prevails to day with that definition being a child born in the country to “citizen” parents. See Emer de Vattel, Section 212, The Law of Nations (London 1797) (1st ed. Neuchatel 1758) (defined what a “natural born Citizen” is. There Vattel said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm.
BrianH said...
ReplyDelete@MichaelN who said...
"Seems like generally the court was in most if not all instances careful to be precise when discerning between native-born and natural-born."
'Actually, looking at the SCOTUS opinions in several decisions, it used the terms interchangeably.'
It appears that your "several" pales in significance by comparison to the vast majority of opinions which are carefully crafted to avoid using the term "natural born citizen" (except in case like Minor, where it was appropriate to use the term of art), it is noticeable how in the majority of SCOTUS opinions, descriptions of those who were native born of aliens are described as "native-born citizen", "native-born American citizen", "native-born citizen of the United States", "US citizen at birth", etc, etc.
The "interchange" practice was most often when the hyphenated term i.e. "natural-born citizen" was used most often to describe a NATIVE-BORN person whose parent's status was of no concern, virtually saying that the person was "naturally a citizen, because he was born here".
Rarely, if ever, does or did the SCOTUS opine that native-birth alone was sufficient to make a USC Article II "natural born Citizen".
So BrianH, what do you suppose was the "combination-common-law" the SCOTUS in Minor was referring to?
What "common law" out there do you suppose would, hold merit in doubts if native-birth to alien parents would suffice to make a US "citizen"?
What was this mysterious "common law" which SCOTUS in Minor was referring to?
Why did SCOTUS imply that it agreed that the doubts had merit, by stating that the doubts were yet to be solved, but there was NEVER any doubt as to what constituted a "natural born Citizen"?
If the Founding Fathers, Framers, the SCOTUS, and every man and his dog intended and/or believed native birth sufficed to make NBC, then WHY did the SCOTUS in Minor clearly hold that there was NO WAY a native-born of alien parents was a "citizen" via the same means as Virginia Minor, whose credentials were natural descent and native birth-right.
People like Wong Kim Ark only had the ONE quality of the TWO qualities which were required to make a NBC and that's why, even with all the discussion about "natural born subject", etc. Wong only got to be a "citizen", and he only just scraped through due to HIS PARENTS long term residency and contribution to the US citizenry by small business practice, etc.
BrianH, I asked you some questions earlier, and you squirmed out of answering them.
Revisiting....
What did Lord Coke (Calvin's case) mean by describing those with the highest allegiance, (i.e. those who were "natural born subjects") as being such due to "nature" and "birth right"?
What did he mean by "nature" and "birth right"?
If in English common law, it is as has been said, i.e. that native birth alone sufficed to make an English NBS, then why did Lord Coke's court hold that if the father was not a "subject", then his child could not be a "subject"?
Coke even said that "it is neither the climate nor the soil ...... that makes a subject born"
Why would Coke say that, why would the English common law say that??? if all it took was native-birth to make a natural born subject???????
BrianH, FACE IT, the entire argument for native-birth alone, to suffice to make an Article II "natural born Citizen", as an eligibility criteria for a president of a republic, is ABSURD in light of the seriously important imperatives and the intelligence and wisdom of the Founding Fathers and Framers of the USC.
In understanding Obots arguments against the Law of Nations as the source to seed our American national law with, I have come to the conclusion that Obots are subjects and Birthers are citizens.
ReplyDeleteOne of the characteristics of natural law is its simplicity. One born in a country to citizen parents is a natural born citizen. This definition is as simple as it gets. It has the least variables.
ReplyDeleteThe terms "native born" and "citizen" are not as simple.
The 14th Amendment clearly shows that all "native born" are not citizens - only those born under the complete jurisdiction of the United States.
This amendment didn't mention "natural born citizen" because it didn't need to or intend to. The children of these newly established citizens would be natural born and eligible to become President by natural law - the same law that governed the citizenship of children born after the adoption of the Constitution.
This amendment also excluded the native Indian tribes who were subject to their own sovereign nations. Claiming their children as US Citizens would have been an act of war. See also the War of 1812 for similar disputes.
Obama has stipulated that he was born under British jurisdiction. He makes this claim two ways. One is by natural law because he was born to a British/Kenyan subject father. The other is through the British Nationality Act. The Obama narrative is further complicated as he has also held citizenship in Kenya and Indonesia.
Obama has yet to establish his place of birth. This increases his variables to include Stanley Ann Dunham's age at the time of his birth and the associated immigration and naturalization laws applicable to a very possible foreign birth and/or a US birth to a US and a foreign parent. This is much more complex, isn't it?
Minor set binding legal precedent through its recognition of the ancient principle that a natural born citizen is one born in the country to citizen parents. Note that they didn't create this law or this pool of citizens. They just recognized it. "It was never doubted..."
It is worth noting that Virginia Minor was probably selected for this suit partly because she was a natural born citizen. It allowed the court to weigh the contentious right to vote issue with a unanimously accepted citizenship basis. If Virginia Minor had the same background as Obama the court probably would never have taken the case. They would have faced too many variables and unanswered questions to come to a clear decision.
I've also noted that when the term "native born" has been used as an equivalent to the term "natural born" it has been in the context of two citizen parents.
All "natural born" citizens are "native born". But not all "native born" are "natural born".
All "native born" of two citizen parents are "natural born".
Natural Law is simple and powerful. Those who are fighting to redefine "Natural Born Citizen" may as well try to make water flow uphill.
Teo Bear,
ReplyDeleteYes, indeed, Obots are “subjects” and not “citizens.” They deny that there ever occurred an American Revolution and that the Founders and Framers had a special reason (and I am not talking about some folk tale about preventing some foreign prince from coming to America and becoming President), for including the “natural born Citizen” clause into the Constitution. They even say that a “natural born citizen” is the same thing as a “natural born subject.” They maintain that the Founders and Framers, after having fought a bloody revolution with England, based their definition of a republican “natural born Citizen” upon the English “common law” and how it defined the King’s “natural born subjects” (you can’t make this stuff up). They even advocate repealing the “natural born Citizen” clause altogether. Finally, they cannot be “citizens,” for they do not know the difference between a “citizen” and a “subject.”
@Michael N
ReplyDeleteIt appears that your "several" pales in significance by comparison to the vast majority of opinions which are carefully crafted to avoid using the term "natural born citizen"
And where, pray tell, are you keeping this "vast majority of opinions" hidden? Because you haven't cited them. Do you have a secret pouch of SCOTUS opinions that you peer into with self-delight?
Rarely, if ever, does or did the SCOTUS opine that native-birth alone was sufficient to make a USC Article II "natural born Citizen".
There have been only a handful of SCOTUS cases that have touched upon the matter of birth citizenship. Your insight is oh-so stunning.
So BrianH, what do you suppose was the "combination-common-law" the SCOTUS in Minor was referring to?
The WHAT??? Isn't that a boxing term? You're too funny.
Why did SCOTUS imply that it agreed that the doubts had merit,
It didn't "agree" nor say anything about the doubt having "merit." It merely observed there was a split of authority on the point about children of alien parents, and that it didn't have to resolve that issue as that wasn't the situation before the court.
If the Founding Fathers, Framers, the SCOTUS, and every man and his dog intended and/or believed native birth sufficed to make NBC, then WHY did the SCOTUS in Minor clearly hold that there was NO WAY a native-born of alien parents was a "citizen" via the same means as Virginia Minor,
The simple answer is that Minor didn't say "no way." It accepted that as to the question "who shall be a natural born citizen" a person born of alien parents could be among that group. It just declined to answer that question since it was unnecessary to do so in the case before it involving Virigina Minor.
BrianH, I asked you some questions earlier, and you squirmed out of answering them.
LOL. Hardly. I pointed out why you're introducing a bunch of irrelevant, extraneous matter. If the SCOTUS in citing to an authority cites a portion of that authority, but leaves out other portions, it's fair to say that the SCOTUS didn't deem those other matters important.
But then along comes MichaelN, a person of no apparent credentials as far as U.S. jurisprudence goes, trying to act as if the stuff by Lord Coke the SCOTUS didn't see fit to cite is somehow REALLY IMPORTANT.
Michael, when a matter has been judged irrelevant in a U.S. Court, and you've been told that, trying to reintroduce it by asserting someone "squirmed out" the first time is just ridiculous.
For MichaelN
ReplyDeleteA bit of "common law" that is being discussed on Mr. Woodman's blog. From the case of Lynch v. Clarke (N.Y. Chanc. 1844). The case involved one Julia Lynch, who was born in the U.S. to British subjects who were resident in the U.S. temporarily. In ruling that J. Lynch was thus a citizen of the U.S., the court undertook an extensive discussion of the U.S. common law as to "natural born citizen."
****
"If there had been any diversity on the subject [of citizenship by birth] in the state laws, it might have been difficult to ascertain which of the conflicting state rules was to become, or did become, the national principle. And if such diversity had existed, it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The rule would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen.” (Italics in original;. bolding added).
****
So the court makes clear that under the common law there was but "one standard" of natural born citizen: not two standards of "natural born citizen" and "birth citizen" as Birthers try to claim.
And the Lynch decision was cited three times by Justice Gray in Wong Kim Ark, who spoke of the "elaborately argued" case and the "full consideration" which Vice Chancellor Sandford gave to the matter. So when Justice Gray later speaks of the chidren of both citizens and foreigners being "native born" under the pre-14th Amendment common law, it's very clear Gray uses "native born" in the same sense of V.C. Sandford quoted above. Both analyze and accept the jus soli rule of natural born citizen.
@Mario A
ReplyDeleteThey deny that there ever occurred an American Revolution
You've embraced that Strawman so many times now that the two of you ought to register as Domestic Partners.
They even say that a “natural born citizen” is the same thing as a “natural born subject.”
As to the jus soli rule and the basic exceptions to that rule, yes, they are proper analogies. The SCOTUS in Wong Kim Ark makes this abundantly clear.
They maintain that the Founders and Framers, after having fought a bloody revolution with England, based their definition of a republican “natural born Citizen” upon the English “common law” and how it defined the King’s “natural born subjects”
""The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
***
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion,*** In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
***
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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."
United States v. Wong Kim Ark (1898)
(you can’t make this stuff up).
And there's no need to make it up. All one has to do is read from the United States Supreme Court to see the etymology and close semantic connection between "natural born subject" and "natural born citizen."
Mario, it's time you toss in the towel and stop pretending like WKA isn't something that needs to be overturned. Its framework for analyzing the question of "natural born citizen" in light of the history of English common law is so UTTERLY ANTITHETICAL to your position that it's not possible for your argument to stand while WKA remains the seminal case as to a person born of alien parents. It pays no heed to historical writings; it pays no heed to Vattel (well, the dissent does that). What it does is draw a direct analogical comparision between "natural born subject" and "natural born citizen." Any judge reading Parts II and III of the opinion can't help but see that.
Face facts. You either seek to overturn it; or remain mired in incoherent misery. Because your briefs that spend countless pages trying to dance around what's so clearly stated in that opinion are models of incoherence.
In our NJ ballot challenge, which has now reached the NJ Supreme Court, we maintain that the NJ Secretary of State should not allow candidate Barack Obama on the presidential primary or general election ballot after being duly challenged by Nicholas E. Purpura and Theodore T. Moran. We maintain that Obama has not established nor can he establish his right to be placed on any NJ ballot for election to the Office of President. Our Petition for Certification to the NJ Supreme Court may be read here, http://www.scribd.com/doc/98923880/Purpura-Moran-Petition-for-Certification-FILED-7-2-12 .
ReplyDeleteFirst, we maintain that “Obama has presented no evidence to the State of New Jersey proving his identity, place of birth, or parentage. Not providing any such evidence, he has not established that he is an Article II “natural born Citizen.” Remember that Obama in open court and on the record conceded, through his attorneys which the Administrative Law Judge confirmed, that he has provided the State of New Jersey not one iota of evidence as to who he is, where he was born, or who is parents are. This includes Obama’s concession on the record that the internet image of an April 2011 alleged long-form birth certificate from Hawaii is not evidence and not to be considered by the New Jersey court in making its decision on the question of whether the Secretary of State should allow Obama’s name to be placed on the election ballots in New Jersey.
In this connection, read this July 6, 2012 article published in Canada Free Press by private investigator, Doug Hagmann, entitled Obama’s Legal Identity Problem, accessed at http://www.canadafreepress.com/index.php/print-friendly/47858 . Investigator Hagmann, with many years of private investigation experience and with all the investigation tools at his disposal, comments on private investigator Susan Daniels’ recently filled suit in Ohio in which she alleges that Obama has not established his true identity to be entitled to be placed on the Ohio election ballot for president, focusing in on his fraudulent social security number. Investigator Hagmann explains how social security numbers are obtained and that based on his investigation, he agrees with Susan Daniels’ findings and he himself concludes not only that Obama’s social security number is probably fraudulent but that he “could only reach one conclusion with the highest degree of certainty: the man known as Barack Hussein Obama II would FAIL in all aspects relating to his true identity.” These conclusions, reached by two professional private investigators, support our position that Obama HAS NOT CONCLUSIVELY ESTABLISHED that he is eligible to be elected President.
Second, even if Obama were to provide to the State of New Jersey evidence of his identity, place of birth, and parentage, and that evidence were to confirm his identity, place of birth, and parentage to be as he has publicly represented them to be, he still is not eligible to be elected President. He was born to a father who was never a “citizen” of the United States. His father was a citizen of Great Britain and Kenya. Not being born to two U.S. “citizen” parents and inheriting the allegiance and citizenship of his alien father (both that of Great Britain and Kenya), he was born with dual and divided allegiance and a subject to a foreign power. He was not born within the full and complete civil, political, and military allegiance and jurisdiction of the United States. He, therefore, cannot be an Article II “natural born Citizen,” and constitutionally entrusted to command the singular and all-powerful offices of the President and Commander in Chief of the Military. This means that Obama CANNOT ESTABLISH that he is constitutionally eligible to be elected President. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) and United States v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (both confirm that “all children born in a country of parents who were its citizens became themselves, upon their birth . . . natural-born citizens”).
BrianH,
ReplyDeleteMaking stuff up again, are we.
You said: “The simple answer is that Minor didn't say "no way." It accepted that as to the question "who shall be a natural born citizen" a person born of alien parents could be among that group. It just declined to answer that question since it was unnecessary to do so in the case before it involving Virginia Minor.”
Minor said no such thing. It clearly said that those who are born in the country to “citizen” parents are of one class which it called the “natural-born citizen” class. Then it said that those who are born in the country to alien parents are of another class. Confirming that there “have been doubts” as to whether members of that second class were even “citizens,” it was not willing to say whether they were “citizens,” let alone that they were “natural-born citizens.”
Minor did not say that children born in the country to alien parents could be members of the “natural-born citizen” class. How could it if it just had finished defining what the Founders’ and Framers’ “common-law” definition of a “natural-born citizen” was which clearly did not include such persons. Do you think that the U.S. Supreme Court could just by waving a magic wand change that no-doubt definition of a “natural-born citizen” which the Founders and Framers incorporated into Article II for presidential eligibility? Do you think that the Supreme Court in Minor suggested that it would have been proper for the Minor Court or any future Court to amend the “natural born Citizen” clause without constitutional amendment by allowing others into the “natural-born citizen” class who the Founders and Framers did not include in that class? Clearly, the U.S. Supreme Court would not amend Article II presidential eligibility without calling for a duly passed constitutional amendment to do so.
You are just making stuff up, BrianH.
BrianH,
ReplyDeleteI have already written on the many problems with Lynch v. Clarke (N.Y. Chanc. 1844) on this blog and will not repeat myself. I’ll just mention again that the Lynch case was a New York state case involving inheritance of real estate. It had nothing to do with national citizenship or who is eligible to be President.
In any event, the New York legislature overruled the Lynch case in 1860:
Political Code of the State of New York (1860)
Sec. 5. The citizens of the state are:
1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls;
2 All persons born out of this state who are citizens of the United States and domiciled within this state.
Lynch’s parents were “transient aliens.” Hence, under this statutes, Lynch would not have been a citizen of New York. Before the Civil Rights Act of 1866, a person was a citizen of the United States only if he or she were first a citizen of a State. If the children of transient aliens were not even considered citizens, they surely would not have been considered natural born citizens.
Finally, Lynch’s definition of a “natural born” Citizen was also overruled by the U.S. Supreme Court in Minor v. Happersett (1875), who said that a “natural-born citizen” was a child born in the country to U.S. citizen parents. Lynch had said that parental citizenship was not relevant. The last time that I looked, the U.S. Supreme Court trumps a state court decision.
BrianH,
ReplyDeleteYou have some nerve saying that my briefs are “models of incoherence” after you and your theory that the Founders and Framers used the King’s English “common law” to define the republic’s “natural born Citizen” has gotten and will continue to get a total trashing on this blog.
A great discussion of WKA can be found here.
ReplyDeletehttp://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/
Robert,
ReplyDeleteThe Obots accuse us of being racist given our position on the "natural born Citizen" clause. Here is a good reply to the Obots by "A2S1C5: following P.A. Madison's article"
A2S1C5 says:
December 22, 2011 at 2:37 pm
Matthew A. Sawtell – the only discriminatory comments here are your own. Imagining racist rantings of individuals who are talking of nothing to do with race is, in itself, bigoted. The group to which children belong has nothing to do with it. The question is whether their parents were citizens or under the full jurisdiction of the US. Asking a citizen from birth to have allegiance to the US only is NOT dsicriminatory. We ask the same of white, brown, yellow, green and purple. Get off of your soapbox and look in the mirror to find the true bigot.
Pert 1 of 2
ReplyDeleteBrianH said .....
" ....stop pretending like WKA isn't something that needs to be overturned. Its framework for analyzing the question of "natural born citizen" in light of the history of English common law is so UTTERLY ANTITHETICAL to your position that it's not possible for your argument to stand while WKA remains the seminal case as to a person born of alien parents."
Problem you have BrianH, is that WKA was analyzing ENGLISH "natural born subject" for the purpose of justifying that native birth-right under 14th Amendment, was applicable to WKA, and it was only through his PARENTS long term domicile and contribution to the US community that WKA scraped through and was ruled to have met the standard for a "citizen of the United states" by being seen by the court to have been born in the US and "subject to the jurisdiction".
YOU might say that these two qualities are sufficient to make a "natural born Citizen", but that's not what the US Constitution says, the 14th Amendment actually says that these two qualities only make a "citizen of the United States" and NOT a "natural born Citizen".
So what would make an Article II "natural born Citizen" then?
The answer is, that it is native-birth, plus "born subject to the jurisdiction", plus the full and singular allegiance of the parents.
That's why WKA only got ruled to be a "citizen of the United States" and NOT a NBC.
Did you know that the US Citizenship and Immigration Service recognizes TWO types of born citizens?
Part 2 of 2
ReplyDeleteHere ....
"The repatriation provisions of these two most recent enactments also apply to a native- and natural-born citizen woman who expatriated herself by marriage to an alien racially ineligible to citizenship, a category of expatriate not covered by the earlier 1936 legislation. "
and
"The words "shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922", as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (WHICHEVER existed prior to the loss) as of the date citizenship was reacquired."
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html
The WKA court analysis of English "natural born subject" was merely to justify the court's decision to accept WKA's PARENTS as having a reasonable degree of allegiance to the USA, sufficient for WKA to be considered to be "subject to the jurisdiction" under which circumstances in ENGLAND, a child born under those circumstances would be a "natural born subject", but in the US model those same circumstances cannot make an Article II NBC, only a "citizen of the United States", given that "subject" and "citizen" are said to be analogous, and with the English common law requiring the father of a child to be a "subject" for his native born child to be a "subject", then it would require WKA's parents to become citizens of US for their child to be a NBC.
I notice you are AFRAID to look at and discuss the statements of Lord Coke (Calvin's case) which I posted earlier.
You are afraid, because it completely destroys your absurd argument that native-birth is all that is required to make a English "natural born subject" and a US "natural born Citizen".
BrianH, you cannot get around the fact that he English common law holds that if the father is not a "subject" then his child cannot be a "subject" even if born in the realm.
Therefore if we are to read the US Constitution in light of the English common law, and hold that "subject" and "citizen" are analogous, then the father of a child born native in US, would need to be a "citizen" for his child to be a "natural born citizen".
BTW, still waiting for some answers from you BrianH, especially what was this mysterious "combination-common-law" that was referred to by the SCOTUS in the Minor case, you know, the case where the "common law" holds for doubts that native-birth even made a US citizen at all and that the SCOTUS saw merit in the doubts by saying they were yet to be solved.
BrianH,
ReplyDeleteWhat happened to you? Have you gotten tired of being told what utter nonsense you release from your lips. I just want to make sure you are aware of that nonsense.
The Founders and Framers had a specific reason for requiring future Presidents and Commanders in Chief of the Military to be “natural born Citizens.” They sought to keep foreign and monarchial influence out of our new republican government and specifically out of the singular and all-powerful civil and military offices of the President and Commander in Chief of the Military. If they chose “natural born Citizen” as an eligibility requirement, the clause must have satisfied their needs regarding who future Presidents could be. This means that the clause had to have had a well-defined and distinct meaning that they understood and accepted or else they would not have selected the clause as a means to achieve their goals. Since they were specifying the eligibility requirements for the President, like 35 years of age and 14 years of residency, the clause had a fixed meaning which they accepted. The clause did not mean something which anybody wanted it to mean under changing circumstances. It did not mean something which changed in meaning depending on the political and social needs of the moment. It did not mean something which someone without authority could later change. The Founders and Framers chose the clause specifically because it said exactly what they required of future Presidents and Commanders. Once the meaning of the clause was incorporated into the Constititution, the Founders and Framers also told us that that meaning became the supreme law of the land which could be changed only by constitutional amendment.
The record of the constitutional debates shows that the Framers did not debate the “natural born Citizen” clause. They, therefore, must all have accepted that there was just one definition for that clause and accepted that definition. We also know that Minor held that a “natural-born citizen” was a child born in a country to parents who were “citizens” of that country,” which it confirmed was the doubt-free definition of the clause used by the Founders and Framers at “common-law.” Since this definition would have been incorporated into the Constitution as a bright line standard for presidential eligibility, this definition could have been the only one in the minds of the Founders and Framers. Hence, to maintain that Minor also suggested that there could be other definitions of a “natural-born citizen” which it was not going to address, is utter nonsense.
More utter nonsense is the argument that Wong Kim Ark came along later on and, without telling us that it was doing so and even though it cited and quoted Minor’s definition of a “natural-born citizen” without any objection or negative comment,” changed Minor’s long-established and constitutionally binding definition of a “natural-born citizen,” and thereby amended Article II’s constitutional eligibility requirement for the president without constitutional amendment.
And finally, what is further nonsense is to think that the Wong Kim Ark Court would have done all that fundamental constitutional alteration to our nation when it was only necessary that it find that Wong was a “citizen of the United States” under the Fourteenth Amendment which only addresses being a “citizen” and says nothing about being “natural born” and thereby neither repealed nor amendment the “natural born Citizen” clause.
So what does expert brief writer BrianH have to say to defend his utter nonsense?
"BrianH, What happened to you?"
ReplyDelete-He's probably busy drafting the next CRS memo.
It's probably not his shift and the replacement on the disinformation team for the next shift did not show up.
ReplyDeleteOr like John Woodman, his disinformation contract with the Obama campaign or George Soros ran out and they did not renew it.
JMHO :-)
Commander Kerchner,
ReplyDeleteHow right you are. John Woodman at one point even announced on his blog that because of his attention to the “natural born Citizen” debate, his family was suffering economically. He announced that he could continue writing about the meaning of a “natural born Citizen” if some donor would step forward and give him a generous contribution so that he could continue his work. Well, he continued his work after his announcement of economic distress. What is also suspect about Woodman is that he announces in advance that he only has a little bit of time left to his work. That suggests that someone has only paid for so much. What does this all tell you?
Kerchner and Apuzzo:
ReplyDeleteI'm sure you will be pleased to know that, to date, after expenses involved in writing, publishing and publicizing my book, I have made not one single penny off of this issue. In fact, to date, I am still cash-negative on the entire proposition.
I estimate that at this point I have personally contributed something more then $20,000 worth of effort to the cause.
That's my commitment to America, to the truth, and to finishing something well once I've started it.
And has my family suffered economically from this effort? You bet we have. But the country that I love and am committed to, and the conservative political movement I am a part of, have been given the gift of the truth.
You're welcome.
By the way, I notice that nobody here seems to have the guts to come back over to my blog and face up to the unrolling of the historical meaning of "natural born citizen" throughout American history.
John Woodman,
ReplyDeleteI will check out your latest arguments on the meaning of a "natural born Citizen."
I hope that you are not still pushing that silly and traitorous notion that we should define an Article II "natural born Citizen" under a definition provided by a foreign law, the English common law, rather than under our own national law which the Founders and Framers incorporated directly into the Constitution. And we know that that national law defined a "natural born Citizen" as a child born in a country to parents who were "citizens" of that country. See Minor v. Happersett (1875).
You say that you are a "conversative," love America, and are committed to the truth. Then why would you advocate that we should define a “natural born Citizen,” which is the eligibility standard to be met by our own presidents in our own republic, by the rules of a foreign law rather than the rules of our own national law? What you claim to be and your argument for what is a “natural born Citizen” just do not align.
Since time immemorial, it has been established and accepted that a nation has the sovereign right to decide for itself who shall be its “citizens.” Our republic made that decision when it adopted the Constitution, incorporated therein the law of nations as our national law, and when Congress passed our early naturalization acts which were consistent thereto. You should be arguing to impose U.S. national law, not a foreign law such as the English common law, as the standard to be followed for determining who is or is not eligible to be President of our own republic.
The historical record amply demonstrates that our republic adopted the law of nations as part of our national law. Under that long-adopted national law which also became our own American “common-law” (see Minor which defines a “natural-born citizen” under the “common-law” to which the Founders and Framers looked during the Founding which given the definition of a “natural-born citizen” that it gave, requiring birth in the country to “citizen” parents, would have had its source in the law of nations and not the English common law), Obama is not a “natural born Citizen,” because he was not born to two U.S. “citizen” parents. Under the King’s and Queen’s English common law, assuming he was born in the English colonies before they became states, he is a “natural born subject” of the King and Queen. But he is not an American “natural born citizen” under our own national law which replaced the foreign English common law as the source for the rules of decision for our national republic. Why do you ignore our own national law, as recognized by our early Congresses and as confirmed by our own U.S. Supreme Court in the unanimous Minor decision, which demonstrates that Obama is not a “natural born Citizen,” and also ignore our own Fourteenth Amendment which provides that Obama is a “citizen of the United States” (not to be conflated and confounded with a “natural born Citizen”), and rather impose upon us the foreign English common law which at best said that Obama was a “natural born subject” of the King and Queen, but never said that he was a “natural born Citizen,” for the clause “natural born Citizen” did not even exist in the English common law?
John Woodman claims he's a conservative. It's a statement from him which rings with me like, hi I'm from the government and I'm here to help you. The chutzpah of this Woodman operative to try and deceive readers like that. On the U.S. Constitution, from my reading of Woodman's writings, he's about as conservative as Norman Thomas.
ReplyDeleteAll JMHO.
A question for John Woodman who apparently is not retired but still operating his disinformation site. Is the "natural born Citizen" clause in Article II Section 1 of the U.S. Constitution a "restrictive" clause or an "inclusive" clause?
ReplyDeletePuzo1:
ReplyDeleteThe OOPS Troops who pop up here fairly regularly (e.g., "BrianH", "John Woodman" and several others) only to repeat their selfsame drivel can only be caracterized as stupid.
Ignorance is temporary in that in can be defeated by learning - but stupid is something having to do with the genes it seems; and stupid is forever.
As for "John Woodman" I've read a good bit on "his" blog and find it completely unpersuasive. He surely beliongs in the "stupid" category as he's had ample opportunity to learn from the thousands upon thousands of words and essays on this blog and other similarly-directed ones ... yet he can't seem to actually learn anything.
John Woodman should take his plea of poverty and losing money on the book venture to the far left George Soros funded orgs and the Obama campaign to buy more of his book in payment for him writing it. Apparently they did not buy enough copies to fully pay for his efforts. He should go ask them to buy more. It would be interesting to see which orgs made bulk purchases of his book and when. Also it would be interesting to learn who asked him to write it and when.
ReplyDeleteAll JMHO.
BrianH is here on an advance reconnaissance mission to draw-out as much of Mario's argument (know thine enemy) and logic as possible, so as to assist in the preparation to oppose the challenges to the traitorous usurper's 2012 run for POTUS.
ReplyDeleteWoody Woodpecker,
ReplyDeleteI got an email from you saying you are retiring?
Subject: You're invited to my "retirement party!"
From: "John Woodman"
Date: Tue, July 3, 2012 8:30 pm
To: "John Woodman"
Hi,
After more than a year of research, writing and commentary on
Obama-related eligibility issues, including a book and more
recently, a series of blog posts on the meaning of "natural born
citizen," I will very shortly be retiring from this issue.
I would like to invite you to my "retirement party" -- which is
being kicked off right now with the first installment of my final
blog article on Obama eligibility issues.
In this final article, I'll be taking a look at what Americans have
understood the term "natural born citizen" to mean throughout
American history.
The first post covers the period of history before and up through
the Constitutional Convention of 1787.
I am inviting people on both the "birther" and "anti-birther"
sides of the issue to show up and discuss the issues. So it
promises to be an interesting time!
If you'd like to come and join the conversation, it'll be taking
place over at:
http://www.obamabirthbook.com
Sincerely,
John Woodman
Remember when I told you guys over a year ago that the only avenue worth your time is putting your resources into finding a smoking gun? Time and time again we see political types, both republican and democrat alike, OR judges who want nothing to do with this issue. That means they are scared of it and know or they are willingly ignorant and blind. Even in the most conservative states a judge won't check his legitimacy to appear on the ballot. It makes you wonder how anyone was EVER taken off a ballot. HELP FIND THE SMOKING GUN. Anything else is worthless.
ReplyDeleteBy the way, when Roger Calero was taken off a ballot, I can only find a reference on Wiki that suggests this, who actually did it?
Remember when I told you guys over a year ago that the only avenue worth your time is putting your resources into finding a smoking gun? Time and time again we see political types, both republican and democrat alike, OR judges who want nothing to do with this issue. That means they are scared of it and know or they are willingly ignorant and blind. Even in the most conservative states a judge won't check his legitimacy to appear on the ballot. It makes you wonder how anyone was EVER taken off a ballot. HELP FIND THE SMOKING GUN. Anything else is worthless.
ReplyDeleteBy the way, when Roger Calero was taken off a ballot, I can only find a reference on Wiki that suggests this, who actually did it?
All:
ReplyDelete"John Woodman" is, you see, a wet behind the ears short timer having been at this sort of thing only about a year.
Many of us I know for a fact have been involved in battling against El Presidente Wetback for 3 or 4 times that long. He's not only stupid, he's impatient.
I of II
ReplyDeleteResponse by Mario Apuzzo to John Woodman, The Historical Meaning of “Natural Born Citizen” — Part 1: Before the Constitution [up to 1787], accessed at http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/07/the-historical-meaning-of-natural-born-citizen-part-1-before-the-constitution-up-to-1787/
1. There is no evidence from the Founding that the Founders and Framers defined a “natural born Citizen” as the English “common law” defined a “natural born subject.” On the contrary, Jean Jacques Rousseau explained in his, The Social Contract or Principles of Political Right, Book I, 6. The Social Compact (1762) (G.D.H. Cole trans. 1782) that there is a great difference between a “citizen” and a “subject.” “This public person, so formed by the union of all other persons formerly took the name of city,4 and now takes that of Republic or body politic; it is called by its members State when passive. Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one for another: it is enough to know how to distinguish them when they are being used with precision.” Read Rousseau’s Footnote 4 and accompanying text in 6. Social Compact. Thomas Jefferson specifically obliterated “subject” from the Declaration of Independence and replaced it with “citizen.” John Jay’s letter of 1787 said “natural born citizen,” not “natural born subject.” David Ramsay and St. George Tucker said that only children born to “citizen” parents could be “natural born Citizens.” Additionally, Minor said that the “common-law” to which the Founders and Framers looked to define a “natural-born citizen” gave that status to a child born in a country to parents who were “citizens” of that country. This is not the English common law, but rather the law of nations definition of a “natural-born citizen.” So, given how Minor defined a “natural-born citizen” and that such definition was the definition that existed at “common-law” with which the Founders and Framers were familiar, it informed us that the Founders and Framers did not define a “natural-born citizen” the same way that the English “common law” defined a “natural born subject.”
2. Any reliance on the fact that the states through reception statutes continued to selectively apply the English common law until abrogated by their legislatures is misplaced. When the Constitution was adopted and Congress passed it naturalization acts, national citizenship was defined under a national standard and not one found in state English common law.
Continued . . .
II of II
ReplyDelete3. Historically, there was no need for such children who were born in the United States to alien parents to naturalize on their own. These children, if their parents naturalized before their 21st birthday, automatically became “citizens of the United States” derivatively and did not need any further naturalization. Also, before 1922, if an alien woman had children and married a U.S. citizen, both the alien woman and her alien children automatically became U.S. citizens. There was no need for these children to obtain any naturalization from any court. Researchers using naturalization records will find relatively few early entries for women actually going through any naturalization process. http://www.michiganancestry.com/files/Naturalization_Act.pdf ] From the beginning of our nation until 1922, naturalization was automatically conferred on the wife of any male citizen. An alien woman who married a U.S. citizen automatically became a citizen and American woman who married an alien lost her U.S. citizenship, even if she never left the United States. This phenomenon would also explain why there are also no naturalization records for children born in the United States to alien parents, who automatically became U.S. citizens when their parents naturalized, if done before their age of majority.
4. The James McClure citizenship case of 1811 proves that the early naturalization acts (in his case it was the Naturalization Act of 1802) applied to children born in the United States to alien parents. McClure, who was born in South Carolina on April 21, 1785 to a British subject father who naturalized on February 20, 1786 while his son was a minor and dwelling in the United States, was ruled by U.S. Supreme Court Justice, William Johnson, to be “Citizen of the United States” (not a “natural born Citizen”) under that naturalization act. Furthermore, Minor confirmed in 1875 that “there have been doubts” whether mere birth in the United States to alien parents made anyone a “citizen.” Actually, not only were there doubts, but under Congress’s naturalization acts, such children were aliens as is shown by the McClure case.
5. Lupin’s interpretation of Vattel’s “parens,” which she says means any of the child’s relatives or extended family and not only the child’s father and mother, has no support in Vattel’s text and in his treatise itself. Vattel says “nes dans le pays, de parents citoyens. This means born in the country of citizen parents. Children are born to their father and mother. They are not born to their relatives or extended family. See also Section 122 where Vattel talks about “parents . . . gave him birth.” Parents can only mean mother and father. It surely cannot mean uncles, aunts, cousins, etc., who do not give birth to any child.
6. Jefferson's citizenship laws had one standard (jus soli) for adults in being who were born in Virginia. But when it came to infants, “wheresoever” born, he required birth to "citizen" parents.
7. There is no denying that the U.S.-French treaty of 1781 said “naturels” which was translated to “natural born.” This does not mean that they were referring to “natural born Citizens,” but only that “naturels” meant “natural born.” Even the French translation of the Constitution in 1792 translated the clause “natural born Citizen” into “naturel né Citoyen.” These translations, along with subsequent U.S. Supreme Court and lower court case which specifically cite and quote Vattel on “natural born Citizen,” are more than sufficient evidence to establish the link between Article II’s “natural born Citizen” clause and Vattel’s Section 212 “Les naturels, ou indigenes.”
8. Regarding Alexander Hamilton’s proposal which contained the clause “born a citizen” for presidential eligibility, it is hard to believe that he would not have shared his language with members of the constitutional convention. We know that the convention did not select “born a citizen,” but rather a “natural born Citizen.”
cfkerchner said...
ReplyDeleteIs the [NBC] clause … a "restrictive" clause or an "inclusive" clause?
July 8, 2012 3:58 PM
=========================
EXCELLENT
Attaboy
That's the nub, isn't it.
Also
Methinks that the swarming of OBOTs here signifies that they are getting worried. How badly will they soil their pants when they find out their Messiah is not an American Citizen of any kind?
You know that FKO has already been experimenting with two key memes that he figures he can extract himself with:
1. It's not fair.
2. Through no fault of their own.
Think about it.
jayjay said...
ReplyDelete" … have been involved in battling against El Presidente Wetback … "
July 8, 2012 8:57 PM
================================
Thank you for that. I have been using FKO but, being semi-obscene, it offends the occasional puritan. I think I will start using EPW. How can anyone object to such a pure statement of absolute truth?
Through "no fault of his own", his mother "unfairly" unilaterally changed his citizenship, upon his adoption into the Soetoro family, to Indonesian. That much is almost certain.
Now, show me even the slightest hint of evidence that he ever was naturalized!
The further we research this issue the more it is confirmed that a natural born citizen is one born in the country to two citizen parents and that Mr. Obama is not eligible for the office of President. He may not have been eligible to be a Senator, either.
ReplyDeleteWhat are the legal tools available to start investigating our Representatives, Senators, and Justices (especially those assigned to this case) to find out who they're communicating with on this subject and why they refuse to honor their oaths of office?
Here is Jean Jacques Rousseau on the difference between a "citizen" and a "subject." We all know how influential Rosseau was with the Founders and Framers:
ReplyDeleteIf then we discard from the social compact what is not of its essence, we shall find that it reduces itself to the following terms:
‘Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole’ (emphasis in the original).
At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains votes, and receiving from this act its unity, its common identity, its life and its will. This public person, so formed by the union of all other persons formerly took the name of city,4 and now takes that of Republic or body politic; it is called by its members State when passive. Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one for another: it is enough to know how to distinguish them when they are being used with precision.
Footnote 4. The real meaning of this word has been almost wholly lost in modern times; most people mistake a town for a city, and a townsman for a citizen. They do not know that houses make a town, but citizens a city. The same mistake long ago cost the Carthaginians dear. I have never read of the title of citizens being given to the subjects of any prince, not even the ancient Macedonians or the English of to-day, though they are nearer liberty than any one else. The French alone everywhere familiarly adopt the name of citizens, because, as can be seen from their dictionaries, they have no idea of its meaning; otherwise they would be guilty in usurping it, of the crime of le’se-majeste’: among them, the name expresses a virtue, and not a right. When Bodin spoke of our citizens and townsmen, he fell into a bad blunder in taking the one class for the other. M. d'Alembert has avoided the error, and, in his article on Geneva, has clearly distinguished the four orders of men (or even five, counting mere foreigners) who dwell in our town, of which two only compose the Republic. No other French writer, to my knowledge, has understood the real meaning of the word citizen (emphasis in original).
Jean Jacques Rousseau, The Social Contract or Principles of Political Right, Book I, 6. The Social Compact (1762) (G.D.H. Cole trans. 1782).
http://www.constitution.org/jjr/socon_01.htm#04
Here, Rousseau explained that there is a great difference between a “citizen” and a “subject.”
Carlyle:
ReplyDeleteYep a lot of these OOPS Troops are truly scared to death. THey are just beginning to realize that not only is El Presidente Wetback not eligible under the laws of our country, but nothing in the slightest they have said ... NOTHING has shown him to be.
I think that many of them are waiting for the next shoe to drop and some now have the hint that the Jackalope Law (the ACA or Healthcare law) had holy water sprinkled on it by Chief RHINO Roberts but that it is likely unconstitutional and will cost almost everyone more than they can make.
EPW, of course, thinks that's neat and helps him destroy this country more quickly. ALL of these Beltway Bastards in all 3 branches of "our" government should be tarred and feathered - at least those who were incumbents when El Presidente Wetback was elected.
@Mario A
ReplyDeleteMinor said no such thing. It clearly said that those who are born in the country to “citizen” parents are of one class which it called the “natural-born citizen” class. Then it said that those who are born in the country to alien parents are of another class. Confirming that there “have been doubts” as to whether members of that second class were even “citizens,” it was not willing to say whether they were “citizens,” let alone that they were “natural-born citizens.”
I've twice shown how your take on this portion of Minor ignores elemental paragraph structure and thus reads the second portion out of context. Neither time has any response issued. So, consider school in session once again.
*****
""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 [p168] 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."
The first thing to observe is this is all part of a single paragraph. In a carefully structured writing (like a SCOTUS opinion), a paragraph contains a set of sentences all related to a single topic. And the paragraph starts with a topic sentence identifying and organizing that topic. Above, the topic sentence shows the paragraph is ABOUT who are "natural born citizens" ("The Constitution does not, in words, say who shall be natural-born citizens.")
So when further on in the paragraph, Justice Waite remarks "Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents" -- we know that "citizens" here means "natural born citizens" because reading in context we know that "natural born citizen" is the topic of this paragraph!
***
There. Third time. It gets rather tedious copying and pasting the stuff you keep ignoring.
The structure of Justice Waite's paragraph is easy to follow. He begins by undertaking to explore the question "who shall be natural born citizens" under the Constitution. That's the topic of the paragraph. He then notes the "easy, undisputed case" -- children born in a county to citizen parents. He then notes that others also include children of aliens, though that is disputed by others. He then indicates this dispute is not relevant to be decided in the Minor case, as it suffices to show that she is part of the undisputed.
Pretty simple.
Your read on this has J. Waite starting the paragraph with one question ("who are natural born citizens") and then -- bizarrely, without explanation -- shifting supposedly in mid-paragraph to speaking about something different, a "citizen" class that is apart from the question about "natural born citizen" raised in the topic sentence.
No one writes a paragraph that way! And no one reads a paragraph that way either. No one, that is, other than someone who is desperate to force the Minor case into saying what it doesn't say, because that's the only prayer left to the "Vattel" theory, since there is no direct historical evidence linking Vattel to the Article II phrase.
@Mario A
ReplyDeleteYou have some nerve saying that my briefs are “models of incoherence” after you and your theory that the Founders and Framers used the King’s English “common law” to define the republic’s “natural born Citizen” has gotten and will continue to get a total trashing on this blog.
It's the United States Supreme Court which stated that Constitutional terms are to be interpreted in light of the history of the English common law, and which then spent Parts II and III of its lengthy opinion in WKA drawing the direct analogical comparison between "natural born subject" and "natural born citizen."
So you can make a big deal and "trash" what I say on this point. It's really the Supreme Court's analysis you're trashing.
Your level of denial on this point is at the stage of ridiculous.
@Michael N
ReplyDeleteProblem you have BrianH, is that WKA was analyzing ENGLISH "natural born subject" for the purpose of justifying that native birth-right under 14th Amendment, was applicable to WKA,
You're here just parroting what Mario elsewhere said to me. So I'll ask you the question I asked him in response which he didn't address. "What does the English 'natural born subject' have to do with the Fourteenth Amendment?" The Amendment was debated and passed 80 years after the original Consititution. To my knowledge, in none of the debates concerning the enactment of that Amendment was the matter of English common law or "natural born subject" brought up.
Your statement that WKA was analyzing English common law to justify a decision under the Fourteenth Amendment is lacking in coherence. Hint: it's missing an important step. Go back to Parts II and III and see how WKA made a comparison between "NBS" and the common law "NBC." THEN it takes that conclusion -- that the common law rule of NBC held to the same jus soli principle as the NBS, with the same exceptions, and then shows how the 14th Amendment incorporated that common law NBC rule with the same exceptions.
The common law of NBC is what makes the connection between the English NBS and the 14th Amendment.
BrianH bleated in desperation....
ReplyDelete"In a carefully structured writing (like a SCOTUS opinion), a paragraph contains a set of sentences all related to a single topic. And the paragraph starts with a topic sentence identifying and organizing that topic. Above, the topic sentence shows the paragraph is ABOUT who are "natural born citizens" ("The Constitution does not, in words, say who shall be natural-born citizens.")
So when further on in the paragraph, Justice Waite remarks "Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents" -- we know that "citizens" here means "natural born citizens" because reading in context we know that "natural born citizen" is the topic of this paragraph!"
You so wish BrianH, but another epic failure on your part.....but it's funny to watch you squirm.
BrianH, the topic changed in the paragraph from "natural born citizen" to "citizen"..... duh!
After the SCOTUS stated that a "natural born citizen" is a "citizen", then the SCOTUS spoke of others who may also be included in the super-set of "citizens".
As you said the SCOTUS were very careful to structure their sentences and wording.
"include as citizens" being the operative passage.
The SCOTUS would have said "include as natural born citizens" if they intended that to be the case.
Tell us all about this mysterious "combination-common-law" which the SCOTUS was referring to in the Minor court, where the SCOTUS INTRODUCED the mention of doubts if a native-born to aliens was even a citizen, then the SCOTUS held that the doubts had merit, by stating that the doubts were yet to be solved.
Oh and whilst you're at it, since you are so stuck on English common law, why do you suppose Lord Coke opined that it was not jus soli that made a natural born subject?
Coke:
"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 A SUBJECT BORN"
BrianH,
ReplyDeleteYour reading is flawed not only in that you misread the paragraph you cite, but in that you ignore the previous paragraphs. Once you expand your vision you will see several paragraphs contrasting various paths of citizenship. Mr. Apuzzo's analysis is correct. It's fits exactly with the balance of the whole.
For the convenience of the readers, here is the appropriate excerpt. Note the similarities of how each paragraph presents contrasting terms. Clearly "natural born citizen" and "citizen" have different meanings.
Excerpt from MvH:
"Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.
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 [p168] 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. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea."
BrianH said...
ReplyDelete"It's the United States Supreme Court which stated that Constitutional terms are to be interpreted in light of the history of the English common law, and which then spent Parts II and III of its lengthy opinion in WKA drawing the direct analogical comparison between "natural born subject" and "natural born citizen." "
The English common law holds that native-birth alone does not make a natural born subject.
BrianH said...
ReplyDelete@Mario A
July 9, 2012 3:59 PM
===================================
As an experienced technical writer and sometime legal opinion reader and analyzer (disclaimer: but not a lawyer), I find this oft-repeated paragraph from MvH almost incomprehensible and certainly no model of pristine structure or precise word usage.
I think the only thing we can glean for sure from this paragraph is:
1: NBC is not defined within the constitution and must be researched elsewhere.
2: Children born within country and to (any type) citizen parent(S!) is a NBC.
3: Since VM was clearly a NBC, there was no need to further chop the logic or enter a debate on further possible meanings of Citizen or NBC.
I think that is as far as you can go. This paragraph does not prove or clearly state any but the above.
Any attempt by an analyst to wring more from the paragraph seems like trying to pound square pegs into round holes.
This, in turn, requires that one look elsewhere - or at least include more references - to obtain the complete well-rounded picture of this topic.
Mario has at least been trying to view the whole forest and not just selected trees. But I continue to worry that any court (including USSC) can find enough of these various ambiguous (or, should I say, incomplete) trees to 'defend' any position they wish to take.
This is worrisome because that would mean that EPW will never be dethroned due to NBC considerations. Even if his parents turn out to be radical never-American foreign agents.
I believe the only hope is to use NBC and other arguments to establish probable cause and force discovery. Once more facts are available the courts and the American People (voters) can decide what they want to do next.
And, then going forward, we need assurances that NBC means something as restrictive as possible.
@Michael N
ReplyDeleteBrianH, you cannot get around the fact that he English common law holds that if the father is not a "subject" then his child cannot be a "subject" even if born in the realm.
As I've noted before, Justice Gray writing for the WKA majority in Part II of the opinion undertakes extensive analysis of the English common law, including Calvin's Case. Gray concludes:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
So per our SCOTUS, aliens residing within the English realm (save for the noted exceptions) were sufficiently within the jurisdiction and allegiance of the Crown to make children born within the realm natural born subjects. So a natural born subject could indeed have an alien as parent. The parent did not also have to be a "subject" for the child to be considered such by birth.
Then Justice Gray, starting Part III, indicates that the "same rule" had been in force in America since the time of the English colonies:
"III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
Same rule? What same rule. Answer: the rule that says that a person didn't have to be born of citizen parents for the child to be considered a natural born citizen. Justice Gray draws a close analogy between "NBS" and "NBC," clearly seen in his approvingly citing to U.S. v. Rhodes:
"In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
So per the SCOTUS in WKA, it didn't require a "subject" parent for the child to be an NBS. And the "same rule" was true in the U.S.-- it didn't require a citizen parent to make a "natural born citizen."
Robert said...
ReplyDeleteBrianH,
July 9, 2012 5:36 PM
===================================
You are right in that adding these other paragraphs (surrounding the paragraph I recently disparaged) help 'see the forest from the trees'. However I still maintain a strong distaste of MvH being used for these definitional purposes.
All of this introductory material is superfluous and offputting. Non of it is necessary, nor even very helpful to the core of VM's issue. It is just a 'wise fool' listening to his own jowls flap - IMHO.
Even for the rarefied form of a USSC opinion, all of this could have and should have been replaced with a short sentence similar to:
"VM is not only a citizen, but the strongest kind of citizen, one born within country to citizen parents."
There was really no need to bring up the definition of NBC, or it's use within the constitution, etc.
Maybe the lawyers among us can tell the the importance and weight of such 'unnecessary' ramblings withing a SCOTUS ruling?
@Michael N
ReplyDeleteBrianH, the topic changed in the paragraph from "natural born citizen" to "citizen"..... duh!
If Justice Waite were starting a new topic, he would have started a new paragraph. That's what paragraphs are: a set of sentences related to a single topic. Duh.
Since he didn't start a new paragraph, THEN WE KNOW that the discussion about the "some authorities go further" is STILL part of the SAME topic about "who shall be a natural born citizen."
Michael, since you fail to grasp elementary rules of grammar and composition, how do you expect to discuss something at much higher level like Supreme Court opinions?
Mario, when it comes to MvH, who ya' gonna believe: LyinH or your LyinI's? LOL
ReplyDeleteMy favorite part of WKA is that through all the dishonest historical contortions Justice Grey employed to come up with his predetermined outcome, he still didn't declare WKA a NBC. Yet we still get jokers like LyinH who declare that he did.
But the best part is that LyinH is called out as the liar he is by none other than the Ankeny decision in their Footnote 14:
"We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution's Article II language is immaterial. For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478."
Note here that Ankeny claimed the WKA decision didn't declare WKA a NBC (that's obvious to all but the dullards) but that it also said the 14th amendment naturalizes people. Last time I looked, if you're naturalized, you ain't natural born.
Yup. LyinH proven to the lying liar who lies by none other than Ankeny. Is there no greater satisfaction that choking a weasel with its own tail?
MichaelN said: "As you said the SCOTUS were very careful to structure their sentences and wording. "include as citizens" being the operative passage. The SCOTUS would have said "include as natural born citizens" if they intended that to be the case."
ReplyDelete-Yes, exactly. I wrote previously: "Notice also LyinH's tendency to play fast and loose with the false paradigms he sets up. On one hand, he claims the Supreme Court writes with absolute precision in reference to paragraph construction, but then claims they write with wild abandon when it comes to terminology. The term citizen is freely substituted with subject, native-born is freely substituted with natural-born, and natural born subject is freely substituted with natural born citizen. So which is it, do they write with absolute precision or free verse?"
Again, the weasel choked with his own tail.
@Michael N
ReplyDeleteI sent before copying in other bits of the post I was answering.
After the SCOTUS stated that a "natural born citizen" is a "citizen", then the SCOTUS spoke of others who may also be included in the super-set of "citizens".
The paragraph makes no mention of "super-sets" of anything. The paragraph is ABOUT "who are natural born citizens." References to "citizen" after that are references to "natural born citizens." It's a set of ONE.
As you said the SCOTUS were very careful to structure their sentences and wording.
"include as citizens" being the operative passage.
The SCOTUS would have said "include as natural born citizens" if they intended that to be the case.
There's no need within a single paragraph to keep repeating "natural born" before each use of "citizen" given that J. Waite has most clearly indicated at the outset the paragraph is about "natural born citizen." It's called "reading in context."
After the SCOTUS stated that a "natural born citizen" is a "citizen", then the SCOTUS spoke of others who may also be included in the super-set of "citizens".
As you said the SCOTUS were very careful to structure their sentences and wording.
"include as citizens" being the operative passage.
The SCOTUS would have said "include as natural born citizens" if they intended that to be the case.
Suppose I write about my car:
"I own a 1965 Red Corvette. The engine has been rebuilt. I was formerly owned by a little old grandmother from Pasadena. My corvette does zero to sixty in 6.2 seconds. It's a real chick magnet."
Now, would any reader who isn't a total loon understand that "my corvette" in the third sentence is red. Do I have to say "red corvette" each time to avoid that misinformed conclusion? No!!!
But, say that I also own a crummy blue Corvette, too. That doesn't change the answer at all. It's absolutely clear that the topic of the paragraph is "my red Corvette." I don't have to repeat red within the context of a single paragraph talking about that car, even if there's a blue one out there.
So, too, with Justice Waite. He doesn't have to keep adding "natural born" with each reference, since he's made it patently clear at the outset the paragraph is ABOUT "who shall be natural born citizens."
It's called "reading in context."
Try that someday, Michael. It can only help you.
@BrianH
ReplyDeleteFrom English common law....
Lord Coke (Calvin's case, the same case cited by Horace Gray in WKA court)
"An alien born is of foreign birth OR foreign allegiance,..."
What the BrianH does not know is that:
ReplyDeleteAliens (aka “alien friends”) in England suspended their home country allegiance and owed a temporary allegiance to the English king. They were expected to take, or at least comply with, the Oath of Allegiance, whereby they promised that, while on English soil, they would "bear faith and true allegiance” to the English king. This temporary allegiance was sufficient for their English-born children to be given subjecthood -- they were deemed to be natural-born subjects by statute. But it was the children of English subjects (persons who were under the “actual obedience” of the King) who were natural-born subjects in fact and not by any law.
In the US, aliens do not suspend their home country allegiance. They are not expected to take, nor at least comply with, any type of Oath of Allegiance until such time as they become citizens (naturalization). While residing in the US, these aliens do not “bear faith and true allegiance” to the US – their faith and true allegiance remains with their home country. This lack of allegiance to the US explains why the naturalization acts from 1790 to 1855 considered the US-born children of alien parents to be aliens.
Following the 1898 US Supreme Court case of Wong Kim Ark, the US-born children of alien parents were considered to be citizens, but not natural born citizens. There is no allegiance on the part of aliens residing in the US which would allow their US-born children to be deemed natural born citizens. It is only the US-born children of American citizens (persons who do bear faith and true allegiance to the US and are under the “actual obedience” of the US) who are natural born citizens – citizens at birth in fact by the laws of nature, and not by any law of man.
BrianH said ....
ReplyDelete"As I've noted before, Justice Gray writing for the WKA majority in Part II of the opinion undertakes extensive analysis of the English common law, including Calvin's Case. Gray concludes:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
So per our SCOTUS, aliens residing within the English realm (save for the noted exceptions) were sufficiently within the jurisdiction and allegiance of the Crown to make children born within the realm natural born subjects. So a natural born subject could indeed have an alien as parent. The parent did not also have to be a "subject" for the child to be considered such by birth."
Yes, it was the allegiance of the "subject" that mattered and this was THE PARAMOUNT quality required to make an English "natural born subject".
It is COMPLETELY IRRELEVANT as to how or why the father was or was not a "subject".
The English accepted any friendly alien-born visitor as a "subject", and if they were not accepted as a subject (as was the case with enemy aliens or foreign diplomats) then the child could not be a "subject".
So it was not native-birth alone, that made a natural born subject ....... right?
And if the father was not a subject, then his child could not be a subject even if native-born ....... right?
But the US did/does not accept friendly visitors as "citizens" (which you assert the WKA court is analogous with "subject").... right?
Therefore, based on the English common law, for a native-born child of an alien in US, to be a US "citizen", the father of the child would need to be naturalized by due process of US laws, for his child to be a US "natural born citizen".
Now as you keep insisting that English common law reigned supreme, and by English common law, a child born to English parents outside the realm were English "natural born subjects", then by your or Horace Gray's reasoning, a child born outside of US to US citizen parents, would be a US "natural born citizen" ..... right?
But there NOT, so there goes your English common law THEORY, down the gurgler.
Coke:
"And therefore if any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, by the Common Laws of England they are natural born subjects, and yet they are born out of the king’s dominions."
It's all about natural descent and native birth-right.
It's an ABSURD notion that the Framers and Founders would be so lax in not securing to the best of their reckoning the office of president of a republic, from any foreign influence, persuasion and claim, especially given the popularity of the law of nations at the time.
Give it up BrianH, come on over from the dark-side to the light.
BrianH,
ReplyDeleteThe jurisdiction of federal courts is defined by the Constitution. That written law does not: grant to the federal judiciary the authority to incorporate other systems of laws of its own choosing, does not incorporate the common law of England, nor incorporate the law or constitution of the several states.
The foregoing is obvious, as I'm sure you realize.
Here is what John Jay, Founder, delegate to the First and Second Continental Congresses, Chief Justice of the New York Supreme Court, first Chief Justice of the United States Supreme Court had to say:
It is an observation no less useful than true, that nations and individuals injure their essential interests in proportion as they deviate from order. By order I mean that national regularity which results from attention and obedience to those rules and principles of conduct which reason indicates and which morality and wisdom prescribe. Those rules and principles reach every station and condition in which individuals can be placed, and extend to every possible situation in which nations can find themselves.
Among these rules are comprehended the laws of the land, and that they may be so observed as to produce the regularity and order intended by them, courts of justice were instituted whose business it is to punish offences and to render right to those who suffer wrong.
To inquire into and present those offences is the duty which the law generally imposes upon you, and, as there is a national tribunal having cognizance only of offences against the laws of the United States, your inquiries and presentments are to be confined to offences of that description.
The Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made compose the laws of the United States. (emphasis added)
John Jay, Charge to Grand Jury, Richmond, Virginia, May 22, 1793
Correspondence and Public Papers of John Jay, vol 3, p 478
Henry P. Johnston editor
http://books.google.com/books?id=ElB2AAAAMAAJ&jtp=478
English common law is not a part of our national law.
I take Jay's word over yours any day of the week. I also take Jay's word over Gray's maundering about English common law.
BrianH said....
ReplyDelete"Same rule? What same rule. Answer: the rule that says that a person didn't have to be born of citizen parents for the child to be considered a natural born citizen. Justice Gray draws a close analogy between "NBS" and "NBC," clearly seen in his approvingly citing to U.S. v. Rhodes:
"In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
So per the SCOTUS in WKA, it didn't require a "subject" parent for the child to be an NBS. And the "same rule" was true in the U.S.-- it didn't require a citizen parent to make a "natural born citizen." "
Response:
Aliens visiting US were/are not in allegiance of the United States.
At best they were considered to be "subject to the jurisdiction" in which case the SCOTUS in WKA held that the children of such aliens, who had been long term domiciled and business input into the US community, were of the a Constitutional class of citizen OTHER than "natural born Citizen", being "citizen of the United States".
There was insufficient AMERICAN STYLE allegiance from WKA's parents to make WKA a NBC, so the SCOTUS rightfully AVOIDED holding WKA to be NBC.
In the revolutionary period and thereafter, people suspected of not being for the cause (i.e. loyalists, Tories, fence-sitters, etc) were required to swear oaths of allegiance to the United States and most who failed to do so had their property seized and were run out of town along with their native-born ALIEN children.
Come over from the dark-side BrianH, the truth will set you free.
I of II
ReplyDeleteBrianH,
Minor asked the question of who are the “citizens?”
It showed who the original “citizens” were. It had to start with who the original “citizens” were to demonstrate how citizenship started in the new republic.
Minor then said that the Constitution provided that there can be additions to the original “citizens” by way of birth or naturalization.
It then showed who were the born “citizens.” It said that these born “citizens” were defined not in the Constitution but in the “common-law” with which the Founders and Framers were familiar.
The Court explained that under that “common-law,” a child born in the country to “citizen” parents was a “citizen also.” The Court then said that not only was that child a “citizen” like his or her parents, but because the child was born in the country to “citizen” parents, the child was also a “natural-born citizen.”
The Court on its own then mentioned that “some authorities” go further with respect to who can be a “citizen.” The Court said that they maintained that a child born in the country to alien parents was also a “citizen.” The Court did not say that these authorities maintained nor did the Court itself suggest that such a child could be a “natural-born citizen.”
The Court added that “there have been doubts” whether such a child could be a “citizen.” Because Virginia Minor was born in the county to “citizen” parents, which made her not only a “citizen” like her parents, but also a “natural-born citizen,” there was no need for the Court to address the question of whether a child born in the country to alien parents was a “citizen.”
What conclusions can we draw from this analysis?
1. The Minor Court explained that the Constitution provides that we can have more “citizens” after the original “citizens” either by birth or naturalization. When Minor said that Virginia Minor was a “citizen,” at first it did not say what type of “citizen” she was. At that moment, she could have been one by birth or one by naturalization. Even the first members of the United States were “citizens,” but did not have any other qualification as to what type of “citizens” they were other than just original. It is only in the next sentence that the Court told us that such a child was not only a “citizen” like the child’s parents, but the child was also a “natural-born citizen.” The Court did not say that just being born a “citizen” is what made that child a “natural-born citizen.” Rather, the only reason the Court gave for the child being a “natural-born citizen” was that the child was born in the country to parents who were “citizens” of the country. So evidently, when the Court said “citizen,” it was not equating “citizen” with “natural-born citizen,” for even the original members of the United States, persons who were born out of the United States to “citizen” parents, and persons who naturalized after birth were all “citizens,” but not “natural-born citizens.” Even Virginia Minor’s own parents were “citizens,” but not necessarily “natural-born citizens.”
2. As to the children born in the United States to alien parents, the court did not say what type of “citizen” “some authorities” said these children were. The Court only said “citizen.” But we know that the Court could not have meant “natural-born citizen” because those children did not satisfy the “common-law” definition of a “natural-born citizen” known by the Founders and Framers, a definition that the Court had just presented in the previous sentence. The Court did not say that any doubts existed at “common-law” or with the
Continued . . .
II of II
ReplyDeleteFounders and Framers about the status of these other children born in the country to aliens. Rather, it just said that “some authorities” maintained that these other children (which the said belonged to a different “class”), were also “citizens.” So Minor told us that the Founders and Framers knew what a “natural-born citizen” was and they did not raise any questions about that definition. Rather, the question about the status of these children, who were born in the United States to alien parents, was raised by “some authorities,” who surely were not the Founders and Framers, and had nothing to do with their definition of a “natural born Citizen.”
3. Article II specifically addresses presidential eligibility, the Fourteenth Amendment does not. Virginia Minor was an Article II “natural-born citizen.” Wong Kim Ark was a Fourteenth Amendment “citizen of the United States” from the moment of birth. Article II requires birth in the country to “citizen” parents. The Fourteenth Amendment, under Wong Kim Ark’s holding, requires birth in the United States plus “subject to the jurisdiction” thereof which requires that the parents be domiciled and resident in the United States and not be foreign diplomats or invading military aliens. An Article II “natural born Citizen” does not need “jurisdiction” analysis, for being born in the country to “citizen” parents, he or she in all cases is not born to foreign diplomat or invading military alien parents. A “natural born Citizen” is always born “subject to the jurisdiction” of the United States. A “natural born Citizen” also does not have to be born to parents who are domiciled and resident in the United States. A Fourteenth Amendment “citizen of the United States” always needs “jurisdiction” analysis because, since the child’s parents do not have to be “citizens,” they can lack domicile, residency, or be foreign diplomats or invading military aliens. All this shows that a “natural born Citizen” has a much more stringent allegiance standard than does a Fourteenth Amendment “citizen of the United States.” An Article II “natural born Citizen” must be born within the full and complete civil, political, and military jurisdiction of the United States. A Fourteenth Amendment “citizen of the United States,” who is not also a “natural born Citizen,” is born with dual and divided allegiance and citizenship and not within the full and complete civil, political, and military jurisdiction of the United States.
4. The definition of a “natural born Citizen” itself tells us that we must first have “citizen” parents before we may have “natural born Citizens,” for such a “citizen” has to be born to parents who were already “citizens” at the time of the child’s birth. The status of a “citizen” could only be gained during the Founding, by later birth in the United States, or by naturalization thereafter. Under the “common-law” and Congress’s naturalization acts (1790, 1795, 1802, and 1855), it could not be gained by birth in the United States unless born to “citizen” parents. Consistent with that requirement, Congress did allow children who were born out of the United States to “citizen” parents to become “citizens of the United States.” So any child that was born in the country to an original “citizen” or to his or her descendents, or to a naturalized “citizen” or to his or her descendants, was not only a “citizen,” but was also a “natural born Citizen.” Being born in the United States to alien parents simply did not give anyone the status of a “citizen.” This is why Minor said that “there have been doubts” whether a child born under such circumstances was a “citizen.” Not falling into any class of “citizen,” that child could not be a “natural born Citizen.” It was only by the grace of 7 of the 9 justices of the U.S. Supreme Court in Wong Kim Ark that that child was accepted as a “citizen of the United States,” but surely not as a “natural born Citizen.”
I of II
ReplyDeleteBrianH,
Based on Justice Gray’s own words, we know that he was not referring to a “natural born Citizen” when he discussed an English “common-law” “natural born subject.” He said:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
Id. at 658.
So Gray said that aliens residing within the English realm, with a few exceptions, were sufficiently within the jurisdiction and allegiance of the Crown to make their children born within the King’s dominions “natural born subjects.”
Justice Gray then said that the “same rule” had been in force in America since the time of the English colonies. He continued:
"III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established." Id. at 658.
Wong then cited and quoted Rhodes:
“In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
‘All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’
1 Abbott (U.S.) 28, 40, 41.” Wong Kim Ark, at 662-63.
If we examine what rule Justice Gray referred to, he told us what that English “common law” rule was. He told us that under that rule a person could be born to alien parents and still be considered a “natural born subject.” But Justice Gray also told us that that same rule still contained those exceptions for the child’s parents, i.e., not diplomats or military invaders. Justice Swayne also told us that his “great principle of the common law” was also subject to “the same exceptions, since as before the Revolution.”
Continued . . .
II of II
ReplyDeleteOur U.S. Supreme Court, starting with The Venus (C.J. Marshall concurring), and continuing with Inglis, Shanks, Dred Scott (J. Daniels concurring), and Minor, defined a “natural born Citizen.” It always defined one consistently with the definition provided by Vattel in Section 212 of The Law of Nations, i.e., “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Neither Vattel nor our Supreme Court ever used the diplomat or military invader exceptions to being a “natural born Citizen.” Hence, we have solid confirmation that Justice Gray’s and Justice Swayne’s “natural born subject” is not the equivalent of a “natural born Citizen.” They simply could not have been referring to a “natural born Citizen” because such a “citizen” is not subject “to the same exceptions” as was a “natural born subject.” Our U.S. Supreme Court has never defined a “natural-born Citizen” in relation to whether his or her parents were foreign diplomats or military invaders. Hence, this is solid evidence that the Founders and Framers never meant a “natural born Citizen” to be defined the same as a “natural born subject.” This is also solid evidence that when Minor left open the question of whether children “born within the jurisdiction without reference to the citizenship of their parents” were “citizens,” it was not referring to “natural-born citizens,” for whether those children were “citizens” at all was subject to “the same exceptions” mentioned by Justice Gray and Justice Swayne.
There are also other problems with Rhodes. First, neither Justice Swayne nor Justice Gray defined what Justice Swayne meant by “born in the allegiance of the United States.” Second, the unanimous U.S. Supreme Court in Minor told us specifically what “common-law” the Founders and Framers followed. It did not like Rhodes just talk about the “common law” is some nebulous fashion existing who knows where. According to Minor, the “common-law” with which the Founders and Framers were familiar defined a “natural-born citizen” as a child born in a country to parents who were “citizens” of that country. A unanimous U.S. Supreme Court in Minor trumps Justice Swayne regardless of what he meant.
BrianH bleated...
ReplyDelete"After the SCOTUS stated that a "natural born citizen" is a "citizen", then the SCOTUS spoke of others who may also be included in the super-set of "citizens".
The paragraph makes no mention of "super-sets" of anything. The paragraph is ABOUT "who are natural born citizens." References to "citizen" after that are references to "natural born citizens." It's a set of ONE.
As you said the SCOTUS were very careful to structure their sentences and wording.
"include as citizens" being the operative passage.
The SCOTUS would have said "include as natural born citizens" if they intended that to be the case.
There's no need within a single paragraph to keep repeating "natural born" before each use of "citizen" given that J. Waite has most clearly indicated at the outset the paragraph is about "natural born citizen." It's called "reading in context."
After the SCOTUS stated that a "natural born citizen" is a "citizen", then the SCOTUS spoke of others who may also be included in the super-set of "citizens".
Response:
Oh, I see the parents must be "natural born citizens" then.
Would that be right BrianH? lol
as in ....
"it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also."
So "the parents who were its citizens" were not to be of the naturalized variety, isn't that so BrianH?? lol
@ BrianH
ReplyDeleteDo you suppose that in English common law, the term "citizen" in 17th century England was analogous with "subject"?
Then explain why should English "subject" be analogous with US "citizen"?
This should be of interest.
ReplyDeleteDocumented history shows that the Founders and Framers certainly erred in favor of "the innovation or chaunge of some Laws" with "lesse perill in the alteration" where eligibility for president of a new republic was concerned.
The notion that the Framers would have native-birth alone as sufficient to make an Article II NBC is absurd to the extreme.
Lord Coke:
"Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I > (Preface) To the Reader. >
"There is nothing that can bee said or written of Lawes, although the field bee large, and the common place thereof may seeme to be infinite, but in mine opinion may bee reduced to one of these sixe heades; Making, Correcting, Digesting, Expounding, Learning, and Observing.
Of Lawes, concerning Making of new, sixe things amongst many other doe principally fall into consideration.
First, under what forme of Common wealth the Lawmakers be governed;
For one consideration is requisite where the government is Monarchicall, another when it is Artistocraticall, and a third where it is Democraticall.
Secondly, to know the several kinds of the Muncicipall Lawes of his owne proper Nation: For the innovation or chaunge of some Laws is most dangerous, and lesse perill in the alteration of others.
Thirdly, to understand what the true sence and sentence of the Lawes then standing is and how farre forth former Lawes have made provision in the case that falleth into question.
Fourthly, by experience to apprehend what have beene the causes of the danger or hinderance that hath fallen out in that particular to the Common wealth, either in respect of time, place, persons or otherwise.
Fifthly, to foresee that a proportionall remedy be applied so, as that for curing of some defects past, there bee not a stirring of more dangerous effects in future.
Sixtly, the mean, & that only is by authority of the high (that in troth is the highest) Court of Parliament.
Concerning the Correction of olde, the same respectes are to be observed, that have been said touching the Making of new."
The liars here can lie all they want, but the plain words of WKA prove that the decision was based on the law of nations principle of "inhabitance", explained first in "The Venus" (12 US 253, 278).
ReplyDeletePermanent domicile establishes allegiance, while domiciled.
"The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides."
Wong Kim Ark, 169 US 649, 693
(1898)
Notice how many times Gray usses the words "residence", "domiclie", and "resident". While Gray's writing is purposefully deceitful at points, the decision is based on "law of nations", and he construed that "subject to the jurisdiction" included those the were permanently domiciled, and their children, born in the US during that residence---in harmony with the principle of "inhabitance" first construed in SCOTUS in 1814 (The Venus). Then Gray says DIRECTLY the WKA WAS NOT a nbC, by saying OF WKA on page 693, "and that child is as much a citizen as the natural born child of a citizen." He links the Binney quote directly to the holding, and to WKA himself, PROVING that he said SPECIFICALLY that WKA was not natural born. Plain words prove ALL of the OBOTS wrong, and it's all on page 693. No further discussion needed.
@Michael N
ReplyDeleteYes, it was the allegiance of the "subject" that mattered and this was THE PARAMOUNT quality required to make an English "natural born subject".
Right. And if the "subject" was a person born within the British realm, that birth on the soil was enough to make him a subject, even if the parents were aliens, unless the child's parents were of the noted exceptions. Again, the SCOTUS:
"[T]herefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
Pretty simple and straightforward rule.
It is COMPLETELY IRRELEVANT as to how or why the father was or was not a "subject".
Michael, you can go one step further along with our SCOTUS and say it was completely IRRELEVANT that the father be a SUBJECT. The father could be an alien and yet the child born on English soil was considered a subject. So analyzed our U.S. Supreme Court in Wong Kim Ark.
So it was not native-birth alone, that made a natural born subject ....... right?
Wrong. Read the SCOTUS again: "EVERY child born in England of alien parents was a natural-born subject."
And if the father was not a subject, then his child could not be a subject even if native-born ....... right?
Wrong. Again, read the SCOTUS: "Every child born in England of alien parents was a natural-born subject."
Michael, what part of "every child born in England" is too complicated for you? Point it out and I'll attempt to explain it in the simplest words possible. Wait. Wong Kim Ark already did that. Nevermind.
But the US did/does not accept friendly visitors as "citizens" (which you assert the WKA court is analogous with "subject").... right?
Wong Kim Ark states that this "same rule" (the rule I've just quoted three times) had been followed in America since Colonial days:
"III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
So the "same rule" by which children even of aliens were "natural born subjects" in England meant that children of alien parents born in the U.S. were "natural born citizens." That's the point of interpreting the Constitution by reference to the English common law, as the SCOTUS said is the proper methodology.
I realize that Birthers remain in abject denial that the SCOTUS could have said such a thing. But it did. I will continue to point out the precise wording of the opinion by which that's made clear, and I will continue to note that C.J. Fuller writing in dissent saw this clarity and thus complained the majority made a person like Mr. Wong presidential eligible. And I will point out how the Courts to date that have considered the "two citizen parent" argument have looked at Wong Kim Ark and quickly concluded the argument has no merit.
Now as you keep insisting that English common law reigned supreme,
I keep pointing out that our Supreme Court said that our Consitutional terms are to be understood in light of the history of the English common law." Though you and Mario remain in denial they said that.
Give it up BrianH, come on over from the dark-side to the light.
You mean the side that simply won't recognize the U.S. Supreme Court has said what it has said, and thus keeps losing in court? No, thank you.
How is it possible for one to be under the complete jurisdiction of one country and yet retain the right to refuge in the embassy of another?
ReplyDeleteOf which country is he truly a citizen/subject?
@Ray
ReplyDeleteI take Jay's word over yours any day of the week. I also take Jay's word over Gray's maundering about English common law.
And if what you're doing is musing about political theory, that's fine. But if what you're doing is bringing a legal case in an American court about a particular point of Constitutiona law, then you should recognize that Justice Gray's words completely TRUMP John Jay's words. Supreme Court caselaaw and analysis controls over historical sources such as Jay, Madison, St. George Tucker, etc. On every day in every courtroom. And this idea was noted in the Ankeny v. Daniels appellate opinion:
"Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.”[15]
The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs’ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120."
Justice Gray's "maundering about English common law" has been the rock upon which the "two citizen parent" argument has foundered. And so it shall be until Wong Kim Ark is successfully challenged at the SCOTUS level as being improperly analyzed.
@Mario A
ReplyDeleteIf we examine what rule Justice Gray referred to, he told us what that English “common law” rule was. He told us that under that rule a person could be born to alien parents and still be considered a “natural born subject.”
Exactly!! That's the thrust of Part II of his opinion. Now kindly explain this to Michael, who doesn't seem to want to acknowledge this.
And Justice Gray then noted how that "same rule" was carried across the ocean and recognized in America, such that a person could be born to alien parents and still be a natural born citizen. That's the thrust of Part III of his opinion.
Of course, at this point it's your turn to be Queen of Denial.
Hence, we have solid confirmation that Justice Gray’s and Justice Swayne’s “natural born subject” is not the equivalent of a “natural born Citizen.” They simply could not have been referring to a “natural born Citizen” because such a “citizen” is not subject “to the same exceptions” as was a “natural born subject.”
"All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . "
So your "they simply could not have been referring to natural born citizen" denial falls with a resounding thud when it's shown, by their very words, they most certainly WERE referring to our Constitutional phrase "natural born citizen" and comparing that to the English "natural born subject."
Here's your question-begging technique at work again: assume that the Vattel definition was the "original meaning" of NBC, and then when Justice Gray explicitly draws an analogy between NBS and NBC, pretend that he couldn't be referring to your beg-the-question understanding of NBC because you see "differences."
The manifest problem with your argument here is that Justice Gray most clearly does exactly what you want to pretend didn't (or couldn't) occur.
So, Mario, rather than pretend that Justice Gray didn't do what he did (conclude that the common law rule of NBC followed the same common law rule of NBS in England -- both jus soli without regard to parent status), why don't you take the more honest and direct approach of saying that what Justice Gray said was WRONG and the opinion should be overturned.
@Mario A
ReplyDeleteMinor asked the question of who are the “citizens?”
But as to the paragraph oft-cited in these discussions, the question was explictily stated as to "who shall be (are) natural born citizens." ("The Constitution does not, in words, say who shall be natural-born citizens.")
Your clever attempt to change the question at the outset is noted. It's also the reason the rest of your 2-part digression warrants no further reply.
BrianH:
ReplyDeleteYou and your compatriots (not to be confused with actual patriots) do not seem to understand the difference between the words "subject" and "citizen".
I realize you and the rest of the OOPS Troops don't know this, but the two words aren't even spelled the same way. Check it out!!!
I received yesterday Dr. and former LtCol Terry Lakin's newly released book, Officer's Oath. I read it last night finishing it early this a.m. It is excellent, well written, and easy to read. It tells Terry's story. And it a proud and courageous story about how he stood up for his Officer's Oath to support and defend the Constitution in seach of the truth about Obama's true legal identity.
ReplyDeleteI posted a review at Amazon about Terry's new book, Officer's Oath. Here is the link to the book and reviews. Scroll down on the page to read the reviews and comments. Add a comment or two if so inclined:
http://www.amazon.com/exec/obidos/ASIN/0578086646/genealogicalrese
CDR Kerchner (Ret)
ProtectOurLiberty.org
"The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established." - Justice Gray in U.S. v. Wong Kim Ark
ReplyDeleteGray has made an error of fact.
The fact is the same rule did not continue to prevail under the Constitution.
Under the Naturalization Acts of 1790, 1795, 1802, and 1855, the minor children of alien parents were themselves alien until the naturalization of their parents, or upon their own naturalization at the age of majority.
BrianH, please point out where the federal courts are authorized to incorporate other systems of laws of its own choosing, or where the common law of England is incorporated in the Constitution, or where the law or constitution of the several states are incorporated in the Constitution.
Please explain how John Jay erred when he said, "The Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made compose the laws of the United States."
Please explain away U.S. Const. art. VI, cl. 2 "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
You won't be able to do any of these things.
Why do you cling to Gray's obvious error and deny the plain and clear text of the Constitution and legislated Naturalization Acts?
@Michael N
ReplyDeleteDo you suppose that in English common law, the term "citizen" in 17th century England was analogous with "subject"?
Your question is poorly worded, as it is framed within the English common law and "citizen" wasn't used in English common law to refer to person in England.
Now, a better-phrased question would ask if "subject" and "citizen" are proper analogies as between two sets of common law: England and American. As to that, the SCOTUS in Wong Kim Ark has given us the answer:
"The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a "subject of the king" is now "a citizen of the State."
Now, I'm sure Mario will seek to jump in here as before with the point the Gaston opinion is talking just about state law. So here's my reply to that (which he never acknowledged):
"So why then is Justice Gray citing a state law decision in a federal/Constitutional case? The easy answer is that "just as the state court recognized that "subject" and "citizen" were analogous terms, so, too, J. Gray is citing that for the proposition that "citizen" and "subject" are analogous for purposes of a federal citizenship question."
And Justice Gray cites with obvious approval the commentary of Chancellor Kent:
"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."
And, as I've noted, Justice Gray cites as well with approval to U.S. v. Rhodes:
"All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
Again, per the SCOTUS as to the question of allegiance at birth, "subject" and "citizen" are interchangeable terms.
Then explain why should English "subject" be analogous with US "citizen"?
Answer: Because the United States Supreme Court, when comparing "natural born subject" and "natural born citizen," tells us the terms are "precisely analogous."
That's why, Michael.
@BrianH
ReplyDeleteIt wasn't just Chief Justice Fuller who understood the implications of declaring Wong a citizen by birth in the United States. In the appellant brief filed in the Wong case, the government attorneys said this about the lower district court ruling:
"The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen."
But here is the thing, District Curt Judge Morrow in his ruloing in the Wong case never used the term "natural born citizen". He only said that WOng was a citizen by his birth in the US.
A dissertation on the nature of the Constitutional usage and status of “natural born Citizen” as found in A2S1C5 of the COTUS.
ReplyDeleteSLC 10 July 2012
Small words were used in forming the subject provision; " ... no person except a natural born Citizen shall be eligible for the Office of president..."
The historical record that is generally accepted as the origin of the insertion of the term of words “natural born Citizen” into the Constitution at A2S1C5 was the penning of a letter by John Jay addressed to George Washington in his capacity of President of the Constitutional Convention;
" … "New-York, 25th July, 1787.
Dear Sir,
Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.
I remain, dear sir,
Your faithful friend and servant,
John Jay."
Although John Jay was not a “delegate” at the Convention it is not out of context to consider him as being a “Delegate at Large” given his status among the “Indispensable Men” within attendance evidenced by the thoughts later expressed by John Adams;
“… Jay was "of more importance than any of the rest, indeed of almost as much weight as all the rest…"
John Jay was occupying the Office of Secretary of Foreign Affairs under the authority of the Articles of Confederation and later participated in the penning of the Federalist Papers with Hamilton and Madison.
[The Matter of Authorship - Of the eighty-five Federalist letters, all published under the pseudonym "Publius" (the name taken from Publius Valerius Publicola, a founder and defender of the Roman republic), only four drafts are extant, and all four are in Jay's hand.]
The above citation suggests that John Jay was a student of history and that “all roads lead to Rome” when the subject of “republican” forms of guv’mnt arises. The likes of the Scipio’s. Cato, Pliny, Cicero, among others, defined the application of ‘republicanism’ in the 450 years (approx) of the Roman Republic, yet the “Western” version of a ‘republic’ has been considered best defined by Aristotle’s Books of Politic’s, and when considering the subject matter at hand, “citizenship” is laid bare in his Book III;
“Part I
He who would inquire into the essence and attributes of various kinds of governments must first of all determine 'What is a state?' At present this is a disputed question. Some say that the state has done a certain act; others, no, not the state, but the oligarchy or the tyrant. And the legislator or statesman is concerned entirely with the state; a constitution or government being an arrangement of the inhabitants of a state.
But a state is composite, like any other whole made up of many parts; these are the citizens, who compose it. It is evident, therefore, that we must begin by asking, Who is the citizen, and what is the meaning of the term? For here again there may be a difference of opinion. He who is a citizen in a democracy will often not be a citizen in an oligarchy.
Leaving out of consideration those who have been made citizens, or who have obtained the name of citizen any other accidental manner, we may say, first, that a citizen is not a citizen because he lives in a certain place, for resident aliens and slaves share in the place; nor is he a citizen who has no legal right except that of suing and being sued; for this right may be enjoyed under the provisions of a treaty.
Cont;
ReplyDeleteNay, resident aliens in many places do not possess even such rights completely, for they are obliged to have a patron, so that they do but imperfectly participate in citizenship, and we call them citizens only in a qualified sense, as we might apply the term to children who are too young to be on the register, or to old men who have been relieved from state duties. Of these we do not say quite simply that they are citizens, but add in the one case that they are not of age, and in the other, that they are past the age, or something of that sort; the precise expression is immaterial, for our meaning is clear.
Similar difficulties to those which I have mentioned may be raised and answered about deprived citizens and about exiles. But the citizen whom we are seeking to define is a citizen in the strictest sense, against whom no such exception can be taken, and his special characteristic is that he shares in the administration of justice, and in offices. Now of offices some are discontinuous, and the same persons are not allowed to hold them twice, or can only hold them after a fixed interval; others have no limit of time- for example, the office of a dicast or ecclesiast. It may, indeed, be argued that these are not magistrates at all, and that their functions give them no share in the government.
But surely it is ridiculous to say that those who have the power do not govern. Let us not dwell further upon this, which is a purely verbal question; what we want is a common term including both dicast and ecclesiast. Let us, for the sake of distinction, call it 'indefinite office,' and we will assume that those who share in such office are citizens. This is the most comprehensive definition of a citizen, and best suits all those who are generally so called.
But we must not forget that things of which the underlying principles differ in kind, one of them being first, another second, another third, have, when regarded in this relation, nothing, or hardly anything, worth mentioning in common.
Now we see that governments differ in kind, and that some of them are prior and that others are posterior; those which are faulty or perverted are necessarily posterior to those which are perfect. (What we mean by perversion will be hereafter explained.)
The citizen then of necessity differs under each form of government; and our definition is best adapted to the citizen of a democracy; but not necessarily to other states. For in some states the people are not acknowledged, nor have they any regular assembly, but only extraordinary ones; and suits are distributed by sections among the magistrates.
At Lacedaemon, for instance, the Ephors determine suits about contracts, which they distribute among themselves, while the elders are judges of homicide, and other causes are decided by other magistrates.
A similar principle prevails at Carthage; there certain magistrates decide all causes. We may, indeed, modify our definition of the citizen so as to include these states. In them it is the holder of a definite, not of an indefinite office, who legislates and judges, and to some or all such holders of definite offices is reserved the right of deliberating or judging about some things or about all things.
The conception of the citizen now begins to clear up.
He who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizens of that state; and, speaking generally, a state is a body of citizens sufficing for the purposes of life.
Part II
But in practice a citizen is defined to be one of whom both the parents are citizens; others insist on going further back; say to two or three or more ancestors.
Cont;
ReplyDeleteThis is a short and practical definition but there are some who raise the further question: How this third or fourth ancestor came to be a citizen? Gorgias of Leontini, partly because he was in a difficulty, partly in irony, said- 'Mortars are what is made by the mortar-makers, and the citizens of Larissa are those who are made by the magistrates; for it is their trade to make Larissaeans.'
Yet the question is really simple, for, if according to the definition just given they shared in the government, they were citizens. This is a better definition than the other. For the words, 'born of a father or mother who is a citizen,' cannot possibly apply to the first inhabitants or founders of a state…”
I do not know if John Jay ever laid eye’s on Aristotle’s Books, nor do I know with absolute certainty that he had been influenced in any way by Emmrich de Vattel. What I am certain of his that Vattel was greatly influenced by Aristotle’s works, the latter being honored as the great philosopher of the natural laws.
Vattel followed in the traditions of Aristotle and codified the compilations of considerations attending to the various forms of guv’mnt and in the chapters dealing with the formation of a new ‘state’ under a republican form of constitutional guv’mnt he opined;
CHAP. XIX. OF OUR NATIVE COUNTRY, AND SEVERAL THINGS THAT RELATE TO IT.
§ 211. What is our country.
THE whole of the countries possessed by a nation and subject to its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country (§ 122), because our subject led us to treat of the love of our country — a virtue so excellent and so necessary in a state. Supposing, then, this definition already known, it remains that we should explain several things that have a relation to this subject, and answer the questions that naturally arise from it.
§ 212. Citizens and natives.
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.
Much has been made regarding the translation from the original French to English but the “context” of the relevant passage makes clear that the “indigenous and natives” are intended to refer to the prodigy of the Founding Generation of a new State and is made even more clear when read in the light of the passages that followed, specifically § 213 to § 233.
So the question is, what's the big deal in not being able to get beyond the contrived ambiguity of the “term of words” and applying the legal requirement to any and all 'persons' that aspire to the office of POTUS...?
Cont;
ReplyDeleteThe fact that both 'natural born Citizen' and 'citizen' were used in the original and complete text of the subject Clause informs us that the 'citizens' at the time of adoption of the COTUS would be exempt from the fullness of the exclusionary provision which leads to the conclusion that the provision also 'established' a doctrine of 'inheritable Citizenship', by the words used and by what the used words then required.
What was left to the promulgation’s of the Congress was whether Citizenship would be inherited by blood, the doctrine of Jus Sanguinis in Latin, or by birth within the territory of a ‘State’, the doctrine of Jus Soli in Latin, would be the uniform Rule of the new Nations national naturalization.
“ … To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; …´A1S8C4
The objects and meanings of the provision are obvious on the surface, however, there is a perceptible nuance in its construction to those so disposed to parse intents.
Treaties of Peace had been made and commerce was in full bloom among the newly free and independent States and there existed inter-state, intra-state and inter-national contracts written under well known Rules of commerce. Therefore the need for new Rules governing Bankruptcy would have been an unwelcome intrusion upon commerce as a whole, but establishing uniform laws of bankruptcy that were in conformity to the established Rules of commerce among the States was required to fulfill the obligations of Article IV Section 1, Full faith and credit Clause.
But when we look to the words of the naturalization provision and apply the rules of “precise language” to the construction of the provision while holding them to the light of the context of their need and purpose to the “new Nation” we can dispel the basis of the willy-nilly conclusions later drawn in many of the institutions of trust.
Foregoing the offering of a primer on “precise language” let it suffice to know that those who oversaw the ‘style and form’ of the Constitutions construction were generally well read and linguistically concerned to the extent that the hierarchical distinction between the words and usage’s of “Rule” and “Laws” were not lost to them.
In that hierarchical scheme a “Rule” is the guiding principle upon which laws find their authority, ergo, “laws” are regulations that conform activities to the intents of the guiding principle.
It was then left to the Congress to establish an uniform Rule of naturalization; providing that such a Rule would be consistent with the requirements of the COTUS.
In being a 'new' sovereign nation it was the right of the nation to say who was and could be its Citizens; the 1st U.S. Citizens being only those that were "Citizens" of a signatory State upon adoption, and NO OTHERS. (see Scott v Sandford as construed from the 1790 / '95 Acts)
Naturalization being the process of 'conferring' citizenship upon “aliens” requires then the promulgation of attending laws of process that conforms the “alien” to the nature of a Citizen.
Some of the separate States had and continued to apply the doctrine of inherited citizenship by blood while some chose citizenship at birth to the soil.
The 1790 Act established " inherited citizenship by the blood of the father, Jus Sanguinis" as the legislated uniform Rule of citizenship under the authority of the naturalization Act.
The proof of this is found in the zeal of the Congress to extend the privilege of being born a natural born Citizen to even those children born abroad to a married U.S. Citizen father, with the recognition that women were “considered as” being of the same citizenship as the husband/father.
Cont;
ReplyDeleteFurther proof is provided in that the minor children of a newly naturalized alien were then also “considered as” citizens, provided that they were residing with the father in the U.S. and, as before stated, with the recognition that women were “considered as” being of the same citizenship as the husband/father.
That some States continued to apply the Jus Soli doctrine within their States was ended with the 1795 Act, which also ended the 'foreign born natural born Citizen provision'.
"... SEC.1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: -- "
" ... and not otherwise: -- "
In dissecting and parsing these two Acts it is made obvious who were "aliens".
Everyone who was not a Citizen of a State upon adoption; or not born to Citizen parents; or had not completed the process of naturalization as defined in the Acts.
______________________________
The word "alien" was used as a general term to describe all manner of 'persons', vagrants, vagabonds, adventurers, indentured and bond servants, many of which might, within and upon due process, be conformable to the nature of a Citizen within the process of naturalization.
Both Acts also identified a specific 'class' of persons who were proscribed from being eligible for naturalization without the various States pass a specific piece of legislation allowing such a person to be eligible;
"SEC 3. "... That no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen as foresaid, without the consent of the legislature of the state, in which such person was proscribed."
I point out these specifics in order to dispel the 'notion' that “citizen of the soil”, Jus Soli, was ever a "Rule" under the Constitution as interpreted and applied by and in the Acts of 1790 / ‘95.
Further, in spite of the flawed interpretations of the 14th Amendments declaratory collective naturalization "born" statement and the greatly flawed and misinterpreted WKA Opinion, (which chose foreign law over the Acts of the U.S. Congress in a willy-nilly fashion), there has been NO Amendments to the subject 'provision' A2S1C5 that would in any way affect or effect the nature of a natural born Citizen.
It was the intent of the Constitution to be framed as a Static document of Laws, Rules and Regulations designed to at once constrain the dynamic processes of Guv'mnt and to unleash the dynamic processes of individual Liberties.
The nature of a Constitutional natural born Citizen remains Static, since the repeal of the 1790 Act and replacement by the 1795 Act, a proposition that is voiced by the Opinion of Justice Waite in the Minor V Opinion regarding the 14th Amdmt;
"...The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had...."[Pg 171]
The “circumstance” of natural born Citizen, plucked from the history of its usage and set apart in a singular manner from all prior usage’s while retaining its prior substance as voiced by Aristotle and further illustrated by Vattel within the light of similar reasoning, but now being imbued with the "privilege" excluding all others to the “legal right” to the Executive Office and too, being immune from any review or obligations of any subsequent requirements of naturalization Acts.
Cont;
ReplyDeleteYet, the U.S. natural born Citizen has been made an Orphan for want of “legal” acknowledgement.
Being or not being a U.S. natural born Citizen is a Citizenship question in the 1st instant under the Rule of Law, but by virtue of the term of words being used within the Constitution for the specific exclusionary purpose within A2S1C5, it also is attached with a "transient Political nature" which is subject to Separation of Powers concerns making it alterable only by the Amendment process.
These several combinations of aspects combine to make "term of words" a wholly American "idiom" when discussed in the context of the COTUS.
Currently there is NO uniformly acknowledged legal, (enforceable), definition of natural born Citizen within the Federal Guv'mnt or among the various States.
Therefore the provision is rendered to be without effect making the “legality” of the occupancy of the Office of POTUS as ambiguous as the status of the “idiom”, the U.S. natural born Citizen.
Justice Gray in the WKA case was NOT applying the principles of jurisprudence and starie dices as "Blackstone" would have approved.
ReplyDeleteGray was APPLYING ENGLAND'S Statutory Laws as Dictated by Queen Anne, et seq and COMPLETELY ignored the 1790 /'95 Acts of the U.S. Congress in his convoluted distortion of the history of U.S. Citizenship..........
Justice Waite was clear in the Minor v Opinion;
"...The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had...."[Pg 171]
The 14th was/is a "Collective naturalization provision" meant to ensure that the children born to emancipated persons would be born as citizens whether their parents had 'naturalized' or not.
The ONLY remaining effect of the Th's "born citizen provision" is to provide persons who otherwise have NO CLAIM to the benefit, all others acquire Citizenship via Jus Sanquinis, whether by 1 or 2 citizen parents under Title 8.
"Without detracting, therefore, from the real merits which abound in the imperial law, I
ReplyDeletehope I may have leave to assert, that if an Englishman must be ignorant of either the
one or the other, he had better be a stranger to the Roman than the English
institutions. For I think it an undeniable position, that a competent knowledge of the
laws of that society *
in which we live, is the proper accomplishment of every
gentleman and scholar; an highly useful, I had almost said
essential, part of liberal and polite education. And in this I am warranted by the
example of ancient Rome; where, as Cicero informs us,(a) the very boys were obliged
to learn the twelve tables by heart, as a carmen necessarium or indispensable lesson,
to imprint on their tender minds an early knowledge of the laws and constitution of
their country.1"
http://files.libertyfund.org/files/2140/Blackstone_1387-01_EBk_v6.0.pdf
From Blackstone's own introduction. The admonishen to learn the Laws of your own Country 1st.
@ BrianH
ReplyDeleteMichaelN said ..
"So it was not native-birth alone, that made a natural born subject ....... right?"
BrianH said ....
"Wrong. Read the SCOTUS again: "EVERY child born in England of alien parents was a natural-born subject."
BrianH, No, I am not wrong.
YOU refuse to face the truth.
I have already shown you that the English common law requires the father to be a "subject", and if he is not a "subject", then his child cannot be a "subject", even if native-born.
So the notion that "every child born in England of alien parents was a natural-born subject" is a LIE!
Here is the English common law from Calvin's case, which Horace Gray cites in WKA.
Lord Coke:
"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, nor under the protection of the King."
So as you assert, that US "citizen" and English "subject" are analogous, then if that is so, it would require an alien father to become a US "citizen" for his child, if born in US, to be a "natural born citizen".
Now on another matter.
What do you think of the US Citizenship and Imigration Service recognizing TWO types of born US citizens, i.e. native-born and natural-born?
Are you going to pretend it doesn't exist?
"The words "shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922", as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of NATIVE-born or NATURAL-born citizen (WHICHEVER existed prior to the loss) as of the date citizenship was reacquired."
http://naturalborncitizen.wordpress.com/2012/01/25/the-current-ins-officially-recognizes-a-delineation-between-natural-born-and-native-born/
Here's some more recommended reading for you BrianH, it might help with your denial problem.
http://naturalborncitizen.wordpress.com/
BrianH said...
ReplyDelete@Mario A
"If we examine what rule Justice Gray referred to, he told us what that English “common law” rule was. He told us that under that rule a person could be born to alien parents and still be considered a “natural born subject.”
"Exactly!! That's the thrust of Part II of his opinion. Now kindly explain this to Michael, who doesn't seem to want to acknowledge this.
And Justice Gray then noted how that "same rule" was carried across the ocean and recognized in America, such that a person could be born to alien parents and still be a natural born citizen. That's the thrust of Part III of his opinion."
BrianH the "rule" that native-birth gives one a right to membership of a civil and political community (subject to other criteria) surely was recognized by by the Framers.
You fail to acknowledge that there was NO RULE to be 'carried across' for eligibility criteria for a president of a republic.
The only "rule" which acknowledges anything like the English "rule" is the 14th Amendment, which merely describes the two means to become a (super-set) citizen.
The English "rule" had NOTHING to do with eligibility criteria for a president of a republic.
If you look more closely at the English monarchical system, you just might be able to grasp another "rule", like the principle of sovereignty via natural lineage.
Then if you consider that the US citizens are each (collective) sovereigns, it makes perfect sense that for highest office (much like a monarch) one must inherit the sovereignty.
An English "natural born subject" was one who MUST be "born under the ligeance of a subject", otherwise they would NOT be a "subject' at all, even if born in the realm.
THAT is the English common law's holding per Lord Coke (Calvin's case)